This is a copy of my proposals, listed after my comments (which have been posted separately as Section 1) submitted to Miriam Sapiro and Sebastien Bachollet:
Proposal 1: I am concerned that ICANN’s selection of New gTLDs may damage or destroy the already existent business interests of companies who administer TLDs in alternate roots which have grown in use (for example in Europe) and constitute legitimate use of the worldwide net, and legitimate business interests. ICANN should avoid the cavalier attitude to TLDs which already exist (such as the .biz registry that was already operating prior to Neulevel’s .biz). Introduction of identically-named TLDs is a recipe for consumer confusion, and is arguably an abuse of the very principles on the IP case for Sunrise rests. I propose that where there are existent TLDs every effort should be made to consider their interests and the interests of the public (who has a right to viable alternate roots).
Proposal 2: I propose the creation of criteria-based methodology for authorizing New gTLDs, rather than the possibly subjective ‘selection of favourites’. If applicant registries can meet firm and fixed criteria, then they should be allowed to proceed, and the market should determine their success or otherwise. The adoption of this process will help avoid charges of favouritism, help clarify expectations (which were vague and unclear last time round), and allow for the emergence of probably 25 to 50 New TLDs in the next 5 years. There appears to be no technical argument for preventing this expansion, although, as I shall explain in (3) I believe there are staffing and logistical difficulties.
Proposal 3: I propose that the functions presently carried out by ICANN should be divided, and allocated to separate entities, either inside or outside ICANN. This should be accompanied by a substantial increase in funding and staff allocation. Tasks (such as this Evaluation Report) should be advertised and put out to public tender, to introduce and attract more competition worldwide, with appropriate remuneration to follow. I suggest that – to meet the large-scale expansion of the namespace and introduction of new registries – it is essential (in the light of the poor and confused performance of ICANN overseeing just 7 TLDs) that either ICANN or alternative agencies are provided with the staff and resources to draw up, adapt, and implement rigorous and watertight contractual agreements with new registries. Increased funding should come either from a ‘surplus’ added to domain costs, or from governmental contributions (either USG or UN). The scale of ICANN’s operations is too small to handle the expanding worldwide resource for which it has oversight.
Proposal 4: I propose that there should be a demarcation between businesses which operate the Registries and businesses which operate as Registrars. The experience of Afilias was demonstration of the conflicts of interest that can occur when a cartel of registrars take control of a registry – there was, for example, no justfication for DomainBank to charge $15000 to one registrant to submit Sunrise applications without data (in breach of Afilias rules), or for Afilias to accept those applications (in breach of its own rules) and register the ineligible names. As a result, the customer (William Lorenz) lost out because he was sold a product which was not allowed to be submitted; Landrush customers lost out, because these names were then ‘out’ of the Landrush; but both DomainBank and Afilias gained – gained money for a ‘non-product’. The fact that Hal Lubsen the Afilias CEO is also a long-term executive of DomainBank does not enhance trust in the process. Nor did the Afilias Director from Speednames, whose company charged over $500,000 to submit 4981 fakes for a single customer. Nor did Afilias Director Govinda Leopold, when she entered false data for govinda.info, maui.info and Hawaii.info – resulting in loss for customers who’d bought pre-registrations to have a chance with any of these. There should be a ‘divide’ between the functions of Registry and the functions of Registrar – to avoid conflict of interest.
Proposal 5: Where Agreements are set up (in the public interest) between ICANN and a Registry, ICANN must have powers and sanctions to enforce these Agreements, and should accept a responsibility to intervene when the terms of the Agreement are being broken. The Agreement itself should include punitive financial sanctions and potential loss of the registry rights to a TLD, if a registry fails to uphold its own rules or the clauses of the Agreement.
Proposal 6: The chaos of the .info Sunrise and the legal challenge to Neulevel’s lottery are a clear demonstration of the poorly-drafted, poorly-advised basis of the ICANN-Registry agreements, which were seriously lacking in rigour and proposed processes which were shattered by opportunists who could drive right through them and abuse the systems. The agreements made between ICANN and a registry should be subject to legal scrutiny and advice which is wholly independent of their own parties (Joe Sims, if involved, was too close in my opinion) and not associated with them.
Proposal 7: There were some perceived conflicts of interests in the selection process for registries for the previous round of New gTLDs. Some people involved with the setting up of the Afilias cartel had already been intimately involved with ICANN (for example Ken Stubbs). There is therefore a strong case to be made for removing ICANN from the selection process for new registries, on the grounds that it is too closely associated with the registry and registrar community, and that a new process – based on objective criteria which simply have to be met – should be overseen by a more independent entity (to avoid charges of conflict of interest or favouritism, whether fair or not). This is a world resource we are discussing, and the selection processes to date have been too subjective, too ‘incestuous’ and frankly, too limited in the distribution of opportunities thus far afforded. The world resource which is the DNS must be seen to be administered openly and independently of what might be termed the small ‘insider’ community which ICANN has created around itself. Therefore it would be better if authorization of new Registries was not carried out by ICANN itself.
Proposal 8: To safeguard the fair distribution of the DNS, particularly at the launch of New TLDs, it is essential that both ICANN and the registries adopt Responsiveness Policies (even though this will have staffing implications). In the case of the .info Sunrise, for example, it was the public who brought the collapse of the process to notice, and who provided most of the evidence, and was making constructive proposals to undo the damage and limit the harm to consumers. Fair and serious concerns and questions were brought to ICANN, and ICANN was craven in its failure to engage or respond. This should never happen again. As a safeguard, ICANN and all new registries should be obliged to commit to a Responsiveness Policy, along the lines of the one modeled in Australia by their ccTLD, setting out maximum time allowed for responses, and a watchdog to oversee quality of responses provided. ICANN’s current proposals for an Ombudsman/person should be altered to make this Ombudsman/person wholly independent of ICANN itself – ICANN should have a clear responsiveness policy which is not policed by themselves, to ensure transparency and accountability in the way they administer a world resource. There was a demonstrable lack of responsiveness at critical moments in the launch of the previous TLDs.
Proposal 9: I propose a more open and rolling Evaluation Process, with clear publication of agenda, discussion lists, and all relevant and contributed material. Registry Evaluation Reports were a contractual and mandatory obligation, and had to be submitted to ICANN, and be available for publication. The publication of these reports was long delayed and has not been completed, resulting in the obstruction of that process of open evaluation by all interested parties which should have taken place. Indeed, the Task Group which was set up to propose the methodology by which the New gTLDs were evaluated (a methodology which was adopted by the ICANN Board) highlighted the need for this Registry data if ICANN was to attract the participation of all constituencies in the Evaluation of the “Proof of Concept” which these TLDs were supposed to be selected for. I propose that the belated and limited process (of which this questionnaire is a part) should be extended and made much more transparent in its formative stages. It should have involved the early publication of Registry Evaluation Reports. And this Evaluation Process, now being overseen by Sebastien Bachollet, should from the outset have been much more transparent, with a web interface, a rolling and published timetable and publication of all submissions as they occurred (to afford open and public discussion and contributions) and to enable various constituencies and individuals to have greater ‘ownership’ of the process. There has been a perception that ICANN wanted to avoid an open and public evaluation (which might involve some of the very questions they found awkward and have studiously avoided). I propose that all Evaluation from this point onwards should be (a) rolling and not merely retrospective (b) based on an open web interface with publication of all contributions (c) staffed independently of ICANN (d) informed by rolling agenda, clearly stated and tied to clear timescales (e) supported by a moderated mailing list.
Proposal 10: I propose that ICANN’s system of accreditation should be reviewed in the light of specific abuse of process by specific registrars during the launch period of the previous gTLDs. I propose that a Registrars “Code of Conduct” should be mandatory for all those registrars who wish to be endorsed with the industry’s main “accreditation”, and that accreditation should constitute a professional endorsement that brings with it specific standards, accountabilities, and sanctions for those who breach such standards. In the event of fraud such as was demonstrated in the .info Sunrise, accreditation should be removed to protect the public. In the case of Resellers, Tucows (for example) should impose similar and equivalent standards and codes of conduct on their resellers. Whereas ICANN has tended to avoid ‘enforcement’ and espoused a laissez-faire approach, it has been seen that the implications and effects of ICANN policy and agreements impact on consumers, and that the world DNS needs to be guarded by specificity and precision in the way registries and registrars operate – if left to local trading standards, it becomes almost impossible for consumers to pursue distant registrars in distant lands – ICANN, as overseer of agreements for New gTLDs, has a responsibility to try to foresee the implications of its policies, and to pre-empt problems. Part of that pro-active approach should include precise powers set in place to sanction and intervene. Future contracts/agreements should only be granted to Registries willing to accept enforcement and sanction, and Registries relationships with registrars should be similarly constrained, precisely and specifically. ICANN, or whatever entity is responsible for the setting up of new registries and new gTLDs, should move from laissez-faire let the consumer sink or swim, to pre-emptive constraint of cowboy activity and a commitment to intervention in pursuit of the best standards and the integrity of the processes.
Proposal 11: I propose that a specific gTLD be designated as an ‘identifier’ for trademark holders (for example .reg or a similar suffix) but that the Sunrise principle be abandoned for all other gTLDs. If ICANN is unwilling to do this, then a process of retrospective checking should be set in place, along the lines of the ‘Domebase’ approach proposed in the .info launch by Professor Connor and myself in similar forms: namely, that all names should be open and available for Landrush, but allocation of these names would be “provisional”, and where previously staked Trademarks have been submitted, the domains will be ‘locked’ until the trademark claims have been checked with formal documentation submitted. If Sunrise was to be perpetuated for many TLDs, this documentation would only need to be submitted once to be applicable for all TLDs. However, there should be a principle of ALL domain names being ‘provisionally’ available to the public at the time of Landrush. People do not mind waiting if they believe the process is rigorous – they would have accepted this solution for the .info distribution and the fiasco would have been largely averted.
In detail, you would have a timescale like this:
March 200x: Submission of Sunrise Trademark claims (initial data, checked for obvious invalid data).
June 200x: Publication of all domain names where Trademark claims have been submitted.
August 200x: End of 8 week period for submission of pre-registrations for Landrush.
September 200x: Process of “provisional allocation” of domains at Landrush. Immediate registration granted where there is no Trademark claim. Name placed on “hold” where a Trademark claim awaits verification.
October 200x to March 200y: Verification of Trademark Claims.
March 200y: Where the Verification succeeds, the domain passes to the Sunrise claimant. Where the Verification has failed by the deadline, the domain passes to the Landrush applicant.
Proposal 12: I propose that Registrars and their associates should be obliged to abide by specific rules, common to all, to ensure a level playing field in the Round Robin / Landrush distribution of domain names for a New gTLD: (a) all registrars must have a website, and an application interface accessible to all; (b) registrars themselves may not apply for themselves through their own company, and nor may their associates – registrars may not warehouse domain names; (c) each registrar will be allocated 5000 spaces in the Round Robin queue – if they have 4500 applications then in the Round Robin they will have 4500 named ‘turns’ and 500 ‘blanks’ all mixed up… if they have just 20 applications, then in the Round Robin they will have 20 named ‘turns’ and 4980 ‘blanks’ all mixed up : either way, each applicant / member of the public will have the same chance with one registrar as with another, and so registrars will not be able to game the system with “short lists” – no domain name will be applied for more than once by any one registrar – multiple applications for the same name will not be allowed (d) the names applied for by each registrar (but not the registrants) will be published by the Registry to demonstrate fairness of process.
Proposal 13: In order to strengthen public participation in the governance of all TLDs, I propose that with each registration of a domain name, there should be an accompanying opt in/opt out membership of the At Large, the organization of individual users of the internet all round the world. While membership and participation in the At Large should not be limited to domain registrants, it would greatly strengthen representation and participation of the public, if people were ‘involved’ at the point of registering a domain, and this would go a long way to demonstrating to USG, to UN, to ITU, to World, that the whole world has a direct share in net governance and an opt-in at the point of getting a domain. I would advocate that this opt-in / opt-out was made part of the mandatory data submitted by registrars to registry, and that involvement and representation of ordinary people in their own resource be made fundamental to the future of ‘our’ internet and the governance of its DNS. This could be taken further, by making it conditional for all applicants for new registries, that they agree to an At Large representative of ordinary internet users having a place on their Board. The same, of course, should also apply to ICANN.
APPENDIX 1 to RICHARD HENDERSON’S INTERVIEW :
As a demonstration of the extent of the fraud and abuse of process carried out in the .info Sunrise, I refer you to the following link to ICANNWatch.org where the detail of activities by registrars and the Afilias cartel in particular makes compelling and shocking reading. You have to take time to read the threads, but the cumulative effect of the posts is a demonstration of the way the process was abused, with disturbing conflicts of interest being exposed:
APPENDIX 2 to RICHARD HENDERSON’S INTERVIEW :
I have previously expressed concerns about the Evaluation Process in which I am here taking part. While I am grateful for the opportunity and invitation to participate, I refer you to the essay I have published at ICANNWatch, outlining the history of the New gTLDs Evaluation Process and misgivings I have expressed in the past: