Difference between revisions of "ICANN"

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(ICANN's Answer to Sub-Committee Members' Inquiries)
(Manwin Anti-Trust Lawsuit)
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[[Manwin]], one of the most prominent adult content producers on the Internet, filed an Anti-Trust suit against both [[ICM Registry]] and ICANN over the creation and implementation of the .xxx TLD. This legal action took place in November, 2011, well after the TLD's approval and just before its general availability.<ref>[http://www.thedomains.com/2011/11/16/bbreaking-owner-of-youporn-com-plans-to-file-suit-against-icm-icann-over-xxx/ Owner of YouPorn.com Plans to File Suit Against ICM ICANN over XXX, TheDomains.com]</ref> It also filed an [[IRP|Independent Review Panel]] (IRP) Request with ICANN, making it only the second company ever to do so (the first being ICM Registry itself). Manwin felt that ICANN's decision to allow .xxx into the root did not “adequately address issues including competition, consumer protection, malicious abuse and rights protection prior to approving the .xxx TLD."<ref>[http://domainincite.com/youporn-challenges-new-gtlds-with-review-demand/ YouPorn Challenges New gTLDs with Review Demand, DomainIncite.com]</ref>
 
[[Manwin]], one of the most prominent adult content producers on the Internet, filed an Anti-Trust suit against both [[ICM Registry]] and ICANN over the creation and implementation of the .xxx TLD. This legal action took place in November, 2011, well after the TLD's approval and just before its general availability.<ref>[http://www.thedomains.com/2011/11/16/bbreaking-owner-of-youporn-com-plans-to-file-suit-against-icm-icann-over-xxx/ Owner of YouPorn.com Plans to File Suit Against ICM ICANN over XXX, TheDomains.com]</ref> It also filed an [[IRP|Independent Review Panel]] (IRP) Request with ICANN, making it only the second company ever to do so (the first being ICM Registry itself). Manwin felt that ICANN's decision to allow .xxx into the root did not “adequately address issues including competition, consumer protection, malicious abuse and rights protection prior to approving the .xxx TLD."<ref>[http://domainincite.com/youporn-challenges-new-gtlds-with-review-demand/ YouPorn Challenges New gTLDs with Review Demand, DomainIncite.com]</ref>
  
In January 2012, ICANN and ICM both filed motions to dismiss the case. ICANN argued that, as it was an organization not engaged in "trade or commerce," the US anti-trust laws did not apply to it; additionally, both ICM and ICANN argued that Manwin's filing was essentially complaining about the possible increase in competition for them. ICM cited that Manwin had earlier attempt to approach them with a supposed mutually-beneficial agreement, in which Manwin would acquire various premium .xxx domains for free, in exchange sharing the profits of these domains with ICM. When ICM turned down the agreement, Manwin Managing Partner Fabian Thylmann said that he would do whatever he could to stop .xxx.<ref>[http://domainincite.com/icann-antitrust-law-does-not-apply-to-us/ ICANN: antitrust law does not apply to us, domainincite.com]</ref> ICANN's and ICM's motions to dismiss can be found [http://domainincite.com/docs/icann-manwin-motion-to-dismiss.pdf here] and [http://domainincite.com/docs/manwin-icm-motion-to-dismiss-2.pdf here] respectively.
+
In January 2012, ICANN and ICM both filed motions to dismiss the case. ICANN argued that, it is a not-for-profit organization and it is not engaged in "trade or commerce," the US anti-trust laws doest not apply to it; additionally, both ICM and ICANN argued that Manwin's filing was essentially complaining about the possible increase in competition for them. ICM cited that Manwin had earlier attempt to approach them with a supposed mutually-beneficial agreement, in which Manwin would acquire various premium .xxx domains for free, in exchange sharing the profits of these domains with ICM. When ICM turned down the agreement, Manwin Managing Partner Fabian Thylmann said that he would do whatever he could to stop .xxx.<ref>[http://domainincite.com/icann-antitrust-law-does-not-apply-to-us/ ICANN: antitrust law does not apply to us, domainincite.com]</ref> ICANN's and ICM's motions to dismiss can be found [http://domainincite.com/docs/icann-manwin-motion-to-dismiss.pdf here] and [http://domainincite.com/docs/manwin-icm-motion-to-dismiss-2.pdf here] respectively.
  
 
In mid-February, 2012, all plaintiffs and defendants announced that they were in talks and hoping to resolve some to all of the outstanding complaints.<ref>[http://domainincite.com/icm-and-youporn-in-antitrust-settlement-talks/ ICM and YouPorn in AntiTrust Settlement Talks, DomainIncite.com]</ref>
 
In mid-February, 2012, all plaintiffs and defendants announced that they were in talks and hoping to resolve some to all of the outstanding complaints.<ref>[http://domainincite.com/icm-and-youporn-in-antitrust-settlement-talks/ ICM and YouPorn in AntiTrust Settlement Talks, DomainIncite.com]</ref>

Revision as of 03:01, 1 May 2012

ICANNLogo.png
ICANNWiki Gold Sponsor
Type: Private, Non-Profit
Industry: Internet Protocol Management
Founded: 1998
Headquarters: 4676 Admiralty Way # 330,
Marina del Rey, CA, USA
Employees: 140 employees
Revenue: 63.6 million (2010)
Website: icann.org
Blog: blog.icann.org
Facebook: icannorg
LinkedIn: ICANN
Twitter: TwitterIcon.png@ICANN
Key People
Rod Beckstrom, CEO and President

Steve Crocker, Chair of the Board

ICANN is an acronym for the Internet Corporation for Assigned Names and Numbers, a global multi-stakeholder organization that was created and empowered through actions by the U.S. government and its Department of Commerce.[1] It coordinates the Internet DNS, IP addresses and autonomous system numbers; which involves a continued management of these evolving systems and the protocols that underly them.

While ICANN has its roots in the U.S. government, it is now, and continues to strive to be, an international, community driven organization. Their management of an interoperable Internet covers 180 million domain names, the allocation of more than 4 billion network addresses, and the support of approximately a trillion DNS look-ups everyday across 240 countries.[2]

ICANN collaborates with companies, individuals, and governments to ensure the continued success of the Internet. It holds meetings three times a year, switching the international location for each meeting; one of these serves as the annual general meeting when the new ICANN Board members take their seats.[3]

Organization & Structure

It is central to ICANN's mission that the organization itself is structured in a way that welcomes a variety of voices and seeks to represent the extremely diverse constituencies with continued interest in the Internet's development, from registries, to corporations, to individual Internet users. Naturally, throughout ICANN's structural development there have been critics who have taken issue with closed-door sessions, the role of the U.S. Department of Commerce, and other structural and procedural rules.[4] ICANN has recently been described as being in a contentious oversight situation; with some countries calling for all U.S. influence to be removed from the organization by subordinating it to the U.N.'s jurisdiction, or suggesting similar solutions.[5] ICANN's structure and process is outlined in the ICANN Bylaws.

Board of Directors

Main article: ICANN Board

ICANN is governed by a Board of Directors made up of 15 voting members,[6] and the President and CEO, who is also a voting member. The board is further aided by 5 non-voting liaisons.[7] From its inception until December, 2011, being a board member was a voluntary position. At that time, the ICANN Board responded to mounting pressure regarding conflicts of interest and the notion that compensation would create a more professional and accountable body by awarding themselves a $35,000 annual salary.[8]

Current Board of Directors

The 15 current directors, and the current CEO, are listed below, along with the organization which nominated them and the length of their term:[9]

Current Non-Voting Liaisons

GNSO

Main article: GNSO

The Generic Names Supporting Organization (GNSO) brings together smaller stakeholder groups, which in turn bring together constituencies and other groups, together into one Supporting Organization to develop policies, form consensus, and make recommendations related to gTLDs to the ICANN Board.[10]

ccNSO

Main article: ccNSO

The Country Code Names Supporting Organization (ccNSO) is an advisory body within ICANN created by and for ccTLD managers, which are the entities that oversee a given nation's own Country Code Top Level Domain. The ccNSO is a consortium of working groups and the ccNSO Council, and it works in conjunction with other supporting organizations and bodies within ICANN. It was founded in 2003. It is a forum for global discussions and debates regarding issues related to ccTLDs.[11]

ASO

Main article: ASO

The Address Supporting Organization (ASO) is one of the supporting organizations that was formed, according to ICANN's bylaws, through community consensus in 1999. The main objective of the ASO is to review and develop Internet Protocol recommendations, address policy, and advise the ICANN Board.[12] Its members are appointed by the world's 5 Regional Internet Registries (RIRs), which manage and allocate IP addresses in their respective continental regions.[13][14]

Process

Meetings

Main article: ICANN Meetings

ICANN holds week-long meetings 3 times per year; one of these meetings serves as the organization's annual meeting, where new board directors take their appointed seats. These meetings are held in a different location each time, with each global region hosting a meeting before the regional cycle is started anew.[15] The next meeting will be the 41st meeting in Singapore. The 41st meeting was scheduled to be held in Amman, Jordan, before it was moved due to security concerns.[16] Singapore was then selected to host that meeting.[17]

Meetings officially begin on a Monday, though some supporting organizations meet prior to this, and run through Friday.

A fellowship program is in place to bring in individuals who have a desire or need to attend but do not have the financial backing to attend on their own.[18]

Review Processes

ICANN has mechanisms in place for any individual or entity to solicit a reappraisal of any board decision that affects them. The Board Governance Committee is in charge of reviewing all reconsideration requests, which are submitted electronically and must be responded to within 30 days. The boards actions are also reviewed by an Independent Review Panel, which has the power to call attention to discrepancies between the bylaws and actions taken by the board, and recommend that the board readdress certain issues. Furthermore, ICANN's structure and operations, including every supporting organization and committee, is also subject to occasional reviews.[19]

History: The Beginning

On July 1st, 1997, U.S. President Bill Clinton directed the Secretary of Commerce to privatize the management of the DNS, which had heretofore been managed by the Defense Advanced Research Projects Agency (DARPA), the National Science Foundation (NSF) and other U.S. research agencies.[20] The goal was to open the Internet to greater international participation, and to bolster it as a new medium of commercial competition and exchange.[21]

On July 2nd, the Department of Commerce requested public input regarding DNS administration and structure, policy input regarding new registrars and the creation of new TLDs, and concerns regarding trademarks. More than 1,500 pages of comments were received.[22]

In January, 1998, an agency of the Department of Commerce (NTIA) issued what has become known as the "Green Paper." The document was a proposal which made clear that the agency intended to empower a non-profit entity to take control of the Internet and its DNS system.[23] The proposal drew criticism from some American lawmakers and other concerned individuals who saw the American-fostered Internet about to be handed over to a Swiss entity.[24] The revised "White Paper" addressed some of those concerns but still posited the need for an Internet organization which could respect and foster stability, competition, bottom-up coordination, and international representation, while also establishing appropriate protocol and administrative mechanisms.[25] The "White Paper" did not clarify all of the divisive issues but instead called for the proposed entity to utilize its self-governance to decide on the issues at hand itself.[26] The White Paper spurned the creation of the International Forum on the White Paper, which involved the creation and meeting of four globally regional forums, and brought together some 1,000 Internet stakeholders. The IFWP did not create any specific proposal in response to NTIA's White Paper, but it did create a valuable body of thought and laid the foundations for future Internet governance and multi-stakeholder conferences and organizations.[27]

The Memorandum of Understanding

On November 25th, 1998, The U.S. Department of Commerce and ICANN entered into a Memorandum of Understanding (MoU),[28] which officially recognized ICANN as the entity that would:

a. Establish policy for and direct the allocation of IP number blocks;

b. Oversee the operation of the authoritative root server system;

c. Oversee the policy for determining the circumstances under which new TLDs would be added to the root system;

d. Coordinate the assignment of other Internet technical parameters as needed to maintain universal connectivity on the Internet; and

e. Oversee other activities necessary to coordinate the specified DNS management functions, as agreed by the Department of Commerce and ICANN.

Once again, these responsibilities would be undertaken and guided by the principles of stability, competition, private bottom-up coordination, and representation.[29] The agreement established ICANN as an entity that would encourage transparency in its dealings and would create ample room for appeals for any binding decisions it would make. The Department of Commerce later noted that it was comfortable ceding its control to ICANN, as it seemed like the best step towards true privatization while still binding the authority of the institution to the American policies found within the MoU.[30] The original agreement was set with an expiration of September 30th, 2000.[31] The MoU has been amended several times.

Initial Issues

ICANN was immediately faced with two pressing, opposing issues: the task of reigning in cybersquatting by creating policies necessary to protect recognized trademarks, and conversely the need to expand the number of entities accredited to function as registrars. Following the release of the White Paper, WIPO began its own research into how to protect trademarks and intellectual property within the changing DNS. A congressional hearing some 7 months after the empowerment of ICANN recognized the steps that the new entity had already taken to protect intellectual property, recognized the headway WIPO had made in creating further proposals, and called on intellectual property owners to become involved in ICANN.[32]

WIPO's report, submitted to ICANN at their 1999 meeting in Berlin, supported the Whois system, but also recommended that, should the Whois system fail to provide adequate contact information for the trademark holder to contact the domain name holder, the registrar should be obliged to rectify the situation by canceling the domain name holder's rights to the name. ICANN immediately took steps to develop the nascent Whois system.

The report also made recommendations regarding the process of accrediting new registrars, called for the creation of a concrete dispute resolution process for intellectual property issues within the DNS, and also recommended that the creation of any new gTLDs should proceed slowly and with caution. These recommendations precipitated ICANN's Accreditation Guidelines, the creation of the UDRP, and the continued debate over how and when to increase the number of gTLDs.[33]

Registrar Accreditation

A month before the MoU officially recognized ICANN, the Department of Commerce and NSI amended their cooperative agreement. The agreement had previously maintained the NSI as the only registrar for the .com, .org, and .net domains.[34] The three amendments to the agreement removed the exclusive rights of NSI; amendment 11 called for the creation of a Shared Registry System, whereby an unlimited number of competitive registrars would have access to one system managed by NSI.[35] Amendment 12 gave more time to NSI to complete important milestones in the liberalization of registry services; the final phase, which called for equal access to the SRS by all accredited registrars, was now given a deadline of about one year, October 25th, 1999.[36] Amendment 13 attached a $9 fee for each second level domain name registered, payable as $18 for new registrations and $9 per year on the anniversary of the original registration.[37]

On February 8th, 1999, ICANN posted its Draft Guidelines for Registrar Accreditation for public commentary.[38] The guidelines were formed through consultation with the DOC and NSI, and further tailored after the session of public commentary.[39] Some issues raised during the period of public commentary include: concerns regarding the inherent bureaucracy, inadequate protections for intellectual property, and the reasoning behind accrediting registrars before the DNSO was constituted.[40] The ICANN board accepted the revised Statement of Registrar Accreditation Policy at their March, 1999 meeting in Singapore.[41]

The initial policy called for registrars to provide secure access to the registry, be operationally capable of handling significant registration volume, maintain electronic transaction records, handle and provide prompt service to SLD requests, provide security, handle seamless transfers of customers who desire to switch registrars, employ an adequately sized staff, and have measures in place to protect the interests of their customers should the registrar fail. The registrar would also have to demonstrate that it had a sufficient liability insurance policy and store of liquid assets. A concern over creating and maintaining a valid registry service is evidenced in the requirement that information regarding each registrant of a SLD would have to be submitted by the registrar to NSI for inclusion in its registry. Providing a searchable Whois service was also required. Application fees for those applying to be included in the Phase 1 testbed cost $2,500, the general application fee was $1,000. Annual accreditation fees, amounting to $5,000, would also be assessed.[42]

The Registration Accreditation Agreement was unanimously amended by the ICANN board in May, 2009.[43]

The Testbed Period

Numerous technical problems plagued the testbed period of the SRS.[44] The aforementioned Amendment 12 established the testbed period as Phase 1 of the deployment of the SRS, and set a start date of April 26th, 1999, and an end date of June 25th, 1999.[45] Register.com finally became the first of the 5 competitive testbed registrars to successfully implement its interface with the SRS, which happened 6 weeks into the 2 month testbed period. The technical difficulties also extended to the deployment of the required Whois system.[46] Throughout the testbed period general applications for the later phases were being accepted.[47] The Department of Commerce and the NSI extended the testbed period about 4 times,[48] the final extension finally expired on November 5th, 1999.[49]

UDRP

On September 29th, 1999, ICANN posted the Uniform Domain Name Resolution Policy for public comments. The process aimed to address problems arising from cybersquatting and protect intellectual property rights. This process was not solely a concern or product of ICANN,given WIPO's earlier, and continued, effort on the UDRP. The policy asserts that it will transfer, delete, or asses other changes to any domain name held by a domainer which:

1. Is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

2. The domainer no rights or legitimate interests in respect of the domain name; and

3. The domain name in question has been registered and is being used in bad faith.[50]

The same day, ICANN also issued the Rules for the UDRP, which set forth the procedure for filing and responding to complaints. This was also open for a period of public commentary.[51] Some of the public comments can be found here.

ICANN adopted the UDRP at its November, 1999, meeting in Los Angeles.[52]

History: ICANN 2.0

ICANN's bottom-up focus and its periodic structural reviews lead to revision of its bylaws and the introduction of new entities and policies. One such rush of changes happened in and around the year 2000, when the prospective changes and the discussions surrounding them spurned people to talk of "ICANN 2.0".[53]

The Introduction of the ALAC

One of the discussions and propositions which was involved in the debate surrounding "ICANN 2.0" was the introduction of a body which could represent individual Internet users.[54] This became known as the At-Large Committee, or ALAC, and while it was finally introduced through amendments to the bylaws in 2002, it had been a hot topic for debate for years.[55]

Other Committees

Many of the other new developments at ICANN were accomplished through the introduction of review teams; such as the Committee on ICANN Evolution and Reform. Other Committees intent on expanding and specializing the role of ICANN were also created, such as the Security Committee, which eventually became the Security and Stability Advisory Committee. Both of these committees were given official recognition in 2002.[56] The push for reform was also significantly aided by Stuart Lynn's "President's report: The Case for Reform,"[57] which they credited for starting the dialogue on reform and leading to the creation of the more formal committee.[58]

ICANN adopted a new set of by-laws, which were first laid out by the aforementioned Evolution and Reform Committee, before being revised in response to Public Forums. Those by-laws can be read here. The by-laws not only more clearly defined ICANN's mission and core values, but it also put in place and improved apparatuses for review and greater transparency. The Reconsideration Committee, Independent Review Panel, and the Ombudsman all were strengthened as a part of this move towards a more transparent organization that is able to defend its actions and decisions.[59]

Further Developments

gTLD Expansion

Main article: gTLD

The discussion of creating new Generic Top-Level Domains has been around since the inception of ICANN; there was no set number fixed, and the fact that the .com extension has long been the most widely used and recognizable top-level domain was encouraged by ICANN's slow policy development process. It was underwritten in the 2001 amendments to their MoU with the U.S.' Department of Commerce that ICANN was to "collaborate on the design, development and testing of a plan for creating a process that will consider the possible expansion of the number of gTLDs".[68]

In 2000, a number of Working Groups that had been created the year before submitted reports on their take on the introduction of new TLDs; most notably, Working Group C called for a limited number of extensions to be introduced. The Board continued to move ahead with new TLD introduction, creating this application process. The task force that worked with the process helped .aero, .biz, .coop, .info, .museum, .name, and .pro all become recognized extensions in 2000.

At the October, 2003 meeting in Carthage, the Board passed its most significant resolution to date on fully opening the gTLD creation process. In it they recognized their obligation to develop new gTLDs in an effective, transparent, and stable manner, the overdue nature of a formal process for gTLD expansion, and the problems they faced when introducing the last round of extensions in 2000. Thus, they resolved to begin to dedicate significant resources to the issue and to establish a public forum in order to receive community input.[69]

In 2003, important new sTLDs began being proposed. While these domains are different from gTLDs in that they are sponsored by a given constituency, this can be seen as another way in which the wider community was pressing for a greater variety of domain space. Applications came from .asia, .xxx, .net, .cat, .mobi, .jobs, and .travel.[70]; they all went on to approval in 2005-2006, except for the controversial .xxx,[71] which went through a much more contentious and drawn out process but was still approved in March, 2011 at ICANN 40.[72]

Recent Developments

New gTLD Program

Main article: New gTLD Program

After the results of the 2000 and 2003 expansions of new gTLDs, a Policy Development Process in connection with the introduction of new gTLDs was developed by the Generic Names Supporting Organization (GNSO), which lasted from 2005 until 2007. During this Policy Development Process, the GNSO conducted extensive and detailed consultations with all constituencies within the ICANN global internet community. In 2008, 19 Specific Policy Recommendations were adopted by the ICANN Board for the implementation of new gTLDs, which describe the specifics of allocation and the contractual conditions. ICANN involved the global internet community in an open, inclusive and transparent implementation process to comment, review and provide their input toward creating the Applicant Guidebook for New gTLDs. The protection of intellectual property, community interests, consumer protection, and DNS stability were addressed during the process. Different versions and multiple drafts of the Applicant Guidebook were released in 2008. By June 2011, the ICANN Board launched the New gTLD Program, at the same time approving the New gTLD Applicant Guidebook.[73] The Board announced the possibility of a 9th version of the Guidebook in January 2012, but the industry speculated that there was little chance that the changes would be more than clarification, as opposed to new rules and policies.[74]

Physical Expansion

In September, 2011, the ICANN Board approved resolutions to secure new office space for the organization. It is possible they will negotiate for more space at their current location, or that they find a new space at their headquarters of Marina Del Rey. It was also decided to begin permanently leasing its office space in Brussels instead of continuing to rent their space month-to-month. Much of its expansion is related to the new gTLD program. At the time of the board's decision, ICANN staff numbered 124, with 21 open positions to be filled. The 2012 budget includes $2.1 million for office space acquisition and maintenance for its offices in Marina Del Rey, Brussels, Sydney, Paolo Alto, and Washington D.C..[75]

Conflicts of Interest

ICANN has never had a clear conflicts on interest policy, or any regulations in place that would prevent its most important staff members and its directors from moving directly into employment within the industry. This is an issue given the fact that these people of power influence the decisions and market-power of ICANN, and thus they could help create programs and policies that they could then go on to financially benefit from. This notably came to a head in 2011, when a prominent staffer and the Chairman of the Board left ICANN for employment in the industry. Both were involved in developing ICANN's new gTLD program, and both went on the be employed in new gTLD related ventures.[76]

The Chairman of the board in question was Peter Dengate Thrush, who led the directors to the historic approval of a new gTLD program and timeline at ICANN 41 in Singapore. This was his final meeting as Chairman of the board due to the determined term limits. Mr. Thrush went on, weeks later, to become the Executive Chairman of Top Level Domain Holdings, the parent company of new gTLD registry and consultancy, Minds + Machines. He was the first chair to move directly into a high-paying, domain name industry job.[77]

Following Mr. Thrush's move to Minds + Machines, a number of outside organizations and ICANN stakeholders called for a concrete ethics policy to be set in place, these include: U.S. Senator Ron Wyden, the Association of National Advertisers, The European Commission, The U.S. Department of Commerce, the French government, and other IP and industry organizations.[78] ICANN's CEO, Rod Beckstrom had previously noted at the opening ceremony to ICANN 42, even before Peter Dengate Thrush moved on, that he was encouraged by the fact that the ICANN community was moving to fix the lack of clear ethics rules within the organization. AusRegistry's CEO, Adrian Kinderis, later noted the converse fact that without clear ethics policies he and his industry would continue to go after ICANN's most knowledgeable and prepared individuals for their own gain.[79]

Following these developments, ICANN announced it would hire outside ethics experts to review its policies and make recommendations. The decision was made during a September, 2011 meeting of the board governance committee.[80]

A new Conflict of Interest Policy was released on December 8th, 2011, effective immediately. The policy requires that all Board Members, as well as those in various other postions, disclose any and all potential conflicts of interest to the Board Governance Committee. They must then abstain from any ICANN activities related to the conflict of interest,[81] Board members also may not join business with a new gTLD registry until 12 months after the registry's application has been voted on.[82]

Time Zone Database

On October 14th, 2011, ICANN announced that it would take over the management of the Internet Time Zone Database, which contains the code and data that computer programs and operating systems rely on to determine a given location's correct time. It agreed to pick up this new responsibility after a request from IETF. Prior to this, the Time Zone Database was managed by a group of volunteers, namely its coordinator, Arthur David Olson at the US National Institutes of Health.[83]

Manwin Anti-Trust Lawsuit

Manwin, one of the most prominent adult content producers on the Internet, filed an Anti-Trust suit against both ICM Registry and ICANN over the creation and implementation of the .xxx TLD. This legal action took place in November, 2011, well after the TLD's approval and just before its general availability.[84] It also filed an Independent Review Panel (IRP) Request with ICANN, making it only the second company ever to do so (the first being ICM Registry itself). Manwin felt that ICANN's decision to allow .xxx into the root did not “adequately address issues including competition, consumer protection, malicious abuse and rights protection prior to approving the .xxx TLD."[85]

In January 2012, ICANN and ICM both filed motions to dismiss the case. ICANN argued that, it is a not-for-profit organization and it is not engaged in "trade or commerce," the US anti-trust laws doest not apply to it; additionally, both ICM and ICANN argued that Manwin's filing was essentially complaining about the possible increase in competition for them. ICM cited that Manwin had earlier attempt to approach them with a supposed mutually-beneficial agreement, in which Manwin would acquire various premium .xxx domains for free, in exchange sharing the profits of these domains with ICM. When ICM turned down the agreement, Manwin Managing Partner Fabian Thylmann said that he would do whatever he could to stop .xxx.[86] ICANN's and ICM's motions to dismiss can be found here and here respectively.

In mid-February, 2012, all plaintiffs and defendants announced that they were in talks and hoping to resolve some to all of the outstanding complaints.[87]

Employ Media Arbitration

Employ Media requested an arbitration proceeding to resolve the notice of breach on the .jobs registry agreement issued by ICANN on February 27, 2011 in connection with the universe.jobs website. The jobs board website was launched by Employ Media in partnership with the Direct Employers Association, which was given by the registry operator the leverage to register more than 40 thousand of .jobs domain names used in the jobs board to advertise job opportunities from more than 5,000 leading companies in the United States. ICANN cited that that universe.jobs appeared to be in competition with other companies offering the same service and Employ Media's actions violated its charter. ICANN directed the .jobs registry operator and the Society for Human Resource Management (SHRM), the sponsoring organization to resolve the issues mentioned in the notice of breach and to comply with its charter. ICANN threatened to terminate the .jobs registry agreement if the problems will not be resolved. On the other hand, Employ Media argued that the universe.jobs was launched in compliance with the Phase Allocation Program, which was approved by ICANN. Although the registry operator was disappointed with ICANN's actions Employ Media agreed to resolve the issue by invoking the cooperative agreement provisions in the registry agreement. During the cooperative negotiations, Employ Media agreed that to amend its charter and to stop registering non-company name domain names until May 6, 2011. However, the company abandoned the cooperative agreement proceedings when it learned that ICANN posted the information about their cooperative negotiations regarding the notice of breach. Employ Media also accused ICANN of "bad faith action." ICANN's legal counsel explained that the internet governing body is just performing its duty to maintain accountability and transparency. When ICANN responded to the Employ Media's arbitration request, it reiterated its strong position the Employ Media violated its charter and its decision was appropriate. ICANN asked the court to deny the registry operator's request for relief. At present, both parties are still waiting for the the schedule of their arbitration proceedings from the International Chamber of Commerce (ICC) International Court of Arbitration.[88] [89] [90] [91] [92] [93] [94]

.JOBS Charter Compliance Coalition Criticism

One day before the implementation of the new gTLD program, the .JOBS Charter Compliance Coalition led by its chairman John Bell sent a letter to ICANN detailing the internet governing body's failure to evaluate and investigate all comments and information submitted by entities against the request of the .jobs registry operator to change its charter. Bell also pointed out that ICANN failed to acknowledge its mistake and overturn its decision when complainants filed for reconsideration and submitted significant evidences to prove that Employ Media violated its charter. The coalition chairman also cited that ICANN was inefficient in dealing with the arbitration proceedings to immediately resolve the Employ Media's charter violation, therefore the company continues to exploit the .jobs TLD and expand the universe.jobs website. Furthermore, Bell said that the internet community is concerned that ICANN's new gTLD program's multiple stakeholder protection mechanisms might end up mismanaged just like the .jobs TLD and ICANN's promises as "empty words." Moreover, Bell requested the ICANN Board to publicly disqualify Employ Media and its partner, the Direct Employers Association from the new gTLD expansion program because registry operator has a "history of abuse." According to Bell, this is the only way for ICANN to regain a measure of regulatory authority.[95]

Senate Hearing on New gTLD Program

On December 8, 2012, the U.S. Senate Committee on Commerce, Science and Transportation conducted a full committee hearing to evaluate the value and effects of the new gTLD expansion program as well as ICANN's efforts in resolving the concerns raised by the internet community. Witnesses present during the committee hearings include:[96]

Witnesses Testimony

Angela Williams represented the concerns of the members of the Not-for-Profit Operational Concerns Constituency (NPOC) during the Senate hearing. In her testimony, she raised the budgetary, public confusions and cybersquatting issues. According to her, the increased risk of public confusions compromise the internet security and it would be more expensive for entities particularly not-for-profit organizations to protect their brand names/trademarks against fraud, cybersquatting and trademark infringement. She also pointed out that not-for-profit-organizations cannot afford the amount of money needed to become a domain name registry to ensure brand protection. Williams encouraged ICANN to consider the concerns of the members of the NPOC. She also recommended that verified not-for-profit organizations be allowed to exempt their their trademarks from any other applicant in the new gTLD Program at no cost or drastically reduced fee, eliminate or drastically reduce the costs of the new gTLD program for verified not-for-profit organizations and to strengthen the mechanisms for trademark protection.[97]

During the hearing, Dan Jaffe testified that the new gTLD program is "bad for consumers, marketers and the entire online marketplace" and enumerated different reasons why it is necessary to the stop its implementation. According to him, there is no substantial evidence that the new gTLD program will promote competition, relieve the scarcity of domain name space and support differentiated services and new products. He also cited that the new gTLD program has serious economic impact. Brand owners might be compelled to file for defensive registrations to protect their trademarks or intellectual property rights. There is a possibility of misappropriation of intellectual property rights, domain navigation dilution, increased risk of cybersquatting, reduce investments from intellectual property owners and losses from failed TLDs. Jaffe supported his claims using the “Economic Considerations in the Expansion of Generic TopLevel Domain Names, Phase II Report: Case Studies,” a study commissioned by ICANN on December 2010. In addition, he also emphasized the new gTLD programs lacks consensus and ICANN failed to meet the "bottom-up, consensus driven approach to policy development." Furthermore, he pointed out that the application fee is too expensive and harmful for brand owners and he also raised the concerns regarding conflict of interest after Peter Dengate Thrush decided to join Minds + Machines as Executive Chairman immediately after his term as chairman of ICANN. Thrush strongly pushed approval of the new gTLD program.[98]

Esther Dyson testified that the new gTLD program is not necessary to promote innovation. She said, "The rationale is that there's a shortage of domain names... but actually, there's a shortage of space in people's heads." She recommended for ICANN to conduct further consultation regarding the program and reach to a broader public to inform its approach regarding new TLDs. She concluded her testimony with the saying, "If it ain't broke, don't fix it!" [99]

As representative of the NTIA, Fiona Alexander informed the members of the Senate Committee that the agency is part of the Governmental Advisory Committee (GAC), which is actively involved in the policy development process within ICANN. She testified that the NTIA and its counterparts within GAC provided consensus advice to ICANN during the policy development process for the new gTLD program for six years.She emphasized that GAC developed a "scorecard" to address the different issues raised b governments which include:

  • objection procedures for governments
  • procedures for the review of sensitive strings
  • root zone scaling
  • market and economic impacts
  • registry-registrar separation
  • protection of trademark rights and other intellectual property owners
  • consumer protection issues,
  • post-delegation disputes with governments
  • use and protection of geographic names
  • legal recourse for applicants
  • opportunities for stakeholders from developing countries
  • law enforcement due diligence recommendations
  • early warning mechanism for applicants to identify if a proposed string would raise controversies or sensitivities

Ms. Alexander strongly emphasized NTIA's support to ICANN's multistakeholder model of internet governance and it is dedicated in maintaining the global openness of the internet to promote economic growth, innovation and free flow of information, products and services online.[100]

Kurt Pritz testified to the Senate committee that the introduction of new gTLDs is one of the mandates of the internet governing body since its establishment. Pritz pointed out that the new gTLD program was developed through the multistakeholder process. The global internet stakeholders including brand and trade mark owners, domain name registries, registrars, registrants,governments, law enforcement agencies, governments, not-for-profit organizations, etc. participated in the policy development and implementation program for new gTLDs. He also emphasized the provisions in the Applicant Guidebook regarding new trademark protections such as the Uniform Rapid Suspension (URS) and the Trademark Clearing House, measures to mitigate malicious conduct, objection process, DNS Security (DNSSEC) and other relevant issues. He concluded his testimony by reiterating that the "ICANN community worked tirelessly to create the new gTLD program to promote competition and innovation..."[101] [102]

House of Representatives Hearing on new gTLD

On December 14, 2011, the U.S. House of Representatives Sub-Committee on Communications Technology-Committee on Energy and Commerce also conducted a similar hearing regarding the new gTLD program. Kurt Pritz and all the other individuals who testified in the Senate also served at witnesses at the House of Representatives who echoed the same views about the program. Joshua Bourne, President of The Coalition Against Domain Name Abuse (CADNA), Thomas Embrescia, CEO of Employ Media and Anjali Hansen, IP attorney at the Council of Better Business Bureaus joined the rest of the witnesses during the hearing.[103]

Testimony of Witnesses

Mr. Joshua Bourne expressed his concern over the program and suggested some recommendations including the availability of a second round of application ease the anxiety associated with the program, provide option to block trademarks, update the language of the Anti-Cybersquatting Protection Act (ACPA), reduce pricing for multiple gTLD applicants and to add conditions on the IANA contract.[104]

In her testimony, Ms. Anjali Hansen expressed her concern regarding the level of abuses and fraud over the internet and the high costs of brand protection. She also pointed out the importance of a competitive, innovative and open internet and BBB is not requesting for excessive regulation of the Internet by governments but they encourage registries and registrars to implement application standards to help reduce costs to businesses and to restore consumer trust.[105]

Thomas Embrescia testified in support of the ICANN new gTLD program. During the hearing, he pointed out that the private sector has a strong demand for new TLDs and the new gTLD program promotes competition, innovation. Furthermore he emphasized that it would help create more jobs and opportunities.He encouraged the members of the Congress to support the program. [106]

ICANN's Answer to Sub-Committee Members' Inquiries

On January 5, 2012, Cong. Greg Walden, Chairman of the House Sub-Committee on Communications and Technology sent a letter to ICANN requesting answers to the questions of some members of the sub-committee on some issues related to the new gTLD program including:[107]

  • Process used by ICANN in achieving consensus through the multistakeholder model ICANN explained that consensus was achieved through community-driven policy development processes wherein working teams composed of members of the different internet stakeholders developed reports and recommendations and the public were given the opportunity to comment. The public comments were considered in drafting the final report and recommendations before submitting it to the appropriate organization within ICANN such as the GNSO Council, which is responsible presenting it to the ICANN Board for consideration. ICANN emphasized that the GNSO Council is composed of all internet stakeholders and voted 19-1 in favor of the new gTLD policy. The internet governing body also pointed out that ICANN's Advisory Committee's (GAC, ALAC, SSAC, RSSAC etc.) were involved in the cosensus policy development.ICANN reiterated the statement of Sec. Larry Strickling that the ICANN "multistakeholder does not guarantee that everyone will be satisfied with the outcome.But it is critical to preserving the model of internet governance that has been so successful to date that all parties respect and work through the process and accept the outcome once a decision is reached..."
  • Rights Protection Mechanisms

ICANN informed the Congress that rights protection mechanisms will be implemented according to the project plan included in the Applicant Guidebook. Rights protection will be implemented in the first and second level domain names. The internet governing body mentioned the development of the Trademark Clearing House as one of the rights protection mechanisms and it is mandatory to all new TLDs.

  • Request for a Second Round of Application

ICANN stated that it is committed in conducting additional rounds of new gTLD applications and it is working on determining the next schedule.

  • Transparency regarding Surplus Funds generated from the new gTLD applications

ICANN emphasized that it is committed in using the excess funds generated from the new gTLD applications to advance its missions in a transparent way such as allocating funds to projects that are of interest to the greater internet community.

  • Bilateral Negotiations with registrars about the twelve Law Enforcement Due Diligence Recommendations

ICANN confirmed that it is conducting negotiations with its accredited registrars regarding the 12 recommendations of the enforcement agencies. Updates to the negotiation are available here

  • Contingency Plan in case a registry operator goes out of business

ICANN told the Congress that an "Emergency Back-end Registry Operator" (EBERO) is in place to take-over the operations if a failed registry to ensure that the interest of domain name registrants are protected.

ICANN explained that information regarding the new Applicant Support Program is available in the new gTLD Financial Assistance Handbook. The two types of financial assistance under ASP include a reduced application fee of $47,000 from $185,000 and applicants are allowed to pay the $185,000 application fee through a payment plan. To qualify for financial assistance, entities must meet the required criteria. Financial Assistance applications will be evaluated by an independent Support Application Review Panel (SARP).

ICANN explained that the Trademark Clearinghouse is a database of registered trademarks and other types intellectual property rights, which shall be used to provide protection during the start-up phase of the program during the "Sunrise" and "Trademark Claims" processes and the 60-days post launch operation of the Trademark Claims exceeds the final recommendation of the Special Trademark Issues (STI) team, which was involved in developing the service and suggested that no mandatory post-launch claims service is necessary.

  • Possibility of subsidizing the costs of Uniform Dispute Resolution Policy (UDRP) using surplus funds

ICANN clarified that no commitment has been regarding the use of surplus funds and the issue is a matter of continued community consultations. ICANN will consider the proposal to subsidize costs of disputes under the UDRP.

ICANN is dedicated in improving the access and accuracy of the Whois information and the Thick Whois will be mandated to all new gTLDs. Five studies regarding Whois services focusing on issues related to misuse, registrant identification, privacy and proxy services are being conducted.

  • New gTLD Application Fee

ICANN provided a breakdown of the current $185,000 application fee which include development costs ($26,950 per applcation), applications processing and evaluation costs ($97,800 per application), costs for risk mitigation steps etc. ($60,000 per applicant). Further breakdown of the cost is available here

  • Revenue from second level domain name registrations under new gTLDs

ICANN said that it did not evaluate any additional revenue that might be generated from defensive second level domain name registrations. Registries are required to pay ICANN with annual fees with fixed components.

  • Cost recovery model in assessing fees

The cost-neutral model was a direct response to the GNSO policy recommendation that application fees are designed to ensure that the implementation of the new gTLD program is self funding. Once the TLDs are operational, transaction based fees for registries and registrars will apply on registrations of new domain names under new gTLDs.

  • Loser pays system against cybersquatting

The new gTLD dispute resolution under the new gTLD program implements the loser pays system. The IRT did not recommend full loser pays system for domain name disputes related to cybersquatting. The loser pays system has exceptions on filing fees for disputes and URS claims of less than 15 domain names. Claims for 26 or more names in a URS claims might be done on a loser-pays basis, which meets the stated goals of the URS to be fast and fair.

  • Auction process for multiple gTLD applicants

The auctions process in case of multiple gTLD applicants will be applied as a last resort. ICANN encourage applicants to work on developing a mutually-agreeable solution.

The new gTLD program offers heightened protection mechanisms against abuses, registry failure and other malicious conducts designed by intellectual property experts

  • Law Enforcement Community Recommendations

ICANN is actively working on the 12 recommendations of the law enforcement community and negotiating with registrars to amend the Registrar Accreditation Agreement (RAA) particularly the inclusion of a more improved and accurate Whois data.

  • Cost/Benefit Analysis used by ICANN before implementing the new gTLD program

Five economic studies were commissioned by ICANN to examine the anticipated benefits and costs of the new gTLD program.

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