ICANN: Do Not Allow Closed New gTLDs With Generic Strings

CircleID CircleID: The Board was right in 2014 when it disallowed them.

Within the next year, the ICANN Board may well face a decision that will help determine whether ICANN is capable of serving the global public interest or whether it is degenerating into an industry-controlled self-regulatory association. The issue can be framed quite simply: will ICANN approve a process for the creation of a new wave of new generic top level domains that will include “closed generic” gTLDs?

The issue can be semantically confusing since the word ‘generic’ is used in two different senses. There are at present about 1200 gTLDs, or generic top level domains that are recognized by the DNS. Each of these gTLDs are operated by a registry under contract with ICANN. Most of these gTLDs are ‘open,’ which means that anyone who subscribes to the requirements of the registry and pays the subscription fee can establish a second level domain under the gTLD.

By “Closed Generics” I mean the situation in which the gTLD registry controls registration of all second level domains of the “generic name” of its business or industry. As an example, the new gTLD .book is an open generic gTLD, and anyone should be able to apply for a second level domain name registration under it. Alternatively, the registry may have a stated policy to restrict registration, but must allow domain names to be registered by all “similarly-situated” businesses or industries, e.g., all cloud companies in .cloud, all search industries in .search, and all bloggers in .blog.

A small number of new gTLDs are closed, and the owners of those registries determine how the second and further levels of the DNS within their gTLDs are to be allowed, structured and used. Some brand TLDs are closed, and can be used for the specific purposes of the brand holder; .canon and .ibm are examples of such domains. They have been approved by ICANN and are legitimate TLDs.

There was a real question whether “closed generics” were barred in the 2012 round of the new gTLD process. Some of those who wrote the original gTLD Applicant Guidebook said no, and some said yes. After the evaluation process had begun, the ICANN Board was confronted with a number of applications in which the registries applied for strings that represented generic categories and that were to be closed — specifically closed in that the registry said that ‘it would be owner of all the second level domains of the “closed generic” gTLD.’ Thus, Amazon applied for .book (among others) as “closed generics,” Google for .search (among others) and Dish DBS for .mobile. This would have given these large, senior competitors in these industries and businesses total control of an information space for major project groups and industries — control to shape, or distort, an Internet user’s view of the market for goods and services in these areas.

Asked to review the issue, and after a public comment period that included many new voices from across the world, including the Global South, the ICANN Board decided that closed generic strings (such as .book) would not be allowed in the 2012 round of new gTLDs. The essence of the concern on the part of the Board was that “closed generics” would allow the monopolization of a significant part of the information space and would create a non-level playing field for others within that space. In effect, a registry awarded a closed generic string gTLD would have complete control over which second level domains. Nothing would prevent it from biasing its selection in any manner it wished, whether in the public interest or in any of its own competitive interests.

I was part of the group on the ICANN Board that revised the objections to the pending Closed Generics applications and decided to require these gTLD applications to “become open” before moving forward. My concern was simple. Consider the following analogy: In the mid-1900s, not too long ago, public libraries were a major source of information, and were the equivalent of the Internet of today. Let’s suppose that your local government decided to subcontract its public library to a commercial organization. Suppose further that that the terms of the contract included allowed the contracting organization to have complete control over what books, periodicals, and newspapers they would acquire and make available to patrons. The subcontractor could say, “we don’t believe in racial tolerance, we don’t believe in social class mobility, and we don’t believe in sexual health of women. So let’s make sure that the material that we make available does not focus on any of those things, and let’s only buy nice books that reinforce our readers’ comfort and understanding of the benefits of the status quo. We don’t need to state our beliefs up front; we can embody them in the material that we make available as a result of our acquisition policies, so let’s just let our collection of materials speak for itself.”

What I have just described is analogous behavior to what a registry running a closed generic string could do. In our wildest imagination, would we ever accept a library that acted in a manner described above? In fact, would we ever even consider even accepting such a contractual arrangement? If not, why do we even admit the possibility of consenting to delegate closed generic string new gTLDs?

Closed generics give total control of a very important and intensively used Internet information space about a major product group or industry to that registry, a private organization, often one of the largest competitors in the field. Control of that information space by the registry/competitor includes the power to shape and to distort in any way the registry/competitor wants — an Internet user’s view of that market or industry. Further, the information contained in all of the web pages associated with the domain names of the “closed generic gTLD” are completely under the control of the registry and could route all business to themselves or even contain false information, without the possibility of on-site on-line refutation.

It could be argued that ICANN could write contracts with the owners of generic string new gTLD that would mitigate any such harms, possibly using public interest commitments as a safeguard against various kinds of misuse. To do so would generate a difficult exercise in defining the misuse and the result would surely be gamed, probably successfully. To the extent that adherence to a “no-misuse of a closed generic gTLD” policy would be voluntary, it would simply camouflage the uselessness of such PICs. Further, markets work best when the financial interests of the participants work in the same direction as the public interest rather than against it as is the case here.

Finally, given current ICANN policies of purchase and sale of registries as financial assets, any promises of “openness” and competition with a “closed generic” gTLD could amount to nothing should the original gTLD registry transfer or sell the gTLD to another leading industry competitor — or another owner who might repurpose this term of an entire industry or field with apparent impunity.

At this time, the GNSO’s New gTLD Subsequent Procedures Policy Development Process Working Group is finalizing its recommendations for the specifications of the next (and perhaps ongoing) edition of the Applicant Guidebook — rules that will govern the process of applying for and receiving approval for new gTLDs. The application period is estimated to start in the next several years. Among the undecided issues is whether new gTLDs with generic strings will be allowed as “open” or “closed”. The working group appears to be split, with adherents on both sides of the issue. The issue is likely to be resolved one way or the other in the near future.

To the Subsequent Procedures WG, I would like to share that during the evaluation period of the last round of new gTLDs, the committee of the ICANN Board tasked with overseeing the implementation of that round ruled that delegation of closed generics would not be permitted for that round. I was a member of that committee and I voted in favor of the decision to bar closed generic gTLDs. It was the right decision.

Some people now believe that the way in which this Board decision was reported suggested that the Board expected that the issue of Closed Generics would be revisited and potentially revised for later rounds. That was not my understanding, although my memory of the details of the discussion and decision is not precise after six years. Our Board work at the time was comprehensive and our decision was based on global input.

Just the knowledge that closed generics are again being advocated by some members of the community tells me that there is a lack of understanding of the role of ICANN with respect to the global public interest. If the Subsequent Procedures Working Group — incidentally, one of the most obscure and misleading names a working group could ever have — decides to recommend that new gTLDs in future application rounds may be “closed generics” then this decision will be both against previous board policy, and will significantly reinforce my sense that those members of the working group regard ICANN as an industry lobbying group for registries, and are helping to push ICANN in that direction.

Should the Subsequent Procedures WG make such a decision — I would hope that the ICANN Board would intervene and return the New gTLD Program to its 2014 stance — no Closed Generics allowed.

Should Closed Generics still be implemented in the next and future rounds of new gTLDs — unstopped by the WG, the GNSO or the ICANN Board — I believe this would signal a huge loss of trust and show that ICANN and the ICANN community are indifferent to the global public interest.

Such a result would, to me, signal that the ICANN multistakeholder experiment in Internet governance is inconsistent with a commitment to uphold the global public interest, and that it has failed in action. This would be disappointing to many, but would also be evident. It would then be time to start thinking about significant changes to or replacement of some of the Internet’s governing organizations. It’s essential that we have governance mechanisms that can understand and enforce the concept of the public good, open and competitive markets and can differentiate and ensure its independence from rapacious private enterprise. The “closed generics” issue is one test of whether that time has come.
Written by George Sadowsky, Information Communication Technology ConsultantFollow CircleID on TwitterMore under: Domain Names, ICANN, Internet Governance, New TLDs

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