03 December, 2010

Guidebook changes plucked out of thin air

Writing on behalf of the Coalition for Online Accountability, Steve Metalitz notes:

The PFV is sprinkled with radical changes in various important aspects of the guidebook that could have a serious detrimental impact on the public. None of these lurches is explained, and some seem to have been plucked out of thin air. COA will mention three:

1. Ultra-high standard for community objection: The PFV has suddenly and without explanation raised the bar for community objections so dramatically that it is doubtful that anyone – government, community group, cultural group, language group, NGO, or business sector representative – could possibly win such a proceeding. Section 3.4.4 now requires, not only that the objector prove that the community it represents is likely to suffer a “material detriment” if the objected-to application is approved (the word “material” is newly added and undefined), but also that “material detriment” (presumably the same one) is likely to be inflicted on “the broader Internet community.” Critically, this new term is also undefined.

To use an example that has been brought up countless times over the last 4 years: if the Navajo Nation were to object to a proposed commercial .navajo TLD, it would not only have to prove how it would be materially injured if the application were approved; it would now also, for the first time, have to prove how billions of other Internet users, most of whom have never heard of the Navajo, and might never visit the TLD, would also suffer “material detriment.”  In sum, ICANN staff seems to have unilaterally and without explanation chosen to eviscerate the community objection process. This hardly advances ICANN’s fulfillment of its public interest obligation.

2. Anonymity of applicants: While ICANN will still conduct a background check on new gTLD applicants, it has effectively cut the public entirely out of that process by removing from public disclosure all information about directors, officers, partners, or controlling shareholders of new gTLD applicants. In attachment A to module 2 of the “proposed final guidebook,” a new column has been added indicating whether particular application items will be publicly posted. Among those items with “N” (for no public posting) in this column is item 11 (“applicant background”), which calls for identification of directors, officers, partners, or controlling shareholders of the applicant. ICANN will contract for the performance of a background check on these people; but the public will not even know who they are, and therefore will have no way to submit information about them to the evaluators, even if that information might reflect on their fitness to operate the TLD.

3. Searchable Registry Whois: While not entirely unexpected, the ICANN staff’s treatment of this issue in revised application criterion 26 invites confusion and misunderstanding.  COA has long called for ICANN to incorporate the best practices reflected in the most recent gTLD registry agreements (e.g., .mobi, .asia, .post) and require new gTLDs to offer (or to insist that their registrars provide) a fully searchable Whois service, along with several other features of the most recent registry agreements that set Whois data quality standards on registrars.  ICANN has consistently refused most of this request, but did invite public comment on the concept of a fully searchable Whois requirement.

Now, for some unexplained reason, ICANN is condemning the provisions it entered into with the 3 existing registries, and stipulating that, while an applicant can receive “extra credit” in the application process for offering fully searchable Whois, it only receives that credit if the facility is not open to all members of the public, but only to those qualify as “legitimate and authorized users,” apparently as defined by the registry. In effect, this arrangement would penalize registries that choose to operate their Whois service as ICANN states is required by the .mobi,, .asia or .post agreements. 

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