On September 15th two senior Republican members of the House Judiciary Committee, Lamar Smith and Howard Coble, dispatched a letter to ICANN CEO Rod Beckstrom. The letter (text here) starts with a hearty congratulation, but by the second paragraph it is raising concerns over the proposed rollout of new gTLDs and the potential expiration of its Joint Project Agreement with the U.S. on September 30th. Those gTLD concerns have been expressed by many other parties, including ICA – from questionable economic “studies” justifying the program to lack of adequate pricing controls. The letter asks Mr. Beckstrom to answer three multi-part questions relating to implementation of the IRT recommendations regarding trademark protection, the economic basis for new gTLDs, and the future of ICANN’s relationship with the U.S.; as well as to assess the concerns raised by the GAC in their August 18th letter (see https://www.internetcommerce.org/GAC_to_ICANN_gTLDs for our take on that correspondence) – and to provide all of that detailed feedback within one week, by September 22nd.
Advocacy for the IRT’s recommendations appears to be a principal purpose of this correspondence. We find a certain irony in its concern that ICANN’s apparent intent to withhold details of their disposition prior to the October release of the third version of the Draft Applicant Guidebook (DAG), after expiration of the current JPA, “reinforces the perception that ICANN decision-making processes lack critical transparency and accountability” – given the IRT that chose to operate in a confidential manner that was contrary to ICANN Bylaws, and that adoption of its recommendations would short-circuit the normal ICANN policy development process meant to ensure accountability to its full community. Likewise, while we concur with the letter’s admonition that “ICANN has an obligation to ensure there are inclusive, transparent and accountable processes that consider fully the perspectives of all stakeholders”, the IRT’s lack of adequate inclusiveness resulted in skewered recommendations that go far beyond the UDRP and trademark law and thereby elicited a substantial outcry from a wide range of ICANN stakeholders.
Finally, what we find most notable about the letter is what it is missing – that being the signature of a single Democratic member of the Committee. This is surprising because the Judiciary Committee has long been a primary focus for the lobbying and campaign contributions of intellectual property interests, given its jurisdiction over patent, trademark, and copyright legislation. Such letters from Capitol Hill tend not to arise spontaneously but are usually generated by the entreaties of industry lobbyists — and it would be standard practice for them to seek the endorsement of the Majority, particularly when their party controls the White House and, through it, the Commerce Department that will decide the JPA’s fate. Perhaps they have heard the same rumors that we have – that the JPA is likely to be extended without a set termination date, and that the next version of the DAG will propose to adopt, in altered form, some but not all of what the IRT recommended. We’ll soon know if those rumors are well-founded.