On May 12th ICANN posted the “Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement” for a period of public comment ending June 21st.
You’d expect ICANN staff to be on their best behavior right now, during ongoing community efforts to fashion enhanced and binding accountability measures. But instead this proposed Registry Agreement (RA) contains a provision through which staff is trying to preempt community discussion and decide a major policy issue through a contract with a private party. And that very big issue is whether Uniform Rapid Suspension (URS) should be a consensus policy applicable to all gTLDs, including incumbents like .Com and .Net.
The starting point for the proposed new .Travel RA was not the prior .Travel RA but the standard registry agreement for new gTLDs. As explained in ICANN’s announcement:
The current Registry Agreement for .TRAVEL, like other registry agreements, provides for presumptive renewal so long as certain requirements are met. It also provides that upon renewal, changes may be made to the terms of the Agreement.
With a view to increase the consistency of registry agreements across all gTLDs, ICANN has proposed that the renewal agreement be based on the approved new gTLD Registry Agreement as updated on 9 January 2014. In order to account for the specific nature of the .TRAVEL TLD, a Sponsored TLD, relevant provisions in the 5 May 2005 Sponsored TLD Registry Agreement have been carried over to this renewal agreement.
As a result, the proposed renewal agreement for .TRAVEL is similar to the terms of a Registry Agreement for a new gTLD that elected for community TLD status and that is not operated by an intergovernmental organization of a government entity… (Emphasis added)
There is one very big problem with that staff-determined “consistency” approach. It would make all domains at .Travel, a legacy gTLD and not a new gTLD, subject to URS, which is not a consensus policy applicable to all gTLDs.
To that end, the proposed draft RA for .Travel includes, at p. 78, an amended version of Specification 7 (Minimum Requirements for Rights Protection Mechanisms) with this provision:
Dispute Resolution Mechanisms. Registry Operator will comply with the following dispute resolution mechanisms as they may be revised from time to time:
… the Uniform Rapid Suspension system (“URS”) adopted by ICANN (posted at http://www.icann.org/en/resources/registries/urs), including the implementation of determinations issued by URS examiners. (Emphasis added)
This is top-down, staff-driven policymaking at its worst and is thoroughly unacceptable.
It appears that ICANN staff, on its own initiative and with no advance consultation with the community, are attempting to impose an “implementation detail” for the new gTLD program into a legacy gTLD renewal contract.
That would effectively convert the URS into a consensus policy without any community discussion of whether it should be, and set a precedent that could bring the URS to .Com, .Net, .Org and all other legacy gTLDs as their own RAs come up for renewal.
It was well understood at the time that the Rights Protection Mechanisms (RPMs) were debated and created for the new gTLD program’s Applicant Guidebook that they were to be regarded as “implementation details” for the new gTLD program and not as “consensus policy” applicable to all gTLDs. There was actually an extended debate in which IP interests insisted that they were mere implementation of the program’s general commitment to protecting IP rights and therefore did not require an extended policy development process (PDP) to be made applicable to new gTLDs. That dog won’t hunt for incumbent gTLDs like .Com.
As for considering whether the new gTLD RPMs should someday become consensus policy, ICANN recently closed a comment period on a “Draft Report: Rights Protection Mechanism Review” and ICA submitted an extensive comment letter on it. That Draft RPM Report is supposed to be preliminary to a full staff Issues Report on new gTLD RPMs to be delivered to the GNSO Council in late September. Receipt of that Issues Report is expected to inform a discussion of how well all the new RPMs are performing, whether they need to be altered, and – most importantly – whether they should become consensus policies for all gTLDs.
But now ICANN contracting staff, before the policy staff have even delivered their RPM Issues Report, are attempting to preempt that entire consensus policy discussion by imposing the URS on an incumbent gTLD.
This is a prime and disturbing example of top-down, staff-driven policymaking. And it is clear justification for the overdue and badly needed accountability mechanisms that ICANN stakeholders are now fashioning.
We understand that trademark interests would probably support making the URS a consensus policy. We know that many new gTLD registry operators are on the record saying that all the new RA provisions they are subject to, including URS, should be the rules of the road for incumbent registries as well.
As for ICA, we are a long way from establishing our position on that question – but we insist that it occur only after full community debate and consideration of all the potential reverberations of such a decision. That’s what a PDP is for.
This very important decision is one for the entire community to make after informed discussion, not for ICANN staff to make in a manner that preempts the discussion–
ICANN needs to hear from the global Internet community, in significant volume, that imposing the URS on an incumbent gTLD is unacceptable because it would mean that ICANN staff, not the community, is determining that URS should be a consensus policy and thereby undermining the entire bottom-up policy process. Domain suspensions are serious business – in fact they were at the heart of the SOPA proposal that inspired millions of emails to the US Congress in opposition.
This is clearly an issue for domain registrants – registrants at new gTLDs knew that their domains were subject to the Trademark Clearinghouse claims notice system and the URS, but registrants at incumbent gTLDs have never been subject to URS and should only become so if the community decides it should become a consensus policy.
But this should also be an issue for every other ICANN stakeholder and global domain registrant who wants to hold the line against staff-driven usurpation of the community’s right to initiate and make policy decisions.
So get your comments in by June 21st if you want to see the community remain in control of this key policy decision rather than have ICANN staff determine it via private contract negotiations. ICA will be commenting against including the URS in this RA, but we need lots of company.
Here’s what to do:
This initiative can be stopped – but that will be best ensured if ICANN gets lots of comments that oppose including the URS in the .Travel RA.
Act now or be prepared to see the same tactic used to impose the URS on .Com, .Net, .Org and other incumbent gTLDs. Don’t complain then if you’re not willing to take a few minutes and speak up now.
And here’s that draft template for comments:
I am writing in regard to the Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement issued for public comment on May 12, 2015.
I am strongly opposed to the inclusion of a modified version of the new gTLD rights protection mechanisms in Specification 7 of the proposed RA, especially Uniform Rapid Suspension (URS).
All the new gTLD RPMs were implementation details of the new gTLD program and are not ICANN consensus policies applicable to all registries and registrars. The URS can become a consensus policy only after a full policy development process (PDP) engaged in by the entire ICANN community of stakeholders. The ICANN community has not even received the new gTLD RPM Issues Report that staff will be providing to the GNSO in September 2015.
Imposing URS on an incumbent gTLD via the contracting process is an absolutely unacceptable staff intervention into the policymaking process. Approval of this draft contract would constitute top-down, staff-driven policymaking in direct violation of ICANN’s stated commitment to the bottom-up, private sector led policy development process.
Therefore, the .Travel renewal RA should be referred for Board consideration only after Specification 7/URS has been removed from the agreement, along with all other provisions derived from the new gTLD RA that are not established consensus policies applicable to incumbent gTLDs.
Thank you for your consideration of my views.
Sincerely,[Name, title, organization]
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