By Philip S. Corwin, ICA Counsel
The 59th ICANN meeting was held in Johannesburg, South Africa from June 25th to 29th. Under ICANN’s new meeting schedule this mid-year gathering is the somewhat shorter “B” session devoted to intensive policy development work. This report details my engagement as ICA Counsel on your behalf and current and expected benefits to ICA members.
The meeting’s first day was exclusively dedicated to the ongoing efforts of the Work Stream 2 (WS2) ICANN accountability process. It deals with issues that, while important, did not have to be resolved prior to the IANA transition that took place on October 1, 2016. Many WS2 issues, such as greater transparency through improved community access to internal ICANN memos and documents, have been completed or are close to it. ICA members have identified greater ICANN accountability and transparency as a priority goal, and our continued engagement in this process will help maximize the benefits.
The most contentious subject remains ICANN’s jurisdictional status as a California-based, U.S. non-profit corporation. While a minority of Jurisdiction subteam members continue to seek exploration of alternative incorporation venues, discussions in Johannesburg appear to have established that the majority of members believe that it’s past time to accept U.S. jurisdiction given that the entire new accountability structure meshes with California law, and that there is no consensus for considering alternatives nor any compelling reason to do so. That outcome is consistent with ICA’s preference that ICANN remain situated in the U.S. to provide continued certainty as to applicable law and judicial oversight of its operations. The subteam will continue exploring jurisdiction issues that arise in regard to ICANN contracts and non-U.S. offices.
All of the ongoing policy development process (PDP) working groups held long open sessions in Johannesburg, including the two that I co-chair. The first, which is nearing completion after three years of work, involves the access of International Intergovernmental Organizations (IGOs – mostly UN agencies) to the UDRP and URS. IGOs, backed by the Governmental Advisory Committee (GAC), have been pushing for their own separate versions of those proceedings, based on broad claims of judicial immunity, in which a domain registrant would not have access to judicial review of an adverse initial decision but just another arbitration-type proceeding if they thought the initial decision was ill-founded. After engaging an independent legal expert regarding the scope of IGO jurisdictional immunity, the WG determined that there was no sound basis for the IGO’s broad immunity claims and instead is focusing on assuring that IGOs have ready access to the UDRP and URS as well as means to file via third parties and thereby safeguard the actual scope of their immunity. As we work toward wrapping up our efforts this fall, we are considering what to do if an IGO were to succeed in asserting immunity in a post-UDRP decision judicial process and thereby got the court action dismissed. Current UDRP language would let the UDRP decision be enforced upon dismissal of the judicial action brought by the domain registrant, but we are considering changing that to provide the domain registrant with a de novo review by an arbitrator in that narrow circumstance in order to assure a meaningful registrant appeal while respecting judicially determined IGO immunity. This WG is aiming to conclude its deliberations and submit a final report prior to the next ICANN meeting. ICA members will benefit from the WG’s insistence that domain registrants continue to have access to available judicial redress from an adverse UDRP decision regardless of the Complainant’s identity, as well as potential creation of a new review forum where one might not be otherwise available under current practice.
The other WG that I co-chair is the one reviewing all rights protection mechanisms (RPMs) in all gTLDs. This is the PDP that will commence the first-ever review of the UDRP in mid-2018. But for now we are focused on the RPMs created for the new gTLD program, and in Johannesburg we heard reports from two subteams examining sunrise registrations for trademark owners as well as trademark claims notices sent to those seeking to register a domain that’s an identical match to a trademark submitted to the Trademark Clearinghouse. That WG’s three hour session ended with a productive dialogue in which registries and registrars provided their perspective on operational aspects of these RPMs. ICA members have identified meaningful UDRP reform as their top policy priority, and my participation as a WG co-chair helps provide assurance that the review process will be balanced and comprehensive.
ICANN’s GNSO policymaking Council also held several sessions during the meeting. I serve on the Council as one of two elected representatives of ICANN’s Business Constituency. One issue of growing concern to Council members is a push by the GAC and other ICANN constituencies to address certain issues relating to gTLDs through a Cross-Community Working Group (CCWG) rather than via a GNSO PDP. While the PDP process welcomes the participation and input from anyone in the ICANN community, the ultimate decisions are made by the GNSO as this is the foundation of the bottom-up multistakeholder policy process rooted in the private sector and civil society rather than governments. The hot topic on which this debate is centered involves geographic names in new gTLDs, with governments pressing to have rights of pre-approval for almost any map name including villages, streams, and any landmark of cultural significance. On both process and substance, Council members reaffirmed their commitment to defend GNSO primacy on gTLD policy and to resist governmental overreach lacking a sound basis in law or policy.
The other hot issue discussed at ICANN 59 was the European Union’s (EU) General Directive on Privacy Regulation (GDPR), which will become effective in the spring of 2018. GDPR could subject registries and registrars to massive fines for revealing now-public WHOIS data, and there was extended discussion in Johannesburg regarding potential means of by which these contracted parties might comply with the Directive while continuing to collect and make available WHOIS data. ICANN staff is also investigating whether some GDPR exception can be granted for WHOIS data given its key role in consumer and IP protection.
ICANN 60 will take place in late October in Abu Dhabi. That is the week-long Annual General Meeting, and many of these same issues will be revisited there. I have just been re-nominated for a final term as one of the Business Constituency’s two representatives on the gTLD policy-making GNSO Council, and if I am re-elected (as appears very likely) I will commence that final two-year term at ICANN 60. My participation at this high-level of the ICANN policy process increases the stature of the ICA within the ICANN community and also provides enhanced access to Board members, senior staff, and internal information flows.
ICANN 60 will also see the retirement of ICANN’s current Board Chairman, Steve Crocker, and we are waiting to see who will replace him to lead post-transition ICANN’s Board. So stay tuned because all these developments can affect the domain marketplace and your rights in your portfolio.