gTLD Update: The GAC and the Future of the Internet

September 5, 2014

By Brad R. Newberg, Reed Smith LLP

In shorthand, the Internet Corporation for Assigned Names and Numbers (“ICANN”) is the entity that controls the rules of the road when it comes to the Internet.  For the most part, it decides how registries and registrars must operate, what kind of disputes can be resolved and how, and – in the case of the new gTLD program – when and how to expand the domain name system.

It would take far more detail than a blog post to go into how ICANN comes to its decisions and how the organization is structured, but suffice to say that ICANN operates in what is known as a “multi-stakeholder” system, where various interested parties such as registries, registrars, governments, intellectual property holders, and segments of the public each have a say.  As has been lamented in the past, interests are often aligned against intellectual property owners, who have a relatively small say in any issue, but that is not the topic of this post.

Recently, there have been questions about the future of ICANN, including whether the United States government will continue to have some oversight over ICANN (whose power currently stems, in part, as the result of a contract with the United States).  But a different government-related question is presently far more pressing, and that question has to do with the Governmental Advisory Committee within ICANN, also known as the “GAC.”

Already perhaps the most powerful segment of the ICANN community, the GAC has been seeking to make its influence known and increase its power of late.  The GAC is a committee of many national governments (more than 100), although it also has some observer members, which include UN agencies and other multi-national organizations.

The GAC typically meets face-to-face in closed meetings at ICANN’s own large public meetings, which happen three times a year, and any “advice” to ICANN that results from those meetings is released soon thereafter.  However, that advice usually takes the form of a short “Communiqué” that often does not state its rationale or any back-and-forth in positions or votes that resulted in the advice—in fact, GAC can list its advice as the “consensus” of GAC, even if only a couple of countries vote and the rest abstain (as might have happened with the .AMAZON issue described below).

The GAC is a powerful entity because its advice, under ICANN’s bylaws, must be taken into consideration, and where ICANN’s Board proposes actions inconsistent with GAC advice, it must give reasons for doing so and work with the GAC to reach a mutually acceptable solution.

Because of the political and private nature of the GAC, some advice is released with seemingly no rationale whatsoever.  For example, Amazon applied for dozens of gTLDs, but the cornerstone of all its applications was .AMAZON.  The .AMAZON application passed its initial evaluation and was ready to be accepted when Brazil and Peru were able to get GAC “consensus” advice that .AMAZON should not be allowed.  This was the case even though the river and its region are not even known as “Amazon” in those countries (but rather Amazonia), and neither country had applied for a community TLD for that string.  It is possible that few or even no other countries voted on the issue.  However, ICANN accepted the GAC advice to reject the .AMAZON application.

How far GAC members will go with this sort of advice is unknown.  It is possible that the GAC might want ICANN to go a step further and start reviewing and potentially eliminating second-level domain names, the identifier to the left of the dot in the overall domain name (e.g., the “ANA” in ANA.NET) in existing and future TLDs, where the second-level domain name has a string that could potentially be the same as a geographic region.

There is no question that there may be limited instances where governments have specific expertise and interest and, perhaps in those areas, the GAC should get extra credence: for instance, security issues.  But it does not appear that ICANN has done any analysis regarding when the GAC advice should outweigh the rest of the multi-stakeholder system, and, instead, seems willing to give GAC carte blanche on any issue the GAC wants to address.

In addition, while the GAC already wields significant power, ICANN has recently proposed an amendment to its bylaws that would force ICANN to adopt all GAC advice unless two-thirds of ICANN's non-conflicted board members vote to oppose the advice (and since many board members do have conflicts, some GAC advice would require a near-unanimous vote of the ICANN board to reject).  ICANN is accepting the first round of public comments on this proposed change until September 14, 2014, and reply comments until October 6.  Comments can be sent to comments-bylaws-amend-gac-advice-15aug14@icann.org.

ICANN appears to be moving very quickly on this issue, especially given its possible dramatic effect, with little time for opposing views or analysis.  This proposed change, if it were to be accepted, would be quite fundamental, so companies or their associations may wish to weigh in on this significant matter.  In addition, brands and others may wish to get educated on the changes going on within ICANN and how those changes could affect the future of the Internet.  As always, you should consult your internal experts and, if necessary, outside counsel, to come up with the right approach for your brand.


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