Intellectual Property Law

ICANN Tuesday

By Susan Crawford

Here’s the challenge:  try to stay awake for election night half a world away.  Not easy.

So, why not talk about a current ICANN issue.  This one is about the process of making changes in the contract to be signed by new gTLD operators.

Here’s the text that’s proposed on the ICANN site:

Section 7.1 Evolution of Terms and Specifications. During the term of this Agreement, certain
provisions of the Agreement and the specifications incorporated into this Agreement may be
amended, modified, supplemented or updated in accordance with changing standards,
policies and requirements pursuant to the process set forth in this Article 7.

Section 7.2 Notice of Changes. ICANN will publicly post on its web site for no less than thirty
(30) days notice of any proposed changes, modifications or amendments to this form of registry
agreement. Following such public notice period during which ICANN will consider input from
affected Registry Operators, Registry Operator will be provided notice of the final terms of any
changes, modifications or amendments to the terms of this Agreement, and/or the
requirements, specifications, or processes incorporated into this Agreement at least ninety (90)
days prior to the effectiveness thereof by the posting of a notice of effectiveness on ICANN?s
web site. Any such proposed changes, modifications or amendments may be disapproved
within sixty (60) days from the date of notice of effectiveness of the change by either (i) two-thirds
in number of the registry operators subject to the change or (ii) a two-thirds vote by the
council of the ICANN Generic Names Supporting Organization (GNSO) pursuant to the GNSO?s
procedures (as the same may be modified from time to time) followed with respect to the
review and consideration of new Consensus Polices. In the event that such modification or
amendment is disapproved pursuant to the process set forth herein, the ICANN Board shall have
thirty (30) days to override such disapproval if it can show that the modification or amendment is
justified by a substantial and compelling need related to the security or stability of the Internet or
the Domain Name System.

In a public meeting with current ICANN gTLD registries today, they made clear that this is a major change to the basic deal that underlies the entire ICANN gTLD structure.

This is an interesting moment in ICANN’s history.  At the moment, private parties to these agreements (registries and ICANN) sign up to a basic “consensus policy” regime.  Under this regime, the registry agrees in advance to be bound by changes to its contract that are within a prescribed scope of issues (the “picket fence”) as long as the right process is followed in creating these changes (the “consensus policy process”).  This is a remarkable idea.  It’s a leap of faith for the private registry, but the operator’s risk is constrained by the boundary around the list of topics on which consensus policies can be made.  It’s a way for ICANN to have flexibility in imposing those few global requirements that are necessary.  (If there are emergencies, ICANN has the power to impose temporary changes without first going through the consensus policy process.)

ICANN recently has wanted to make a lot of changes to its standard Registrar Accreditation Agreement.  It found that it was was constrained by an even earlier version of the consensus policy process idea, and has found this frustrating.  So it wants the flexibility to make changes without going through a policy process, and it’s (initially) saying that although those changes can be overridden in some ways they will automatically become effective if they are *not* overridden.

Big change.  The board may discuss this on Friday, and public comments are being sought on the proposed contract.  Write to gtld-transition@icann.org - you’ll receive a confirmation email with a link to the comment submission form.

Full post as published by Susan Crawford Blog on November 04, 2008 (boomark / email).