Joint meeting ICANN Board and GAC

Event report

The joint meeting between the ICANN Board of Directors and the Governmental Advisory Committee (GAC) revolved around several topics of particular interest for governments, including the use of two-letter country codes at second level (i.e. as domain names) in generic top-level domains (gTLDs).

In November 2016, the ICANN Board adopted a resolution authorising ICANN to allow new gTLD registry operators to allow the registration of domain names representing two-letter country codes, as long as the operators implement a set of required measures to avoid confusion with corresponding country codes. Such measures were described in a document released in December 2016 by ICANN’s Global Domains Division. Previous to this decision, GAC issued advice cautioning the Board that the release of two-letter country codes could create confusion among end-users in that they may interpret the domain names as being affiliated with a government or a country code TLD manager.

Many GAC members expressed concerns over the Board resolution, both in terms of process and substance, including:

• The decision taken by the Board followed up on a policy development process that has been in place for a number of years, but rather dormant. It is unclear what determined the Board to take its decision at this specific point in time.
• Following the Board resolution, it is no longer mandatory for gTLD registries to notify governments of the plans for their use of two-letter codes, nor are registries required to seek agreement of governments when releasing two-letter country codes at the second level. This is quite a significant change.
• From a majority of GAC members, the Board decision represents a de facto rejection of GAC advice. While some of the countries do not have a problem with the decision per se, they still think that there have been flaws in the process. In addition, it would have been preferable for the Board to simply say that it has decided not to follow GAC advice.
• There continue to be serious concerns among governments with regard to the potential for end-user confusion. Overall, the mitigation measures for avoiding confusion are either not working, or working in a way that is detrimental to governments. For example, one of these measures is for countries to register their country codes with new gTLD operators during the exclusive registration period. Some countries have tried to explore this option and found out that the costs would be bring undue financial burden.

The Board explained that it had examined the release of two-letter country codes in respect to ICANN’s mission, commitments, and shared values. In its view, the resolution is fully consistent with GAC advice. With regard to the possibility of confusion, there have been measures devised to mitigate such risks, and the Board finds them appropriate.

Moreover, it was said that countries do not own their country codes. These codes are designated at the top level on the basis of the ISO list for country codes. But at the second level there have already been registrations of domain names representing two-letter country codes in both legacy gTLDs and many ccTLDs. Some countries have underlined that it is not within the Board’s right or mandate to decide whether GAC members have rights over two character codes.

At the end of the discussions, the Board mentioned that it is willing to engage into discussions with GAC members that are uncomfortable with the decision, and discuss both the process and the substance, and why the Board thinks that it has acted in accordance with GAC advice. This does not mean that the decision will be renegotiated.

Other points touched on during the meeting were related to:

• Confidentiality of GAC documents. For a long time, GAC thought that its internal communications were confidential, and that only sovereign governments had access to the content of such communication. Governments recently realised that, in certain circumstances, when someone challenges an ICANN decision and there is a legal procedure, documents need to be produced drawing on internal GAC communication. While being concerned about this issue, GAC is working  with ICANN on a solution.
• New Board process for considering GAC advice. The ICANN Board is implementing a process allowing it to give more timely response to GAC advice. This will involve calls between GAC and the Board following the issuance of GAC advice. Questions will be prepared in advance of the calls, and there will be discussions aimed to assist the Board in fully and accurately understanding GAC advice before considering it.
• Protection of names of intergovernmental organisations and of Red Cross/Red Crescent. On this issue, there has been conflicting GAC advice and Generic Names Supporting Organization (GNSO) recommendations (with the GAC asking for the protection of these names). The Board has facilitated discussions among the two groups on this issue. GAC expressed its appreciation for this kind of facilitation, and noted that it is looking forward to continue the discussion with a view to unlocking the situation. The Board mentioned that it is also important to find ways to avoid such blockage situations in the future.
• Cross Community Working Group on ICANN Accountability (CCWG-Accountability) Work Stream (WS2). GAC and individual GAC members are seeking to actively participate in WS2, despite it being challenging to keep track of the multiple streams of work. The main topics of interest for governments include: the implementation of the ICANN bylaw changes resulting from the WS1, jurisdiction-related issues, diversity, and legitimacy.