Key Topics to Follow During the ICANN 66 Annual General Meeting in Montreal, Canada
The 66th international meeting of theInternet Corporation for Assigned Names and Numbers (ICANN) commences on November 2, 2019, in Montreal, Canada. ICANN holds three international meetings per year, which rotate among five geographic regions. Each meeting has a different format and area of focus, and the Montreal meeting is 2019’s AnnualGeneral Meeting (AGM). The AGM includes time for internal stakeholder group and constituency work, gTLD policy work, and cross-community interaction, but the overall focus is to showcase ICANN’s work to a broader global audience, with more time dedicated to capacity building and leadership training sessions. The AGM is also where new members of the ICANN Board of Directors take their seats. Please note that all key sessions identified below reflect the local time in Montreal, and are subject to change.
This advisory highlights several high-profile topics that have emerged amid community discussions in the lead-up to this meeting, and which we anticipate will command the majority of attention during ICANN 66.
Access to Domain Name Registration Data
The impact of the European General DataProtection Regulation (GDPR) on the WHOIS system of domain name registration data remains one of the most critical issues in Internet policy affecting intellectual property owners. Since the May 2018 adoption by ICANN of a temporary policy on WHOIS system compliance with GDPR, critical domain registration data has remained inaccessible to the public, including law enforcement, cybersecurity professionals, and intellectual property practitioners.
Since the adoption of the temporary policy, a special working group of stakeholder representatives (the ExpeditedPolicy Development Process Working Group, or EPDP) has been developing a permanent consensus policy on domain name registration data. The EPDP completed its “phase one” workstream in March 2019, which established the permanent consensus policy concerning the collection, storage, and publication of registration data, and which is currently in its implementation stage. The EPDP team is now well into the second phase of its work, focusing on the development of a Standardized System for Access and Disclosure (SSAD) to non-public WHOIS data for certain legitimate interests, including the enforcement interests of intellectual owners.
The EPDP Team has now completed efforts to document a series of real-life use cases for entities who request access ton on-public domain registration data. Following the review of these use cases, the Team identified themes in order to develop building blocks and policy principles of the SSAD. Some of the building blocks include purposes for requesting non-public registration data, accreditation of requestors, categorization of users, query policy (e.g. possible rate limitations and rules around “bulk” access), and acceptable use policy and other safeguards for handling disclosed data. The EPDP is working hard to publish its phase two initial report by early to mid-December for public comment. During ICANN 66, the EPDP team is expected to continue its work to refine the SSAD building blocks and accompanying policy principles and identify areas of consensus regarding these elements of the SSAD.
Key ICANN 66 Sessions
● GNSO – EPDP Phase 2 Meeting (1 of4) (Saturday, Nov 2, 8:30 a.m. – 2:30 p.m.)
● GAC Plenary Updates / Discussions on WHOIS and Data Protection Policy (Sunday November 3, 10:30 a.m. – 12 p.m.)
● GNSO – EPDP Phase 2 Meeting (2 of4) (Sunday, Nov 3, 1:00 p.m. – 2:30p.m.)
● GNSO - EPDP Phase 2 Meeting (3 of4) (Monday, Nov 4, 11:15 a.m. - 2:30 p.m.)
● GAC WHOIS and Data protectionPolicy and New gTLD Subsequent Rounds Discussions (Tuesday November 5, 8:30 –10:15 a.m.)
● GNSO Registration Data Policy IRT1 of 2 (Wednesday November 6, 8:30 – 10 a.m.)
● GNSO Registration Data Policy IRT2 of 2 (Thursday November 7, 8:30 – 10:15 a.m.)
● GNSO - EPDP Phase 2 Meeting (4 of4) (Thursday, Nov 7, 9:30 a.m. - 11:00 a.m.)
RightsProtection Mechanism Review
The Rights Protection Mechanism (RPM) ReviewWorking Group is nearing completion of its deliberations for Phase 1, which encompasses a review of the URS, Trademark Clearinghouse, Sunrise, and TrademarkClaims mechanisms developed for the new gTLD program.
Most recently, the Working Group has attempted to reach conclusions regarding several outstanding questions concerning the trademark Clearinghouse (TMCH). The primary focus in recent weeks has been on the issue of whether the TMCHdatabase should remain closed and confidential, or whether it should be opened to additional opportunity for examination by third parties. Most in the brand owner community has supported the confidentiality of the TMCH database, as it potentially reflects strategic information regarding the selection of particular marks for recordal. If made fully open, the TMCHdatabase could be used to identify gaps in TMCH coverage that would provide potential cybersquatters with a roadmap for securing domain names that would not trigger a Claims Notice. This would make it harder for the brand owner to detect and act on the potentially infringing domain name registration.
On the other hand, free speech and registrant rights advocates in the Working Group have favored opening the database and making it fully searchable. The ostensible purpose for such transparency would be to mitigate possible gaming of the system by parties who obtain non-bona fide trademarks in jurisdictions with low bars to registration in order to secure valuable domain names composed of generic terms during Sunrise. There is limited evidence that such gaming is actually occurring to any meaningful degree. Ultimately, the two positions on this issue will be put into the Working Group Initial Report for public comment to facilitate further assessment of the matter.
In addition, the Working Group has recently reached conclusions on a handful of other important issues, including that the TMCH provider should take additional measures to educate stakeholders about theTMCH system and supported RPMs; the TM+50 service (also known as the abused labels service) should be retained; and that the scope of the RPMs associated with the TMCH should not be limited to apply only to TLDs that are related to the categories of goods and services in which any dictionary term(s) within a trademark are protected. These are all positive outcomes for brand owners.
During ICANN 66, the RPM Review Working Group will hold three sessions during which it is expected to finalize and confirm TMCH, Sunrise and Claims recommendations and conclusions, confirm inclusion of the URS Sub Team proposals, confirm which of the individual URS proposals will be included in the Initial Report, and confirm the timeline and next steps for completing and publishing the Initial Report. We expect the Initial Report to be published for public comment no later than the end of Q1 2020.
Key ICANN 66 Sessions
● Review of all Rights ProtectionMechanisms in gTLDs PDP WG (1 of 3) (Saturday November 2, 3:15 – 4:45 p.m.)
● Review of all Rights ProtectionMechanisms in gTLDs PDP WG (2 of 3) (Saturday November 2, 5 – 6:30 p.m.)
● Review of all Rights ProtectionMechanisms in gTLDs PDP WG (3 of 3) (Sunday November 3, 5 – 6:30 p.m.)
NewgTLD Subsequent Procedures Issues
The New gTLD Subsequent Procedures(SubPro) Working Group is tasked with reviewing new gTLD program policy and implementation and recommending possible changes for future rounds of new gTLDs. T The SubPro Working Group had been divided into four parallel Work Tracks,each focusing on a different key topic area, namely overall process, support, and outreach (WorkTrack 1), legal and regulatory issues (Work Track 2), string contention,objections, and disputes (Work Track 3), and Internationalized Domain Names and technical and operational issues (Work Track 4). In addition, a further Work Track 5 was launched at a later date The PDP’s Work Track 5 is devoted solely to the issue of the use of geographic names as new gTLDs at the top-level. The Working Group has completed its review of public comments for both its Initial Report and its Supplemental Initial Report covering Work Tracks 1-4, and has since been taking into account how public input might affect its final recommendations. Recently, it has also been focusing on the issue of DNS abuse and the possibility of including additional recommendations to address this issue in future new gTLD rounds.
Work Track 5 has focused on reviewing the existing geographic terms and their respective rules as stated in the 2012 ApplicantGuidebook (AGB) and considering whether they require modification. After completing its review of public comments for its Supplemental Initial Report, Work Track 5 has been completing its Final Report, which is now poised to be delivered to the full SubPro Working Group for inclusion in the SubPro final report. The Work Track 5 Final Reportgenerally would preserve the 2012 status quo with respect to the treatment of geographic names at the top-level, with only a few relatively inconsequential updates and clarifications, namely:
In general, this is an outcome the brand owner community can live with, although it would have been preferable to not reserve permutations and transpositions of long- and short-form names, or any three-letter names that happen to be three-letter country codes.
During ICANN 66, the SubPro Working Group is expected to continue to finalize recommendations for inclusion in the SubProFinal Report, covering all five of the SubPro Work Tracks’ conclusions. In addition, the Working Group is considering whether an additional limited public comment period may be needed for certain topics. The Working Group hopes to deliver a completed Final Report to the GNSO Council by the end of Q1 2020.
Key ICANN 66 Sessions
● GNSO - New gTLD SubsequentProcedures PDP WG (1 of 4) (Sat Nov. 2 12:15 p.m. - 1:30 p.m)
● GNSO - New gTLD SubsequentProcedures PDP WG (2 of 4) (Sat Nov. 2 1:30 p.m. - 3:00 p.m.
● GAC Plenary Updates: Two CharacterCountry Codes and Discussions on New gTLD Subsequent Procedures Work Track 5 (Sunday November 3, 8:30 – 10:15 a.m.)
● GAC Plenary Updates on .AMAZON (Sunday November 3, 10:30 a.m. – 12 p.m.)
● GNSO - New gTLD SubsequentProcedures PDP WG (3 of 4) (Mon Nov. 4 3:15 p.m. - 4:45 p.m.
● GNSO - New gTLD Subsequent Procedures PDP WG(4 of 4) (Mon Nov. 4 5:00 p.m. - 6:30 p.m.)
DNSAbuse
DNS abuse has been the focus of discussions within the ICANN community for many years, and it has once again returned to the forefront, notably within SubPro but also more broadly throughout the ecosystem of Internet stakeholders. DNSabuse was not originally captured in the SubPro Charter, but the topic has been flagged on a number of occasions as an important issue that should be addressed as part of preparations for future rounds of new gTLDs. DNS abuse was also a topic considered by the Competition, Consumer Choice, and Consumer Trust Review Team (CCT-RT), which made several recommendations that relate to DNS abuse, including:
In addition, a number of leading registries and registrars released a Framework on DNS Abuse. The Framework provides a proposed definition of DNS abuse, which identifies five broad categories: malware, botnets, phishing, pharming, and spam (when it serves as a delivery mechanism for the other forms of DNS Abuse). Though not required by their respective ICANN agreements, this Framework also described various additional forms of “Website Content Abuse” for which the signatories to the Framework would likely take corrective action, namely:(1) child sexual abuse materials (“CSAM”); (2) illegal distribution of opioids online; (3) human trafficking; and (4) specific and credible incitements to violence.
However, the Framework makes no mention at all of the abuses related to intellectual property, and the brand owner community is responding to point out this critical omission. In particular, our recently-published response highlights how intellectual property infringement and cybersquatting is also often related to other abuse vectors like the distribution of malware and phishing. It also notes that the relevant ICANN agreements actually have broader definitions that cover any illegal activity, which would generally encompass trademark and copyright infringement including counterfeiting and online piracy. It also notes that most registry and registrar policies, terms and conditions also specifically prohibit certain domain name uses including content related, such as use to infringe third party rights, which should be taken into account in formulating a definition for DNSabuse and supports registry and registrar response to reports of such activity.
We anticipate continued vigorous dialogue and debate during ICANN 66 regarding the issue of DNS abuse, how to define it, and what ICANN and its contracted parties should be doing to combat such activity.\
Key ICANN 66 Sessions
● Security, Stability, and Resiliency (SSR) Review Team Meeting (Saturday November 2, 9 a.m. – 4:45 p.m.)
● Engagement Session with the SSRReview Team (Monday November 4, 3:15 – 4:45 p.m.)
● Board GAC Implementation Group and DNS Abuse Mitigation Discussion (Tuesday November 5, 10:30 a.m. – 12 p.m.)
● DNS Abuse (Wednesday November 6,10:30 a.m. – 12 p.m.)
● DAAR Improvements (Wednesday November 6, 1:30 – 2:30 p.m.)
● GAC DNS Abuse Mitigation PlenaryDiscussion and Communique Drafting Session (Wednesday November 6, 1:30 – 3 p.m.)
We hope that this advisory provides you with unique insight into major areas of impact and interest for brand owners in the Internet policy space, and highlights why brand owners should be involved in and aware of ICANN policy-making efforts. The ICANN 66 meeting will take place from November 2-7, 2019 in Montreal, Canada. A link to the full meeting schedule is available here.
For more information about these topics, please contact any of the following team members. In addition, our team will be available to provide on-the-ground, daily coverage of key meeting sessions. If you are interested in receiving our Eyeon ICANN reports, or in-depth coverage of particular sessions of interest, please contact us at internet@winterfeldt.law.
