ICANN’s still-unsettled structure received yet another warping last month when the Government Advisory Committee (GAC) voted to intervene directly into the process of introducing new generic top-level domains. The results have serious implications for the future direction of ICANN. It calls into question ICANN’s status as a bottom-up, private-sector organization and points toward its gradual absorption by governments as an international regime under their direct control.

It should be noted that under recognized international law, governments have no intellectual property rights in their country names. And in its second domain name process, the normally aggressive World Intellectual Property Organization (WIPO) pulled back from expanding the UDRP to embrace rights to geographical indicators. The WIPO Final Report refers to “evidence of the widespread registration of the names of countries, places within countries and indigenous peoples as domain names by persons unassociated with the countries, places or peoples,” but concluded that “these areas are not covered by existing international laws and a decision needs to be taken as to whether such laws ought to be developed.” WIPO’s caution was prodded in part by business trademark holders concerned about the potential confusion, and possible erosion of their rights, that might be caused by proliferating claims to names by governments, regions, and administrative entities.

The lack of a recognized claim in international law did not deter the GAC, however. At the Montevideo meeting GAC issued a request that “the names of countries and distinct economies…should be reserved by the .info Registry in Latin characters in their official language(s) and in English and assigned to the corresponding governments and public authorities, at their request, for use. These names in other [non-roman] character sets should be reserved in the same way as soon as they become available.”

Surprisingly, ICANN did not brush aside this claim, as it might have done only two years ago. Instead, ICANN’s Board passed a resolution one day after it received the request from GAC (setting a new Olympic world record in “community consensus-formation”) bowing in part to the GAC’s wishes. Specifically, the Board authorized Afilias to implement a freeze on any new registrations of ISO-3166-1 country codes under .info, and instructed Afilias to challenge any existing registrations made during the Sunrise period. These arrangements seem to have emerged from informal negotiations between GAC and Afilias. ICANN’s President also agreed to come up with an action plan.

The implications of these actions upon the structure of ICANN’s decision making and policy formation process should be clear. Fundamental policy decisions about who has the rights to names are being advanced at the 11^th hour by an entity (the GAC) that under the original concept of ICANN simply does not have any policy making authority whatsoever. And yet, ICANN’s management and its pet registry contractors are rolling over nicely. It would seem that GAC has finally – as some of us predicted it would – stepped directly into the role of a 4^th Supporting Organization; a Supporting Organization that seems to be “more equal” than others, especially the DNSO.

The President’s action plan made the situation even worse. It proposed to keep the 327 country codes under .info in the deep freeze while a “discussion group” was formed to explore “appropriate ways” of dispensing the names. Did the proposed discussion group include members of the Domain Name Supporting Organization, nominally ICANN’s official body for formulating domain name policy? It did not. It included members of the ICANN Board, representatives of GAC, Afilias, and WIPO.

The DNSO was patted on the head and told to go off and ruminate on “possible approaches for longer-term arrangements concerning the use of geographic names within DNS.”

In the next installment of this (exciting?) series, the DNSO’s reaction will be covered.

It's precisely because governments have been unable to prevail under the UDRP in seeking SLDs in .com, that they've chosen another route to get the names in .info. And so far, they're succeeding; by order of ICANN, names such as formeryugoslavrepublicofmacedonia.info and southgeorgiaandthesouthsandwichislands.info have been placed off-limits to registration, at least through March 2002. (You can see the complete list here.) But the vision of the DNS this embodies, one in which central authorities have power to select the deserving recipients of particular names, is far different from the vision that now controls in the unrestricted TLDs. If governments want names for official sites outside of the ccTLDs, let ICANN establish a chartered TLD for official government sites, and leave the unrestricted TLDs unrestricted.