Summary
- Discussions on the topic of “public interest within ICANN’s remit” has been ongoing for years within the ICANN Community. Some community members are advocating to devise mechanisms that will more effectively address the public interest.
- The Public Interest is a key topic of the At-Large Community. It has established a Public Interest Working Group. In particular, the European Regional At-Large Organization (EURALO) has advocated for related principles such as Open Access, Free Software, and Creative Commons since its inception.
- One sub-topic that At-Large cares deeply about is the Public Interest Commitments (PICs), especially pertaining to the Category 1 TLDs related to sensitive strings as defined by the GAC, such as .doctor and .bank.
- The Internet has become a critical part of the global public sphere. As the influence of commercial interests and state powers has been increasing, stakeholders need to work together and form a comprehensive vision on the Internet that addresses the protection of civil liberties, such as free speech and privacy.
What are PICs?
As part of ICANN’s new gTLDs program, the Public Interest Commitments, shortened as PICs, is a mechanism for ICANN to hold registries accountable for protecting the public interests in their new gTLD applications. Registries may submit a set of PICs and promise that they would only use registrars which prohibit registrants from distributing malware, phishing, spamming, copyright infringement, deceptive practices, and engaging in other activities that harm the interests of end users like you.
While submitting PICs is voluntary for registries, once submitted they would become a binding part of their Registry Agreement (“Specification 11”) with ICANN, assuming their new gTLDs are approved and delegated. Registries would be subject to a new dispute policy (the Public Interest Commitment Dispute Resolution Process, “PICDRP”) that would enable third parties to file official complaints about breaches. Registries that lose in the PICDRP would have to “implement and adhere to any remedies ICANN imposes” up to and including the termination of the registry contract with ICANN.
In sum, the PIC mechanism aims to serve as a preventative measure to protect users from malicious activities associated with new gTLDs. While making the Internet a safe, secure place is its key objective, this mechanism also needs to balance user interests and registrant rights.
Why PICs matter to you?
Some new gTLD strings, such as .doctor, .lawyer, and .bank, are linked to regulated or professional sectors which have clear entry requirements. These strings are likely to invoke a level of implied trust from consumers like you and me, and carry higher levels of risks associated with consumer harm.
By attaching PICs to those new gTLD applications, registries will be committed to ensuring that those strings are not abused on the one hand. They may be obligated to enforce the registrars’ monitoring of the usage of those strings and to provide consequences for abuse including the removal of domain names. If a registry fails to live up to PICs and this causes harms to you, you can file an online complaint to ICANN. ICANN is empowered to launch a compliance investigation, if deemed necessary, and may seek enforcement actions against the registry. On the other hand, if due to PICs only the registrants with valid credentials can register certain sensitive strings like .doctor and the creative use of those domains is limited, one can also argue that the freedom of expression of the registrants, who represent a segment of the Internet users, is limited.
What is ICANN’s Role in PICs?
ICANN Staff developed the PIC mechanism in response to the advice from ICANN’s Governmental Advisory Committee (GAC).
After the window closed for the first new gTLDs application round, the GAC reviewed a range of specific issues concerning the new gTLDs, including consumer protection and strings linked to regulated market sectors. During ICANN 45 Toronto Public Meeting in October 2012, GAC issued a Communiqué, advising the ICANN Board that registries need to be held accountable to statements made in their new gTLD applications. In November 2012, the GAC filed and publicly posted Early Warnings on 242 individual new gTLD applications that raise public policy concerns.
February 2013, the New gTLDs Program Committee of the ICANN Board approved a public comment period on the Public Interest Commitments (PICs) Specification in response to the GAC advice and the Early Warnings. The PICs Specification serves as a mechanism to transform registries’ new gTLD application statements into binding contractual commitments, as well as to give applicants the opportunity to voluntarily heighten their commitments to the public interest.
The new gTLD applicants that wish to submit PICs specifications had to do so by 05 March 2013. This expedited schedule was set to allow the GAC, the At-Large community, and other third parties to file formal objections against strings with the consideration of PICs. This specific role was provided in the Applicant Guidebook (see 1.1.2.6), and the deadline for string objections was 13 March 2013.
Out of the 1,930 new gTLD applications, 499 PICs specifications were submitted and have remained accessible to the public.
How the At-Large community has contributed to PICs?
Upholding the global public interest of Internet end users is at heart of the mission of At-Large. Hence, PICs has been a core issue for our community.
From our perspective, whereas there are many merits to PICs, PICs are difficult to enforce. First, PICs are optional. Registries that applied for some of the most sensitive strings didn’t submit PICs. Consequently, there are no binding commitments pertinent to safeguarding the public interests in their Registry Agreement with ICANN, if such provision is not already stated in other parts of their new gTLDs applications. Second, in certain PIC statements, there is lack of detail and clarity in regard to abuse-monitoring mechanism, credential validation procedure, and other preventative measures. Furthermore, some PIC submissions can include wordings that allow registries to arbitrarily change or even revoke all of its PICs, rendering the prior commitments ineffective. Third, even though PICDRP is put in place for third parties to file complaints, the third parties must demonstrate direct harm as a result of registries’ non-compliance with PICs. This prerequisite prevents government, regulatory agency, news and media, and other third parties from leveraging PICDRP to uphold user interests. Moreover, in the event that a complaint succeeds, it is unclear how the harm caused to the third parties would be remedied.
Since the inception of the PICs in early 2013, we have worked with stakeholder groups and provided a lot of constructive feedback. We submitted Policy Advice Statements in response to all PICs-related public comment requests; some of our advice on the PICDRP, for example, has been adopted. Furthermore, we collaborated with members from the Business Constituency on initiating an alternative mechanism (the mandatory “Public Advisory Boards”) to PICs and launched a public comment process soliciting further input. While support for PABs was insufficient, our policy initiative gained traction across communities.
With the goal of enhancing the existing PICs mechanism, we stood by the GAC Advice stated in its Beijing Communiqué (see Annex I) on applying a number of “safeguards” to the “Category 1” new gTLDs that are particularly sensitive. Those safeguards range from pre-validation of registrants’ credentials to the establishment of working relationships between registries and regulatory bodies. Seeing some of the most sensitive strings already being rolled out without sufficient safeguards put in place, during the Public Forum of ICANN 51 we urged the ICANN Board to “freeze” the process and reexamine the PIC mechanism via consultation with the community. Our advice rallied support from the Business Constituency, the GAC, and other sources. As a result, a high level dialogue with the Board New gTLDs Program Committee (NGPC) was opened in late 2014, with the engagement of representatives from our community, the Business Constituency, Intellectual Property Constituency, the GAC, registries, and registrars. During those meetings, we voiced our concerns for Category 1 new gTLDs, suggested ways to mitigate the damage of domain misuse, and discussed potential policy change to make the PICs more permanent. Our efforts aim to make the PIC mechanism more robust, accessible, and more easily enforceable, so the end-user interests can be more effectively protected.