Tomorrow morning, a House subcommittee will tackle an issue that has been under the radar for most Internet users and rights holders, but is of critical importance.  ICANN, the governing body of the Internet domain name space and addressing structure, has announced plans to introduce hundreds or even thousands of new “generic top level domains” (gTLDs) to the Internet. 

Virtually any string of letters and numbers is fair game, and anyone can apply (assuming you have the six-figure application fee and the wherewithal to run a Registry).  The gTLDs that are approved will then be open for second-level registrations, and brand owners and others will be faced with a Hobson’s choice: spend millions of dollars in new “defensive registrations” to protect their marks, or sit back and risk an exponential expansion of the cybersquatting and online infringement problems.  Members of the House subcommittee will question an ICANN witness, rights owners and others about this proposed program, and related Internet governance issues.

While the U.S. government and Congress always has had an oversight interest in ICANN (the U.S. government, after all, created ICANN), the impetus for this hearing seems to have been ICANN’s contentious debates with its “Government Advisory Committee” and its apparent rejection of a number of GAC “recommendations” regarding the new gTLD roll-out.  The GAC consists of representatives from the governments of the world, and while their advice is not binding on the ICANN Board, it is (or was) widely believed that ICANN rejects GAC advice at its peril – after all, without support of the governments, ICANN’s authority to govern the domain name space, and indeed its very existence, seem in doubt. 

Among the advice given by the GAC is that the new gTLD roll-out should include greater rights-protection mechanisms, should be more narrowly tailored to fit the actual needs of the Internet community, and should give communities and governments the opportunity to nix strings that are (in essence) offensive, contrary to public interest, etc. — in essence, any controversial string.  While the various versions of ICANN’s Draft Applicant Guidebook have taken into account some suggestions of the GAC and rights-holders, the core of the gTLD program has remained the same.  ICANN released its latest – and it says, last — draft of the Guidebook in April, and plans to finalize the roll-out procedure during its June meeting in Singapore. 

Once the process opens up for applications, ICANN expects to process up to 500 gTLD applications at a time. There is a lot of speculation about how this would affect the Internet, but one thing is for sure.  If rights holders have a hard time enforcing their copyright and trademark rights online right now, the problem will be exponentially worse in a world with hundreds of new gTLDs.

A second significant issue of concern for the House is the deterioration of the “WHOIS” databases for determining the owner and operator of web sites.  While the tool originally was intended to allow Internet users and others to know “with whom they are dealing” when they visit a web site online, the system is now broken to the extent that WHOIS is completely unreliable and often useless.  This is particularly true from the standpoint of rights enforcement and law enforcement. 

Sites that are engaging in illegal activity have little incentive to provide accurate WHOIS information if they are not forced to do so, and Registrars too often do not require their registrants to provide accurate whois information (“Mickey Mouse,” for example, is commonly given as the web site registrant’s name) and permit – even encourage – proxy registrations that effectively allow anonymous operation of a web site.  Congress has been concerned about these developments and will have some tough questions for the witnesses tomorrow.

–Scott Bain, Chief Litigation Counsel and Director, Internet Anti-piracy