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Why ICANN should stop taking the “Malvinas” issue seriously [RANT]

Kevin Murphy, November 24, 2013, Domain Policy

Here in the UK, we have something not very nice called the British National Party.

It’s a perfectly legal political party but, as the name may suggest, it has an overtly racist manifesto, garners few votes, and holds next to no power.

Voting BNP is frowned upon in polite company. Don’t expect too many dinner party invitations if you’re a supporter. It’s even legal here for employers to discriminate against card-carrying members.

The most unpleasant manifesto promise of the BNP is to “encourage the voluntary resettlement” of “immigrants”.

Britain, the BNP says, should be for its “indigenous people”, which it has described as “the people whose ancestors were the earliest settlers here after the last great Ice Age”.

That’s about 10,000 years ago. It’s basically the BNP’s way of rationalizing its racism with a cut-off point for what constitutes an “immigrant” that falls well before anyone with brown skin showed up.

None of this has anything to do with domain names, of course.

I only mention the BNP because its ludicrous views always spring to my mind whenever I hear an Argentinian activist raise the issue of the Falkland Islands at an ICANN meeting.

This happened quite a lot at the Public Forum of the ICANN 48 meeting in Buenos Aires, Argentina last Thursday.

It wasn’t the first time the Falklands have been discussed at an ICANN meeting but, on home turf, many locals who would not otherwise consider attending decided to show up to make their views known.

Argentinians call the Falklands archipelago, a British Overseas Territory situated in the southern Atlantic about 500km to the east of Argentina, the “Malvinas”.

Originally settled by France in the late 18th century, Britain has controlled the islands more or less continuously since 1834 and at intervals as far back as 1765, before Argentina existed.

Spain was in charge for a few decades from 1767 and then Argentina, after its independence, had a hold for a few years from 1829.

The only time Argentina has had a claim recently was during a two-month period in 1982, when Argentina invaded, starting a pointless war that claimed the lives of 255 British and 649 Argentinian service personnel, wounding a few thousand more.

In case this history lesson is new to you, I should point out that the Falklands are not and have never in living memory been in any way “occupied” by the UK.

The islanders are all British citizens and have the right of self-determination: they want to be British. According to the 2013 electoral roll, only 18 Argentinians live there, of a population of almost 3,000.

So it really boils my piss when I have to listen to Argentinians take to the mic at ICANN meetings to demand — demand — that ICANN transfers the Falklands ccTLD, .fk, to Argentina’s ccTLD operator, Nic.ar.

It turns my piss to steam when members of the ICANN board of directors humor these demands — vowing to take their concerns seriously or, even worse, agreeing with the use of terms like “occupation”.

This happened quite a lot on Thursday.

The ring-leader of the Argentine position is a guy called Sergio Salinas Porto. He’s president of Internauta Argentina, an organization of Argentinian internet users.

He seems to be a bit of a one-trick pony when it comes to public statements at ICANN meetings. The Latino Paul Foody, maybe. It’s possible that I’m giving him more credibility than he deserves.

He made similar demands at the ICANN meetings in Senegal in 2011 and Costa Rica last year. This time, however, he seems to have managed to drag some of his supporters with him.

The real-time interpretation provided by ICANN is not good enough to quote from directly at any length, but Internauta published its list of demands on its web site after the Public Forum. Among them (machine-translated from the original Spanish):

That the Argentine authorities (legal and technical secretariat – NIC.ar) will deliver the administration of ccTLDs .fk and .gs.

That all ccTLDs involving debate on issues of sovereignty and further promote colonialist acts or harboring or see these acts are protected from any administrative or factual act by ICANN are reviewed.

It also wants the Falklands referred to as the “Malvinas”, alongside “Falklands”, in ICANN documentation, and for .fk to fall into the Latin-American, rather than European, ICANN region.

But the key demand here is that control of a ccTLD that is currently delegated to a territory’s government — the Falkland Islands Government in this case — is transferred to the government of another country, based on emotive arguments such as “occupation” and “colonialism”.

At the mic, Salinas Porto reiterated these points almost word for word, judging by the ICANN interpreter’s translation — asking for the redelegation and using the same emotive arguments.

The demand was restated by multiple Argentinian commenters.

It was restated so many times that session moderator Bertrand de La Chappelle — who had graciously allowed Salinas Porto to jump to the front of the queue for the mic — took no small amount of flak from Internauta’s supporters for trying to hurry people along in the interests of timing.

One talked of “a dark and colonial power”, another talked of “decolonization”, one said he felt “invaded” by ICANN, a fourth said that “the Malvinas islands were taken by a colonial power by force”.

This is pure chutzpah.

It may be true that the Falklands were seized militarily by Britain. My history is not good enough to pass comment. Whatever happened, it was 180 years ago. Everyone involved is long dead.

Argentina indisputably seized the islands militarily during my lifetime. The records on this are pretty good. Living servicemen on both sides today bear the physical and emotional scars of Argentina’s folly.

Now consider that Argentina was among a coalition of Latin American nations that recently used the Governmental Advisory Committee to kill off the application from Patagonia Inc for the new gTLD .patagonia.

That was based on the governments’ claims that Patagonia — a region that covers areas of Argentina and Chile — should be a protected term in the domain name system. They have sovereignty, they claim.

Yet the Patagonia region was claimed by Argentina during the so-called “Conquest of the Desert”, an act of “colonization” that involved the “genocide” of over 1,000 indigenous people and dislocation of 15,000 more. That’s even more people than killed in 1982.

And Argentina did this act of colonization in 1870, three decades after the British took over the Falklands, which had no indigenous peoples (if you’re not counting the penguins).

If there’s a serious question about the ownership of .fk, shouldn’t the same logic should apply to .patagonia? Argentina can’t have it both ways, can it?

If the cut-off point for ownership of a territory is pre-1834, then Argentina can have no claim over .patagonia.

It’s a ludicrous thing to say, I know. I can barely believe I’m making the argument, it’s so silly. I feel almost Amish, or BNP, or one of the Conkies, to try to use an arbitrary cut-off date like that.

That’s probably why nobody from the UK took the mic at the ICANN Public Forum on Thursday to respond to Salinas Porto and Internauta’s supporters.

Maybe they didn’t want to provide oxygen to the illusion that there is a real debate here (in which case they’re smarter than me), or maybe they were far too polite to risk insulting their host nation by joining in on the trivialization of a political conflict that has resulted in the death and maiming of so many (in which case I’m embarrassing myself here).

But at least three members of the ICANN board did address the issue, vowing to treat the issue seriously and therefore compelling me to respond, regardless.

Notably, CEO Fadi Chehade, who grew up in Beirut, Lebanon, said it was a “very worthy question”, adding:

This was a chance for us to hear your views and appreciate your feelings about this. I must tell you on a personal basis, unlike living the history of colonialism I lived under a colonizer, personally, so I’m personally familiar with how you feel. But this is a very serious matter that requires some review and some thinking. I can assure you that we have listened to you and we will take your input as great learning for us.

Now, it’s quite possible that this was just the latest instance of Chehade “doing a Chehade” and telling his perceived audience what he perceived they wanted to hear.

His predecessor, Rod Beckstrom, was similarly accommodating to Salinas Porto during the Costa Rica meeting in 2012.

Chehade did not actually commit ICANN to address the issue.

But the Brits were in the audience too. And I think it’s fair to say that when we hear Argentinians bang on about the “Malvinas” — and we hear the ICANN board pay them heed — we either a) get angry or b) shake our heads and tut.

At the start of this article I compared the Argentinian argument to the BNP. To avoid doubt, I’m not saying that it’s racist. I could not begin to construct such an argument. I am saying that it’s silly, and probably based more on Argentinian nationalism than it is on any deficiencies in ICANN policy.

When ICANN in future responds to Argentinian arguments about the Falklands, these are some things to bear in mind:

  • ICANN does not decide, and is not qualified to decide, what arbitrary subdivisions of our planet are or are not worthy of a ccTLD delegation.
  • ICANN long ago decided to take its cues from the International Standards Organization, which in turn looks to the United Nations, when assembling its list of ccTLD identifiers.
  • ICANN, via its IANA department, always pays attention to the wishes of the local populace when it decides whether to redelegate a ccTLD to a new operator.

These three bullet points are the only things an ICANN director needs to know when responding to anyone who uses the word “Malvinas” in a Public Forum statement.

“Taking it seriously” should only be an option if you’re trying to be polite.

GAC gives ICANN a way out on IGO acronyms

Kevin Murphy, November 22, 2013, Domain Policy

The ICANN Governmental Advisory Committee has reiterated its call for the protection of intergovernmental organization acronyms in the new gTLD program, but seems to have given ICANN a way to avoid a nasty confrontation.

In its official Communique from the just-concluded meeting in Buenos Aires, Argentina, the GAC provided the following advice concerning IGOs:

The GAC, together with IGOs, remains committed to continuing the dialogue with NGPC [ICANN’s New gTLD Program Committee] on finalising the modalities for permanent protection of IGO acronyms at the second level, by putting in place a mechanism which would:

1. provide for a permanent system of notifications to both the potential registrant and the relevant IGO as to a possible conflict if a potential registrant seeks to register a domain name matching the acronym of that IGO;

2. allow the IGO a timely opportunity to effectively prevent potential misuse and confusion;

3. allow for a final and binding determination by an independent third party in order to resolve any disagreement between an IGO and a potential registrant; and

4. be at no cost or of a nominal cost only to the IGO.

This seems to be a departure from the GAC’s its Durban Communique, in which it had demanded “preventative” measures be put in place to stop third parties registering IGO acronyms.

As we reported earlier this week, the GNSO Council unanimously approved a resolution telling ICANN to remove IGO acronyms from existing block-lists, something the GAC had been demanding.

Now, it seems that ICANN has been given a relatively simple and less confrontational way of accepting the GAC’s watered-down advice.

The Trademark Claims alerts service and Uniform Rapid Suspension dispute resolution process combined would, by my reading, tick all four of the GAC’s boxes.

IGO acronyms do not currently qualify for either, because they’re not trademarks, but if ICANN can figure out a way to allow these strings into the Trademark Clearinghouse, it can probably give the GAC what it wants.

In my view, such a move wouldn’t trample on anyone else’s rights, it would not represent the kind of overkill the GAC originally wanted, nor would it be in conflict with the GNSO’s consensus resolution (which seems to envisage a future in which these acronyms get TMCH protection).

ICANN may have avoided the sticky situation I pondered earlier this week.

ICANN in a sticky spot as GNSO overrules GAC on block-lists

Kevin Murphy, November 20, 2013, Domain Policy

ICANN may have to decide which of its babies it loves the most — the GNSO or the GAC — after receiving conflicting marching orders on a controversial rights protection issue.

Essentially, the GAC has previously told ICANN to protect a bunch of acronyms representing international organizations — and ICANN did — but the GNSO today told ICANN to un-protect them.

The GNSO Council this afternoon passed a resolution to the effect that the acronyms of IGOs and international non-governmental organizations (INGOs) should not be blocked in new gTLDs.

This conflicts directly with the Governmental Advisory Committee’s longstanding advice, which states that IGOs should have their names and acronyms reserved in all new gTLDs.

The Council’s resolution was passed unanimously, enjoying the support of registries, registrars, non-commercial users, intellectual property interests… everyone.

It came at the end of a Policy Development Process that kicked off in 2011 after the GAC demanded that the International Olympic Committee and Red Cross/Red Crescent should have their names protected.

The PDP working group’s remit was later expanded to address new demands from the GAC, along with a UN-led coalition of IGOs, to also protect IGO and INGO names and acronyms.

The outcome of the PDP, which had most of its recommendations approved by the GNSO Council today, was to give the GAC most of what it wanted — but not everything.

The exact matches of the full IOC, RC/RC, IGO and INGO names should now become permanently ineligible for delegation as gTLDs. The same strings will also be eligible for the Trademark Claims service at the second level.

But, crucially, the GNSO Council has voted to not protect the acronyms of these organizations. Part of the lengthy resolution — apparently the longest the Council ever voted on — reads:

At the Top Level, Acronyms of the RCRC, IOC, IGOs and INGOs under consideration in this PDP shall not be considered as “Strings Ineligible for Delegation”; and

At the Second level, Acronyms of the RCRC, IOC, IGOs and INGO under consideration in this PDP shall not be withheld from registration. For the current round of New gTLDs, the temporary protections extended to the acronyms subject to this recommendation shall be removed from the Reserved Names List in Specification 5 of the New gTLD Registry Agreement.

The list of reserved names in Spec 5, which all new gTLD registries must block from launch, can be found here. The GNSO has basically told ICANN to remove the acronyms from it.

This means hundreds of strings like “who” and “idea” (which would have been reserved for the World Health Organization and the Institute for Development and Electoral Assistance respectively) should now become available to new gTLD registries to sell or otherwise allocate.

I say “should”, because the Council’s resolution still needs to be approved by the ICANN board before it becomes a full Consensus Policy, and to do so the board will have to reject (or reinterpret) the GAC’s advice.

The GAC, as of its last formal Communique, seemed to be of the opinion that it was going to receive all the protections that it asked for.

It has told ICANN for the last year that “IGOs are in an objectively different category to other rights holders” and that “their identifiers (both their names and their acronyms) need preventative protection”

It said in its advice from the Durban meeting (pdf) three months ago:

The GAC understands that the ICANN Board, further to its previous assurances, is prepared to fully implement GAC advice; an outstanding matter to be finalized is the practical and effective implementation of the permanent preventative protection of IGO acronyms at the second level.

The key word here seems to be “preventative”. Under the resolution passed by the GNSO Council today, IGO acronyms would be allowed to enter the Trademark Clearinghouse and participate in the Trademark Claims service, but Claims does not prevent anyone from registering a matching domain.

It’s looking like the ICANN board is going to have to make a call — does it accept the GAC advice, or does it accept the unanimous consensus position of the GNSO?

Given that much of ICANN 48 here in Buenos Aires this week has been a saccharine love-in for the “multistakeholder process”, it’s difficult to imagine a scenario in which the GNSO Council does not win out.

Kleinwächter joins ICANN board

Kevin Murphy, November 16, 2013, Domain Policy

Internet governance expert Wolfgang Kleinwächter has joined ICANN’s board of directors with immediate effect.

Kleinwächter is the emergency replacement for Judith Vazquez, who quit with no explanation last month. He’ll carry out Vazquez’s duties until her term was due to end, a year from now.

He’s a rare insider appointment from the Nominating Committee, which regularly looks outside of ICANN for its board expertise.

He has been involved with ICANN since almost the beginning, and currently sits on the GNSO Council (a term due to expire this week) as a representative of the Non-Commercial Users Constituency.

He’s a German national and currently employed by the University of Aarhus, Denmark, where he teaches on the subjection of internet policy and regulation.

He also has experience in UN-related policy projects such as the World Summit on the Information Society and the Internet Governance Forum.

Will ICANN be forced to reject Islamic gTLDs?

Kevin Murphy, November 14, 2013, Domain Policy

The Organisation of Islamic Cooperation has condemned applications for .islam and .halal gTLDs filed by a Turkish company, despite the applicant recently fighting off an OIC-backed objection.

Claiming to represent the world’s 1.6 billion Muslims, the OIC expressed in a November 4 letter to ICANN and its Governmental Advisory Committee:

official opposition of the Member States of the OIC towards probable authorization by the GAC allowing use of these new gTLDs .Islam and .Halal by any entity not representing the collective voice of the Muslim people.

The letter seems to have been sent in response to the GAC’s current stalemate on these two TLDs, which were applied for, uncontested, by Istanbul-based Asia Green IT System.

At the ICANN meeting in Beijing six months ago, the GAC was unable to reach a consensus to object to .islam and .halal, instead merely noting:

Some GAC members have raised sensitivities on the applications that relate to Islamic terms, specifically .islam and .halal. The GAC members concerned have noted that the applications for .islam and .halal lack community involvement and support. It is the view of these GAC members that these applications should not proceed.

As a non-consensus objection, there’s no presumption that the ICANN board of directors should reject the applications.

And it seems that the New gTLD Program Committee, which carries board powers, has been deliberately ignoring the controversy pending the resolution of two formal Community Objections.

The objections were filed by the United Arab Emirates’ Telecommunications Regulatory Authority, the UAE’s ccTLD registry operator, with backing (it claimed) from the OIC.

But the TRA lost both objections, partly because the wishy-washy government-speak OIC letter it submitted in evidence failed to convince International Chamber of Commerce adjudicator Bernardo Cremades that it really did have that OIC support.

Whether the OIC really does object to Asia Green’s bids now seems beyond dispute.

In fact, the organization says it intends to pass a formal resolution containing its position on Islamic gTLDs during its Council of Foreign Ministers meeting in early December.

ICANN chair Steve Crocker has now asked the GAC to provide further guidance before it decides whether to accept or reject the two bids.

Given that a single governmental hold-out in the GAC would be enough to kill any chance of consensus, the OIC may be right to presuppose that the GAC will not fully object.

That would leave ICANN in the tricky position, for the first time in this application round, of having to decide the fate of a gTLD without the cover of a uniform international objection.

Would it reject .islam, opening the door for other gTLDs to be killed off by minority government concerns? Or would it approve the controversial strings, potentially pissing off the Muslim world?

I expect there’s at least one NGPC member — Lebanese-born Christian ICANN CEO Fadi Chehade — who would certainly not relish having to cast a vote on such a resolution.