ICANN snubs Belgium, gives Donuts the all-clear for .spa

ICANN has rejected demands by the Belgian government by giving Donuts the go-ahead to proceed with its application for .spa, which Belgium says infringes on a geographic name.
Noting that the Governmental Advisory Committee had submitted no consensus advice that Donuts .spa bid should be rejected, the ICANN board’s New gTLD Program Committee said last week “the applications will proceed through the normal process.”
That means the two-way contention set is presumably going to auction.
The English dictionary word “spa” derives from Spa, a small Belgian town with some springs.
The other applicant is Asia Spa and Wellness Promotion Council, which has made a deal with Spa to donate some of its profits to local projects and give the city some control over the registry.
Donuts refused to sign a similar deal, leading to Belgium last month asking ICANN to delegate the gTLD to ASWPC and not Donuts.
The GAC’s last word on .spa was this, from the recent Singapore meeting:

Regarding the applications for .spa, the GAC understands that the relevant parties in these discussions are the city of Spa and the applicants. The GAC has finalised its consideration of the .spa string and welcomes the report that an agreement has been reached between the city of Spa and one of the applicants.

There’s no ICANN fudging here; if the GAC wanted to issue a consensus objection it could have.
The question is: why didn’t it?
Why does the string “amazon”, which does not exactly match the name of a place in its local languages, qualify for a GAC objection, while “spa”, which exactly matches the name of a city, does not?

ICANN split between GNSO and GAC on IGO names

ICANN’s board of directors has refused to choose between the Generic Names Supporting Organization and the Governmental Advisory Committee on the issue of intergovernmental organization protections.
In a resolution last week, the board decided to approve only the parts of the GNSO’s unanimous consensus recommendations that the GAC does not disagree with.
The GNSO said last November that IGOs should not have their acronyms blocked forever at the second level in new gTLDs, going against the GAC consensus view that the acronyms should be “permanently protected”.
The GAC wants IGOs to enjoy a permanent version of the Trademark Claims notifications mechanism, whereas the GNSO thinks they should only get the 90 days enjoyed by trademark owners.
Instead of choosing a side, ICANN passed a resolution last Wednesday requesting “additional time” to reach a decision on these points of difference and said it wants to:

facilitate discussions among the relevant parties to reconcile any remaining differences between the policy recommendations and the GAC advice

The decision is not unexpected. Board member Bruce Tonkin basically revealed the board’s intention to go this way during the Singapore meeting a couple of months ago.
The differences between the GAC and the GNSO are relatively minor now, and the board did approve a large part of the GNSO’s recommendations in its resolution.
IGOs, the Olympics, Red Cross and Red Crescent will all get permanent blocks for their full names (but not acronyms) at the top level and second level in the new gTLD program.
International nongovernmental organizations (INGOs) will also get top-level blocks for their full names and protection in the style of the Trademark Claims service at the second level.
The dispute over acronyms was important because many obscure IGOs, which arguably don’t need protection from cybersquatters, have useful or potentially valuable acronyms that new gTLD registries want to keep.

Belgium comes out against Donuts’ .spa bid

Belgium wants Donuts’ application for .spa rejected after the new gTLD applicant declined to sign a deal with the city of Spa.
In a March 20 letter to ICANN, published today, the Belgian deputy prime minister Johan Vande Lanotte said “negotiations between the stakeholders are closed”, adding that Belgium:

requests the Board of Directors of the ICANN to delegate the new “.spa” gTLD to the candidate who has a formal agreement with the local authorities of Spa and in respect of the public interest.

That’s the other applicant in the two-horse .spa race, Asia Spa and Wellness Promotion Council, which has promised to earmark up to 25% of its European profits to spa-related uses in the environs of Spa.
The letter was sent a week before the Governmental Advisory Committee issued its Singapore communique, which noncommittally noted that it “welcomes” the agreement between Spa and ASWPC.
ICANN may or may not be currently in receipt of firm, consensus GAC advice to accept or reject either of the remaining .spa applications.
In Beijing a year ago, the GAC put .spa on a list of gTLD strings where “further GAC consideration may be warranted” and asked ICANN to “not proceed beyond Initial Evaluation”.
At the Durban and Buenos Aires meetings last year the GAC said ICANN should not “proceed beyond initial evaluation until the agreements between the relevant parties are reached.”
Given that Donuts and Spa evidently cannot come to an agreement, ICANN presumably remains advised to keep one or both .spa applications on hold. The advice is pretty vague.
The string “spa” is not a geographic name within the rules of the new gTLD program. Donuts argues that it’s too generic nowadays to belong just to Spa.

Four governments file ICANN appeals over .wine

France, Spain, the UK and the European Commission have formally appealed ICANN’s decision to allow the .wine and .vin new gTLD applications to proceed.
In doing so, they’ve become the first national governments to file Requests for Reconsideration with ICANN since the process was introduced in 1999.
All four governments are demanding that ICANN take another look at its March 22 resolution in which it said .wine and .vin could be taken off hold and proceed through the remainder of the new gTLD process.
The four applications in question (three for .wine, one for .vin) have been frozen since the Beijing meeting a year ago, at which the Governmental Advisory Committee said it needed more time to consider them.
European nations, with some Latin American support, think that wine-related gTLDs should not be approved unless the applicants agree to give special protection to geographic indicators, such as “Champagne”.
The RfRs are all, as you might expect, a bit “inside baseball”, focusing on the minutiae of ICANN’s bylaws.
What’s illegal and what isn’t?
A key concern is that ICANN’s New gTLD Program Committee, in passing the resolution, relied in part on an analysis of the legal issues (pdf) conducted by French law professor Jerome Passa.
Passa concluded that there’s nothing under the law to prevent ICANN assigning .wine to Donuts, one of the applicants, because “wine” is not a protected GI string.

As regards the applications for the assignment of the new gTLDs ‘.vin’ and ‘.wine’ filed by the Donuts company, there is no rule of the law of geographical indications, nor any general principle which obliges ICANN to reject the applications or accept the applications under certain specific conditions.

From my reading of Passa’s opinion, a domain name containing a GI would only be illegal if it was used to sell counterfeit wines.
For example, it would be perfectly okay for a Chinese registrant to own champagne.wine if he used it to sell genuine champagne from Champagne, but it would be uncool if he used it to sell champagne-style sparkling wine.
Passa doesn’t seem to think it would be necessarily illegal for a registry to sell that domain, or for ICANN to delegate a .wine gTLD that could possibly be abused by said registrant in future.
The four governments are not so much concerned by his legal arguments (though they do disagree with them), but rather by the fact that the GAC was not shown Passa’s opinion before the NGPC made its decision
Under section XI-A of ICANN’s governing bylaws, the GAC “shall have an opportunity to comment upon any external advice received prior to any decision by the Board.”
By not giving Passa’s analysis to the GAC prior to its March 22 resolution, the NGPC violated ICANN’s bylaws, the four governments argue.
However, ICANN has already responded to this argument and others, suggesting that the four new RfRs may already be dead in the water.
In a resolution last Thursday the NGPC stated that the bylaws were not broken because the requirement to show the GAC “external expert advice” only applies when the board is determining matters of policy.
An explanation of last week’s NGPC decision says:

the NGPC has concluded that there was no process violation or procedural error under the Bylaws, particularly because the Independent Legal Analysis was not sought as External Expert Advice pursuant to Article X1-A, or any other Bylaws provision. Rather, the Independent Legal Analysis was sought pursuant to Module 3.1 of the Applicant Guidebook, and partly at the GAC’s suggestion.

Basically, it’s round two the old “policy versus implementation” debate, in which the ICANN board and GNSO Council have regularly sparred, kicking off with new opponents.
Spain argues in its RfR that the bylaws “the supreme governing rules” of ICANN, apply to implementation matters too and that there’s “no legal basis” for ICANN’s finding that they only apply to policy.
It further notes that a legal analysis of the related .amazon new gTLD controversy, also written by Passa, has been circulated to the GAC for comment as per the bylaws.
Disturbing views on “consensus”
In order for an RfR to be successful, complainants have to show that the ICANN board or NGPC did not consider all the evidence they should have at the time of their decision.
The governments are only slippery ground here, as all they can seem to point to are the barrage of letters that have been sent to ICANN by wine producers, associations and governments over the last year or so.
It may not have mentioned each one explicitly in its resolution but it’s very unlikely, in my view, that the NGPC was not aware of these letters when it made its call.
More significantly, these objecting governments are arguing that the NGPC was misled by GAC chair Heather Dryden about the extent of “consensus” in the GAC with regards .wine and .vin.
Dryden told ICANN in a September 9, 2013 letter that the GAC had not reached a consensus to object to the two new gTLDs, so they could proceed.
It appeared that the GAC — with members such as the US, Canada and Australia disagreeing with Europe — had simply hit an immovable brick wall in its talks, so consensus was never going to be reached.
France states in its RfR that the Dryden letter was sent without first consulting the GAC:

The GAC Chair’s statement that “The GAC has finalised its consideration of the strings .wine and .vin and further advises that the applications should proceed through the normal evaluation process” is not a consensus view of the GAC as per the aforementioned Operating Principle, but a mere interpretation and opinion of the GAC Chair.

Where France’s opinion, which seems to match previous statements by the European Commission, gets disturbing is in its interpretation of what “consensus” means. It wrote:

in reality a significant number of GAC members were in consensus not to allow the .WINE and .VIN applications to proceed through evaluation until sufficient additional safeguards were in place. The reality is that the GAC as a whole could not reach consensus, what does not necessarily imply that the strings can proceed through the normal evaluation process without further consideration.

It’s worded awkwardly, but France seems to be saying that agreement among a certain subset of GAC members (ie, the Europeans) somehow constitutes a GAC consensus that the applications should be indefinitely delayed.
It’s disturbing close to arguing for majority rule on the GAC, which as I explained in depth earlier this week is something to be avoided at all costs.
Anyway, that’s the second prong of the RfR attack: whether the NGPC had been misled about the GAC’s views.
The four separate RfRs appeared on the ICANN web site today. The file labeled as being from the European Commission appears to be a copy of the French one; possibly an uploading error.
UPDATE: It was an uploading error. You can find a copy of the European Commission RfR here (pdf).

How Russia and China could take over the internet!

Do governments have too much potential power over ICANN, and do they need reining in before the US cuts itself loose?
It’s a question that’s emerging given the recent decision of the United States government to remove itself from stewardship of the domain name system root zone.
The US National Telecommunications and Information Administration may have no intention of allowing other governments to replace it as overseer of the IANA functions, but that doesn’t mean that governments won’t be able to abuse their powers in future under ICANN’s existing structures.
Before getting into the arguments, I should first apologize for the misleading, clickbaiting headline on this post. It’s a sarcastic response to the misleading narrative that has been set by much of the mainstream media in the US.
For the record, I don’t think Russia and China are going to take over the internet, ICANN or the DNS.
What I’d like to look at here are ways in which the Governmental Advisory Committee might need to be reformed in order to maintain balance and prevent capture by any bad government in future.
And by “bad government”, I’m not just talking about Russia, China, Iran and any other boogeyman that may pop up in future; I could just as easily mean the United States and European Union member states.
I’m basing quite a lot of this on concerns raised by NetChoice Coalition’s Steve DelBianco in a Congressional hearing last week.
While DelBianco seems to be generally pro-transition, he outlined several “stress test” scenarios that he believes need to be addressed during the stewardship transition process.
Among other things, DelBianco said: “It will be important for the transition plan to prevent any government-led organization from replacing the former U.S. role after the transition is complete.”
Everyone, from the lunatic fringe of the US media that bases its reporting on GOP talking points to the senior management of ICANN and the NTIA itself, is on the same page here.
Nobody wants the US to be replaced by an intergovernmental alternative.
Indeed, baked into the NTIA’s proposal to relinquish its stewardship powers is an explicit promise that a government-led replacement will not be approved. It ain’t going to happen.
But governments already have a powerful voice within ICANN, in the form of the Governmental Advisory Committee.
The GAC
While all national governments are welcome at the GAC, it currently has around 130-odd listed members.
Typically, fewer than half actually show up to in-person ICANN meetings. DelBianco reports that there were 61 in attendance at the ICANN 49 meeting in Singapore two weeks ago.
The GAC has the ability to issue “advice” to the ICANN board of directors.
The board is free to accept or reject this advice. Rejection, which can and does happen, triggers a lengthy consultation process in which both parties attempt to reconcile their differences.
In practice, ICANN tends to bend over backwards to accommodate GAC advice, even to the point of occasionally willfully misinterpreting it in order to make it appear that it has been accepted.
Under Principle 47 of the current GAC Operating Principles it would be virtually impossible for a government or group of governments to capture the GAC. The GAC only issues advice by consensus:

The GAC works on the basis of seeking consensus among its membership. Consistent with United Nations practice, consensus is understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection. Where consensus is not possible, the Chair shall convey the full range of views expressed by members to the ICANN Board.

If China and Russia managed to persuade every other GAC member to agree with a repressive policy they wanted to introduce, the United States could hold out and destroy consensus.
And, it should be said, vice versa.
How the GAC has used its power
The GAC has a track record of issuing advice, by consensus, that trickles down, via ICANN’s contracts with registrars and registries, to affect domain registrants and regular internet users.
Sometimes, the impact could be said to impact human rights issues such as free expression and privacy.
For example, when law enforcement agencies (LEA) such as the FBI and Interpol recommended that registrars should start logging their customers’ IP addresses and should suspend the domains of registrants whose contact information could not be verified, the GAC reissued those recommendations as “GAC/LEA” advice that ICANN eventually accepted.
One could argue that this has free speech and privacy implications, but it came via the consensus of a GAC that included nations with privacy rights enshrined in their constitutions and statute books.
In fact, the United States was one of the strongest advocates for the LEA recommendations becoming part of the registrar contract, as this report from the October 2011 ICANN meeting Dakar will illustrate.
Let’s be clear here: legitimate bloggers are having their web sites suspended today, right now, because of what the US did in the GAC.
I’m singling out the US unfairly here just as a counterpoint to the arguments, emerging in DI comments and elsewhere, to the effect that the US is some kind of unshakeable guardian of internet freedom. It ain’t.
In truth, the GAC’s pro-LEA position at first had majority support (pdf) then, after its Operating Principles were amended in 2011 to clarify what “consensus” means, consensus support (pdf).
All governments can be credited/blamed for this situation.
Blocking TLDs
The GAC also has a track record of compelling ICANN, via its advice, to prevent certain top-level domains from entering the DNS root zone.
In the current round of new gTLD applications, two strings have so far been killed off as a direct result of GAC advice and many more at at risk.
Applications for .thai and .gcc were both thrown out by ICANN because the GAC, by consensus, did not disagree with the objections of the Thai government and the Gulf Cooperation Council.
Amazon.com’s application for .amazon is currently on hold because the GAC, again by consensus, thinks that nations such as Brazil and Peru have better rights to the term.
ICANN has still to make a formal decision on applications for .spa, which the GAC has advised (by consensus) be placed “on hold” until Belgium (unilaterally) decides whether to endorse them or not.
Several other applicants have voluntarily withdrawn their applications after receiving GAC consensus objections.
Many more face losing their deposits unless they comply with GAC advice on matters such as registrant credentialing.
If having a TLD delegated to the root zone is a free speech issue, the GAC already has the power to affect it.
What if Russia tries to ban gay?
Let’s take a hypothetical scenario: Russia wants ICANN to force registrars to suspend the domain names of web sites containing content it considers pro-homosexuality.
Today, Russia would have to get a consensus of the GAC to agree with it — that is, no government objections to its proposal — in order for full-fat GAC advice to make its way to the board.
That, clearly, would not happen. Non-homophobic nations in North America, Europe, Latin America, Asia and no doubt parts of Africa would not stand for such a thing.
There would be no shortage of governments eager to block consensus on such an appalling proposal.
Even if the GAC came to a consensus to ban the gays, ICANN’s board of directors would be able to reject the advice by going through the necessary motions.
If by some crazy turn of events the ICANN board accepted the advice, ICANN would still have to get the contractual changes past the registrars themselves, which would prove challenging.
But what if the GAC operated not by consensus but by majority rule?
What if Russia persuaded enough of its allies and client states to show up to an ICANN meeting to raise their hands at the appropriate moment? It could, conceivably swing a vote.
While the GAC does not issue advice by majority today, it would be a relatively simple matter for it to change its Operating Principles so that voting, not consensus, ruled.
In fact, the Operating Principles state that they can be amended by a simple majority. Principle 53 states:

A Member or Members may move, at a meeting, for these Operating Principles to be open to revision. If so moved, the Chair shall call for the movement to be seconded. If so seconded, then the Chair shall call for a vote to support the resolution. The deciding vote may be by ballot, by the raising or cards, or by roll call, and shall constitute a simple majority of the Members who are present at the meeting at which it was moved for these Operating Principles to be revised. If so resolved in favour of a revision of these Operating Principles, then the proposal shall sit for consultation for a period of sixty (60) days. At the next meeting following the sixty days, the Chair shall call for a vote for or against the proposal. The deciding vote may be taken by ballot, by the raising or cards, or by roll call, and shall be a simple majority of the Members who are present at the meeting at which the vote takes place.

This, the GAC’s current ability to radically change its voting procedures, is at the heart of some of DelBianco’s “stress tests”.
His example below concerns post-delegation censorship of the root itself, rather than individual web sites, but the same rules outlined above apply.
In his testimony (pdf) to Congress, DelBianco said:

a majority of governments in the GAC might advise ICANN to suspend a TLD that refuses to remove domains with content critical of governments (e.g., .corrupt ). Today, this kind of censorship routinely occurs at the edge of the Internet when governments block domestic access to websites, such as Turkey now blocking Twitter. But this scenario envisions censorship moving from the edge to the core of the internet – the root table of TLDs used by the entire world. It’s a critical stress test to examine how the new IANA mechanism could respond if a future ICANN board bowed to GAC advice for censorship at the root of the Internet.

DelBianco is not suggesting that the current ICANN board would cower over a matter of GAC censorship, but we’ve got no idea what the board is going to look like five, 10 or 20 years from now.
If the safeguard of US stewardship is going away, ICANN’s internal processes need to be tough enough to withstand a GAC that goes rogue and starts demanding things that further infringe liberties.
Does ICANN see a problem?
At a press conference during the Singapore meeting two weeks ago, I asked ICANN chair Steve Crocker and CEO Fadi Chehade if the GAC needed to be be reined in to prevent future abuse.
Crocker responded. I’m quoting my question (which wasn’t as detailed as to include references to GAC Operating Principles) so you know exactly what he’s replying to:

DI: This is about the IANA transition process. I was just wondering: the NTIA says they will not accept a multilateral or intergovernmental solution to this transition process, so does it not follow that there should be some safeguards to prevent the GAC becoming too powerful and stopping it becoming a mini-ITU within ICANN? Is that envisaged as part of this process, to put some kind of restraint on the GAC’s power?
CROCKER: As I said in my remarks this morning, the fact that the end result should not be multilateral or intergovernmental certainly did not mean that governments should not be involved. Governments have to be involved. You’ve asked about what happens if the GAC becomes too powerful.
A big problem is getting more involvement of the GAC. We’re still in the process where the GAC is a maturing organization that’s come a long way and is making ever more contributions and we’re some distance away from being worried about whether the GAC is going to take over or become all too powerful.
The way ICANN is structured is very thoroughly multistakeholder and there are a lot of checks of balances built in so that no single constituency has the ability to become dominant or to take over. I think there would be very strong reactions if that ever started to come into play. So I don’t view it as a imminent concern.
We value and encourage the involvement of governments and we understand that for many many governments it’s a novel experience to participate in an environment in which they’re not the only ones speaking.

In short, he’s saying ICANN needs more government participation via the GAC, albeit carefully counterbalanced within the multi-stakeholder environment.
With that in mind, isn’t it fair to ask whether reforms to the GAC’s Operating Principles are a necessary component of the IANA stewardship transition process?
If ICANN is going independent, its structures need to be robust enough for the long term. Maybe that needs to mean a GAC permanently handcuffed to principles of consensus, to prevent capture.

Euro winemakers talk .wine boycott, EU block

European wineries are threatening to boycott .wine and .vin and may lobby for the two new gTLDs to be “blocked” in the EU.
The news follows ICANN’s decision to allow .wine and .vin applications to proceed over the objections of the EU, and its decision a few days later to put both strings on hold for 60 days.
The European Federation of Origin Wines said it was “sceptical” about the 60-day freeze, which was designed to give those who want protection for “geographic indicators” a chance for more talks with applicants.
The EFOW represents geographic indicator interests in France, Italy, Hungary, Portugal and Spain. It said in a press release:

EFOW announces that it envisages “appealing against ICANN’s two successive decisions”. The federation also recalls it “threatens to organise a boycott if the decision to delegate is taken without according GI protection. Moreover, it will also ask for the blocking of these sites in the EU”.

While “asking” is not “getting”, a EU-wide block on a top-level domain would certainly be unprecedented — exactly the kind of Balkanization of the DNS that every rational government strives to avoid.
I doubt the EU would go for it, in other words.
But EU bodies are fighting tooth and nail to get the GI protections that many of their winemakers are asking for.
The European Commission tried to frame the the .wine controversy as a test of the “multistakeholder” process in a press release Friday:

The new gTLDs “.wine” and “.vin” cannot be opened until the rights and interests of wine producers and consumers worldwide are duly protected. If ICANN wants to demonstrate that the multi-stakeholder approach to Internet Governance can work for all, its decisions have to protect the common good and not simply favour purely commercial decisions or the highest bidders.

The alternative argument would be that to bow to the demands of certain governments where the Governmental Advisory Committee cannot find consensus would be to make a mockery of the ICANN process.
The United States, Canada and Australia are among those disagreeing about the need for GI protections, making a GAC consensus impossible. Where the GAC does not have a consensus, ICANN does not have mandate to act.
Let’s not kid ourselves here: every government with an opinion here is just looking out for the commercial interests of its local businesses, so they’re all just as bad as each other in that regard.

.wine frozen after EU complaint

ICANN has frozen the applications for .wine and .vin new gTLDs, again, following a complaint about process violations from the Governmental Advisory Committee.
The New gTLD Program Committee of the ICANN board on Thursday voted to prevent any of the four affected applicants signing Registry Agreements for at least 60 days.
But the NGPC found that there had been “no process violation or procedural error” when it decided to take the .wine and .vin applications off hold status during the Singapore meeting last month.
The 60-day freeze is “to provide additional time for the relevant impacted parties to negotiate”, the resolution states.
The GAC advise in its Singapore communique stated that it had not had time to comment upon “external advice” — believed to be an opinion of a French lawyer (pdf) — that the NGPC had used in its deliberations.
That would have been a violation of ICANN’s bylaws.
The GAC said that ICANN should “reconsider” its decision to allow the applications to proceed and should give the applicants more time to negotiate a truce with the governments opposed to their proposed gTLDs.
The European Union wants .wine and .vin blocked unless the applicants promise to implement special protections for “geographic indicators” such as “Champagne” and “Bordeaux”.
But other nations, including the US, Canada and Australia, don’t want these protections. The GAC has therefore been unable to provide consensus advice against either string.
Essentially, the NGPC this week has found none of the bylaws violations alleged by the GAC, but has nevertheless given the GAC what it asked for in its Singapore communique. ICANN explained:

In sum, the NGPC has accepted the GAC advice and has carefully reviewed and evaluated whether there was a procedure or process violation under the Bylaws. The NGPC has determined that there was not because, among other reasons, ICANN did not seek the Independent Legal Analysis as External Expert Advice pursuant to Article XI-A, or any other portion of the Bylaws.

It’s not “policy”, it’s “implementation”, in other words.
The NGPC also, despairingly I imagine, has suggested that the full ICANN board might want to take a look at the broader issues in play here, resolving:

the NGPC recommends that the full Board consider the larger implications of legally complex and politically sensitive issues such as those raised by GAC members, including whether ICANN is the proper venue in which to resolve these issues, or whether there are venues or forums better suited to address concerns such as those raised by GAC members in relation to the .WINE and .VIN applications.

While I’m sure 60 days won’t be too much of a burden for these long-delayed applicants, this rather vague promise for more talks about “larger implications” may prove a cause for concern.

ICANN fights the fear in Congressional hearing

A Congressional hearing yesterday addressed fears that the decision to cut ICANN loose from US governmental oversight would lead to the internet being seized by backwards regimes.
Long-term DI readers may recall that I’m usually quite snarky whenever a Congressional subcommittee convenes to pretend to be interested in ICANN — with the reason that they usually talk a lot of nonsense.
But this time the majority of the House Subcommittee on Communications and Technology seemed genuinely interested, surprisingly clueful, and relatively low on hyperbolic fearmongering.
The hearing was arranged due to the National Telecommunications and Information Administration’s March 14 decision to remove itself from the DNS root zone management triumvirate.
Whole cartloads of horse pucky have been wheeled out in response, exemplified by breathless editorials about how the world’s most repressive governments will immediately step in to fill the NTIA-shaped void.
It’s Obama’s policy of “appeasement”, designed to allow a shirtless Vladimir Putin to drive a tank directly into the root zone file, if you believe right-leaning American commentators.
There was some of that in yesterday’s hearing, but it was overshadowed by a discussion that seemed to be more interested in addressing genuine concerns and clearing up misconceptions.
Basically, Congressmen are afraid that if the NTIA leaves its role as steward of the DNS root zone, that will somehow lead to other governments taking over and internet freedoms being diminished.
How that fear manifested itself on the committee ranged from thoughtful and understandable expressions of concern and caution to wild-eyed, nonsensical, Putin-obsessed ranting.
It was the job of witnesses Larry Stricking of the NTIA, Fadi Chehade of ICANN and Ambassador David Gross, formerly of the Department of State, to reassure Congress that everything is going to be okay.
Rep. Scalise thinks Putin is magic
At the risk of being accused of sensationalism, I’m starting with the nut-job, but only to illustrate the misinformation ICANN and the NTIA have been dealing with for the last few weeks.
In a way, Rep. Steve Scalise’s portion of the hearing’s Q&A section is a microcosm of the dialogue that has been playing out in the media since the NTIA announcement.
Scalise was the guy on the committee who seems to believe that Russia and China possess the supernatural powers necessary to “take over the internet”. Red Magic, perhaps.
Here’s an exchange with Strickling and Chehade, which began when Scalise asked the panel to address concerns about authoritarian regimes taking over the internet:

STRICKLING: We won’t let that happen, number one.
SCALISE: What’s an assurance of that? It’s good to say we won’t let that happen, it’s nice to hear it, but nobody knows what’s gong to happen. You can’t tell me what’s going to happen. How do you know you won’t let it happen?
STRICKLING: I’m saying that we will not accept a proposal that has that as its outcome. Period. End of story. So it won’t happen. Second, nobody has yet explained to me the mechanism by which any of these individual governments could somehow seize control over the internet as a whole—
SCALISE: You really don’t think that Russia… Look, Russia and China have made it very clear what they want to do to suppress internet freedom. They’ve made it very clear—
STRICKLING: And they do it within their own countries—
SCALISE: At the end of the day y’all are going to come up with some sort of process if you’re going to transfer away, and I say IF — capital I, capital F — if you transfer it away you will come up with some sort of process. Do you really not thnk that Vladimir Putin, with all the other things he’s busy with right now, ain’t going to try to figure out some way to get control? It won’t be through the Russian government directly necessarily, but China and Russia have proven very resourceful at trying to figure out what that process so that they can manipulate it. You can do all the things you want to stop that from happening but at end of the day it comes out to where those countries have figured out a way, like they’ve figured out a lot of other ways too, to do something subversive that goes against all the intentions that we have. You can’t stop that.
STRICKLING: Well, Congressman, what do you think they could do that they can’t do today?
SCALISE: What do you really think…? Look at what Putin’s doing right now! The President just doesn’t seem to take this seriously what he’s doing through Eastern Europe. He’s trying to rebuild, get the old band back together, get the Soviet Union back together, right now before our very eyes. Secretary of State Kerry says the international community won’t accept this. They’re doing it! They don’t care what the international community thinks. They’re invading a country. So what would they do to get control of the internet if you threw something out there? These are real concerns that are being expressed. The other two panelists can touch on this as well.
CHEHADE: Thank you, Congressman. Let me be clear that at ICANN it is impossible for them today to do so. They’ve been trying for 15 years—
SCALISE: Exactly! Which is why it’s working.
CHEHADE: But it’s not because the US actually has the current stewardship role, it’s because of the multistakeholder model. It stops them. Where they will try to do what you’re suggesting is in the international intergovernmental organizations. They’ve been trying to do that there. We want to take away from them any argument that they still go to the UN and try to take over what ICANN does, by making sure that ICANN is free of one government control. To show them that ICANN believes in the multistakeholder model and this great country that created that model trusts it.

Chehade 1 – Scalise 0.
But did Scalise have a point, even accidentally? I’m going to cover that question in a separate post.
Rep Shimkus really wants you to support his bill
A recurring theme of the hearing was the Domain Openness Through Continued Oversight Matters (DOTCOM) Act, introduced by Rep. John Shimkus and others last week.
I called the bill “pointless” when it emerged, as all it does is delay any transition for a year until the US Government Accountability Office has conducted a study of the ramifications.
But there’s also a feeling that the Act would be a distraction at best and may cast more uncertainty than is necessary over the transition process at a critical time for internet governance.
Both Strickling and Chehade prevaricated when Shimkus asked them outright, repeatedly, if they were opposed to the GAO review.
Strickling said he “neither or supports or opposes” such a review but said he was “in favor of full discussion of these issues”.
Chehade, seemingly reluctant to tie himself to a one-government review said he did not have a view, but that he committed to full transparency in the issue.
The fact that Chehade had said that there was “no rush” to conclude the transition process was later used by Shimkus as a gotcha, when he pointed out that the Act’s one-year delay would not have an impact.
On a second panel, Carolina Rossini of the Internet Governance and Human Rights Program of the New American Foundation, gave perhaps a fuller explanation of why there’s caution about the bill.

My concern is that if we wait one year, if we block the transition now and wait one year until we have a report, that is the risk. And that’s the risk that we have non-democratic governments to actually make their voices even louder and manipulate the narrative both in NetMundial and in the [ITU] plenipot in November.

Shimkus said he’d concluded that Chehade and Strickling has “in essence supported the bill”, which I don’t think was necessarily a fair interpretation of what they said.
The two-and-a-half hour hearing had a couple of other diversions — Rep Blackburn going off on a crazy tangent about net neutrality and Rep Latta wasting everyone’s time to score points on behalf of a constituent, a .med gTLD applicant — but otherwise it was generally sane stuff.
The committee seemed to be fairly well-briefed on the subject before them. Most of the Congressmen expressed their concerns about the transition in sensible terms and seemed to take the answers on board.
Special recognition should also be given to Chehade, who won the slightly condescending praise and admiration of some of the committee when he choked up on an abridged version of his immigrant origin story.
He has an uncanny ability to speak to his audience at every occasion and he put it to excellent use yesterday.

Applicant claims “rogue” GAC rep killed its gTLD

The unsuccessful applicant for the .thai top-level domain has become the third new gTLD hopeful to file an Independent Review Process complaint against ICANN.
Better Living Management had its bid for the restricted, Thailand-themed TLD rejected by ICANN in November due to a consensus objection from the Governmental Advisory Committee.
Now the company claims that the Thailand GAC representative who led the charge against its bid has never been formally authorized to speak for the Thai government at ICANN.
BLM says it has sued Wanawit Ahkuputra, one of three Thailand GAC reps listed on the GAC’s web site, in Thailand and wants ICANN to unreject its application pending the case’s outcome.
In the IRP request, BLM claims that Ahkuputra was appointed to the GAC by previous rep Thaweesak Koanantakool without the authorization of the Thai government.
It further claims that while Koanantakool was “invited” by the Thai government to be Thailand’s GAC rep, he was never formally “appointed” to the role. He was “erroneously recruited by the GAC”, BLM alleges.
Following that logic, Ahkuputra could not claim to be a legitimate GAC rep either, BLM claims.
From the IRP alone it looks like a bit of a tenuous, semantics-based argument. Is there any real difference between “invited” and “appointed” in the platitude-ridden world of diplomacy?
Nevertheless, BLM claims that by pushing the rest of the GAC to object to the .thai bid at the ICANN Beijing meeting a year ago, Ahkuputra acted against the wishes of the Thai government.
BLM says it has letters of support from five Thai government ministries — including the one Koanantakool works for — all signed during the new gTLD application and evaluation periods in 2012 and 2013.
Those letters were apparently attached to its IRP complaint but have not yet been published by ICANN.
BLM says it has sued Koanantakool and Ahkuputra, asking a Thai court to force them to drop their objections to the .thai bid.
This is not the first time that an unsuccessful new gTLD applicant has alleged that a GAC member was not properly appointed. DotConnectAfrica has level similar accusations against Kenya.
DCA claims (pdf) that Alice Munyua spoke against its .africa application in the GAC on behalf of Kenya but against the wishes of Kenya, which DCA says did not oppose the bid.
However, ICANN and GAC chair Heather Dryden rubbished these claims in ICANN’s reply (pdf) to DCA’s complaint, citing evidence that Kenya did in fact oppose the application.

ICANN muddles through solution to IGO conflict

ICANN may have come up with a way to appease both the GNSO and the GAC, which are at conflict over the best way to protect the names and/or acronyms of intergovernmental organizations.
At the public forum of the ICANN 49 meeting in Singapore last Thursday, director Bruce Tonkin told the community that the ICANN board will consider the GNSO’s recommendations piecemeal instead of altogether.
It will also convene a meeting of the GNSO, GAC, IGOs, international nongovernmental organizations and the At-Large Advisory Committee to help reach a consensus.
The issue, you may recall from a DI post last week, is whether the names and acronyms of IGOs and INGOs should be blocked in all new gTLDs.
The GNSO is happy for the names to be protected, but draws the line at protecting acronyms, many of which are dictionary words or have multiple uses. The GAC wants protection for both.
Both organizations have gone through their respective processes to come to full consensus policy advice.
This left ICANN in the tricky situation of having to reject advice from one or the other; its bylaws did not make a compromise easy.
By splitting the GNSO’s 20 or so recommendations up and considering them individually, the ICANN board may be able to reconcile some with the GAC advice.
It would also be able to reject bits of GAC advice, specific GNSO recommendations, or both. Because the advice conflicts directly in some cases, rejection of something seems probable.
But ICANN might not have to reject anything, if the GAC, GNSO and others can come to an agreement during the special talks ICANN has in mind, which could happen as soon as the London meeting in June.
Even if those talks lead to nothing, this proposed solution does seem to be good news for ICANN perception-wise; it won’t have to blanket-reject either GNSO or GAC policy advice.
This piecemeal or ‘scorecard’ approach to dealing with advice hasn’t been used with GNSO recommendations before, but it is how the board has dealt with complex GAC advice for the last few years.
It’s also been used with input from non-GNSO bodies such as the Whois Review Team and Accountability and Transparency Review Team.
Judging by a small number of comments made by GNSO members at the public forum on Thursday, the solution the board has proposed seems to be acceptable.
ICANN may have dodged a bullet here.
The slides used by Tonkin during the meeting can be found here.