NTIA throws a bomb, cancels IANA contract RFP

Just hours before ICANN’s Costa Rica meeting kicks off, the US National Telecommunications and Information Administration has cast uncertainty over the new gTLD program by throwing another of its now-traditional last-minute bombs.
CLICK HERE for the updated story.
It’s canceled the request for proposals that was expected to lead to ICANN being awarded a new IANA contract – the contract that enables it to approve new top-level domains.
In an amendment to the November RFP posted last night, the Department of Commerce said it “hereby cancels RFP SA1301-12-RP-IANA in its entirety.”
In a notice on the Federal Business Opportunities web site, it added:

Request for Proposal (RFP) SA1301-12-RP-IANA is hereby cancelled. The Department of Commerce intends to reissue the RFP at a future date, date to be determined (TBD). Interested parties are encouraged to periodically visit www.fbo.gov for updates.

ICANN’s current IANA agreement is due to expire at the end of March and, by my reading, the NTIA has used up all of its options to extend.
Many expected ICANN or the NTIA to announce that the new contract had been awarded to ICANN yesterday, or when the Costa Rica meeting officially kicks off this coming Monday.
For the RFP to be canceled now without explanation hangs a huge question mark over ICANN’s ongoing ability to approve new gTLDs.
There are already community murmurs about ICANN extending the current gTLD application window beyond its current April 12 deadline, and this development may feed such rumors.
This is a developing story, but at the moment it appears that yet again the NTIA’s last-minute attention-seeking bombshell has stolen the show before the show even begins.
UPDATE: Shortly after this story was published, the NTIA released its rationale for the cancellation. Read about it here.

ICANN chair says new gTLD program “will run smoothly”

ICANN chairman Steve Crocker has again said he expects the new generic top-level domains program to kick off next week as planned, and that he expects it to “run smoothly”.
His comments came in a New Year email sent to the rest of the ICANN board of directors, as well as the chairs of the community’s various policy-making bodies.
Here’s an extract focusing on new gTLDs:

In terms of immediacy, the opening of the window for applications for new gTLDs is January 12, ten days from now. This is occupying a large fraction of our attention and is also the source of much attention from our stakeholders and others watching us. An enormous amount of work has gone into the program and I, among many, many others, are eager to see what will happen. The opening of the window on January 12 will be a noteworthy day, but the closing date, three months later and the publication date for the names a bit later will also be quite noteworthy. I know there is a bit of controversy over some specific aspects of the program, but I am confident the program is well constructed and will run smoothly.

The message goes on to outline two other major issues facing ICANN in the near term: the renewal of the IANA contract with the US Department of Commerce and CEO Rod Beckstrom’s imminent departure.
It also touches on broader themes, notably ICANN’s effectiveness as an organization:

We often emphasize our commitment to a multi-stakeholder model. There’s no question this is important. However, from my point of view, we are organized around broad participation from all parties because it’s a system that has worked well in the Internet ecology. And “working well” means the job gets done. If we are not effective and reasonably efficient at doing the job we were created to do, the details of our processes will matter very little. We have many processes in place to measure ourselves in terms of transparency, accountability and other attributes of fairness. I applaud and support all of these, but I would like us all to keep in mind that in addition to these very important measures that we also focus on making sure that we deliver the service our community needs.

This echoes remarks Crocker made at ICANN’s last meeting, in Dakar last October, when he stamped his authority down on the registrar community, which stood accused of dragging its feet over improvements to how it deals with law enforcement.
“If all we have is process, process, process, and it gets gamed or it’s ineffective just because it’s not structured right, then we have failed totally in our duty and our mission,” he said at that time.

The world’s newest TLD – ICANN approves .sx

ICANN’s board of directors has finally approved .sx, the new country-code top-level domain for newly autonomous Dutch territory Sint Maarten.
In an unexpected non-meeting earlier this week, the board voted to delegate .sx to SX Registry, a joint venture of Luxembourg registry startup OpenRegistry and Canadian registrar MediaFusion.
The vote had been delayed from the board’s meeting in October as SX Registry went through the required pre-delegation motions with ICANN’s IANA department.
Sint Maarten was created in October 2010 when the Netherlands Antilles (.an) split into three separate territories.
The ccTLD .cw for Curacao was assigned to the University of the Netherlands Antilles in October this year, but .bq for Bonaire, Saint Eustatius and Saba, has yet to be delegated.
The legacy .an domain is scheduled to be decommissioned before October 2014.

US quietly revises IANA contract

ICANN will not be allowed to do business with groups designated by the US government as terrorists, according to one of many changes that have been quietly made to the IANA contract.
The IANA contract, which gives ICANN its ability to delegate top-level domains, is up for renewal following the publication of an RFP by the Department of Commerce earlier this month.
But Commerce substantially modified the RFP a week after its initial publication. It’s now about 20 pages longer than the original document, containing many new terms and conditions.
A few changes struck me as notable.
Terrorism
Among the changes is a ban on dealing with groups classified as supporting terrorism under the US Executive Order 13224, signed by President Bush in the aftermath of the the 9/11 attacks.
That Order bans US companies from working with organizations including the IRA, Hamas and Al Qaeda.
While the addition of this clause to the IANA contract doesn’t really change anything – as a US corporation ICANN is bound to comply with US trade sanctions – it may ruffle some feathers.
The new top-level domains Applicant Guidebook banned applicants involved in “terrorism” in its fourth draft, which caused complaints from some quarters.
It was revised over a year ago to instead make reference to US legal compliance and the US Office of Foreign Assets Control and its List of Specially Designated Nationals and Blocked Persons.
Khaled Fattal of the Mulitlingual Internet Group, who first described the unqualified Guidebook ban on “terrorism” as “racist”, continued to voice opposition to this rule, most recently at the ICANN public forum in Dakar, suggesting it betrays ICANN’s American bias.
Data Rights
The revised IANA RFP also contains a new section detailing the US government’s “unlimited rights” to data and software produced by the IANA contractor.
The new RFP states: “The Government shall have… Unlimited rights in all data delivered under this contract, and in all data first produced in the performance of this contract”
“Data,” it says, “means recorded information, regardless of form or the medium on which it may be recorded. The term includes technical data and computer software. The term does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information.”
It’s not entirely clear what this clause could potentially cover.
By it’s very nature, much of the data produced by IANA is public – it needs to be in order for the DNS to function – but could it also cover data such as redelegation communications with other governments or private DNSSEC keys?
New gTLDs
There are no big changes to the section on new gTLDs, just one minor amendment.
Whereas the old RFP said that IANA must show that ICANN “followed its policy framework” to approve a gTLD, the new version says it must have “followed its own policy framework”, which doesn’t seem to change the meaning.
Other amendments to the RFP appear to be formatting changes or clarifications.
The more substantial additions – including the terrorism and data rights sections – appear to be standard boilerplate text designed to tick some boxes required by US procurement procedure, rather than being written specifically for ICANN’s benefit.
You can download the original and revised RFP documents here.

Europe dislikes US-only IANA rule

The European Commission is disappointed that only US-based companies are eligible to apply to take over ICANN’s IANA contract, but has otherwise welcomed the new deal.
As I reported Friday, the US National Telecommunications and Information Administration has put the IANA contract, which gives ICANN its powers to create new top-level domains, up for rebid.
While ICANN is generally expected to be a shoo-in for the contract, the NTIA tilted the odds in its favor by refusing to consider bids from replacement candidates from outside the US.
The EC said in a statement today:

The Commission believes greater respect should be given by the IANA contractor to respecting applicable law (such as EU personal data protection laws)… In that context, it noted with regret that non-US companies are not allowed to compete for the forthcoming IANA contract.

Otherwise, the EC said it was happy with the new provisions in the IANA contract, which promise to enforce mandatory conflict of interests protections on the winning bidder.
Neelie Kroes, European Commission Vice-President for the Digital Agenda said in a press release:

The new IANA tender is a clear step forward for global internet governance. A more transparent, independent and accountable management of the Internet domain names and other resources will reinforce the Internet’s role as a global resource.

The EC is also pleased that ICANN/IANA “will have to provide specific documentation demonstrating how the underlying decision-making process was supportive of the public interest” when new gTLDs are approved.
How this provision will be implemented, and how much power it gives ICANN’s Governmental Advisory Committee to kill new gTLD applications, is perhaps the biggest question hanging over the contract today.
The current IANA contract expires at the end of March next year, shortly before the end of ICANN’s first new gTLDs application window.

US puts ICANN contract up for rebid

The US government has put the IANA contract, which currently gives ICANN its powers to create new top-level domains, up for competitive bidding.
The National Telecommunications and Information Administration issued a request for proposals late yesterday, almost a week later than expected.
The Statement Of Work, which defines the IANA contractor’s responsibilities, is over twice at long as the current IANA contract, containing many deliverables and deadlines.
While the contract is open to bidders other than ICANN, ICANN is obviously the likely winner, so it’s fair to read the SOW in that context.
Notably, the section dealing with approving new gTLDs has been changed since the draft language released in June.
NTIA said previously that in order to delegate a new gTLD, ICANN/IANA “shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.”
The new SOW has dropped the “consensus support” requirement and instead states:

The Contractor must provide documentation verifying that ICANN followed its policy framework including specific documentation demonstrating how the process provided the opportunity for input from relevant stakeholders and was supportive of the global public interest.

This could be read as a softening of the language. No longer will ICANN have to prove consensus – which is not a requirement of the Applicant Guidebook – in order to approve a new gTLD.
However, the fact that it will have to document how a new gTLD is “supportive of the global public interest” may give extra weight to Governmental Advisory Committee objections.
If the GAC were to issue advice stating that a new gTLD application was not in “the global public interest”, it may prove tricky for ICANN to provide documentation showing that it is.
The SOW also addresses conflicts of interest, which has become a big issue for ICANN following the departure of chairman and new gTLD proponent Peter Dengate Thrush, and his subsequent employment by new gTLD applicant Minds + Machines, this June.
The SOW says that IANA needs to have a written conflicts of interest policy, adding:

At a minimum, this policy must address what conflicts based on personal relationships or bias, financial conflicts of interest, possible direct or indirect financial gain from the Contractor’s policy decisions and employment and post-employment activities. The conflict of interest policy must include appropriate sanctions in case on non-compliance, including suspension, dismissal and other penalties.

Overall, the SOW is a substantial document, with a lot of detail.
There’s much more NTIA micromanagement than in the current IANA contract. Any hopes ICANN had that the relationship would become much more arms-length have been dashed.
The SOW includes a list of 17 deadlines for ICANN/IANA, mainly various types of compliance reports that must be filed annually. The NTIA clearly intends to keep IANA on a fairly tight leash.
You can download the RFP documents here.

IANA contract only for US companies

The US Department of Commerce has announced the date of its RFP for the IANA contract, stating that only wholly US-based organizations are welcome to apply.
Commerce, via the National Telecommunications and Information Administration, said it intends to accept proposals from potential contractors between November 4 and December 4.
Among other things, the IANA contract is what gives ICANN its powers over the domain name system’s root – its ability to delegate gTLDs and ccTLDs to registries.
It is due to expire at the end of March next year, having been extended from its original expiry date of September 30. ICANN is of course the favorite candidate.
ICANN had asked for a longer-term or more arms-length contract, to dilute the perception that IANA is too US-centric, but NTIA has indicated that it intends to decline that request.
However, the duration of the contract has been changed.
The current IANA contract was a one-year deal, with four one-year renewal options. The next will be for a three-year base period, followed by two two-year renewal options, according to Commerce.
“The current unilateral structure of the IANA functions contract should evolve to meet the needs of the global community,” ICANN CEO Rod Beckstrom said during his opening remarks at ICANN’s 42nd public meeting in Dakar, Senegal yesterday.
He noted that the US government originally said, in a 1998 white paper, that ICANN would ultimately take over the IANA functions entirely, cutting it off from government.
“We hope that progress towards the vision articulated by the US government’s white paper will be made in the next agreement and we hope and we expect to see a roadmap for the realization of this vision in the future,” Beckstrom said.
Now that Commerce has made such a big deal out of the fact that only US-based organizations are welcome to apply to run IANA, that goal seems further away.
It’s also notable that the next IANA contract will be a single document.
The NTIA had previously floated the possibility of splitting it into three functions – protocol management, DNS root management and IP address allocation – but the idea was not well-received.

Two new TLDs to be approved next week

ICANN is set to approve two new country-code top-level domains next week – .cw and .sx – for the year-old nations of Curacao and Sint Maarten.
The two countries were created when the Netherlands Antilles split last October.
The ICANN board of directors plans to rubber-stamp the delegations of both ccTLDs next Tuesday, according to the consent agenda for its meeting.
It also plans to vote on the “transition” arrangements for the Netherlands Antilles’ .an, which is now a ccTLD without a country.
The .an space won’t be the first TLD to be deprecated. Yugoslavia’s .yu disappeared in March last year, for example, a few years after Serbia and Montenegro acquired their own ccTLDs.
The recipient of .sx is expected to be SX Registry, a joint venture of Luxembourg registry startup OpenRegistry and Canadian registrar MediaFusion.
OpenRegistry CEO Jean-Christophe Vignes said that if ICANN votes for the delegation the company will start talks with potential registrar partners at the ICANN Dakar meeting later this month.
MediaFusion and Vignes’ alma mater EuroDNS have already been approved to act as .sx registrars.
The company plans to use CHIP, the ClearingHouse for Intellectual Property, for its sunrise period.
Anyone with a .an registration predating December 2010 will be able to request the equivalent .sx name under a grandfathering program the company plans to launch.
It will be the first TLD that OpenRegistry has provided the back-end infrastructure for.

Senator calls for ICANN ethics controls

An influential US senator has called on the US government to impose new ethics rules on ICANN.
In a letter to the US Department of Commerce, which has an oversight relationship with ICANN, Senator Ron Wyden said that new “strict ethics guidelines” should be created.
The letter appears to be in direct response to Peter Dengate Thrush’s move from his role as ICANN’s chairman to a potentially lucrative job with a new top-level domains applicant.
(And, presumably, at the behest of whoever told Wyden about it.)
Dengate Thrush’s last major act at ICANN was to lead the vote to approve its new generic top-level domains program, this June at ICANN’s public Singapore meeting.
Three weeks later, he joined Minds + Machines parent Top Level Domain Holdings, which plans to build its entire business model around applying for new gTLDs.
“As news reports have indicated, a formerly high-ranking official at ICANN has left the organization and was immediately hired by one of the domain name companies regulated by ICANN,” a Wyden press release reads.
Wyden wants new ethical guidelines designed to prevent a “revolving door” built into the IANA contract, which is the one way Commerce can still exert unilateral control over ICANN.
He wrote: “any IANA employees ought to be made subject to the same ethics rules in place as NTIA [National Telecommunications and Information Administration, part of Commerce] employees.”
The IANA contract is up for renewal before March next year.
Pretty much anybody with a vested interest in getting more control over of the DNS is currently doing their best to hack the contract by lobbying the NTIA, directly or indirectly.
I wonder who’s behind this particular appeal.

What Europe’s demands mean for new gTLDs

The European Commission wants stronger government powers over ICANN’s new top-level domain approval process, according to leaked documents.
Six “informal background papers” obtained and published by .nxt yesterday indicate that the EC, perceiving snubs over the last six months, plans to take a hard line with ICANN.
The documents cover a lot of ground, including a discussion of the various mechanisms by which governments would be able to force ICANN to reject new gTLD applications.
This article covers just the bases related to new gTLDs.
As things currently stand, ICANN’s Applicant Guidebook gives governments three ways to register their objections to any given gTLD application. The EC wants two of them strengthened.
GAC Early Warning
The Governmental Advisory Committee may formally put an applicant on notice that one or more governments have a problem with their bid.
Any government can initiate an Early Warning “for any reason”, at any point during the 60-day public comment period that is currently scheduled to begin April 27.
The mechanism is designed to give applicants a chance to get out with their cash before a more formal objection is filed by the GAC or an individual government.
Applicants in receipt of such a warning can choose to withdraw at that point, receiving a partial refund of their fees, but it’s entirely voluntary.
Under the EC’s new proposals, a GAC Early Warning would trigger an additional requirement by the applicant to show the support of “the relevant internet community”.
Because there’s little chance of getting this provision into the Guidebook now, the EC wants this provision baked into ICANN’s IANA contract with the US Department of Commerce.
The IANA contract is currently the biggest stick governments have to beat ICANN with. It’s up for renewal before March, and it’s the US that decides what goes into the contract.
The European Commission paper on new gTLDs says:

The IANA contract should include a provision requiring applicants to positively demonstrate the support of the relevant Internet community in advance of formal consultation of the GAC (and other supporting organisations and advisory committees), in cases where there are prima facie grounds to believe that the application may raise a public policy concern.

The paper explains: “in other words, if the GAC issues an early warning, the applicant would be automatically required to demonstrate the support of the relevant Internet community”.
In the Guidebook today, only applicants that have self-designated as “community” applications have to show this level of support, using a strict scoring process.
The EC’s proposal could, hypothetically, force non-community applicants to show a similar level of support if a single government initiates an Early Warning in the GAC.
If there was a vanilla, non-community application for .gay, for example, an Early Warning spurred (anonymously) by Saudi Arabia, say, could force the applicant to provide evidence of community support.
How this evidence would be evaluated is unclear. It would depend on what final language the Department of Commerce puts into the IANA contract.
At a guess, it could be a matter for the ICANN board to decide, with the Damoclean sword of IANA non-compliance hanging over its decision.
Formal GAC Advice
The Guidebook today allows for over six months, from April 27 to November 12, for the GAC to formally object to any gTLD application.
The way the GAC will create this formal “GAC Advice on New gTLDs” is a black box. We probably won’t even be told which governments objected, or what level of support they received.
ICANN had tried to enforce certain transparency and procedural requirements on this mechanism, but the GAC told it to take a hike and ICANN bent over in the interests of expediency.
But any such Advice will nevertheless “create a strong presumption for ICANN that the application should not be approved”.
The ICANN board will technically still be able to overrule one of these objections, but it practice it seems unlikely. At the very least it’s not predictable.
Under the European Commission’s new proposals, this fail-safe would be weakened further:

The ICANN by-laws should be amended to ensure that consensus GAC advice is accepted as reflecting the global public interest, and should ICANN wish to reject such advice, it would bear the burden of demonstrating that the GAC advice would conflict with ICANN’s legal obligations or create problems for the stability or security of the Domain name System.

In other words, the bar for an ICANN board decision to overrule the GAC would be raised to only include cases where there was a legal or technical reason not to comply.
The GAC would have an effective veto on every decision ICANN is asked to make. The term “multi-stakeholder” would be subverted in almost textbook Orwellian fashion.
To have this proposal implemented, the EC suggests that ICANN and the GAC enter talks. There’s no talk of running to the US government to have it unilaterally imposed.
Reserved Words
Currently, all new gTLD registries will be forced to reserve strings such as country names from their spaces, and deal with individual governments to open them up.
The EC wants the list expanding to include basically any word that governments ask for, and it wants the US government to make this a condition of IANA contract renewal:

In relation to reserved and blocked names at the second level, the IANA contract should require the contractor to develop appropriate policies to allow governments and public administrations to identify names to be included in a reference list to be respected by all new gTLD operators.

This request appears to have been inspired by ICM Registry’s offer to block “culturally sensitive” strings from .xxx at the request of governments.
Yet again, we find global internet policy being driven by sex. What is it with these politicians?
Domain Name Takedown
Incredibly, the EC also wants the IANA contract to include a provision that would allow any government to ask any gTLD registry to turn off any domain:

The contractor [ICANN] should also be required to ensure that governments and public administrations can raise concerns about particular names after their registration if a serious public order concern is involved, and with a view to the registry “taking down” the name concerned.

This clearly hasn’t been thought through.
Facebook.com and Twitter.com have both been blamed recently for raising “serious public order concerns” in everything from the Egyptian revolution to the London riots.
The new powers the EC is discussing would have given the despotic former government of Egypt a legal basis for having Twitter shut down, in other words.
Cross-Ownership
Finally, the EC is still concerned, on competition grounds, about ICANN’s decision to drop the vertical separation rules that apply to registries and registrars.
It suggests that the IANA contract should create a new oversight body with an “extra-judicial review” function over ICANN, enabling its decisions to be challenged.
This would enable antitrust authorities in Europe or elsewhere to challenge the vertical integration decision without having to resort to the US courts.
Anyway
Overall, the proposals seem to represent a depressingly authoritarian ambition by the European Commission, as well as a disdain for the idea of the ICANN multi-stakeholder model and a shocking lack of respect for the rights of internet users.
While the documents are “informal background papers”, they do seem to give an indication of what certain elements within the EC think would make reasonable policy.
Whether the positions outlined in the papers became a reality would largely depend on whether the EC’s requests, if they were made, were compatible with US public policy.
As usual, the Department of Commerce still holds all the cards.