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Strickling says ICANN needs a stronger bottom

Kevin Murphy, February 22, 2012, Domain Policy

National Telecommunications & Information Administration chief Larry Strickling has called for ICANN to strengthen its decision-making processes.

In a speech at the University of Colorado earlier this month, Strickling called out ICANN’s board of directors in particular, for its habit of choosing between competing views when the ICANN community fails to reach consensus via the multi-stakeholder process.

The speech went over ground covered in other recent addresses – namely, how ICANN fits into the wider international political picture.

The US is worried about moves by some nations within the Internet Governance Forum and the International Telecommunications Union that threaten to make the internet an exclusively government-run enterprise.

Developing nations in particular are likely to support such moves, as the internet is causing them to lose the revenue they make by terminating international phone calls.

An ICANN that makes decisions without true bottom-up stakeholder consensus plays into the hands of those who would replace it with a new treaty organization, Strickling suggested.

According to his prepared remarks, he said:

Organizations that convene or manage multistakeholder processes have to be vigilant to make sure they do not inadvertently interfere with the effort to reach consensus.

the ICANN Board increasingly finds itself forced to pick winners and losers because its policy development process does not always yield true consensus-based policy making. This is not healthy for the organization.

If stakeholders understand that they can appeal directly to the Board to advocate for their particular policy position, they have less incentive to engage in the tough discussions to reach true consensus with all stakeholders during the policy-development process.

Ironically, ICANN’s current public comment period into defensive new gTLD applications – which could lead to changes to its trademark protection mechanisms – was opened precisely because Strickling himself, under pressure from Congress, appealed directly to the board.

But I suspect he was actually referring to the Association of National Advertisers, which scarcely participated in the development of the new gTLD program before it was finalized but has been loudly threatening ICANN about it ever since.

As well as calling for more participation from industry, Strickling also stressed the need for more governments to get involved in ICANN, “finding a way to bring them willingly, if not enthusiastically, into the tent of multistakeholder policy-making”.

But what would an ICANN that waits for true stakeholder consensus before the board makes a decision look like?

Strickling did not offer a solution in his address, but he did refer to the Governmental Advisory Committee’s new formal definition of consensus.

Without explicitly endorsing the model, he described it like this:

if the group reaches a position to which members do not object, it becomes the consensus view even though some members may not affirmatively support the position.

I’m finding it difficult to imagine ICANN continuing to function if its board of directors also had to observe this kind of “consensus” among stakeholders before making a decision.

Trademark owners and registrars not objecting to each other’s stuff?

What would I write about?

Strickling drops last-minute bombshell on new gTLDs

Kevin Murphy, January 4, 2012, Domain Policy

Larry Strickling, the man most responsible for overseeing ICANN in the US administration, has given an unexpected last-minute boost to opponents of the new generic top-level domains program.

In a letter to ICANN chair Steve Crocker tonight, Strickling says governments may intervene this May to impose new trademark protection mechanisms on the new gTLD program

Echoing the words of several Congressmen, Strickling, head of the National Telecommunications and Information Administration, said that after the first-round applications have been filed, ICANN might want to consider a “phased-in” approach.

Once the list of strings is made public, NTIA, soliciting input from stakeholders and working with colleagues in the Governmental Advisory Committee (GAC), will evaluate whether additional protections are warranted at the second level. Having the ability to evaluate the actual situations or conflicts presented by the applied for strings, rather than merely theoretical ones, will certainly assist and focus everyone’s efforts to respond to problems should they arise.

The letter could be seen as a win for the trademark lobby, which has been pressing the NTIA, Department of Commerce and Congress for months to delay or block the program.

However, reading between the lines it appears that Strickling believes the trademark protections already in the program are probably adequate, just woefully misunderstood.

The letter spends more time politely tearing into ICANN’s atrocious outreach campaign, observing that many trademark owners still “are not clear about the new gTLD program”.

Strickling pleads with ICANN’s leadership to raise awareness of the protections that already exist, to calm the nerves of companies apparently convinced by industry scaremongering that they’re being forced to apply for “dot-brand” gTLDs defensively.

…in our recent discussions with stakeholders, it has become clear that many organizations, particularly trademark owners, believe they need to file defensive applications at the top level.

We think, and I am sure ICANN and its stakeholders would agree, that it would not be healthy for the expansion program if a large number of companies file defensive top-level applications when they have no interest in operating a registry. I suggest that ICANN consider taking some measures well before the application window closes to mitigate against this possibility.

The themes are repeated throughout the letter: ICANN has not done enough to educate potential applicants about the new gTLD program, and brand owners think they’ve got a gun to their head.

…it has become apparent that some stakeholders in the United States are not clear about the new gTLD program. I urge you to engage immediately and directly with these and other stakeholders to better educate them on the purpose and scope of the program as well as the mechanisms to address their concerns.

I’m sure this is a letter Strickling didn’t want to send.

Recently, he talked openly about how trademark owners pressuring the US government to overrule ICANN’s decision-making risked raising the hackles of repressive regimes around the world and leading to an internet governed by the UN

Letters like this certainly don’t help his cause, but the political pressure in Washington DC has evidently forced his hand.

Will this derail next week’s launch of the program? Probably not.

Does it raise a whole bunch of questions the ICANN community had thought it had put to bed? You bet it does.

Read the letter here (pdf).

US says it will not block the new gTLD program

Kevin Murphy, December 9, 2011, Domain Policy

NTIA boss Larry Strickling has come out in support of ICANN and its new top-level domains program, warning that its opponents “provide ammunition” to authoritarian regimes.

Speaking in Washington DC yesterday, Strickling warned that organizations fighting to put a stop to the new gTLD program risk provoking a UN takeover of the internet.

In a strongly worded defense of the six-year-old ICANN multistakeholder process that created the program, he said:

we are now seeing parties that did not like the outcome of that multistakeholder process trying to collaterally attack the outcome and seek unilateral action by the U.S. government to overturn or delay the product of a six-year multistakeholder process that engaged folks from all over the world.

The multistakeholder process does not guarantee that everyone will be satisfied with the outcome. But it is critical to preserving the model of Internet governance that has been so successful to date that all parties respect and work through the process and accept the outcome once a decision is reached.

When parties ask us to overturn the outcomes of these processes, no matter how well-intentioned the request, they are providing “ammunition” to other countries who attempt to justify their unilateral actions to deny their citizens the free flow of information on the Internet.

This we will not do. There is too much at stake here.

Strickling is assistant secretary at the National Telecommunications and Information Administration, which oversees the US government’s relationship with ICANN and IANA.

He’s made similar remarks in support of the multistakeholder model in the past, but never quite as firmly or directly aimed at opponents of the new gTLD expansion.

While he was diplomatic enough not to single out any one group, he was pretty clearly referring to the recently formed Coalition for Responsible Internet Domain Oversight.

CRIDO was formed by the Association of National Advertisers to fight new gTLDs. Yesterday, it had its day on Capitol Hill, but failed to convince Senators that the program should be stopped.

But Strickling did sound a note of caution about new gTLDs, saying that he agreed with Sen. Jay Rockefeller, who expressed concern about possible negative impacts of the expansion:

We agree with the Chairman’s concerns over how this program will be implemented and its potential negative effect if not implemented properly. We will closely monitor the execution of the program and are committed to working with stakeholders, including U.S. industry, to mitigate any unintended consequences.

But the minutiae of the Applicant Guidebook was not Strickling’s focus. Instead, it was the wider political picture.

The threat of an International Telecommunications Union takeover of the internet’s policy-making functions has plagued ICANN for almost as long as it has existed.

Strickling noted that the ITU’s World Conference on International Telecommunications is coming up one year from now, and that some nations will attempt to usurp ICANN.

Some nations appear to prefer an Internet managed and controlled by nation-states.

We expect that some states will attempt to rewrite the regulation in a manner that would exclude the contributions of multistakeholder organizations and instead provide for heavy-handed governmental control of the Internet.

For the ANA and CRIDO, Strickling’s remarks are a huge setback.

The ANA has previously said that it planned to use all three branches of the US political system — lobbying Congress and the NTIA, or taking ICANN to court — to achieve its ends.

The Senate clearly wasn’t interested yesterday and the NTIA has now confirmed that it’s on ICANN’s side.

That leaves only one option.

ICANN fights government gTLD power grab

Kevin Murphy, July 22, 2011, Domain Policy

ICANN has opposed a US move to grant governments veto power over controversial new top-level domain applications.

Cutting to the very heart of Obama administration internet governance policy, ICANN has told the National Telecommunications and Information Administration that its recent proposals would “undermine the very principle of the multi-stakeholder model”.

The stern words came in ICANN’s response to the NTIA’s publication of revisions to the IANA contract, the contract that allows ICANN to retain its powers over the domain name system root.

The NTIA’s Further Notice Of Inquiry contained proposed amendments to the contract, including this:

For delegation requests for new generic TLDS (gTLDs), the Contractor [ICANN] shall include documentation to demonstrate how the proposed string has received consensus support from relevant stakeholders and is supported by the global public interest.

This was widely interpreted as a US attempt to avoid a repeat of the .xxx scandal, when ICANN approved the porn gTLD despite the unease voiced by its Governmental Advisory Committee.

As I noted in June, it sounds a lot like code for “if the GAC objects, you must reject”, which runs the risk of granting veto powers to the GAC’s already opaque consensus-making process.

In his response to the FNOI (pdf), ICANN chief Rod Beckstrom says that the NTIA’s proposal would “replace” the “intensive multi-stakeholder deliberation” that created the newly approved Applicant Guidebook.

He also pointed out the logical inconsistency of asking IANA to remain policy-neutral in one part of the proposed contract, and asking it to make serious policy decisions in another:

The IANA functions contract should not be used to rewrite the policy and implementation process adopted through the bottom-up decision-making process. Not only would this undermine the very principle of the multi-stakeholder model, it would be inconsistent with the objective of more clearly distinguishing policy development from operational implementation by the IANA functions operator.

NTIA head Larry Strickling has been pounding the “multistakeholderism” drum loudly of late, most recently in a speech in Washington and in an interview with Kieren McCarthy of .nxt.

In the .nxt interview, Strickling was quite clear that he believes ICANN should give extra authority to governments when it comes to approving controversial strings.

The NTIA concern – shared by other government entities including the European Commission – is that controversial strings could lead to national blocking and potentially internet fragmentation.

While Strickling declined to comment on the specific provisions of the IANA contract, he did tell .nxt:

If the GAC as a consensus view can’t support a string then my view is that the ICANN Board should not approve the string as to do so in effect legitimizes or sanctions that governments should be blocking at the root zone level. And I think that is bad for the Internet.

Where you’re dealing with sensitive strings, where you’ve engaged the sovereignty of nations, I think it is appropriate to tip the hat a little bit more to governments and listen to what they say. On technical issues it wouldn’t be appropriate but on this particular one, you’ve got to listen a little bit more to governments.

He also indicated that the US would not necessarily stand up for its principles if confronted by substantial objections to a string from other governments:

So we would be influenced – I can’t say it would be dispositive – if a large number of countries have a problem with a particular string, even if it was one that might not be objectionable to the United States government.

And that is out of interest of protecting the Internet’s root from widespread blocking at the top-level by lots of governments.

Does this mean that the US could agree to a consensus GAC objection to a .gay gTLD? A .porn? A .freespeech? It certainly sounds like it.

How the US shaped the new ICANN

Kevin Murphy, June 26, 2011, Domain Policy

The US government pushed hard for ICANN to pay more attention to international governments, which caused it to delay .xxx and the new top-level domains program, a new document reveals.

A transcript of a December 2010 meeting between ICANN’s board and National Telecommunications and Information Administration chief Larry Strickling, published following a disclosure request by DomainIncite, outlines America’s “tough love” policy over ICANN.

It reveals that Strickling hauled ICANN over the coals over its opaque decision-making, its failure to adequately address its Affirmation of Commitments obligations, and its apparent lack of respect for its Governmental Advisory Committee.

The era of ICANN engaging maturely and in earnest with governments, witnessed over the last six months, arguably began in that meeting room in Cartagena, the evening of December 7, 2010.

But it did so partly because it fitted with Obama administration policy.

Strickling told the board that the multi-stakeholder model of internet governance was critical to US public policy on other matters, but that he wanted to ensure “the reality fits the model”:

we are cheerleaders for this. But as I’ve said to several of you, there’s a model but then there’s the reality. And it is incumbent on us at this particular point in time, more so than perhaps ever before, to do what we can to ensure the model, that the reality fits the model.

what it comes back to at the end of the day is our concern that we want to be able to demonstrate to the rest of the world that the quality of decision-making by this organization is absolutely top drawer.

ICANN was failing to live up to these ideals, he said. This was particularly true in the case of the new gTLD program, which many had expected ICANN to approve in Cartagena.

Strickling said that ICANN had not done enough to evaluate the pros and cons of the program:

I’ve heard expressed the idea that somehow I or the United States is opposed to the expansion of top-level domains. That’s not the case. I don’t have a view one way or the other. Frankly, that’s up to you to decide.

What I do care about is that when you decide that question, that you do it with a quality of decision-making with all of the information in front of you that you ought to have with the experts having given you the opportunity to ask questions and evaluate the pros and cons of decisions as fully as possible.

He later added:

It’s very clear that there are a lot of warning signs, just in the studies that have been done so far, incomplete as they are, to suggest that rushing headlong into this issue, I think, could be a mistake.

But I want to very quickly kind of backtrack from that remark in the sense that I don’t think it’s my place, in my role, to tell you how to make your decisions in terms of what the outcome should be.

And I do think I have a role to play and will play the role of evaluating the quality of decision-making, which largely is processes, but at the end of the day it really comes down to did the board have in front of it the facts it needed to have to make an informed decision, and does their decision, as reflected in their report of that decision, reflect a reasoned, mature, responsible decision.

It’s impossible to tell precisely what the tone of the meeting was from the transcript, but it’s possible to infer from the content that it was likely that of a parent scolding an unruly child.

At one point in the transcript, director Rita Rodin Johnston refers to Strickling as “Dad”, and Strickling says moments later that he does not want to “play schoolteacher” .

Seemingly pushing for it to mature as an organization, he urged ICANN to engage more seriously with the GAC, which had concluded a frustrating public meeting with the board just minutes earlier.

I don’t know what all of the top challenges are to ICANN in the next three to five years, but I absolutely believe that in that top three will be the issue of ICANN’s relations with foreign governments.

I think you all are missing a tremendous opportunity to deal with this issue of ICANN and Internet governance and the role of foreign governments, and it’s absolutely incumbent upon you all to find a way to work with the GAC along the lines that Heather [Dryden, GAC chair] and her fellow members expressed to you today.

I think that’s important for your ultimate preservation as an independent organization, and I cannot, I guess, emphasize enough the importance of working out these processes with the GAC in terms of receiving their advice, treating it with respect by responding to it promptly and fully, sitting down and mediating with them where it appears there are disagreements.

His words hit home.

Later that week, ICANN deferred a decision on approval of .xxx, pending formal discussions with the GAC, and it arranged to meet with the GAC in Brussels to discuss the new gTLDs program.

Over the last six months we’ve seen numerous changes to the Applicant Guidebook – addressing the concerns of trademark owners, for example – as a result of these consultations.

The structure of this process also appears to been formed during this private Cartagena meeting.

Strickling clashed with then-chairman Peter Dengate Thrush on their respective interpretations of ICANN’s bylaws as they relate to rejecting GAC advice.

Dengate Thrush expressed a view that could be characterized as “vote first, consult later” (my words, not his), which Strickling dismissed as “silliness”.

Strickling evidently won the argument; ICANN this year has started consulting formally with the GAC prior to voting on important issues.

The first beneficiary of this policy was .xxx applicant ICM Registry, which Strickling addressed directly during the Cartagena meeting:

But let me just say I don’t know how — based on, as I understand the facts on both top-level domains and ICM, how you can possibly have a mediation this week, in terms of the fact that information has not been provided to the GAC that they’ve asked for, the fact that they do not feel they understand exactly what the board has disagreed with and why.

This appears to be the reason we’re looking at .xxx domain names hitting the market in September, rather than right now.

Finally, I find it ironic that, given the meeting’s focus on transparency, it was Strickling, rather than ICANN, who asked for a transcription of the talks to be made.

>>PETER DENGATE THRUSH: We are currently scribing this session. But under our rules if you want us not to scribe this, we just turn it off.

>>LAWRENCE STRICKLING: I’m fine to be on the record. I have spoken to some of you individually, and I urged every one of you who I talked to individually to share my views as far as they wished. And I have absolutely no problem with anything I say here being in the public record.

Despite this exchange, the transcript did not become part of the public record until last Friday, 30 days after I filed a request using ICANN’s Documentary Information Disclosure Policy, which is a little like its Freedom Of Information Act.

I wish I’d filed it sooner.

You can download the PDF of the transcript here.

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