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EU guns for ICANN’s relationship with US

Kevin Murphy, February 12, 2014, Domain Policy

The European Union has made ICANN’s close relationship with the US one of the targets of a new platform on internet governance.

In a new communication on internet governance (pdf), the European Commission said it will “work with all stakeholders” to:

– identify how to globalise the IANA functions, whilst safeguarding the continued stability and security of the domain-name system;

– establish a clear timeline for the globalisation of ICANN, including its Affirmation of Commitments.

The policy is being characterized as being prompted by former NSA contractor Edward Snowden’s revelations about widespread US spying on internet users.

EC vice president Neelie Kroes issued a press release announcing the policy, saying:

Recent revelations of large-scale surveillance have called into question the stewardship of the US when it comes to Internet Governance. So given the US-centric model of Internet Governance currently in place, it is necessary to broker a smooth transition to a more global model while at the same time protecting the underlying values of open multi-stakeholder governance of the Internet.

Despite this, the document does not contain any allegations that link ICANN to spying, or indeed any justification for the logical leap from Snowden to domain names.

The EU position is not dissimilar to ICANN’s own. Last October CEO Fadi Chehade used Snowden as an excuse to talk about putting ICANN’s relationship with the US back in the spotlight.

As I noted at the time, it all looks very opportunistic.

Internationalizing ICANN is of course a noble objective — and one that has been envisaged since ICANN’s very creation 15 years ago — but what would it look like it practice?

I’d be very surprised if what the Commission has in mind isn’t a scenario in which the Commission always gets what it wants, even if other stakeholders disagree with it.

Right now, the Commission is demanding that ICANN rejects applications for .wine and .vin new gTLDs unless applicants agree to new rights protection mechanisms for geographic indicators such as “Champagne”.

That’s something that ICANN’s Governmental Advisory Committee could not reach consensus on, yet the EU wants ICANN to act based on its unilateral (insofar as the EU could be seen as a single entity) advice.

The new EC policy document makes lots of noise about its support for the “multi-stakeholder process”, but with hints that it might not be the “multi-equal-stakeholder process” championed by Chehade.

For example, it states on the one hand:

Those responsible for an inclusive process must make a reasonable effort to reach out to all parties impacted by a given topic, and offer fair and affordable opportunities to participate and contribute to all key stages of decision making, while avoiding capture of the process by any dominant stakeholder or vested interests.

That sounds fair enough, but the document immediately goes on to state:

the fact that a process is claimed to be multistakeholder does not per se guarantee outcomes that are widely seen to be legitimate

it should be recognised that different stages of decision making processes each have their own requirements and may involve different sets of stakeholders.

Sound multistakeholder processes remain essential for the future governance of the Internet. At the same time, they should not affect the ability of public authorities, deriving their powers and legitimacy from democratic processes, to fulfil their public policy responsibilities where those are compatible with universal human rights. This includes their right to intervene with regulation where required.

With that in mind, what would an “internationalized” IANA look like, if the European Commission gets its way?

Right now, IANA may be contractually tethered to the US Department of Commerce, but in practice Commerce has never refused to delegate a TLD (even when Kroes asked it to delay .xxx).

Compare that to Kroes statement last September that “under no circumstance can we agree having .wine and .vin on the internet, without sufficient safeguards”.

Today’s policy news from the EC looks fine at a high level, but in light of what the EC actually seems to want to achieve in practical terms, it looks more like an attempt at a power grab.

What does Neelie Kroes know about multistakeholderism?

Kevin Murphy, October 15, 2013, Domain Policy

European Commission vice president Neelie Kroes wants “your ideas on how the Internet should be governed and what Europe’s role should be.”

In a survey launched last week, Kroes, who has special responsibility for the “digital agenda” in Europe, criticized ICANN’s “multi-stakeholder” process.

She solicited suggestions on how governments should be treated within ICANN, and asked “How can a move from unilateral to multilateral accountability be realised?”

Kroes said on her blog (link in original):

we also must have a clearer view of what we mean when we speak of “multi-stakeholder processes”. I worry that without a clear definition, everyone will claim that their decision processes are inclusive and transparent, when in practice they are not – as was shown recently, when the Governmental Advisory Committee of ICANN pressed on regardless – in spite of the EU’s legitimate concerns on new domain names.

Let’s parse this.

On the one hand, Kroes is stating that ICANN’s process is not “inclusive and transparent”.

On the other, she’s linking to her own demands for special privileges for the European Commission in the debate over whether wine producers need special protections in the new gTLDs .wine and .vin.

I reported on Kroes letter a month ago.

As the letter and the public record makes plain, the GAC had originally asked ICANN for more time in order to consider whether the .wine protections were warranted.

In the end, the GAC was unable to reach a consensus on the matter and advised ICANN accordingly.

With no GAC consensus, ICANN has no mandate to act.

But Kroes wants ICANN to delay the .wine and .vin applications anyway, based on little more than the European Commission’s unilateral demands.

Is her definition of a “multi-stakeholder” process one in which individual governments get to override the consensus of dozens of governments? It certainly looks that way.

And it wouldn’t be the first time Kroes has tried to usurp the multi-stakeholder process in order to get what she wants.

Back in June 2011, she called for ICANN to be reformed because she didn’t like the fact that ICANN did not accept all the GAC’s advice when it approved the new gTLD program.

A month earlier, she privately wrote to the US Department of Commerce — which controls the DNS root server — to ask that it refuse to delegate the recently approved .xxx gTLD.

That would have been an unprecedented and worrying move by Commerce, and naturally it declined.

But the fact that Kroes even asked makes me wonder how serious she is about “multistakeholderism”.

It’s a newish term, poorly defined, but reason dictates that it means you can’t always get what you want.

Kroes blog post is available here. More information about her call for comments can be found here.

Europe dislikes US-only IANA rule

Kevin Murphy, November 14, 2011, Domain Policy

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.

Kroes slams ICANN new gTLD approval

Kevin Murphy, June 22, 2011, Domain Policy

Neelie Kroes, vice-president of the European Commission, has repeated her call for ICANN reform after it rejected governmental advice in its newly approved top-level domains program.

According to a statement from her official spokesperson sent to Intellectual Property Watch, Kroes said the approval of the program “disregard[ed] governmental advice on public policy issues” and “underscores the need for the model to be reformed to remain sustainable”.

The lack of an adequate response on the part of ICANN Board clearly points to some deficiencies in the current functioning of the model. This calls for specific actions in order to remedy the situation.

Kroes seems to believe that governments are entitled to every concession they demand from “multistakeholder” policy-making processes.

According to IP-Watch, she promised to coordinate a response with EU member states and the US.

While the Governmental Advisory Committee had filed about 80 objections to aspects of the Applicant Guidebook earlier this year, ICANN managed to whittle the list down to a small handful.

It refused to remove the requirement for trademark owners to provide proof of use before participating in sunrise periods, and to lower the burden of proof in certain anti-cybersquatting mechanisms.

Governments also don’t seem particularly convinced by ICANN’s decision to approve the program before consulting more deeply with competition authorities over the vertical integration issue.

GAC chair Heather Dryden delivered a more measured statement expressing “disappointment” with the decision yesterday.

EC GAC representative Gerard de Graaf, who’s earning himself a reputation in ICANN as a bit of a firebrand, was less measured in his response, accusing ICANN of potentially putting new gTLD applicants at risk of violating European competition laws.

More at Intellectual Property Watch.

US resurrects the controversial new TLDs veto

Kevin Murphy, June 11, 2011, Domain Policy

The US government intends to give itself greater oversight powers over ICANN’s new top-level domains program, according to a partial draft of the next IANA contract.

The National Telecommunications and Information Administration has proposed what amounts to a Governmental Advisory Committee veto over controversial new TLDs.

The agency last night published a Further Notice Of Inquiry (pdf), which includes a proposed Statement Of Work that would form part of ICANN’s next IANA contract.

The IANA contract, which is up for renewal September 30, gives ICANN many of its key powers over the domain name system’s root database.

The new documents seem to fulfill NTIA assistant secretary Lawrence Strickling’s promise to use the IANA contract “as a vehicle for ensuring more accountability and transparency” at ICANN.

If the new draft provisions are finalized, ICANN would be contractually obliged to hold new gTLD applicants to a higher standard than currently envisaged by the Applicant Guidebook.

The FNOI notes that the US believes (my emphasis):

there is a need to address how all stakeholders, including governments collectively, can operate within the paradigm of a multi-stakeholder environment and be satisfied that their interests are being adequately addressed

The Statement Of Work, under the heading “Responsibility and Respect for Stakeholders” includes new text that addresses this perceived need:

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.

The current Applicant Guidebook does not require “consensus support from relevant stakeholders” before a new gTLD is approved.

It gives applicants the opportunity to show support from self-defined communities, and it gives communities the right to object to any application, but it does not require consensus.

Earlier this year, the GAC asked ICANN to beef up the Guidebook to make community support or non-objection a proactive requirement for applicants, but ICANN declined to make the change.

The .xxx Factor

The NTIA’s proposed “respect rule” alludes to the approval of .xxx, which the US and other governments believe was both not in the global public interest and unsupported by the porn industry.

Had the rule been applicable in March, ICANN could very well have found itself in breach of the IANA contract, and the NTIA could have been within its rights to block the TLD.

One way to look at this is as a US government safeguard against ICANN’s board of directors overruling GAC objections to new TLDs in future.

The Guidebook currently gives the GAC the right to object to any application for any reason, such as if it believed a proposed string was not supported by a community it purported to represent.

But the Guidebook, reflecting ICANN’s bylaws, also gives ICANN the ability to disagree with GAC advice (including its new TLD objections) and essentially overrule it.

Under the NTIA’s proposed IANA contract language, if ICANN were to overrule a GAC objection to a controversial application, the NTIA would be able to claim that the gTLD was approved without stakeholder consensus, in violation of the IANA contract.

The new gTLD program would have, in essence, a backdoor GAC veto.

While these changes are being made unilaterally by the US, they are certain to be supported by the European Commission and probably other members of the GAC.

Commissioner Neelie Kroes urged Secretary of Commerce Gary Locke to block or delay .xxx back in April, and subsequently met with Strickling to discuss their mutual opposition to the TLD.

Kroes and Strickling seem to agree agree that ICANN should not have signed the .xxx registry contract over the (weak, non-consensus) objection of the GAC.

The FNOI will shortly open for 45 days of public comment, so we’re not likely to know precisely how this is going to play out in the new IANA contract until August.

ICANN is now in the tricky position of trying to figure out how to incorporate this mess into the Guidebook, which it has indicated it plans to approve just over a week from now.

Singapore is going to be very interesting indeed.

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