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Community proposes way to replace US oversight of ICANN

Kevin Murphy, December 2, 2014, Domain Policy

The process of removing the US government from management of the DNS root system took a significant step forward today, with the publication of a community proposal for a transition.

The Cross Community Working Group, which convened itself earlier this year, has published a proposal to replace the US with a new contracting company and a bunch of committees.

The DNS community has been tasked with coming up with a way to transition stewardship of the IANA functions from the US National Telecommunications and Information administration, which said in March this year that it intends to relinquish its historic, but largely symbolic, Damoclean role.

After discussions which by any measure of ICANN policy-making have been forcibly swift, the 119-member CWG has now presented two broad options.

The first, a description of which forms the bulk of its report, would see ICANN overseen by a new, lightweight non-profit company managed by multi-stakeholder committees.

The other, which doesn’t get much airplay in the document, would see ICANN simply take over the NTIA’s responsibilities entirely. Accountability would be provided by enhanced accountability processes within the existing ICANN structure.

Under the primary proposal, the CWG was keen to avoid creating something ICANN-like to oversee ICANN, due to the complexity and cost, but it also decided that ICANN remains the best place to house the IANA function for the foreseeable future.

It’s proposed a new company, known currently as “Contract Co”, that would be replace the NTIA as the party that contracts with ICANN to run IANA. It would have “little or no staff”.

The contract itself would be developed and overseen by a Multistakeholder Review Team, comprising people drawn from each area of the ICANN community.

The precise make-up of this MRT is still open to discussion and will be, I suspect, the subject of some pretty fierce debate as the various competing interest groups wrestle to have themselves with the strongest possible representation.

Like the NTIA, the MRT would have the power to pick another entity to run IANA in future, should ICANN screw up.

A new Customer Standing Panel would comprise executives from gTLD and ccTLD registries — the “customers” of IANA’s naming functions — and would have the job of relaying the concerns of registries to the MRT, keeping ICANN accountable to its primary users.

Finally, there’d be an Independent Appeals Panel. Any IANA decision — presumably including the delegation or redelegation of a TLD — could be appealed to this IAP. This function would very probably be outsourced on a case-by-case basis to an existing arbitration body.

Is this worrying? Arbitration panels handling new gTLD disputes haven’t exactly inspired confidence in their ability to provide consistent — or even rational — decisions over the last year or so. Should the last word on what goes into or stays out of the DNS root really go to the same folk who think .通販 and .shop are too confusingly similar to coexist on the internet?

There doesn’t appear to be anything massively surprising in the proposal. When ICANN or its community try to solve a problem the answer is usually a new committee, and the ideas of MRTs, CSPs and IAPs do seem to mirror existing structures to an extent.

The whole thing can be downloaded and read over here.

There’s a December 22 deadline for comment. It will be submitted to the IANA Stewardship Transition Coordination Group by the end of January, with a view to getting a final proposal to the US government next summer in time for the hoped-for September 30 handover date.

Unanimous support for new ICANN appeals process

Kevin Murphy, June 30, 2014, Domain Policy

The Generic Names Supporting Organization has issued an “unprecedented” statement of “unanimous” support for a new way for ICANN community members to appeal ICANN decisions.

All seven constituency groups signed onto a statement that was read by representatives of registries, non-commercial users and intellectual property interests at the ICANN 50 public forum last week.

“It only took us 50 meetings, but I think the rarity of what you’re witnessing this afternoon sends a very strong message about our views,” the Registries Stakeholder Group’s Keith Drazek said.

This is the meat of the demand:

The entire GNSO joins together today calling for the Board to support community creation of an independent accountability mechanism that provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community.

Rafik Dammak of the Non-Commercial Users Constituency added that the creation of such a mechanism is “a necessary and integral element of the IANA stewardship transition.”

“The Board’s decisions must be open to challenge and the Board cannot be in a position of reviewing and certifying its own decisions,” he said.

“We need an independent accountability structure that holds the ICANN Board, Staff, and various stakeholder groups accountable under ICANN’s governing documents, serves as an ultimate review of Board/Staff decisions,” said Kristina Rosette of the Intellectual Property Constituency.

What they’re basically looking for is a third way to appeal ICANN decisions beyond the existing Independent Review Process and Request for Reconsideration mechanisms.

IRP is considered too time-consuming and expensive for anyone other than well-funded commercial stakeholders. It cost ICM Registry millions in legal fees to win its IRP in 2010.

RfR, meanwhile, sees the ICANN board review its own decisions, and is only successful (in 15 years it’s only happened once, a week ago) when a requester can bring new evidence to the table.

What the GNSO seems to be looking for is a third way — independent review of ICANN decisions that doesn’t cost a bomb and can be used to reexamine decisions on the merits.

In many ways the demand represents the low-hanging fruit of the amorphous “accountability” discussion that took place at length at the London meeting last week.

ICANN accountability is being examined simultaneously with the proposed transition of the IANA stewardship functions from the US Department of Commerce to a yet-undefined mechanism.

There seems to be broad community consensus that the transition should be linked to improvements in accountability.

During the “constituency day” sessions on Tuesday, during which the ICANN board visits in turn with each GNSO constituency, accountability was the theme common to each and every session.

Time and again, CEO Fadi Chehade pushed the constituency he was addressing to provide some specifics.

“What is accountability and how accountable are we today?” he asked the RySG. “Who are we accountable to for what? We need to get precise before you ask us to answer a question that says when you finish accountability, then you can move to the transition.”

The GNSO statement two days later, which still needs fleshing out with details, appears to be the first step toward providing the precision Chehade wants.

Chehade said multiple times that the accountability review and the IANA transition discussions are “interrelated” but not “interdependent.”

If one were dependent on the other, it would be easier for opponents to stonewall the IANA transition by delaying the accountability review, he said.

“There are people in this community would like the transition from the US government to never happen,” he told the RySG. “They won’t admit it, but there are several, in this room even, who want this to never happen.”

He later told the NCUC that these bogeymen were “not in this room”, highlighting perhaps his belief that one or more gTLD registries is preparing to throw a spanner in the works.

Suspicion immediately fell on Verisign, forcing Drazek to issue a separate statement at the public forum on Thursday denying that the company (his employer) opposes the transition:

VeriSign supports NTIA’s March 14th, 2014 announcement. VeriSign supports NTIA’s four key principles. VeriSign Supports the bottom-up multistakeholder process that is now under way and that we have already been very much engaged. VeriSign supports the target date of September 2015 for transition. We support these things provided the multistakeholder community recommendations for ICANN’s accountability reforms are accepted by NTIA before the final transition, and sufficiently implemented by ICANN subject to measurable deliverables.

It’s not much of a denial, really, more of a clarification of where Verisign stands and confirmation that it wants, as Chehade alluded to, accountability reform prior to the IANA transition.

In my view, accountability is the more important of these two threads.

The Department of Commerce doesn’t actually do much in terms of its hands-on role as steward of the IANA functions as they related to domain names. It merely checks that ICANN’s proper procedures have been followed before signing off on DNS root zone changes.

If sanity prevails in the ICANN community’s transition discussions (and I have no reason to believe it will) whatever replaces the US should be similarly mute and invisible.

However, Commerce’s arguably more important role has been to act as a constant Sword of Damocles, a threat that ICANN could lose its IANA powers if it goes rogue and starts acting (in the US government’s view) against the best interests of the internet community.

That’s a very crude accountability mechanism.

What ICANN needs in future is not a direct replacement of that existential threat, but a mechanism of accessible, independent third-party review that will give the ICANN community and internet users everywhere confidence that ICANN isn’t a loose cannon with its hand on the internet’s tiller.

US House passes anti-ICANN bill

Kevin Murphy, May 27, 2014, Domain Policy

The US House of Representatives has passed the DOTCOM Act, which would prevent the Department of Commerce from walking away from its oversight of the DNS root zone.

The bill was approved as an amendment to a defense authorization act, with a 245-177 vote that reportedly saw 17 Democrats vote in line with their Republican opponents.

The DOTCOM Act has nothing whatsoever to do with .com. Rather, it’s a response to the National Telecommunications and Information Administration’s plan to relinquish its role in root zone management.

The bill as passed (pdf) would prevent NTIA from agreeing to any multistakeholder community-created IANA transition proposal until the Government Accountability Office had issued a study on the proposal.

The GAO would have one year from the point ICANN submits the proposal to come up with this report.

That means that if ICANN and NTIA want to stick to their September 2015 target date for the transition, either the ICANN community would need to produce a proposal at unprecedented and unlikely speed or the GAO would need to take substantially less than a year to write its report.

I don’t think it’s an impossible target, but it’s certainly looking more likely that NTIA will have to exercise one of the two-year automatic renewal options in the current IANA contract.

That’s all assuming that a matching bill passes through the Democrat-controlled Senate and then receives a presidential signature, of course, which is not a certainty.

Assuming a bloc vote by the 47 Republican Senators, only four Democrats (or independents) would need to switch sides in order for the DOTCOM Act to become, barring an unlikely presidential veto, law.

To the best of my knowledge there is not currently a matching bill in the Senate.

Congress may block funding for IANA transition

Kevin Murphy, May 11, 2014, Domain Policy

A US House of Representatives committee has voted to de-fund the IANA transition process.

On Thursday, the House Appropriations Committee approved the fiscal year 2015 Commerce, Justice, Science Appropriations bill, which includes the $36.7 million budget for the NTIA’s running costs.

The National Telecommunications and Information Administration is the part of the Department of Commerce responsible for oversight of the IANA functions, which it plans to relinquish.

The committee noted its “concern” at this prospect, and said that no money would be made available to fund this process. Notes to the appropriations bill (pdf) include the following text:

The Committee is concerned by NTIA’s announcement of its intent to transition certain Internet domain name functions to the global multistakeholder community. Any such transition represents a significant public policy change and should be preceded by an open and transparent process. In order for this issue to be considered more fully by the Congress, the recommendation for NTIA does not include any funds to carry out a transition of these functions. The Committee expects that NTIA will maintain the existing no-cost contract with ICANN throughout fiscal year 2015.

Other bills currently up for discussion in Congress would delay the IANA transition pending further review by the Government Accountability Office.

The appropriations bill has passed a committee vote, but it still has other legislative stages to pass through before it becomes law.

Six ways ICANN is ballsing up the IANA transition

Kevin Murphy, May 9, 2014, Domain Policy

ICANN has been subjected to its first wave of criticism over its handling to date of the IANA transition process, which will see oversight of the DNS root leave US government hands.

Yesterday was the deadline for comments to be submitted on ICANN’s proposal for a way to handle what some are calling the “sunsetting” of the Department of Commerce’s stewardship of the IANA function.

As DI previously reported, it’s “a proposal for a process to develop a process to develop a proposal”.

ICANN basically proposed a 22-member “Steering Group”, comprised of members of the various ICANN constituencies, that would guide the bottom-up, multistakeholder IANA transition discussion.

The group would ultimately steer the community towards creating a proposal for replacing the US government as IANA’s overseer, which would then be checked and rubber-stamped by Commerce.

As part of ICANN’s initial proposal, a “scoping document” was provided, laying out what in ICANN’s view should and should not be open for discussion.

Dozens of comments were received covering a diverse range of issues related to the make-up of the Steering Group and the range of the scoping document.

Here I’m going to attempt to cover half a dozen key themes that seemed to emerge across multiple commenters.

Note: 1) it’s not a comprehensive overview, 2) I don’t necessarily agree with all of the comments cited below, 3) that most of the links throughout this article are to PDFs.

Registries are apparently not “affected parties”

Given that one of IANA’s key roles (for DI’s purposes, it’s its primary role) is assigning TLDs to registries, you might have expected registries to be classed as “affected parties”.

But they’re not. Bafflingly, only the IAB, IETF, ISOC and NRO — none of which primarily concern themselves with domain names — get that definition in ICANN’s proposal.

Naturally enough, the ccTLD and gTLD operators are not happy about this state of affairs.

The ccNSO, proposing that gTLDs and ccTLDs get two seats each on the Steering Group, wrote:

These organizations, which also participate directly in ICANN’s multistakeholder process, are appropriate and important participants in this transition planning process, but they are not adequate substitutes for registry stakeholders with respect to processing root zone change requests and other functions that uniquely affect TLD registry operators… It is imperative that registry operators sit at the table on equal footing with those organizations and without ICANN intermediation.

The Registries Stakeholder Group of the GNSO concurred, stating:

we feel this list is incomplete as it does not include direct customers of the IANA functions, such as gTLD, nTLD and ccTLD registries, which is incomprehensible and appears to be self-serving of the convener

The GNSO is under-represented

If the registries feel badly treated, they’re not alone.

The Generic Names Supporting Organization comprises seven distinct stakeholder groups: registries, registrars, non-commercial users, non-profits, businesses, ISPs and intellectual property owners.

While there is overlap (registries and registrars often vote en bloc, as do businesses and IP owners), there are at least three camps that rarely fully agree with each other.

The ICANN proposal would provide two seats on the Steering Group between them.

The Intellectual Property Constituency, in its comments, said that each GNSO constituency should get one seat each.

The US Chamber of Commerce asked for at least one seat to be set aside for business interests.

A group of registrars, including most of the big ones, agreed, and put forward a rather more expansive proposal:

Several members of the Registrar Stakeholder Group believe that having two Steering Group representatives for the GNSO will not be sufficient in ensuring that the interests of all GNSO stakeholders are properly reflected. As the GNSO is the largest and most diverse structure within ICANN, we find that a “one size fits all” approach to delegation is not appropriate. Instead, we propose that each SO/AC submit a number of representatives that it believes to be sufficiently representative, but be encouraged to keep the number as small as possible.

The selection process is top-down

Given that this is supposed to be a community-driven process, you’d expect the community to be tasked with picking their representatives on the Steering Group. But that’s not what ICANN proposes.

ICANN instead reckons that membership should be selected by ICANN chair Steve Crocker and GAC chair Heather Dryden from the pool of people who volunteer themselves.

Unsurprisingly, there’s lots of opposition to this. Most groups commenting on this aspect of the proposal said that committee members should be selected by the groups they represent.

The Business Constituency stated:

Appointments to the Steering/Convening Committee should come from constituency groups — not as appointments made by ICANN chair and GAC chair. Nor should any stakeholder group be excluded as a result of consolidating within stakeholder organizations such as the GNSO.

The Center for Democracy and Technology agreed, saying:

The Chairs of ICANN and the GAC should not be the ones to select the Supporting Organization and Advisory Committee representatives; the SO/AC representatives should be selected within their own communities.

Inappropriate framing of the discussion

Many commenters took issue with the way ICANN has configured the discussion, accusing it of acting in the interests of its own self-preservation rather than the stability of the IANA function.

Chiefly, there’s concern that the discussion has been framed in such a way that it assumes ICANN will continue in its role as performer of the IANA functions in more or less the same way as today.

This concern appears to be extremely broad.

The RySG said it was “suspicious” of what appeared to be a “self-interested” framing of the debate:

we feel that it is premature for ICANN staff to assert that ICANN’s role is out of scope. This sentiment is not included in the NTIA announcement and we believe ICANN’s role is an issue that should be left to the bottom-up, multistakeholder process to decide. In particular, we believe whether “structural review of ICANN or its functions” should be included in the scope should be a matter for the community.

The Non-Commercial Stakeholders Group agreed that this should be open for discussion:

ICANN-controlled entities both develop and approve DNS policies and also implements the IANA functions. Only a requirement of the NTIA contract guarantees separation of policy and DNS root zone implementation activities. Because of this, we cannot currently support language in ICANN’s proposed Scoping Document which explicitly rules out any discussion of separating the IANA functions from ICANN. How or whether to separate those activities in lieu of the NTIA contract should be openly discussed.

Google said in its comments:

The role of ICANN’s Board is to oversee all of ICANN’s business and operational actions and to ensure its continued solvency as an organization. As such, the Board has a vested interest in ensuring ICANN’s continued relevancy within the Internet governance ecosystem and arguably has an interest in scoping the process to preserve ICANN’s existing role. While we are confident that ICANN’s Board would not act in a way that would harm the Internet or the IANA functions transition, the presence of a conflict of interest — even if perceived — could impact the overall integrity of the process

The Business Constituency said:

this transition should not presume that the only possible outcome is to award IANA functions to ICANN. It is possible that some other third party could replace the US government role as counterparty.

Accountability is being handled in a separate track

ICANN was initially of the view that its own accountability mechanisms — things designed to prevent capture, allow appeals of decisions etc — were out of scope for the IANA transition discussion.

It’s since backtracked, this week launching a new “Enhancing ICANN Accountability” process that will run in parallel — and be “interdependent and interrelated” — to the IANA transition debate.

If these two discussions are so interdependent, why not just lump them together in the same policy track? It’s surely a recipe for mass confusion to keep them separate.

The NCSG stated in its comments:

We do not support ICANN’s efforts to discuss the IANA transition and accountability mechanisms on separate tracks. Specifically, ICANN’s draft proposal and scoping document might prevent any discussion of options for structurally separating IANA function operations from DNS policy making activities.

The ccNSO seemed resigned to the separation, but noted:

To the extent that ICANN continues to insist on maintaining separate tracks to address each of these issues, it must ensure that the two tracks come together in advance of the transition itself.

The IPC said that the discussions need to be more closely synchronized:

The resolution of these two issues is inextricably intertwined and the processes and mechanism for doing so need to be tightly coordinated; this is impossible if the processes and mechanisms are not being developed at the same time.

There’s far from consensus on this issue, however.

The BC and Google both explicitly support the continued separation of the two tracks, while the International Trademark Association implicitly supported the parallel moves, noting:

We generally would be opposed to any approval of an IANA functions transition plan unless it is accompanied by an acceptable globalization and accountability plan that assures continued ICANN accountability at optimal levels.

Everyone only had 30 days to comment

Given that we’re talking about management of the DNS root here, you’d imagine that ICANN would take it just as if not more seriously than, I dunno, its “Future Meetings Strategy” or how much its directors are paid.

But while these and most other comment periods get 45 too 60 days of public comment, the IANA transition proposal only got 30.

ICANN is evidently in a rush to get things finalized before its next public meeting, scheduled for next month in London, rather than wait until the Los Angeles meeting in October.

Some groups, such as the Governmental Advisory Committee, couldn’t get their act together in time to provide a meaningful response given the tight deadline.

Many others, such as the Registries Stakeholder Group, complained:

it is unacceptable that an issue as critical as the transition of the IANA functions would be allowed only a short public comment period

The IPC stated that the whole timetable is out of whack:

The group is supposed to convene for the first time in London in approximately 6 weeks, yet the concept of a Steering Group is not finalized, much less its composition or how it would be chosen… The Steering Group is also supposed to “finalize the group’s charter” “in the London 50 timeframe.” Charters are critical documents, and they take a number of hours over a number of weeks to be created, much less finalized. How would the group have a draft charter before London that could be finalized in London?

Herding cats

In my opinion, this may be “a proposal for a process to develop a process to develop a proposal”, but it’s also a process to demonstrate the effectiveness and inclusiveness of the process.

Given the parallel focus on internet governance in the non-ICANN world (eg NetMundial), the multistakeholder model itself is under intense scrutiny.

How ICANN responds to this first wave of comments will be crucial.

While there are certainly divergent views (not half of which I’ve covered here) among the various parties, it seems to me that some clear areas of agreement have emerged, even among groups that don’t often see eye to eye.

Will ICANN bow to a clear call for its scoping document to be relaxed — putting its own neck on the chopping block in the process — because the multistakeholder community seems to be asking for it?