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Chehade to face Congressional grilling this week

Kevin Murphy, February 23, 2015, Domain Policy

ICANN CEO Fadi Chehade is heading to Washington DC this week to defend plans to decouple the organization from formal US oversight in front of a potentially hostile committee of Congresspeople.

The Senate Committee on Commerce, Science, and Transportation will meet this Wednesday at 1000 local time to grill Chehade and others on the plan to remove the US government from the current triumvirate responsible for managing changes to the DNS root zone under the IANA arrangements.

He will be joined by Larry Strickling, who as head of the National Telecommunications and Information Administration is the US government’s point person on the transition, and Ambassador David Gross, a top DC lawyer formerly with the Department of State.

All three men are pro-transition, while the Republican-tilted committee is likely to be much more skeptical.

The blurb for the Wednesday hearing reads:

As the U.S. government considers relinquishing control over certain aspects of Internet governance to the private sector, concerns remain that the loss of U.S. involvement over the Internet Assigned Numbers Authority (IANA) could empower foreign powers — acting through intergovernmental institutions or other surrogates — to gain increased control over critical Internet functions.

Republicans and right-leaning media commentators have warned that handing over IANA oversight to a multistakeholder body risks giving too much power to governments the US doesn’t like, such as Russia and China.

Several bills introduced in the House and Senate over the last year would have given Congress much more power to delay or deny the transition.

An amendment to an appropriations bill approved in December prevents the NTIA from spending any taxpayer money on relinquishing its DNS root oversight role until after September 30 this year, the same day that the current IANA contract expires.

This effectively prevents a transition during the current IANA contract’s run. Strickling recently said that the NTIA is complying with this legislation, but noted that it does not prevent the agency participating in the development of the transition proposal.

ICANN community working groups are currently working on plans for ICANN oversight post-NTIA and for addressing ICANN accountability.

These documents are hoped to be ready to sent to the NTIA by July, so the NTIA will have enough time to consider them before September 30.

Strickling recently addressed this date in a speech at the State of the Net conference in Washington, saying:

I want to reiterate again that there is no hard and fast deadline for this transition. September 2015 has been a target date because that is when the base period of our contract with ICANN expires. But this should not be seen as a deadline. If the community needs more time, we have the ability to extend the IANA functions contract for up to four years. It is up to the community to determine a timeline that works best for stakeholders as they develop a proposal that meets NTIA’s conditions, but also works.

Opponents of the transition say that because the NTIA is prevented from terminating the IANA contract before October 1, the NTIA will have no choice but to extend it until September 30, 2017.

Given that 2016 is a presidential election year in the US, Barack Obama would be a private citizen again by the time the next opportunity to transition comes around, they say.

Which presidential hopeful — from either party — would not buckle if asked whether he supports a plan to let Iran run the internet? That’s the political logic at work here.

Chehade himself told the AFP news agency earlier this month that the transition would have to happen before the 2016 elections, to avoid political distractions.

I’m not so sure I agree with the premise that, due to the restraints imposed by the appropriation bill, the transition now has to happen under the next president’s administration.

In my layman’s reading of the current IANA contract, the NTIA is able to terminate it for the “convenience of the government” pretty much whenever it wants.

There’s also an option to extend the contract by up to six months. The NTIA exercised this option in March 2012 when it did not approve of ICANN’s first renewal proposals.

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.