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NTIA says ICANN “does not meet the requirements” for IANA renewal

Kevin Murphy, March 10, 2012, Domain Policy

The National Telecommunications and Information Administration has dealt a stunning blow to ICANN in its bid to carry on running the internet’s critical IANA functions.

The NTIA said this hour that it has canceled the RFP for the new IANA contract “because we received no proposals that met the requirements requested by the global community”

NTIA thinks that ICANN’s bid was unsatisfactory, in other words.

The NTIA said:

Based on the input received from stakeholders around the world, NTIA added new requirements to the IANA functions’ statement of work, including the need for structural separation of policymaking from implementation, a robust companywide conflict of interest policy, provisions reflecting heightened respect for local country laws, and a series of consultation and reporting requirements to increase transparency and accountability to the international community.

The government may cancel any solicitation that does not meet the requirements. Accordingly, we are cancelling this RFP because we received no proposals that met the requirements requested by the global community. The Department intends to reissue the RFP at a future date to be determined (TBD) so that the requirements of the global internet community can be served.

However, it has extended ICANN’s current IANA contract until September 30, 2012.

This means ICANN still has its IANA powers over the DNS root zone, at least for another six months.

While the NTIA has not yet revealed where ICANN’s bid for the contract fell short, it is known that the NTIA and ICANN’s senior management did not exactly see eye to eye on certain issues.

One of the key sticking points is the NTIA’s demand that the IANA contractor – ICANN – must document that all new gTLD delegations are in “the global public interest”.

This demand is a way to prevent another controversy such as the approval of .xxx a year ago, which the Governmental Advisory Committee objected to on the grounds that it was not the “the global public interest”.

Coupled with newly strengthened Applicant Guidebook powers for the GAC to object to new gTLD application, the IANA language could be described as “if the GAC objects, you must reject”.

If the GAC were to declare .gay or .catholic “not in the global public interest”, it would be pretty tough for ICANN to prove otherwise.

But ICANN CEO Rod Beckstrom has previously stated that he believed such rules imposed by the US government would undermine the multistakeholder process.

He told the NTIA last June that the draft IANA contract language stood to “rewrite” ICANN’s own process when it came to approving new gTLDs.

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.

Since then, language requiring ICANN to prove “consensus” on new gTLD delegations was removed, but language requiring it to demonstrate the “global public interest” remains.

The game is bigger than petty squabbling about new gTLDs, however.

The US government is worried about International Telecommunications Union treaty talks later this year, which many countries want to use to push for government-led internet governance.

A strong GAC, backed by an enforceable IANA contract, is one way to field concerns that ICANN is not responsive enough to government interests.

It’s tempting to view the deferral of the IANA renewal as an attempt to wait out Beckstrom’s tenure as CEO – he’s set to leave at the end of June – and deal with a more compliant replacement instead.

NTIA throws a bomb, cancels IANA contract RFP

Kevin Murphy, March 10, 2012, Domain Policy

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.

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?

Whois verification rules coming this year

Kevin Murphy, January 11, 2012, Domain Policy

No more Donald Duck in the Whois?

Registrars could be obliged to verify their customers’ identities when they sell domain names under new rules proposed for later this year, according to ICANN president Rod Beckstrom.

He told National Telecommunications and Information Administration boss Larry Strickling today that the new provisions could make it into the new Registrar Accreditation Agreement by March.

Beckstrom wrote:

ICANN expects that the RAA will incorporate – for the first time – Registrar commitments to verify WHOIS data. ICANN is actively considering incentives for Registrars to adopt the anticipated amendments to the RAA prior to the rollout of the first TLD in 2013.

The RAA is currently being renegotiated by ICANN and the registrar community, following governmental outrage about the RAA at its meeting in Dakar last October.

If new Whois rules are added to the RAA, it will be up to registrars to decide whether to implement them immediately or wait until their existing ICANN contracts expire — hence the need for “incentives”.

Documents ICANN has been posting following its RAA meetings have been less than illuminating, so the letter to Strickling today is the first public insight into what the new contract may contain.

Whois verification, which is often found at the top of the wish-lists of intellectual property and law enforcement communities, is of course hugely controversial.

Civil rights advocates believe that checking registrant identities will infringe on rights to privacy and free speech, while not helping to prevent crime. Actual criminals will of course not hand over their true identities when registering domain names.

The process of verifying Whois data may also wind up making domain names more expensive, due to the costs registrars will incur implementing or subscribing to automated verification systems.

Nevertheless, the anti-new-gTLDs campaign in Washington DC led by the Association of National Advertisers recently led to Whois – a separate issue – being placed firmly on the new gTLDs agenda.

The chairman of the Federal Trade Commission, as well as Strickling, both wrote to ICANN to express concern about the lack of progress on strengthening Whois over the last few years.

Beckstrom’s letter to Strickling can be read here. His reply to FTC chairman Leibowitz – which also schools him in why new gTLDs probably won’t increase fraud – can be read here.

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).

Chance of new gTLD delay “above zero”

Kevin Murphy, December 20, 2011, Domain Policy

ICANN has not completely ruled out the possibility that its new generic top-level domains program will be delayed, according to senior vice president Kurt Pritz.

Pritz was asked during a meeting of the GNSO Council last week whether the recent Congressional hearings into new gTLDs could lead to a delay of the January 12 launch.

“I think the risk is above zero,” Pritz said.

An “above zero” risk of delay could still mean a very small risk, of course.

He went on to point out that “the reputation of the multi-stakeholder model is wrapped up in this too”, and that to delay would be a disservice to all the people who have worked on the program.

He noted that the National Telecommunications and Information Administration assistant secretary Larry Strickling has come out in strong support of the multi-stakeholder model.

While the NTIA does not plan to enforce a delay, ICANN itself could make the decision under political pressure from elsewhere in the US, such as from Congress or the Federal Trade Commission.

Pritz faced a rough ride during a House Energy and Commerce Committee hearing last week, during which a number of Congressmen said they believed delay was appropriate.

The committee was largely concerned about the possible costs to trademark holders and implications for law enforcement agencies.

The hearing was called following lobbying by the Association of National Advertisers and the Coalition for Responsible Internet Domain Oversight.

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.

US quietly revises IANA contract

Kevin Murphy, November 23, 2011, Domain Policy

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

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.

US puts ICANN contract up for rebid

Kevin Murphy, November 11, 2011, Domain Policy

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.