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What Europe’s demands mean for new gTLDs

Kevin Murphy, September 1, 2011, Domain Policy

The European Commission wants stronger government powers over ICANN’s new top-level domain approval process, according to leaked documents.

Six “informal background papers” obtained and published by .nxt yesterday indicate that the EC, perceiving snubs over the last six months, plans to take a hard line with ICANN.

The documents cover a lot of ground, including a discussion of the various mechanisms by which governments would be able to force ICANN to reject new gTLD applications.

This article covers just the bases related to new gTLDs.

As things currently stand, ICANN’s Applicant Guidebook gives governments three ways to register their objections to any given gTLD application. The EC wants two of them strengthened.

GAC Early Warning

The Governmental Advisory Committee may formally put an applicant on notice that one or more governments have a problem with their bid.

Any government can initiate an Early Warning “for any reason”, at any point during the 60-day public comment period that is currently scheduled to begin April 27.

The mechanism is designed to give applicants a chance to get out with their cash before a more formal objection is filed by the GAC or an individual government.

Applicants in receipt of such a warning can choose to withdraw at that point, receiving a partial refund of their fees, but it’s entirely voluntary.

Under the EC’s new proposals, a GAC Early Warning would trigger an additional requirement by the applicant to show the support of “the relevant internet community”.

Because there’s little chance of getting this provision into the Guidebook now, the EC wants this provision baked into ICANN’s IANA contract with the US Department of Commerce.

The IANA contract is currently the biggest stick governments have to beat ICANN with. It’s up for renewal before March, and it’s the US that decides what goes into the contract.

The European Commission paper on new gTLDs says:

The IANA contract should include a provision requiring applicants to positively demonstrate the support of the relevant Internet community in advance of formal consultation of the GAC (and other supporting organisations and advisory committees), in cases where there are prima facie grounds to believe that the application may raise a public policy concern.

The paper explains: “in other words, if the GAC issues an early warning, the applicant would be automatically required to demonstrate the support of the relevant Internet community”.

In the Guidebook today, only applicants that have self-designated as “community” applications have to show this level of support, using a strict scoring process.

The EC’s proposal could, hypothetically, force non-community applicants to show a similar level of support if a single government initiates an Early Warning in the GAC.

If there was a vanilla, non-community application for .gay, for example, an Early Warning spurred (anonymously) by Saudi Arabia, say, could force the applicant to provide evidence of community support.

How this evidence would be evaluated is unclear. It would depend on what final language the Department of Commerce puts into the IANA contract.

At a guess, it could be a matter for the ICANN board to decide, with the Damoclean sword of IANA non-compliance hanging over its decision.

Formal GAC Advice

The Guidebook today allows for over six months, from April 27 to November 12, for the GAC to formally object to any gTLD application.

The way the GAC will create this formal “GAC Advice on New gTLDs” is a black box. We probably won’t even be told which governments objected, or what level of support they received.

ICANN had tried to enforce certain transparency and procedural requirements on this mechanism, but the GAC told it to take a hike and ICANN bent over in the interests of expediency.

But any such Advice will nevertheless “create a strong presumption for ICANN that the application should not be approved”.

The ICANN board will technically still be able to overrule one of these objections, but it practice it seems unlikely. At the very least it’s not predictable.

Under the European Commission’s new proposals, this fail-safe would be weakened further:

The ICANN by-laws should be amended to ensure that consensus GAC advice is accepted as reflecting the global public interest, and should ICANN wish to reject such advice, it would bear the burden of demonstrating that the GAC advice would conflict with ICANN’s legal obligations or create problems for the stability or security of the Domain name System.

In other words, the bar for an ICANN board decision to overrule the GAC would be raised to only include cases where there was a legal or technical reason not to comply.

The GAC would have an effective veto on every decision ICANN is asked to make. The term “multi-stakeholder” would be subverted in almost textbook Orwellian fashion.

To have this proposal implemented, the EC suggests that ICANN and the GAC enter talks. There’s no talk of running to the US government to have it unilaterally imposed.

Reserved Words

Currently, all new gTLD registries will be forced to reserve strings such as country names from their spaces, and deal with individual governments to open them up.

The EC wants the list expanding to include basically any word that governments ask for, and it wants the US government to make this a condition of IANA contract renewal:

In relation to reserved and blocked names at the second level, the IANA contract should require the contractor to develop appropriate policies to allow governments and public administrations to identify names to be included in a reference list to be respected by all new gTLD operators.

This request appears to have been inspired by ICM Registry’s offer to block “culturally sensitive” strings from .xxx at the request of governments.

Yet again, we find global internet policy being driven by sex. What is it with these politicians?

Domain Name Takedown

Incredibly, the EC also wants the IANA contract to include a provision that would allow any government to ask any gTLD registry to turn off any domain:

The contractor [ICANN] should also be required to ensure that governments and public administrations can raise concerns about particular names after their registration if a serious public order concern is involved, and with a view to the registry “taking down” the name concerned.

This clearly hasn’t been thought through.

Facebook.com and Twitter.com have both been blamed recently for raising “serious public order concerns” in everything from the Egyptian revolution to the London riots.

The new powers the EC is discussing would have given the despotic former government of Egypt a legal basis for having Twitter shut down, in other words.

Cross-Ownership

Finally, the EC is still concerned, on competition grounds, about ICANN’s decision to drop the vertical separation rules that apply to registries and registrars.

It suggests that the IANA contract should create a new oversight body with an “extra-judicial review” function over ICANN, enabling its decisions to be challenged.

This would enable antitrust authorities in Europe or elsewhere to challenge the vertical integration decision without having to resort to the US courts.

Anyway

Overall, the proposals seem to represent a depressingly authoritarian ambition by the European Commission, as well as a disdain for the idea of the ICANN multi-stakeholder model and a shocking lack of respect for the rights of internet users.

While the documents are “informal background papers”, they do seem to give an indication of what certain elements within the EC think would make reasonable policy.

Whether the positions outlined in the papers became a reality would largely depend on whether the EC’s requests, if they were made, were compatible with US public policy.

As usual, the Department of Commerce still holds all the cards.

Big Content calls for government new gTLD oversight

Kevin Murphy, August 1, 2011, Domain Policy

The music, movie and advertising industries have backed a US move that could see governments getting more control over the approval of new top-level domains.

They’ve urged the National Telecommunications and Information Administration to keep a proposed rule that would force ICANN to show a new gTLD is in the “global public interest” before giving it the nod.

But they are opposed by many other stakeholders who responded to the NTIA’s Further Notice Of Inquiry on the renewal of ICANN’s IANA contract.

The FNOI resulted in about 35 responses, from companies and organizations on five continents.

The most controversial question posed by the NTIA was whether the IANA contract should include this provision:

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 broadly interpreted as a way for governments to have a de facto veto over new gTLD applications, via ICANN’s Governmental Advisory Committee.

The proposed measure has now been supported by the Recording Industry Association of America, the Association of National Advertisers, and the Coalition for Online Accountability, which represents the music and movie industries.

Brand owners want another bite

In his strongly worded response, ANA president Robert Liodice wrote that the new gTLD program “is likely to cause irreparable injury to brand owners”, adding that it supported the NTIA’s proposal.

[It] provides a layer, however thin, of contractual protection that gTLDs will not be deposited to the authoritative root zone without appropriate justification. While the ANA believes that these protections are marginal at best, and that a more secure, safe and permanent solution must be found to prevent the harms to brand owners and consumers described above; nonetheless, “something is better than nothing”

Special interests

The RIAA said in its filing that it “strongly supports” the proposal, on the basis that it thinks .music, if approved as a gTLD, could lead to more online music piracy.

there are no concrete obligations in the latest application guidebook to implement heightened security measures for these types of gTLDs that are focused on particular industries such as record music. Given the the risk that such a gTLD application could pass through the ICANN process without committing to such measures, it should be incumbent on the IANA contractor to document how its entry into the root would meet the “global public interest” standard.

It’s a drum the RIAA, never afraid of making special-interest arguments on matters of internet governance, has been beating for some time.

It stopped short of asking for all existing TLDs (and IP addresses, in the case of peer-to-peer applications) to be banned outright, which would presumably do much more to prevent piracy.

Oh no you ditn’t!

The COA, which includes the RIAA among its members, has the honor of being the first of ICANN’s critics to raise the Peter Dengate Thrush Situation to officially bash the organization.

PDT, as you’ll recall, joined Minds + Machines, likely to be a volume gTLD applicant next year, just a few weeks after he helped push through ICANN’s approval of the gTLD program.

COA counsel Steve Metalitz wrote:

This development tends to confirm COA’s view that “the new gTLD process, like so much of ICANN’s agenda, has been ‘led’ by only a small slice of the private sector, chiefly the registrars and registries who stand to profit from the introduction of new gTLDs.”

If a “check and balance” on addition of these new gTLDs to the root was advisable prior to this announcement, it now appears to be indispensable.

Plenty of ICANN stakeholders on both sides of the new gTLD debate have been calling for a review of ICANN’s ethics policies recently, so the COA is far from alone in highlighting the perception problem PDT’s move, and others, may have created.

It looked dodgy, and people noticed.

But on the other hand…

Many responses to the FNOI take the opposing view – saying that the “global public interest” requirements appear to run contrary to IANA’s technical coordination mandate.

IANA’s statement of work, which mandates IANA staff independence from ICANN policy-making, seems like a very odd place to introduce a vague and highly policy-driven oversight check.

Opposition came from the gTLD registry community and likely applicants, as you might expect, as well as from a number of ccTLD operators, which was perhaps less predictable.

A typical response, from the ccNSO, was:

While recognising and supporting the need for ensuring that new gTLDs have consensus support and are consistent with the global public interest, the ccNSO suggests that the IANA contractor’s role should simply be to verify that ICANN has followed the Guidebook process and that all the evaluation criteria (not just the two referred to) have been met.

A number of responses also call for the strict separation of IANA staff from ICANN’s policy-making functions to be relaxed. The way the NTIA’s proposal is currently worded, it’s not clear if IANA’s experts would be able to provide their input to important work.

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.

US extends ICANN’s IANA contract

Kevin Murphy, June 28, 2011, Domain Policy

ICANN has received a six-month extension to its crucial IANA contract, apparently in order to give the US government more time to take public comments and make amendments.

The contract may have been extended some weeks ago, but I believe the first public acknowledgment from ICANN came in a presentation before the ccNSO at its meeting in Singapore last week.

The IANA contract is what gives ICANN the power to make changes to the DNS root – including adding new top-level domains to the internet.

It is granted by the US National Telecommunications and Information Administration.

The contract is now set to expire March 31, 2012, towards the end of the newly approved first-round new gTLDs application window, which is expected to be open from January 12 until April 12.

It would be helpful, from an applicant confidence perspective, if the contract is renewed on a longer-term basis before January 12, when money will start changing hands.

The NTIA currently has a Further Notice Of Inquiry (pdf) open, soliciting public comments on what terms should and should not be included in the contract.

Quite a few civil liberty types are annoyed about the fact that the NTIA has added a clause that may enable it to block new gTLDs from the root if governments find them disagreeable.

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.

Hot topics for ICANN Singapore

Kevin Murphy, June 17, 2011, Domain Policy

ICANN’s 41st public meeting kicks off in Singapore on Monday, and as usual there are a whole array of controversial topics set to be debated.

As is becoming customary, the US government has filed its eleventh-hour saber-rattling surprises, undermining ICANN’s authority before its delegates’ feet have even touched the tarmac.

Here’s a high-level overview of what’s going down.

The new gTLD program

ICANN and the Governmental Advisory Committee are meeting on Sunday to see if they can reach some kind of agreement on the stickiest parts of the Applicant Guidebook.

They will fail to do so, and ICANN’s board will be forced into discussing an unfinished Guidebook, which does not have full GAC backing, during its Monday-morning special meeting.

It’s Peter Dengate Thrush’s final meeting as chairman, and many observers believe he will push through some kind of new gTLDs resolution to act as his “legacy”, as well as to fulfill the promise he made in San Francisco of a big party in Singapore.

My guess is that the resolution will approve the program in general, lay down some kind of timetable for its launch, and acknowledge that the Guidebook needs more work before it is rubber-stamped.

I think it’s likely that the days of seemingly endless cycles of redrafting and comment are over for good, however, which will come as a relief to many.

Developing nations

A big sticking point for the GAC is the price that new gTLD applicants from developing nations will have to pay – it wants eligible, needy applicants to get a 76% discount, from $185,000 to $44,000.

The GAC has called this issue something that needs sorting out “as a matter of urgency”, but ICANN’s policy is currently a flimsy draft in desperate need of work.

The so-called JAS working group, tasked with creating the policy, currently wants governmental entities excluded from the support program, which has made the GAC, predictably, unhappy.

The JAS has proven controversial in other quarters too, particularly the GNSO Council.

Most recently, ICANN director Katim Touray, who’s from Gambia, said the Council had been “rather slow” to approve the JAS’s latest milestone report, which, he said:

might well be construed by many as an effort by the GNSO to scuttle the entire process of seeking ways and means to provide support to needy new gTLD applicants

This irked Council chair Stephane Van Gelder, who rattled off a response pointing out that the GNSO had painstakingly followed its procedures as required under the ICANN bylaws.

Watch out for friction there.

Simply, there’s no way this matter can be put to bed in Singapore, but it will be the topic of intense discussions because the new gTLD program cannot sensibly launch without it.

The IANA contract

The US National Telecommunications and Information Administration wants to beef up the IANA contract to make ICANN more accountable to the NTIA and, implicitly, the GAC.

Basically, IANA is being leveraged as a way to make sure that .porn and .gay (and any other TLD not acceptable to the world’s most miserable regimes) never make it onto the internet.

If at least one person does not stand up during the public forum on Thursday to complain that ICANN is nothing more than a lackey of the United States, I’d be surprised. My money’s on Khaled Fattal.

Vertical integration

The eleventh hour surprise I referred to earlier.

The US Department of Justice, Antitrust Division, informed ICANN this week that its plan to allow gTLD registries such as VeriSign, Neustar and Afilias to own affiliated registrars was “misguided”.

I found the letter (pdf) utterly baffling. It seems to say that the DoJ would not be able to advise ICANN on competition matters, despite the fact that the letter itself contains a whole bunch of such advice.

The letter has basically scuppered VeriSign’s chances of ever buying a registrar, but I don’t think anybody thought that would happen anyway.

Neustar is likely to be the most publicly annoyed by this, given how vocally it has pursued its vertical integration plans, but I expect Afilias and others will be bugged by this development too.

The DoJ’s position is likely to be backed up by Europe, now that the NTIA’s Larry Strickling and European Commissioner Neelie Kroes are BFFs.

Cybercrime

Cybercrime is huge at the moment, what with governments arming themselves with legions of hackers and groups such as LulzSec and Anonymous knocking down sites like dominoes.

The DNS abuse forum during ICANN meetings, slated for Monday, is usually populated by pissed-off cops demanding stricter enforcement of Whois accuracy.

They’ve been getting louder during recent meetings, a trend I expect to continue until somebody listens.

This is known as “engaging”.

Geek stuff

IPv6, DNSSEC and Internationalized Domain Names, in other words. There are sessions on all three of these important topics, but they rarely gather much attention from the policy wonks.

With IPv6 and DNSSEC, we’re basically looking at problems of adoption. With IDNs, there’s impenetrably technical stuff to discuss relating to code tables and variant strings.

The DNSSEC session is usually worth a listen if you’re into that kind of thing.

The board meeting

Unusually, the board’s discussion of the Guidebook has been bounced to Monday, leading to a Friday board meeting with not very much to excite.

VeriSign will get its .net contract renewed, no doubt.

The report from the GAC-board joint working group, which may reveal how the two can work together less painfully in future, also could be interesting.

Anyway…

Enough of this blather, I’ve got a plane to catch.

ICANN independence request denied

Kevin Murphy, June 11, 2011, Domain Policy

ICANN’s request for greater independence has been rejected by the National Telecommunications and Information Administration.

In its new Further Notice Of Inquiry (pdf) investigation into the IANA contract, through which ICANN is granted its internet management responsibilities, the NTIA said:

NTIA reiterates that it is not in discussions with ICANN to transition the IANA functions nor does the agency intend to undertake such discussions.

Transitioning the IANA functions would have meant less power over the domain name system for the US government and more for ICANN.

Privatizing the DNS was one of the original goals when ICANN was set up in 1998 — it was meant to happen before Clinton left office — but the US government has been dead set against such a move since at least 2005.

The latest decision was expected. NTIA assistant secretary Lawrence Strickling had flagged up the agency’s position in a recent speech.

Nevertheless, it’s a blow to ICANN and its CEO, Rod Beckstrom, who since the San Francisco meeting in March has been pushing for the IANA contract to be re-framed into a longer-term “cooperative agreement” to better reflect ICANN’s international nature.

But the NTIA said this would not be possible:

NTIA does not have the legal authority to enter into a cooperative agreement with any organization, including ICANN, for the performance of the IANA functions.

To drive the point home, the FNOI also calls for the functional aspect of IANA – the updates it makes to the DNS root database – to be clearly separated from the policy-making side of ICANN.

On the bright side, ICANN can rest assured that the NTIA seems to have put aside thoughts of breaking up the IANA functions and distributing them between different entities.

This notion was put to bed primarily because the organizations most likely to take over roles such as protocol and IP number administration (such as the NRO and the IAB) did not seem to want them.

The FNOI also suggests a raft of process and technology requirements that ICANN’s IANA team will have to abide by after the contract is renewed.

The process for redelegating ccTLDs is currently an absolute bloody mess – utterly opaque and with no historical consistency with how decisions for transferring ownership of TLDs are made.

The ccNSO is working on this problem, but its policy development is likely to take a year or two.

In the meantime, the NTIA will mandate through the IANA contract at least one major nod to ccTLD redelegation reform, in the form of the “respect rule” I blogged about earlier.

Under the heading “Responsibility and Respect for Stakeholders”, the proposed IANA Statement of Work says: “the Contractor shall act in accordance with the relevant national laws of the jurisdiction which the TLD registry serves.”

This provision is already included in most of the agreements ICANN has signed with ccTLD registries and ICP-1, the policy that governs its redelegation processes.

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.

Still no new TLDs agreement with GAC

Kevin Murphy, May 23, 2011, Domain Policy

ICANN and its Governmental Advisory Committee have yet to resolve their differences over the new top-level domains program, putting a question mark over the current approval timetable.

In a joint statement released early this morning, following a teleconference on Friday, the ICANN board and GAC confirmed that their talks have not yet concluded.

But ICANN still thinks approval of the program’s Applicant Guidebook could come by June 20, the second day of the forthcoming Singapore meeting:

The latest discussion and ICANN Board and GAC agreement on the benefits of having a face-to-face meeting in Singapore pave the way to possible Board consideration of program approval on 20 June 2011.

This seems to serve as confirmation that the board and GAC will meet for a last-ditch attempt at compromise on June 19. ICANN has already moved around schedules to accommodate the meeting.

Outstanding areas of disagreement continue to include rights protection mechanisms for trademark holders and processes for governmental objections to controversial TLD applications.

Negotiations so far have comprised at least four days of face-to-face talks over the last few months, which had mixed results.

ICANN has given a lot of ground already, but it seems that it has not gone far enough for the GAC. Chair Heather Dryden said in the statement:

the GAC appreciates the time taken by the Board to discuss remaining issues on the call and looks forward to continued progress as a clear signal that the Board is committed to enabling the formulation of true community consensus in developing policy that is in the global public interest as well as increasing the overall accountability and transparency of the organization.

The current talks take place against the backdrop of the renewal of ICANN’s IANA contract with the US Department of Commerce and NTIA, which gives ICANN many of its powers.

Larry Strickling, head of the National Telecommunications and Information Administration, has publicly indicated that he may use the renewal as leverage to squeeze concessions from ICANN.

Two weeks ago, he said that he was “unclear” about whether June 20 was a realistic target for Guidebook approval.

Recently, Strickling also met with European Commissioner Neelie Kroes where they found common ground on new gTLDs and ICANN’s accountability and transparency goals.

NTIA calls for ICANN to “walk the walk”

Kevin Murphy, May 17, 2011, Domain Policy

A US National Telecommunications and Information Administration official today said ICANN needs to prove it can “walk the walk” when it comes to accountability and transparency.

Speaking on a panel at the inaugural Nominet .uk Policy Forum here in London today, NTIA associate administrator Fiona Alexander said it was time for ICANN to “up its game”

On a panel about regulatory systems for the internet, Alexander reiterated US support for the ICANN model, but said that ICANN board too often acts without the consensus of its stakeholders.

Quoting from speeches made by her boss, assistant secretary Larry Strickling, she said the US supports the December recommendations of ICANN’s Accountability and Transparency Review Team.

“The ICANN board has until June to implement these recommendations,” she said.

It wasn’t clear whether that was a slip of the tongue, or an indication that the NTIA plans to hold ICANN’s feet to the fire over its implementation timetable.

The Affirmation of Commitments calls for ICANN to “take action” on the ATRT report by June 30, but ICANN is planning a longer-term roll-out

It has some good reasons for tardiness. Adopting the ATRT-recommended changes to its relationship with the Governmental Advisory Committee, for example, will require more bandwidth than ICANN and the GAC have to offer before the June deadline.

“Governments are only going to want to get more involved, not less,” Alexander said.

The Obama administration has a lot of political capital tied up in the idea of “multistakeholderism” – it’s a model it proposes for other fora – but its would-be poster child, ICANN, has a habit of frequently looking more like a red-headed poster step-child.

“It’s time to up your game,” Alexander said of ICANN, “because this really is the model that we need to work.”