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Ted Cruz slams Chehade over Chinese “conflict”

Kevin Murphy, February 5, 2016, Domain Policy

US presidential hopeful Ted Cruz has taken time out of his busy primaries schedule to lay into ICANN CEO Fadi Chehade over his new job on a Chinese policy panel.

Cruz said in a letter to Chehade that China is known for its terrible track record on freedom of speech, and wondered aloud whether Chehade’s involvement in the panel constituted a conflict of interest.

Chehade said in December that he’d joined, as co-chair, an advisory committee of the World Internet Conference.

Also known as the Wuzhen Summit, the WIC is an annual conference organized by the Chinese government in order to push its agenda of national sovereignty over the internet.

The conference, apparently regarded as a bit of a joke even in China, actually has little international participation from government leaders.

It’s also been criticized by Reporters Without Borders, which called for a boycott of the 2015 conference after some Western news outlets were barred from attending.

While Chehade stressed that his involvement is in a personal capacity, that his panel is not due to meet until mid-2016 (after he will have left ICANN), and that he remains committed to ICANN’s “one internet” mantra, Cruz doesn’t believe him.

Cruz said in his letter (pdf) that he was “surprised and dismayed” to learn of Chehade’s involvement in Wuzhen, writing:

your participation as a co-chair of the committee raised concerns about a personal conflict of interest while you serve as the Chief Executive Officer of ICANN under contract with the United States Government.

Cruz poses nine key questions that appear to be designed to get Chehade to admit that his conduct in some way represents a conflict of interest, or that he’s a loose cannon operating without the approval of his board of directors.

He wants to know whether, for example, Wuzhen has already discussed the IANA transition, which will see the US government sever formal oversight of the DNS root zone later this year.

It’s a view common to US Republican politicians, of which Cruz is one, that the transition will open the door to China, Russia and other boogeymen to initiate a crackdown on free speech, which has always seemed a little far-fetched.

Cruz is currently considered one of the front-runners for the Republican nomination in the presidential race, following his victory over Donald Trump in Iowa this week.

His letter, which demands answers before February 19, was also signed by fellow Republican senators James Lankford and Michael Lee.

Chehade is due to leave ICANN at the end of March.

ICANN reveals $1m of not-lobbying lobbying expenses

Kevin Murphy, November 20, 2015, Domain Policy

ICANN has revealed how much it has spent so far on a few controversial professional services firms that have been accused of “lobbying” the US government on behalf of the organization.

It said today that between July 2015 and September 2015 it spent $1,070,438 on six companies providing “Education/Engagement” services related to the transition of IANA from US government oversight.

Two of the payees are consulting firms run by former high-level US officials.

One is Albright Stonebridge Group LLC, founded by Clinton-era secretary of state Madeleine Albright.

The other is Rice Hadley Gates LLC, which counts W-era officials Condoleeza Rice, Stephen Rice and Robert Gates as its principles.

The $1 million figure also includes payouts to PR firm Edelman, which has been working with ICANN for as long as I can remember, a video production company, and two other consultants.

It’s substantially less than the $2.4 million spend estimated by Kieren McCarthy, whose public-forum questions at the last two ICANN meetings and subsequent The Register article seem to be responsible for the latest disclosures.

McCarthy, in heated public clashes with ICANN CEO Fadi Chehade, had argued that these payouts were essentially “lobbying” expenses that had not been disclosed because they fall into a “loophole” in US regulations that require lobbyists to disclose their clients.

ICANN said it spent $765,829 on external lobbying services — both related to the IANA transition and not — over the same period.

Its in-house lobbyist, James Hedlund, has separately disclosed a spend of $890,000 over the period.

McCarthy had argued that ICANN was trying to hide the true extent of its lobbying, because it’s trying to make a case with US authorities for ICANN the organization that is at odds with what the community-led IANA transition process is trying to achieve.

Today’s disclosures show that ICANN spent $4,809,949 — almost half of its transition-related professional services spend — on the two law firms that have been advising the two volunteer groups developing the IANA transition proposals.

It spent a more modest $1,150,213 on its own legal advisers, Jones Day.

DI will be live-blogging ICANN 54

Kevin Murphy, October 16, 2015, Domain Policy

I’m going to be doing something a little different for ICANN’s latest public meeting.

For various tedious reasons I was unable to attend in person ICANN 54, which started in Dublin this morning, so I thought I’d try to make the best of the advantages of remote participation and a friendly time zone to try something new.

Namely, live-blogging.

For those unfamiliar with the concept, a live-blog is essentially a single blog post that is updated and amended in real-time as a quickly developing news story continues to roll.

You can think of it a little like a Twitter feed, but without the restrictions.

If you have your browser open to the live-blog post, the updates should be automatically pushed to you in near real-tie without the need to manually refresh the page.

I say “should” because I’ve never done this before and, despite a bit of testing, the back-end software may not function precisely as I expect.

The auto-refresh function only seems to work, by design, in single-post view. If you’re looking at the DI front page you probably won’t get the auto-updates unless you manually refresh.

It’s all very experimental and I may quickly abandon the idea if it doesn’t seem to be working. Feedback is welcome.

The intention in some cases is to live-blog individual sessions, when they’re important enough to warrant my undivided attention — such as the opening ceremony or the meeting between the ICANN board and the Governmental Advisory Committee.

In other cases, the blog may dip in and out of conflicting sessions depending on what seems most interesting at the time.

While ICANN 54 doesn’t officially start until Monday, long-time ICANN watchers know that the real discussions begin much earlier.

In fact, in Dublin, they’ve already started.

A three-hour session of the community working group tasked with improving ICANN’s accountability, known as the CCWG, showed strong indications this morning that it may be ready to be the first blink in its ongoing confrontation with the ICANN board.

You can expect a lot of coverage of the accountability discussions, which have multiple sessions devoted to them, over the coming seven days.

Anger as ICANN’s member flops before board

Kevin Murphy, September 4, 2015, Domain Policy

ICANN’s board of directors came to blows with its key accountability working group this week, over proposals that would give ICANN the community the right to sue ICANN the organization.

An extraordinary three-hour teleconference between the board and the Cross Community Working Group on Enhancing Accountability (CCWG) Wednesday night came across like some kind of weird, Orwellian, passive-aggressive piece of emotional domestic abuse.

The CCWG, a group of volunteers coming from all parts of the ICANN community, has created a set of proposals for improving ICANN’s accountability to the community as part of its transition process away from US government oversight.

The idea is to create sufficient accountability mechanisms so that if in future the entire ICANN board grows goatee beards and turns Eeevil, the community will still be able to hold them to their bylaws commitments.

The CCWG, following the advice of an independent law firm, decided that the best way to do this was to turn ICANN into a membership organization with a “Sole Member”.

This member would be a legal entity run by community members that would have the right under California law to sue ICANN if it ever failed to live up to its bylaws.

For example, if ICANN refused to implement the decisions of an Independent Review Panel, the member could seek to have the ruling enforced by a court.

This is just one of many proposals made by the CCWG currently open for public comment.

Highly unusually for a public comment period, the ICANN board is going to be a commenter in this case. While its comments have not been published yet, it has taken advice from its lawyers at Jones Day that may give an indication of how it is leaning.

Wednesday night’s call was designed to give the board the chance to bring its initial thinking to the CCWG.

Instead, it wound up being almost entirely about the proposed membership model and the board’s statements that while it supported the CCWG’s proposals 100% it also wanted them fundamentally rewritten.

The board wants the idea of a Sole Member model thrown out and replaced with a new arbitration process that would be legally enforceable in California courts.

So, instead of a legal-entity “member” suing ICANN, some as-yet unidentified community entity would take ICANN to arbitration. The decision of the arbitration panel could then be enforced by the courts if ICANN failed to abide by it.

When CCWG members asked who, in the absence of a legal entity, would take ICANN to arbitration and then sue it, the board had no answer. Instead, directors said the CCWG’s legal advisers should talk to Jones Day to hammer out the “technical” details.

Some members claimed that it would be “impossible” to give the community legal standing to sue ICANN without a membership model. Others said that the board’s 11th hour suggested rewrites would make it “impossible” to hit the deadline for a final proposal by the Dublin meeting next month.

At least a third of the 2-hour 47-minute call was wasted as the CCWG struggled to understand the doublespeak the board had brought into the discussion.

Directors continually insisted that they “completely supported” CCWG’s proposals on enforcement “without reservation”, while simultaneously saying the Sole Member model should be thrown out.

Half way through the call, CCWG co-chair Thomas Rickert reflected exasperation among members: “There is obviously difficulty to understand by many on this call how you fully support what we are doing while proposing something which appears like a complete rewrite.”

Shortly thereafter, Chehade responded:

Why don’t we just agree that we are agreeing with you that the community must be able to get enforcement in California courts, that we will ensure that they have the standing to do it without question. And if we are all in agreement that we are in agreement with each other let’s then let the technical people go solve this. If they call come back and tell us that frankly that advice was flawed, then let’s deal with it then in good faith. But that’s what we’re sharing with you.

Directors said that the proposed member model might have unintended consequences, and that the US government may not approve a proposal that overly complicates ICANN’s legal structure.

An hour later, the CCWG was still scratching its head, nerves were beginning to wear, and the tone was getting increasingly testy as the CCWG repeatedly asked the board to explain how it could express support and simultaneously propose an alternative solution.

“There is absolutely no new proposal,” Chehade said, eventually. “We are embracing your proposal and the objectives of the community. Please hear me on this. There is no new proposal.”

He said:

Take your work and break it down: board removal, standing reconsideration, enhancing – getting the IRP back on the track we set, you know, fundamental bylaw, binding arbitration or mechanisms of enforceability. All of the things you have come up with, we are accepting. So when your reaction to our two last hours is that we’re refusing to add any accountability, I don’t know how you come to that frankly…

you yourself in the proposal say that this proposal is not finished, it needs a lot of work. So what we’re saying to you is let’s take this proposal which is not finished and let’s figure out ways to make it real, and real in the next few weeks so we can move forward…

The only area where we are telling you we would like to propose a different mechanism to achieve the same goal is the enforceability.

The whole three hours reminded me of a nightmare-scenario interview where the interviewee has been media-trained up the wazoo and refuses to sway from a set of vaguely scripted talking points.

But which proposal is the right one for ICANN?

Beats me. What does seem quite clear to me is that the board and CCWG are at odds now, despite what ICANN says, and that the expected delivery of a final accountability proposal by Dublin is in serious doubt.

Following the call, ICANN chair Steve Crocker posted a blog post that sought to clarify the board’s position, characterizing it as agreement in principle but disagreement on implementation. He wrote:

We have suggestions on how these [CCWG proposals] could be operationalized. With regards to the mechanisms for community enforceability, where the current proposal still warrants much detail that may not be achievable we have a suggestion on how to deliver on it in a stable way, as increased enforceability must not open up questions of, for example, capture or diminishing of checks and balances.

The Wednesday meeting’s audio, transcript and other notes can all be found here.

US gives ICANN an extra year to complete transition

Kevin Murphy, August 18, 2015, Domain Policy

US government oversight of ICANN and the domain name system will end a year later than originally expected.

The National Telecommunications and Information Administration said last night that it has extended ICANN’s IANA contract until September 30, 2016, giving the community and others more time to complete and review the transition proposals.

NTIA assistant secretary Larry Strickling wrote that “it has become increasingly apparent over the last few months that the community needs time to complete its work, have the plan reviewed by the U.S. Government and then implement it if it is approved.”

Simultaneously, NTIA has finally published a proposal — written by ICANN and Verisign — for how management of the DNS root will move away from hands-on US involvement.

The extension of the IANA contract from its September 30, 2015 end date was not unexpected. The current contract allows for such extensions.

As we recently reported, outgoing ICANN CEO Fadi Chehade had guessed a mid-2016 finalization of the transition.

Regardless, expect op-eds in the coming days to claim this as some kind of political victory against the Obama administration.

Part of the reason for the extension, beyond the fact that the ICANN community hasn’t finished its work yet, is legislation proposed in the US.

The inappropriately named DOTCOM Act, passed by the House but frozen for political reasons in the Senate by Tea Party presidential hopeful Sen Ted Cruz, would give Congress 30 legislative days (which could equal months of real time) to review the IANA transition proposals.

There are basically three prongs to the transition, each with very long names.

The “Proposal to Transition the Stewardship of the Internet Assigned Numbers Authority (IANA) Functions from the U.S. Commerce Department’s National Telecommunications and Information Administration (NTIA) to the Global Multistakeholder Community” is the first.

That was created by the multistakeholder IANA Stewardship Transition Coordination Group (ICG) and deals with how the IANA contract will be managed after the US government goes away.

The second prong comes from the Cross Community Working Group on Enhancing ICANN Accountability, which deals with how ICANN itself can improve its accountability to the internet community without the Damoclean sword of US intervention hanging over it.

The CCWG’s latest draft report would strengthen the ICANN board against capture by, for example, making certain bylaws harder to amend and giving the community the right to fire directors.

Both of these proposals are currently open for public comment here.

The third prong, which only appears to have been published this week, deals with the nuts and bolts of how changes to the DNS root zone are made.

The current system is a tripartite arrangement between IANA, NTIA and Verisign.

When a TLD operator needs a change to the DNS root — for example adding a name server for its TLD — the request is submitted to and processed by IANA, sent to NTIA for authorization, then actually implemented on the primary root server by Verisign.

Under the new proposal (pdf) to phase the NTIA out of this arrangement, the NTIA’s “authorization” role would be temporarily complemented by a parallel “authentication” role.

The proposal is not written in the clearest English, even by ICANN standards, but it seems that the current Root Zone Management System would be duplicated in its entirety and every change request would have to be processed by both systems.

The output of both would be compared for discrepancies before Verisign actually made the changes to the root.

It seems that this model is only being proposed as a temporary measure, almost like a proof of concept to demonstrate that the NTIA’s current authorization role isn’t actually required and won’t be replaced in this brave new world.