How the US shaped the new ICANN

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.

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Tagged: ICANN, icm registry, larry strickling, new TLDs, ntia, xxx