Policy versus implementation… shouldn’t that be complexity versus simplification? [Guest Post]

ICANN has just published a paper that attempts to frame what is policy and what is implementation. Now, if you’re a normal person, your natural response would be “who cares?”.
But if you’re an Icannite, chances are you’re already in a bit of a state. Because the question of what, within the ICANN decision-making process constitutes policy development, and what should be considered implementation of policies that have already been developed, is one that has grown contentious indeed in recent times.
The theory behind ICANN is that it works by bringing together groups of people from various backgrounds or with various interests and then waiting until they all take a decision. That can then become part of the sets of official guidelines that govern the way the Internet’s addressing and numbering system works.
In this obvious oversimplification of the ICANN model, the group of people are called stakeholders and the decisions they take are policies. The way they arrive at those decisions goes by the sweet name of “bottom-up, consensus-driven, policy development process”.
This is what makes ICANN such a unique governance body. One that (in theory) takes into account the opinions and inputs of all interested parties.
It is designed to prevent one view from dominating all others, be it the opinion of industry insiders, politicians or even free-speech advocates — all groups with legitimate interests, but all groups that, when they find themselves in the ICANN fish pond, have to listen to the other fish.
Except that they don’t always want to. And in recent years, as the pressure on the ICANN model has increased because of the new gTLD program, there have been several occasions when some thought it would be better to cut through (or go around) the policy development process to get things done.
This is where the policy versus implementation debate comes from. It’s a boring one to most balanced human beings, but a crucial one for those who rate ICANN and the work that goes on there as a major interest.
The new staff paper is a welcome initiative by ICANN to try and make real progress on a debate that has, up until now, simply exacerbated tensions within the ICANN community.
It’s a first step. A kind of “state of play” view of what can at present be considered policy within the ICANN system, and a first attempt at separating that from implementation.
It’s only eight pages long (and if that seems long to you, believe me, as far as ICANN papers go, this is the equivalent of a 140-character tweet), but if you can’t be bothered to read it, I’ll break it down for you in just one word: complexity.
A first step towards much needed simplification
The real issue behind this debate is the overly complex thing that ICANN has become. Don’t agree? Even though staff need to write an eight-page report just to help everyone, including themselves, understand what “policy” means?
Read the paper and marvel at the number of different processes that could be termed policy within ICANN, including something called “little p policies”, as opposed to “Capital P Policies”. Then there’s “formal policies”, “operational policies” and even “consensus policies”.
Just in setting that scene, the staff paper is useful!
Let’s hope it leads all ICANN stakeholders to the clear realization that this can’t go on any longer. ICANN must simplify its processes so that there is no longer a need to spend time and energy splitting hairs on deciding things like: when in the ICANN universe is policy making actually making policy, and when is it implementing policies that have already been made?
This is a guest post by domain name industry consultant Stephane Van Gelder of Stephane Van Gelder Consulting. He has served as chair of the GNSO Council and is currently a member of ICANN’s Nominating Committee.

Crocker sees new gTLDs going live “towards the end of the year”

Not exactly the news that new gTLD applicants wanted to hear.
ICANN chairman Steve Crocker has put a tentative date of “towards the end of the year” for the first approval and delegation of new gTLDs, months later than some applicants were expecting.
In a video interview with ICANN media affairs chief Brad White, reviewing the organization’s goals for the year, Crocker said:

We will see some strings towards the end of the year I think actually approved and perhaps delegated into the root and so it will be interesting to see the how all that comes out what kinds of moves are made.

That time-frame is later than most industry experts speaking to Bloomberg BNA for a recent briefing paper had predicted. Some expected new gTLDs to start hitting the root as early as April.
Better news for applicants came in Crocker’s response to a question about whether ICANN was wedded to its 1,000 delegations-per-year limit, which could artificially throttle some applicants’ plans. He said:

I do not want to suggest that there will be a change, but I suspect there is plenty of capacity to increase that somewhat if it were necessary to do so.

The interview also discusses ICANN’s investment strategy for its new gTLD funds, its meetings strategy for the next few years, and the Registrar Accreditation Agreement (which Crocker said is “nearing completion”).
Watch the whole thing here:

FTC chief says most new gTLD bids are “defensive”

The US Federal Trade Commission is still “looking at” ICANN’s new gTLD program amid concerns that most of the applicants applied defensively, it has emerged.
FTC chairman Jon Leibowitz also said today that he thinks new gTLDs will cause consumer confusion and lead to an increase in fraud.
“We have been very, very concerned about ICANN and their dramatic expansion of the domain names, which we think will cause consumer confusion and even worse lead to more areas where malefactors can hide from the law while defrauding consumers,” Leibowitz said.
“A lot of companies that have plunked down $185,000 per domain name — and there have been hundreds of companies that have done it — have mostly done it for defensive purposes,” he added.
Most new gTLDs are not dot-brands, so Leibowitz probably misspoke when he said that “most” applications are defensive. Within the subset of bids that are dot-brands, he may be on firmer ground.
His comments came during a press conference to discuss the FTC’s settlement of its competition probe of Google, which has itself applied for almost 100 new gTLDs.
The settlement agreement relates to Google’s search practices and not its gTLD applications.
Leibowitz said that the FTC is “not looking that issue [new gTLDs] with respect to Google, we’re looking at that issue with respect to ICANN”.
The FTC’s concerns about the program are not new, but it has not publicly expressed them recently.
In December 2011 the agency said the program could “magnify both the abuse of the domain name system and the corresponding challenges we encounter in tracking down Internet fraudsters.”

ICANN finally coming to London

ICANN is to visit the UK for the first time in its 15-year history, with one of its 2014 public meetings now confirmed for London.
The organization is also planning to host its third meeting in Singapore, the city where its first meeting was held, just three years after its last visit, according to recently passed board resolutions.
Buenes Aires, Argentina has been selected for the third meeting in 2013, following Beijing and Durban, ICANN’s second visit to Argentina after the 2005 Mar Del Plata event.
The final meeting in 2014 will be held somewhere in North America, but the city has yet to be decided.
Fingers crossed for Vegas.

gTLD Objector says .sex, .gay, .wtf are all okay

The Independent Objector for ICANN’s new gTLD program has given a preliminary nod to applications for .sex, .gay, .wtf and six other potentially “controversial” applied-for strings.
Alain Pellet this week told applicants for these gTLDs that he does not expect to file objections against their bids, despite an outpouring of public comments against them.
The strings given the okay are .adult, .gay, .hot, .lgbt, persiangulf, .porn .sex .sexy, and .wtf.
A total of 15 applications have been submitted for these strings. Some, such as .gay with four applicants, are contested. Others, such as .wtf and .porn, are not.
The IO is limited to filing objections on two rather tightly controlled grounds: Limited Public Interest (where the bid would violate international law) and Community (where a community would be disenfranchised).
For each of the nine strings, Pellet has decided that neither type of objection is warranted.
In his preliminary finding on .gay and .lgbt, he also noted that to file an objection “could be held incompatible with the obligation of States not to discriminate on grounds of sexual orientation or gender identity which is emerging as a norm”.
As part of a lengthy analysis of the international legal position on homosexuality, De Pellet wrote:

even though the IO acknowledges that homosexuality can be perceived as immoral in some States, there is no legal norm that would transcribe such a value judgment at the international level. Thus, the position of certain communities on the issue is not relevant in respect to the IO’s possibility to object to an application on the limited public interest ground.

For the porn-related applications, Pellet noted that any bid for a gTLD promoting child abuse material would certainly be objected to, but that ICANN has received no such application.
On .wtf, which received many public comments because it’s an acronym including profanity, Pellet observed that freedom of expression is sacred under international law.
He regarded the problem of excessive defensive registrations — as raised by the Australian government in the recent wave of Governmental Advisory Committee early warnings — is outside his remit.
Pellet’s findings, which I think will be welcomed by most parts of the ICANN community, are not unexpected.
Limited Public Interest Objection, originally known as the Morality and Public Order Objection, had been put forward in the wake of the approval of .xxx in 2010 as a way for governments to bring their national laws to bear on the DNS.
But it was painstakingly defanged by the Generic Names Supporting Organization in order to make it almost impossible for it to be used as a way to curb civil rights.
The GAC instead shifted its efforts to the GAC Advice on New gTLDs objection, which enables individual governments to submit objections vicariously based on their own national interest.
Pellet’s findings — which are preliminary but seem very unlikely to be reversed — can be read in full on his web site.

Iran warns on 29 new gTLD bids

The Iranian government has filed late Early Warnings against 29 new gTLD applications, mostly on the basis that the applied-for strings are un-Islamic and “unethical”.
Bids for .gay, .sex, .wine, .bet, .poker and others relating to sexuality, alcohol and gambling are “in conflict with ethical standards” in Iran, according to the submissions.
We hear that the 29 warnings were filed with ICANN’s Governmental Advisory Committee December 10, well after the November 20 deadline that most other governments on the GAC stuck to.
We understand that problems obtaining visas for ICANN’s meeting in Toronto this October may have been blamed for the delay.
The initial batch of Early Warnings for the most part overlooked “moral” problems with gTLD strings, focusing far more on consumer protection, defensive registration costs and geographic sensitivities.
Not so with the Islamic Republic of Iran, which is much more concerned about words it believes promote anti-Islamic behavior or represent Islamic concepts without the required community support.
The government says in its opposition to .gay, for example, that the gTLD would be responsible for:

Agitation and irritation of the humanity and faith; and spread of hatred and hostility in the society.
Encourage people to perform non-religious, Unethical and Non-rational actions in the society.
Encourage people on doing unlawful actions according to Islam religion in the society.
Getting away society from healthy environment for doing daily activities.

Several other Early Warnings use the same or similar language. Iran suggests that the applicants could remedy the problem by banning registration in Islamic nations.
Not all of its warnings are related to sex, drink and gambling, however.
It’s also objected to .krd, which has been applied for to represent the Kurdish community in the region, saying it could “raise serious political conflicts” and lacks support.
The .eco applicants have also been hit with warnings on the grounds that ECO is an acronym for the Economic Cooperation Organization, a regional intergovernmental organization focused on trade.
ECO meets the criteria for IGOs to register .int domains, according to Iran, which is the GAC’s current proposed method of creating a list of protected second-level domain names for IGOs.
The full list of Iran’s objections is published here.

Chehade kicks off massive Whois review

ICANN has started the ball rolling on its potentially radical rethink of how Whois works with formation of a new “Expert Working Group” tasked with examining the issue.
As ICANN chair Steve Crocker told DI last month, this is the first stage of a root-and-branch reexamination of Whois databases, what they’re for, and how they’re accessed.
According to ICANN, which is referring to Whois as “gTLD registration data” presumably to avoid confusion with the Whois technical standard, the group will:

1) define the purpose of collecting and maintaining gTLD registration data, and consider how to safeguard the data, and
2) provide a proposed model for managing gTLD directory services that addresses related data accuracy and access issues, while taking into account safeguards for protecting data.

Whatever the new Expert Working Group on gTLD Directory Services comes up with between January and April next year will be punted to the Generic Names Supporting Organization for an ICANN board-mandated Policy Development Process.
The PDP could create policies binding on gTLD registries and registrars.
Jean-Francois Baril has been hand-picked to chair the group. He has no connection to the domain name industry but appears to have worked with ICANN CEO Fadi Chehade on the RosettaNet standards-setting project.
Crocker and fellow ICANN director Chris Disspain will also join the group.
ICANN wants volunteers to fill the other positions and it seems to be eager to find outsiders who do not already represent entrenched ICANN constituency positions, saying:

Volunteer working group members should: have significant operational knowledge and experience with WHOIS, registrant data, or directory services; be open to new ideas and willing to forge consensus; be able to think strategically and navigate conflicting views; have a record of fostering improvements and delivering results; have a desire to create a new model for gTLD directory services; and be able to volunteer approximately 12-20 hours a month during January – April 2013 to the working group.
Individuals who have worked extensively in the areas of registration data collection, access, accuracy, use, privacy, security, law enforcement, and standards and protocols are also encouraged to consider working group membership. As the working group will be a collection of experts, it is not expected to be comprised solely of representatives of current ICANN community interests. Although members may not come directly from ICANN structures, the working group will have a deep understanding of, and concern for, the ICANN communities’ interests.

Obviously law enforcement and intellectual property interests will be keen to make sure they’re amply represented in the group, as will registries/registrars and privacy advocates.

Deloitte confirmed as first Trademark Clearinghouse provider

ICANN has signed a contract with Deloitte, making the company the first official trademark validation agent for the forthcoming new gTLDs Trademark Clearinghouse.
The news emerged in a blog post from ICANN CEO Fadi Chehade today.
The TMCH is going to use the registry-registrar model, with IBM acting as the centralized, sole-source database operator, and Deloitte acting as the first “registrar”.
Marks entered into the TMCH will be eligible for Trademark Claims notifications and, in cases where proof of use has been provided, Sunrise registrations.
Chehade confirmed that Deloitte can charge a maximum of $150 per trademark per year, with discounts available for multiple marks and multiple years.
IBM’s contract and associated fees have not yet been set, due largely to the fact that the TMCH implementation model is still the subject of debate and controversy.
ICANN has confirmed, however, that it will retain “all intellectual property rights” to data stored in the Clearinghouse, meaning it may be able to migrate the database to a different provider in future.
Chehade also confirmed that ICANN has received “multiple” responses to its Request For Information for a Uniform Rapid Suspension service provider that come in under its $500-per-case price target.

Ombudsman probing secretive Trademark Clearinghouse meetings

ICANN Ombudsman Chris LaHatte is investigating ICANN’s recent closed-door Trademark Clearinghouse talks, and wants feedback from community members.
In a brief blog post this evening, LaHatte wrote:

I have received a complaint about the process used in the recent Trademark Clearinghouse meetings where decisions were made on the way forward. The complaint in summary says that the decisions were made without full consultation from some contituencies. I have of course not formed any view on this, and need input from people who participated and were pleased with the process, or from others who feel they were excluded. Such submissions can be made to me at ombudsman@icann.org, or on this blog. as comments.

The complaint refers to meetings in Brussels and Los Angeles recently, convened by CEO Fadi Chehade to discuss proposals jointly submitted by the Intellectual Property Constituency and Business Constituency.
The IPC and BC continue to call for stronger trademark protections in the new gTLD program, and the talks were designed to see if any changes could be made to the TMCH that would fulfill these requests.
The two meetings ultimately saw ICANN come up with a “strawman proposal” for giving the IPC/BC some of what they wanted, which is currently open for public comment.
However, the meetings were invitation-only and, unusually for ICANN, not webcast live. Attendees at the LA meeting also say that they were asked by ICANN not to tweet or blog about the talks.
While the LA meeting was apparently recorded, to the best of my knowledge the audio has not yet been released.
While LaHatte did not of course name the person who complained about these meetings, I’d hazard a guess they are from the non-commercial side of the house, members of which have already complained that they were vastly outnumbered by IP interests.
(UPDATE: I was correct. The complaint was filed by Maria Farrell of the Non-Commercial Users Constituency)
Former GNSO Council chair Stephane Van Gelder (from the Registrar Constituency) also recently wrote a guest post for DI in which he questioned the possible circumvention of ICANN’s established bottom-up policy-making processes.
There’s also substantial concern in other constituencies that ICANN is trying to appease the trademark lobby for political reasons, attempting to force through their desired changes to the new gTLD program under the guise of tweaks to “implementation” detail.
Chehade has asked the GNSO Council for “policy guidance” on the TMCH strawman proposals, which seems to be already stirring up passions on the Council ahead of its December 20 meeting.
The question of what is “implementation” and what is “policy” is a meme that we will be returning to before long, without doubt.

Ombudsman asks DCA to simmer down after .africa conflict of interest complaint

ICANN’s Ombudsman dismissed a complaint from DotConnectAfrica about alleged conflicts of interest on ICANN’s board of directors, but scolded DCA for its “intemperate” blog posts.
DCA complained in October that two members of the board — Mike Silber and Chris Disspain — have conflicts of interest in relation to the contested .africa gTLD.
DCA has applied for .africa without notable government support, whereas South African registry Uniforum has applied with formal backing from most African governments.
According to DCA’s complaint, as described by Ombudsman Chris LaHatte in a new blog post, Disspain and Silber somehow have conflicts of interest related to this contention set.
Silber is treasurer of ZADNA, the South African domain name authority, which oversees .za policy and ergo Uniforum’s ccTLD business, which is arguably a close connection to the .africa applicant.
Disspain is CEO of auDA, which oversees policy for Australia’s .au ccTLD and therefore has a relationship with AusRegistry, a major back-end provider for new gTLD applicants.
It’s not at all obvious what the alleged conflict of interest related to .africa is in Disspain’s case.
When LaHatte asked DCA executive director Sophia Bekele to explain the precise nature of the conflicts, he did not receive any information beyond identification of these two employment connections, both of which are already fully disclosed by ICANN.
Both men are members of the board’s New gTLD Program Committee, which wields the board’s power over the new gTLD program and is designed to comprise only non-conflicted directors.
LaHatte blogged that he was unable to find any discussion of .africa in any board or committee meeting minutes — because ICANN has not discussed any individual gTLD applications yet — and was therefore unable to find any unfair treatment of DCA.
Dealing with unfair treatment is of course the Ombudsman’s job. LaHatte concluded:

I consider that no disqualifying conflict of interest, or indeed any conflict of interest at all, is present in the actions of both Chris Disspain and Mike Silber. It is likely this complaint has led to increased awareness of the possibilities of conflict of interest, which the Board will carefully consider in terms of the existing policy about conflict, when the issue arises. I consider this should continue to be a matter for consideration in gTLD decision making by the Board.

But the Ombudsman also, it seems, had some concerns about the nature of DCA’s lobbying campaign over the last several months, which has been as vitriolic has it has been scattershot.
As previously noted, some of its allegations against its .africa rival have been baffling.
LaHatte clearly picked up on the tone of the debate also, blogging:

There has been considerable amount of discussion on blogs, Twitter and other sites and in comments on the ICANN website in relation to the new .africa gTLDs applications. Regrettably much of the discussion has been intemperate.
…
An aspect of this application has been the unfortunate tone of much of the debate on various websites blogs and other places. During the course of this investigation I discussed this with Sophia Bekele (at the Toronto meeting) and suggested that perhaps a less aggressive approach would be appropriate. She readily agreed to this.
The discussion and debate continues to be fairly vigorous, but I would suggest to the competing parties for .africa that they should pay attention to the ICANN rules about respectful communication.

As Uniforum has said little, and DCA a lot, I can also assume that the blog posts being referred to are DCA’s.
The company has for several months regularly posted often incomprehensible allegations on its blog, usually in multicolored text with liberal use of italics and bold.
Bekele was also last week rumbled using a fake identity on a mailing list to support DCA’s position.