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.

ICM names former ACLU chief to policy board

ICM Registry has appointed former American Civil Liberties Union president Nadine Strossen to the Policy Council of IFFOR, the oversight body responsible for the .xxx top-level domain.
Strossen held the role at the ACLU between 1991 and 2008. Her appointment to the largely volunteer role at IFFOR is a bit of a coup for the organization.
She fills the seat designated for a free speech advocate.
Also named to the council is Sharon Girling, a former British cop who was closely involved in many high-profile child abuse imagery stings, including Operation Ore.
Law professor Fred Cate has been appointed the council’s security/privacy expert, and first amendment lawyer Bob Corn-Revere is ICM’s appointed representative.
There will be five other policy council members, all drawn from the porn industry, named in July or August, IFFOR said in a press release.
IFFOR, the International Foundation For Online Responsibility, will get $10 a year from every .xxx domain name registered.

Governments get .xxx wish-list

National governments have been given the chance to block “words of cultural and/or religious significance” from the forthcoming .xxx top-level domain.
ICM Registry has told ICANN’s Governmental Advisory Committee that its members have until the end of July to provide lists of names they want banning from the .xxx namespace.
The GAC is due to meet during ICANN’s meeting in Singapore next Tuesday to discuss an “ICM Registry Request”, which is believed to be said block-list.
Approved strings would be marked as reserved and would resolve to a standard placeholder page. Unlike trademark holders, governments will not be required to pay a fee.
Strings in non-Latin alphabets will not yet be supported, according to ICM, but governments are allowed to submit them anyway, for future reference.
ICM will decide which strings make it to the list, but I can’t see it refusing reasonable requests — pissing off governments probably wouldn’t be a wise move given that some of them already plan to block the whole TLD at their national borders.

US resurrects the controversial new TLDs veto

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.

Go Daddy to sell .xxx domains

Go Daddy has become the latest registrar to agree to sell .xxx domain names.
It’s a bit of a big deal for ICM Registry, given how dominant Go Daddy is in the registrar channel.
There are about 50 .xxx registrars on this ICANN web page, which lists all the accredited registrars along with which top-level domains they’re approved to sell.
Go Daddy isn’t listed as a .xxx registrar yet, but its accreditation was just announced in a press release.
Read more at The Register.

Final call for .xxx policy volunteers

The International Foundation For Online Responsibility, which will set policies for the .xxx top-level domain, has issued its final call for Policy Council volunteers.
The deadline for nominations for the nine PC seats has been set at July 5, and IFFOR plans to announce the successful candidates in late August.
Five of the seats are reserved for members of the porn industry. Another will represent privacy/security interests, one will be drawn from the world of child protection, and one will be a free speech advocate.
The final seat will be occupied by ICM Registry, the .xxx manager.
My understanding is that a front-runner for the child protection role is Sharon Girling, a former British police officer who played a key role in child abuse stings including Operation Ore.
I know of a few people who have applied for the free speech spot. Most recently, outspoken .xxx critic “DarkLady”, author of the Dot-XXX Opposition blog, revealed she had put herself forward for the job.
While the PC members are ostensibly volunteers, they do get a $15,000 annual stipend and their travel expenses paid for.
IFFOR will receive $10 from ICM for every .xxx domain that is registered.

Survey shows .xxx is the Marmite TLD

The forthcoming .xxx top-level domain is accepted and hated by equal numbers of adult entertainment industry operators, according to a new survey.
Xbiz reports today that 35% of its members plan to buy .xxx domain names. Equally, 35% said they would not buy in .xxx because they do not want to support the TLD.
Marmite, if you’re puzzled about the headline, is a strongly flavored yeast-based sandwich spread sold primarily here in the UK. It’s cleverly marketed using the frank slogan “Love it or hate it”.
Just like .xxx, it’s banned in some countries.
It may not be an entirely apt simile, however. The Xbiz survey showed that a paltry 13% of the respondents planned to develop sites. The other 22% are only planning to defensively register their brands.
Xbiz, which surveyed 400 of its members, speculates that defensively registered domains “may be key to the TLD’s revenue stream and perhaps its survival”.
I’m not so sure. If ICM gets 22,000 defensive registrations from pornographers (twice as many sunrise registrations as .co reportedly got last year), that works out to only $1.1 million per year for ICM.
We’re likely to get our first indication of adult industry support when ICM announces its Founders Program partners – pornographers that are prepared to publicly endorse .xxx before it launches.
Like any new TLD launch, anchor tenants will to a large extent determine acceptance of .xxx – ICM will need its o.co moment.
Last week, I attended an ICM-sponsored event at a strip joint in London, at which executives from a large British porn publisher expressed enthusiasm about the TLD, so it does seem to have some quiet support in the business.

How the GAC could derail new TLDs in Singapore

The pieces are moving into place for what could be the final battle over new top-level domains between ICANN and its Governmental Advisory Committee, in Singapore later this month.
ICANN made few concessions to the GAC’s biggest concerns in the latest Applicant Guidebook, which begs the question of whether the United States will now be asked to play its trump card.
Earlier this week, European Commissioner Neelie Kroes made threatening noises in ICANN’s direction, saying that by approving the controversial .xxx domain over GAC advice, ICANN had showed that it cannot be trusted with new top-level domains.

If the ICANN board chooses to move forward [with .xxx] despite significant governmental concerns, what does this tell us for the next meeting in Singapore, which is widely expected to launch the next batch of TLDs? The concerns of governments in this process are not trivial, ranking from trademark protection to cooperation with law enforcement

The current Guidebook has not accepted (with some good reasons) many of the GAC’s requests on the issues of trademark protection and the governmental right to object to new TLD applications.
In a recorded address at the EuroDIG conference in Serbia this week, before the Guidebook was published, Kroes called for ICANN’s multistakeholder internet governance model to be “amended to better take into account the voice of governments”.
She said she is supported by colleagues in the EU and overseas, presumably referring to Lawrence Strickling, head of the NTIA, with whom she met last month to discuss .xxx and new TLDs.
In her speech, Kroes called for the United States to leverage its unique position of authority over ICANN to influence change at the organization:

The expiry of the IANA contract in September will be a unique opportunity to sharply focus on a set of minimum requirements for whichever organization will be designated to carry out the future IANA functions. Specifically, I feel that the new contract should include specific provisions to improve standards of corporate governance in the organization in charge.
…whichever will be the organization resp for naming and addressing resources, it should be required to demonstrate it has support of global internet community before it makes proposals to add any further top-level domains to the internet.

This is perhaps the most explicit outside call yet for the US to use the IANA contract both to get the GAC a louder voice at the ICANN table and to have the demands of the trademark lobby taken fully into account in the new TLDs program.
The US Trump Card
It’s no secret that the US has an ace up its sleeve, in the form of the soon-to-expire IANA contract.
IANA is responsible for the paperwork when updates are to be made to the DNS root, whether they are redelegating a ccTLD, changing name servers, or adding an entirely new TLD.
When a new TLD is approved, ICANN’s IANA department forwards the request to the NTIA, which reviews it before instructing VeriSign to add the TLD to the A-root.
IANA is currently a no-fee contract between the NTIA and ICANN. Theoretically, the NTIA could award the contract to whichever organization it chooses, after it expires.
This is unlikely to happen. But if it did, ICANN’s powers would be severely curtailed – another entity would be above it in the root’s chain of command.
Alternatively, the NTIA could amend the contract to impose conditions on ICANN, such as making it more accountable to the GAC. This is what Kroes appears to be pushing for.
Strickling himself said a month ago that he has not ruled out the option of using the IANA contract as “as a vehicle for ensuring more accountability and transparency” at ICANN.
There is another theory, however, which is currently doing the rounds.
As it currently stands, if ICANN approves the Applicant Guidebook in Singapore on June 20, the expected timetable has it accepting new gTLD applications as early as November.
By that time it would, presumably, have already renewed the IANA deal, and would still have its nominal powers to add new TLDs to the root.
But buried deep within the IANA contract (pdf) is a provision that allows the NTIA to unilaterally extend its term by six months – from September 30, 2011 to March 31, 2012.
If the NTIA were to exercise this option, it could put a serious question mark over ICANN’s ability to start accepting new TLD applications this year.
With no guarantee that its authority to add new TLDs to the root would be renewed, would risk-averse ICANN be happy to go ahead and accept tens of millions of dollars in application fees?
It seems unlikely.
I’ve little doubt that this scenario will have been discussed by the NTIA and its allies. It would look better politically for the US if it had the support of the GAC before making such a play.
Since the GAC seems to want to buy time for further talks on new TLDs before ICANN kicks off the program, the IANA contract extension may appear to be a good way of going about it.
But with ICANN seemingly set to approve a Guidebook that will remain open to significant amendments post-Singapore, does the IANA threat need to be invoked at all?
If negotiations over trademark protection, developing world funding and GAC objections can remain open even after the Guidebook has been “approved”, perhaps there’s scope for a more peaceful resolution.

Experts say piracy law will break the internet

Five of the world’s leading DNS experts have come together to draft a report slamming America’s proposed PROTECT IP Act, comparing it to the Great Firewall of China.
In a technical analysis of the bill’s provisions, the authors conclude that it threatens to weaken the security and stability of the internet, putting it at risk of fragmentation.
The bill (pdf), proposed by Senator Leahy, would force DNS server operators, such as ISPs, to intercept and redirect traffic destined for domains identified as hosting pirated content.
The new paper (pdf) says this behavior is easily circumvented, incompatible with DNS security, and would cause more problems than it solves.
The paper was written by: Steve Crocker, Shinkuro; David Dagon, Georgia Tech; Dan Kaminsky, DKH; Danny McPherson, Verisign and Paul Vixie of the Internet Systems Consortium.
These are some of the brightest guys in the DNS business. Three sit on ICANN’s Security and Stability Advisory Committee and Crocker is vice-chairman of ICANN’s board of directors.
One of their major concerns is that PROTECT IP’s filtering would be “fundamentally incompatible” with DNSSEC, the new security protocol that has been strongly embraced by the US government.
The authors note that any attempts to redirect domains at the DNS level would be interpreted as precisely the kind of man-in-the-middle attack that DNSSEC was designed to prevent.
They also point out that working around these filters would be easy – changing user DNS server settings to an overseas provider would be a trivial matter.

PROTECT IP’s DNS filtering will be evaded through trivial and often automated changes through easily accessible and installed software plugins. Given this strong potential for evasion, the long-term benefits of using mandated DNS filtering to combat infringement seem modest at best.

If bootleggers start using dodgy DNS servers in order to find file-sharing sites, they put themselves at risk of other types of criminal activity, the paper warns.
If piracy sites start running their own DNS boxes and end users start subscribing to them, what’s to stop them pharming users by capturing their bank or Paypal traffic, for example?
The paper also expresses concern that a US move to legitimize filtering could cause other nations to follow suit, fragmenting the mostly universal internet.

If the Internet moves towards a world in which every country is picking and choosing which domains to resolve and which to filter, the ability of American technology innovators to offer products and services around the world will decrease.

This, incidentally, is pretty much the same argument used to push for the rejection of the .xxx top-level domain (which Crocker voted for).

Still no new TLDs agreement with GAC

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.