Second US bill would block IANA transition

Another bill has been introduced into the US Congress related to the IANA transition process, and this one would actually be dangerous if passed.
Rep Mike Kelly introduced the Internet Stewardship Act (pdf) to make the IANA transition a matter that requires Congressional legislation.
The press release announcing the bill is longer than the bill itself, which says just this:

NTIA PROHIBITED FROM RELINQUISHING DNS RESPONSIBILITIES.
The Assistant Secretary of Commerce for Communications and Information may not relinquish or agree to relinquish the responsibilities of the National Telecommunications and Information Administration with respect to Internet domain name functions, including responsibility with respect to the authoritative root zone file, the Internet Assigned Numbers Authority functions, or the related root zone management functions, unless such relinquishment is permitted by a statute enacted after the date of the enactment of this Act.

In other words, if this bill is enacted then another bill would be required in order for the NTIA to remove itself from root zone oversight.
Try to imagine a bill relinquishing control over the “critical internet functions” getting majority support in any national legislature.
Try to imagine it getting support in a national legislature that has more than its fair share of flag-waving nationalists and gung-ho xenophobes.
Try to imagine the Republican party in Congress allowing the Obama administration, which it despises, to ‘give away the internet’ to Vladimir Putin and theocratic Arab states, which is what a lot of commentators irrationally seem to think is happening.
It Kelly’s bill is passed, ICANN may as well kiss goodbye to ideas of independence from US oversight for the foreseeable future.
Fortunately, the bill is just a bill right now.

ICANN fights the fear in Congressional hearing

A Congressional hearing yesterday addressed fears that the decision to cut ICANN loose from US governmental oversight would lead to the internet being seized by backwards regimes.
Long-term DI readers may recall that I’m usually quite snarky whenever a Congressional subcommittee convenes to pretend to be interested in ICANN — with the reason that they usually talk a lot of nonsense.
But this time the majority of the House Subcommittee on Communications and Technology seemed genuinely interested, surprisingly clueful, and relatively low on hyperbolic fearmongering.
The hearing was arranged due to the National Telecommunications and Information Administration’s March 14 decision to remove itself from the DNS root zone management triumvirate.
Whole cartloads of horse pucky have been wheeled out in response, exemplified by breathless editorials about how the world’s most repressive governments will immediately step in to fill the NTIA-shaped void.
It’s Obama’s policy of “appeasement”, designed to allow a shirtless Vladimir Putin to drive a tank directly into the root zone file, if you believe right-leaning American commentators.
There was some of that in yesterday’s hearing, but it was overshadowed by a discussion that seemed to be more interested in addressing genuine concerns and clearing up misconceptions.
Basically, Congressmen are afraid that if the NTIA leaves its role as steward of the DNS root zone, that will somehow lead to other governments taking over and internet freedoms being diminished.
How that fear manifested itself on the committee ranged from thoughtful and understandable expressions of concern and caution to wild-eyed, nonsensical, Putin-obsessed ranting.
It was the job of witnesses Larry Stricking of the NTIA, Fadi Chehade of ICANN and Ambassador David Gross, formerly of the Department of State, to reassure Congress that everything is going to be okay.
Rep. Scalise thinks Putin is magic
At the risk of being accused of sensationalism, I’m starting with the nut-job, but only to illustrate the misinformation ICANN and the NTIA have been dealing with for the last few weeks.
In a way, Rep. Steve Scalise’s portion of the hearing’s Q&A section is a microcosm of the dialogue that has been playing out in the media since the NTIA announcement.
Scalise was the guy on the committee who seems to believe that Russia and China possess the supernatural powers necessary to “take over the internet”. Red Magic, perhaps.
Here’s an exchange with Strickling and Chehade, which began when Scalise asked the panel to address concerns about authoritarian regimes taking over the internet:

STRICKLING: We won’t let that happen, number one.
SCALISE: What’s an assurance of that? It’s good to say we won’t let that happen, it’s nice to hear it, but nobody knows what’s gong to happen. You can’t tell me what’s going to happen. How do you know you won’t let it happen?
STRICKLING: I’m saying that we will not accept a proposal that has that as its outcome. Period. End of story. So it won’t happen. Second, nobody has yet explained to me the mechanism by which any of these individual governments could somehow seize control over the internet as a whole—
SCALISE: You really don’t think that Russia… Look, Russia and China have made it very clear what they want to do to suppress internet freedom. They’ve made it very clear—
STRICKLING: And they do it within their own countries—
SCALISE: At the end of the day y’all are going to come up with some sort of process if you’re going to transfer away, and I say IF — capital I, capital F — if you transfer it away you will come up with some sort of process. Do you really not thnk that Vladimir Putin, with all the other things he’s busy with right now, ain’t going to try to figure out some way to get control? It won’t be through the Russian government directly necessarily, but China and Russia have proven very resourceful at trying to figure out what that process so that they can manipulate it. You can do all the things you want to stop that from happening but at end of the day it comes out to where those countries have figured out a way, like they’ve figured out a lot of other ways too, to do something subversive that goes against all the intentions that we have. You can’t stop that.
STRICKLING: Well, Congressman, what do you think they could do that they can’t do today?
SCALISE: What do you really think…? Look at what Putin’s doing right now! The President just doesn’t seem to take this seriously what he’s doing through Eastern Europe. He’s trying to rebuild, get the old band back together, get the Soviet Union back together, right now before our very eyes. Secretary of State Kerry says the international community won’t accept this. They’re doing it! They don’t care what the international community thinks. They’re invading a country. So what would they do to get control of the internet if you threw something out there? These are real concerns that are being expressed. The other two panelists can touch on this as well.
CHEHADE: Thank you, Congressman. Let me be clear that at ICANN it is impossible for them today to do so. They’ve been trying for 15 years—
SCALISE: Exactly! Which is why it’s working.
CHEHADE: But it’s not because the US actually has the current stewardship role, it’s because of the multistakeholder model. It stops them. Where they will try to do what you’re suggesting is in the international intergovernmental organizations. They’ve been trying to do that there. We want to take away from them any argument that they still go to the UN and try to take over what ICANN does, by making sure that ICANN is free of one government control. To show them that ICANN believes in the multistakeholder model and this great country that created that model trusts it.

Chehade 1 – Scalise 0.
But did Scalise have a point, even accidentally? I’m going to cover that question in a separate post.
Rep Shimkus really wants you to support his bill
A recurring theme of the hearing was the Domain Openness Through Continued Oversight Matters (DOTCOM) Act, introduced by Rep. John Shimkus and others last week.
I called the bill “pointless” when it emerged, as all it does is delay any transition for a year until the US Government Accountability Office has conducted a study of the ramifications.
But there’s also a feeling that the Act would be a distraction at best and may cast more uncertainty than is necessary over the transition process at a critical time for internet governance.
Both Strickling and Chehade prevaricated when Shimkus asked them outright, repeatedly, if they were opposed to the GAO review.
Strickling said he “neither or supports or opposes” such a review but said he was “in favor of full discussion of these issues”.
Chehade, seemingly reluctant to tie himself to a one-government review said he did not have a view, but that he committed to full transparency in the issue.
The fact that Chehade had said that there was “no rush” to conclude the transition process was later used by Shimkus as a gotcha, when he pointed out that the Act’s one-year delay would not have an impact.
On a second panel, Carolina Rossini of the Internet Governance and Human Rights Program of the New American Foundation, gave perhaps a fuller explanation of why there’s caution about the bill.

My concern is that if we wait one year, if we block the transition now and wait one year until we have a report, that is the risk. And that’s the risk that we have non-democratic governments to actually make their voices even louder and manipulate the narrative both in NetMundial and in the [ITU] plenipot in November.

Shimkus said he’d concluded that Chehade and Strickling has “in essence supported the bill”, which I don’t think was necessarily a fair interpretation of what they said.
The two-and-a-half hour hearing had a couple of other diversions — Rep Blackburn going off on a crazy tangent about net neutrality and Rep Latta wasting everyone’s time to score points on behalf of a constituent, a .med gTLD applicant — but otherwise it was generally sane stuff.
The committee seemed to be fairly well-briefed on the subject before them. Most of the Congressmen expressed their concerns about the transition in sensible terms and seemed to take the answers on board.
Special recognition should also be given to Chehade, who won the slightly condescending praise and admiration of some of the committee when he choked up on an abridged version of his immigrant origin story.
He has an uncanny ability to speak to his audience at every occasion and he put it to excellent use yesterday.

Are Whois email checks doing more harm than good?

“Tens of thousands” of web sites are going dark due to ICANN’s new email verification requirements and registrars are demanding to know how this sacrifice is helping solve crimes.
These claims and demands were made in meetings between registrars and ICANN’s board and management at the ICANN 49 meeting in Singapore last week.
Go Daddy director of policy planning James Bladel and Tucows CEO Elliot Noss questioned the benefit of the 2013 Registrar Accreditation Agreement during a Tuesday session.
The 2013 RAA requires registrars to verify that registrants’ email addresses are accurate. If registrants do not respond to verification emails within 15 days, their domains are turned off.
There have been many news stories and blog posts recounting how legitimate webmasters found their sites gone dark due to an overlooked verification email.
Just looking at my Twitter stream for an “icann” search, I see several complaints about the process every week, made by registrants whose web sites and email accounts have disappeared.
Noss told the ICANN board that the requirement has created a “demonstrable burden” for registrants.
“If you cared to hear operationally you would hear about tens and hundreds of thousands of terrible stories that are happening to legitimate businesses and individuals,” he said.
Noss told DI today that Tucows is currently compiling some statistics to illustrate the scale of the problem, but it’s not yet clear what the company plans to do with the data.
At the Singapore meeting, he asked ICANN to go to the law enforcement agencies that demanded Whois verification in the first place to ask for data showing that the new rules are also doing some good.
“What crime has been forestalled?” he said. “What issues around fraud? We heard about pedophilia regularly from law enforcement. What has any of this done to create benefits in that direction?”
Registrars have a renewed concern about this now because there are moves afoot in other fora, such as the group working on new rules for privacy and proxy services, for even greater Whois verification.
Bladel pointed to an exchange at the ICANN meeting in Durban last July, during which ICANN CEO Fadi Chehade suggested that ICANN would not entertain requests for more Whois verification until law enforcement had demonstrated that the 2013 RAA requirements had had benefits.
The exact Chehade line, from the Durban public forum transcript, was:

law enforcement, before they ask for more, we put them on notice that they need to tell us what was the impact of what we did for them already, which had costs on the implementers.

Quoted back to himself, in Singapore Chehade told Bladel: “It will be done by London.”
Speaking at greater length, director Mike Silber said:

What I cannot do is force law enforcement to give us anything. But I think what we can do is press the point home with law enforcement that if they want more, and if they want greater compliance and if they want greater collaborations, it would be very useful to show the people going through the exercise what benefits law enforcement are receiving from it.

So will law enforcement agencies be able to come up with any hard data by London, just a few months from now?
It seems unlikely to me. The 2013 RAA requirements only came into force in January, so the impact on the overall cleanliness of the various Whois databases is likely to be slim so far.
I also wonder whether law enforcement agencies track the accuracy of Whois in any meaningfully quantitative way. Anecdotes and color may not cut the mustard.
But it does seem likely that the registrars are going to have data to back up their side of the argument — customer service logs, verification email response rates and so forth — by London.
They want the 2013 RAA Whois verification rules rethought and removed from the contract and the ICANN board so far seems fairly responsive to their concerns.
Law enforcement may be about to find itself on the back foot in this long-running debate.

Top-level domains top 500

The number of live top-level domains on the internet has surpassed 500 for the first time.
The delegation yesterday of 12 new gTLDs — .archi, .consulting, .cooking, .country, .fishing, .haus, .商城, .horse, .miami, .rodeo, .vegas and .vodka — tipped the total TLD count to 507.
For the numbers geeks, here are some stats from the DI PRO database:

• 285 ccTLDs
• 222 gTLDs
• 60 IDN TLDs
• 24 IDN gTLDs
• 199 gTLDs delegated in the 2012 round
• 15 gTLDs delegated in previous rounds
• 8 legacy gTLDs
• 129 new gTLDs have started Sunrise periods
• 65 new gTLDs have started Trademark Claims periods
• 367 new gTLDs have ICANN contracts
• 1 new gTLD application is still in Initial Evaluation
• 6 new gTLD applications are still in Extended Evaluation
• 9.7 new gTLDs have been delegated per week, on average, since January 1, 2014
• 36 new gTLDs were delegated in March

Based on the rate that Verisign has been adding new gTLDs to the root recently, we should expect that to top 200 in the next few days. The number of new gTLDs could outstrip the number of ccTLDs next month.

ARI and Radix split on all new gTLD bids

Radix no longer plans to use ARI Registry Services for any of its new gTLDs, I’ve learned.
The company has already publicly revealed that CentralNic is to be its back-end registry services provider for .space, .host, .website and .press, but multiple reliable sources say the deal extends to its other 23 applications too.
I gather that the split with ARI wasn’t entirely amicable and had money at its root, but I’m a bit fuzzy on the specifics.
The four announced switches are the only four currently uncontested strings Radix has applied for.
Of Radix’s remaining active applications, the company has only so far submitted a change request to ICANN — which I gather is a very expensive process — on one, .online.
For the other 22, ARI is still listed as the back-end provider in the applications, which have all passed evaluation.
Radix is presumably waiting until after its contention sets get settled before it goes to the expense of submitting change requests.

No sunrise periods for dot-brands

ICANN has finally signed off on a set of exemptions that would allow dot-brand gTLDs to skip sunrise periods and, probably, work only with hand-picked registrars.
Its board’s New gTLD Program Committee passed a resolution at ICANN 49 last week that would add a new Specification 13 (pdf) to Registry Agreements signed by dot-brands.
The new spec removes the obligation operate a sunrise period, which is unnecessary for a gTLD that will only have a single registrant. It also lets dot-brands opt out of treating all registrars equally.
Dot-brands would still have to integrate with the Trademark Clearinghouse and would still have to operate Trademark Claims periods — if a dot-brand registers a competitor’s name in its own gTLD during the first 90 days post-launch, the competitor will find out about it.
ICANN is also proposing to add another clause to Spec 13 related to registrar exclusivity, but has decided to delay the addition for 45 days while it gets advice from the GNSO on whether it’s consistent with policy.
That clause states that the dot-brand registry may choose to “designate no more than three ICANN accredited registrars at any point in time to serve as the exclusive registrar(s) for the TLD.”
This is to avoid the silly situation where a dot-brand is obliged to integrate with registrars from which it has no intention of buying any domain names.
Spec 13 also provides for a two-year cooling off period after a dot-brand ceases operations, during which ICANN will not delegate the same string to another registry unless there’s a public interest need to do so.
The specification contains lots of language designed to prevent a registry gaming the system to pass off a generic string as a brand.
There doesn’t seem to be a way to pass off a trademark alone, without a business to back it up, as a brand. Neither is there a way to pass off a descriptive generic term as a brand.
The rules seem to allow Apple to have .apple as a dot-brand, because Apple doesn’t sell apples, but would not allow a trousers company to have .trousers as a dot-brand.

ICANN muddles through solution to IGO conflict

ICANN may have come up with a way to appease both the GNSO and the GAC, which are at conflict over the best way to protect the names and/or acronyms of intergovernmental organizations.
At the public forum of the ICANN 49 meeting in Singapore last Thursday, director Bruce Tonkin told the community that the ICANN board will consider the GNSO’s recommendations piecemeal instead of altogether.
It will also convene a meeting of the GNSO, GAC, IGOs, international nongovernmental organizations and the At-Large Advisory Committee to help reach a consensus.
The issue, you may recall from a DI post last week, is whether the names and acronyms of IGOs and INGOs should be blocked in all new gTLDs.
The GNSO is happy for the names to be protected, but draws the line at protecting acronyms, many of which are dictionary words or have multiple uses. The GAC wants protection for both.
Both organizations have gone through their respective processes to come to full consensus policy advice.
This left ICANN in the tricky situation of having to reject advice from one or the other; its bylaws did not make a compromise easy.
By splitting the GNSO’s 20 or so recommendations up and considering them individually, the ICANN board may be able to reconcile some with the GAC advice.
It would also be able to reject bits of GAC advice, specific GNSO recommendations, or both. Because the advice conflicts directly in some cases, rejection of something seems probable.
But ICANN might not have to reject anything, if the GAC, GNSO and others can come to an agreement during the special talks ICANN has in mind, which could happen as soon as the London meeting in June.
Even if those talks lead to nothing, this proposed solution does seem to be good news for ICANN perception-wise; it won’t have to blanket-reject either GNSO or GAC policy advice.
This piecemeal or ‘scorecard’ approach to dealing with advice hasn’t been used with GNSO recommendations before, but it is how the board has dealt with complex GAC advice for the last few years.
It’s also been used with input from non-GNSO bodies such as the Whois Review Team and Accountability and Transparency Review Team.
Judging by a small number of comments made by GNSO members at the public forum on Thursday, the solution the board has proposed seems to be acceptable.
ICANN may have dodged a bullet here.
The slides used by Tonkin during the meeting can be found here.

Republicans introduce pointless ICANN bill

Three Republican Congressmen have introduced a bill that would prevent the US government removing itself from oversight of the DNS root zone.
For a year.
The inappropriately titled Domain Openness Through Continued Oversight Matters (DOTCOM) Act is designed to:

prohibit the National Telecommunications and Information Administration from relinquishing responsibility over the Internet domain name system until the Comptroller General of United States submits to Congress a report on the role of the NTIA with respect to such system.

Basically, the NTIA would be barred from walking away from root zone oversight until an analysis of the advantages and disadvantages of the transition was published, which would have to happen within a year.
The report would also have to include a definition of “multi-stakeholder”.
The three Republicans who introduced the bill — Representatives Todd Rokita, John Shimkus, and Marsha Blackburn — either have no idea what they’re talking about, or they’re being intellectually dishonest.
Blackburn said in a press release:

We can’t let the Internet turn into another Russian land grab. America shouldn’t surrender its leadership on the world stage to a “multistakeholder model” that’s controlled by foreign governments. It’s imperative that this administration reports to Congress before they can take any steps that would turn over control of the Internet.

Shimkus said:

In the month of March alone we’ve seen Russia block opposition websites, Turkey ban Twitter, China place new restrictions on online video, and a top Malaysian politician pledge to censor the Internet if he’s given the chance. This isn’t a theoretical debate. There are real authoritarian governments in the world today who have no tolerance for the free flow of information and ideas. What possible benefit could come from giving the Vladimir Putins of the world a new venue to push their anti-freedom agendas?

This is hysterical nonsense.
Not only has ICANN no intention of allowing the IANA function to be controlled by foreign governments, the NTIA has explicitly stated from the start that no governmental solution would be acceptable.
It’s also ironic that the only two governments to ever consider censoring the root zone were the European Commission and the United States, under the Republican Bush administration.
The current expectation, assuming community talks proceed as swiftly as hoped, is for stewardship of the IANA function to leave the NTIA’s hands when the current contract expires in October 2015.
Even if the DOTCOM (really?) Act were to be passed into US law this year, it shouldn’t have any serious impact on the timing of the root transition.
With that in mind, the three-page bill (pdf) looks quite a lot like an extended press release, rather than a serious attempt to keep the root in US hands.

EU buys more time for .wine talks after surprise GAC objection

The ICANN Governmental Advisory Committee deposited a shock fly into the wine-related gTLD ointment tonight, asking ICANN to delay approval of .wine and .vin on a technicality.
ICANN’s board of directors had at the weekend basically approved the two new gTLDs, over the objections of the European Union, but the GAC today said the board’s decision hadn’t followed the rules.
In its communique (pdf) issued at the end of the just-concluded ICANN 49 meeting in Singapore, the GAC said: “In the final deliberation of the Board there appears to be at least one process violation and procedural error”.
The procedure in question is the part of the ICANN bylaws that says the GAC “shall have an opportunity to comment upon any external advice received prior to any decision by the Board.”

The GAC therefore advises:
That the Board reconsider the matter before delegating these strings.
The GAC needs to consider the above elements more fully. In the meantime concerned GAC members believe the applicants and interested parties should be encouraged to continue their negotiations with a view to reach an agreement on the matter.

The only “external advice” referenced in the ICANN decision on .wine was the legal opinion (pdf) of French law professor Jerome Passa.
Reading between the lines (I have not yet listened to all of the GAC’s public deliberations this week, so I’m speculating) it seems Passa’s opinion was not provided to the GAC before the ICANN board made its call.
I’m further assuming that the EU or one of its member states spotted the bylaws provision about external advice notice and cunningly used it to revive the .wine debate.
The GAC has declined to object to .wine and .vin because countries such as the US and Australia disagree with the EU’s position on the international law governing geographic indicators such as “Champagne”.
But no matter what other GAC members think about the European demands GI protections, it would have been very hard for them to argue in favor of an ICANN board decision that violated process.
Even if there’s very little chance of rustling up a consensus objection against these two gTLDs, the EU seems to have successfully added delay to the approval process, giving it leverage over the applicants.
I’m impressed.
While this may not change the eventual outcome, it at least buys the EU more time to negotiate with the .wine and .vin applicants about protection for geographic indicators.
This apparent oversight, coupled with the controversy this week about rights protection mechanisms for intergovernmental organizations, makes me wonder whether ICANN’s legal department might need a refresher course on the ICANN bylaws.
Or maybe, more likely, the bylaws are just such a bloody mess that even the smartest guys in the room can’t keep track of them any more.

Under global spotlight, ICANN forced to choose between GAC and the GNSO

ICANN has angered the Generic Names Supporting Organization and risks angering the Governmental Advisory Committee as it prevaricates over a controversial rights protection mechanism.
It looks like the ICANN board of directors is going to have decide whether to reject either a hard-won unanimous consensus GNSO policy recommendation or a piece of conflicting GAC advice.
ICANN is “stuck in a bind”, according to chairman Steve Crocker, and it’s a bind that comes at a time when the bottom-up multi-stakeholder process is under the global microscope.
The issue putting pressure on the board this week at the ICANN 49 public meeting here in Singapore is the protection of the names and acronyms of intergovernmental organizations.
IGOs pressured the GAC a few years ago into demanding protection in new gTLDs. They want every IGO name and acronym — hundreds of strings — blocked from registration by default.
For example, the Economic Cooperation Organization would have “economiccooperationorganization” and “eco” blocked at the second level in all new gTLDs, in much the same way as country names are reserved.
Other IGO acronyms include potentially useful dictionary-word strings like “who” and “idea”. As I’ve said before, protecting the useful acronyms of obscure IGOs that never get cybersquatted anyway is just silly.
But when ICANN approved the new gTLD program in 2011, for expediency it placed a temporary block on some of these strings and asked the GNSO to run a formal Policy Development Process to figure out a permanent fix.
In November 2012 it added hundreds more IGO names and acronyms to the list, while the GNSO continued its work.
The GNSO concluded its PDP last year with a set of strong consensus recommendations. The GNSO Council then approved them in a unanimous vote at the Buenos Aires meeting last November.
Those recommendations would remove the IGO acronyms from the temporary reserved names list, but would enable IGOs to enter those strings into the Trademark Clearinghouse instead.
Once in the TMCH, the acronyms would be eligible for the standard 90-day Trademark Claims mechanism, which alerts brand owners when somebody registers a name matching their mark.
The IGOs would not, however, be eligible for sunrise periods, so they wouldn’t have the special right to register their names before new gTLDs go into general availability.
The PDP did not make a recommendation that would allow IGOs to use the Uniform Rapid Suspension service or UDRP.
Unfortunately for ICANN, the GNSO recommendations conflict with the GAC’s current advice.
The GAC wants (pdf) the IGOs to be eligible for Trademark Claims on a “permanent” basis, as opposed to the 90-day minimum that trademark owners get. It also wants IGOs — which don’t generally enjoy trademark protection — to be made eligible for the URS, UDRP or some similar dispute resolution process.
Since Buenos Aires, the ICANN board’s New gTLD Program Committee has been talking to the GAC and IGOs about a compromise. That compromise has not yet been formally approved, but some initial thinking has been circulated by Crocker to the GAC and GNSO Council.
ICANN proposes to give IGOs the permanent Trademark Claims service that the GAC has asked for, as well as access to the URS. Both policies would have to be modified to allow this.
It would also create an entirely new arbitration process to act as a substitute for UDRP for IGOs, which are apparently legally unable to submit to the jurisdiction of national courts.
The compromise, while certainly overkill for a bunch of organizations that could hardly be seen as ripe cybersquatting targets, may seem like a pragmatic way for the board to reconcile the GNSO recommendations with the GAC advice without pissing anyone off too much.
But members of the GNSO are angry that the board appears to be on the verge of fabricating new policy out of whole cloth, ignoring its hard-won PDP consensus recommendations.
That’s top-down policy-making, something which is frowned upon within ICANN circles.
Under the ICANN bylaws, the board is allowed to reject a GNSO consensus recommendation, if it is found to be “not in the best interests of the ICANN community or ICANN”. A two-thirds majority is needed.
“That’s not what happened here,” Neustar’s vice president of registry services Jeff Neuman told the board during a meeting here in Singapore on Tuesday.
“Instead, the board on its own developed policy,” he said. “It did not accept, it did not reject, it developed policy. But there is no room in the ICANN bylaws for the board to do this with respect to a PDP.”
He said that the GNSO working group had already considered elements of ICANN’s compromise proposal and specifically rejected them during the PDP. Apparently speaking for the Registries Stakeholder Group, Neuman said the compromise should be taken out of consideration.
Bret Fausett of Uniregistry added: “The process here is as important to us as the substance. We think procedure wasn’t followed here and we detect a lack of understanding at the board level that process wasn’t followed.”
The GNSO Council seems to agree that the ICANN board can either accept or reject its recommendations, but what it can’t do is just write its own policies for the sake of a quiet life with the GAC.
To fully accept the GNSO’s recommendations would, however, necessitate rejecting the GAC’s advice. That’s also possible under the bylaws, but it’s a lengthy process.
Director Chris Disspain told the GNSO Council on Sunday that the board estimates it would take at least six months to reject the GAC’s advice, during which time the temporary reservations of IGO acronyms would remain active.
He further denied that the board is trying to develop policy from the top.
“It is not top-down, it’s not intended to be top-down, I can’t really emphasis that enough,” he told the Council.
He described the bylaws ability to reject the GNSO recommendations as a “sledgehammer”.
“It would be nice to be able to not have to use the sledgehammer,” he said. “But if we did have to use the sledgehammer we should only be using it because we’ve all agreed that’s what we have to do.”
Chair Steve Crocker summed up the board’s predicament during the Sunday meeting.
“We always do not want to be in the position of trying to craft our own policy decision,” he said. “So we’re stuck in this bind where we’re getting contrary advice from sources that feel very strongly that they’ve gone through their processes and have spoken and so that’s the end of it from that perspective.”
The bind is especially tricky because it’s coming at a time when ICANN is suddenly becoming the focus of a renewed global interest in internet governance issues.
The US government has said that it’s willing to walk away from its direct oversight of ICANN, but only if what replaces it is a “multi-stakeholder” rather than “intergovernmental” mechanism
If ICANN were to reject the proceeds of a two-year, multi-stakeholder, bottom-up, consensus policy, what message would that send to the world about multistakeholderism?
On the other hand, if ICANN rejects the advice of the GAC, what message would it send about governments’ ability to effectively participate as a stakeholder in the process?
Clearly, something is broken when the procedures outlined in ICANN’s bylaws make compromise impossible.
Until that is fixed — perhaps by getting the GAC involved in GNSO policy-making, something that has been talked about to no end for years — ICANN will have to continue to make these kinds of hard choices.
Fielding a softball question during a meeting with the GNSO Council on Saturday, ICANN CEO Fadi Chehade said that “to value the process as much as I value the result” is the best piece of advice he’s received.
“Policies get made here,” Chehade told the Council, “they should not be made at the board level, especially when a consensus policy was made by the GNSO. Akram [Atallah, Generic Domains Division president] today was arguing very hard at the board meeting that even if we don’t think it’s the right thing, but it is the consensus policy of the GNSO, we should stick with it.”
Will the board stick with it? Director Bruce Tonkin told the registries on Monday that the board would try to address their concerns by today, so we may not have to wait long for an answer.