It is going to be a particularly crazy year in terms of Internet policy and governance, maybe even more than so than 2005, when the World Summit on the Information Society happened.

NPR used the launch of the new gTLD program last week to cover the other big issue – actual governance of the Internet. The slow build up of pressure to again try to bring the Internet under United Nations control is going to let out another big blast of steam this December in Dubai at the WCIT meeting when governments – and only governments – try to rewrite the ITU’s International Telecommunication Regulations (ITRs) to incorporate the Internet. It will be a big fight and I’ll be heading over there to shine as big a spotlight on the weird world of inter-governmental politics as possible.

Anyway, I was interviewed as was Super Rod of ICANN and David Gross – who was the US’ main man in charge during the WSIS negotiations. You can read the piece online, but it was designed for radio, so listening is much better in this case.

Download MP3 of NPR piece on Net governance

It’s a good piece considering the complexity of the subject and the length of time available.

Which reminds me – I *really* need to write a couple of pieces about what is going on with WCIT. It’s vital that something akin to the outcry over SOPA – albeit much more diplomatic – is generated to try to protect the Internet as it exists today, and keep it out of the hands of government representatives who view lack of control as something inherently dangerous.

Quick update: Ha! I see that the bad journalist posing as an academic, Milton Mueller, has taken huge exception to the fact it wasn’t him interviewed for the NPR piece and has written a rambling, bitter post about it. Internet governance is a very silly little world sometimes.

I am both happy and depressed to see a public comment period open at ICANN talking about making changes to ICANN’s public comment period process.

With appalling inevitability, everything about the comment period highlights the problems that exist with the public comment period process. No one really knows about it, and it’s not being promoted anywhere. The text talking about it is indecipherable. The main thing it is about comes as a hefty PDF report that no one will read. The report itself was put together by a small group of people who didn’t engage is any useful effort to dig into any data, evidence or information.

Very few people will respond. Those that do will not have their comments listened to. There will be no follow-up. And the end result will be that ICANN convinces itself that actually the comment period process isn’t that bad after all.

I was working on this issue *five years ago*. And the only thing that has changed is that the comment period page is now in pastel colours.

But…

I swallowed all that frustration and just sent in a comment (the first but hopefully not the only one) in a pathetic attempt to actually help. It is, I think, positive and helpful. I expect it to be partially read and then ignored. And for the complaints about the process to start up all over again in two years’ time. Still, you’ve got to try.

Here’s what I sent:

Some thoughts on improving public comment periods

Hello,

I’m pleased to see some progress being made with respect to improving the public comments process – something that has been a bone of contention for all stakeholder groups for a number of years now.

I read the Focus Group report with interest and I have a few responses which I hope ICANN will reflect on and consider.

I have been a follower and observer of ICANN for many years and have spent a lot of time considering how to involve people more in the organisation’s processes, particular in my role as general manager of public participation for ICANN for nearly three years.

1. The current suggestions look unlikely to solve many of the problems that sparked this review in the first place. You may well find that months of hard work amount to only a small incremental improvement and continued complaints if you don’t reflect on the underlying issues that have led to suggested specific changes.
2. The suggested topic categories are a good example. They are all extremely ICANN-focussed and are focussed on issues that are current ICANN priorities.

   Those priorities will change in just a few years, necessitating the need for more categories, and causing some categories to fall into disrepair.

   The categories also act as a barrier to engagement – they are too precise. Someone who isn’t already highly versed in the ICANNese is unlikely to browse them, or understand what they mean. You are making it less likely that people will comment.

   The idea of specific or exclusive categories is also likely to be a problem, especially when there is a crossover on a subject – which happens frequently.

   I would strongly suggest that ICANN consider the use of GENERIC TAGS to help identify different comment periods. Tags would enable you to flag a given comment period as being relevant in one or more areas. And using more generic subject areas will help with a broader understanding and identification of what a particular comment period is about.

   This approach will work better, mean more and last longer that the current category suggestions. Here is a suggested list that would cover just every about comment period ICANN produces:

   • Top-level domains
   • Second-level domains
   • Security
   • IP addressing
   • Internet governance
   • Reviews & Reports
   • Policy processes
   • Internal issues
   • Legal issues
   • Events & Conferences
   • Openness, Accountability and Transparency
   • Finances
3. It is very disappointing to see the issue of prioritization raised and then rapidly dismissed as “being too subjective”.

   This is a dangerous way of making improvements to a system – to put out a specific suggestion and then walked away from it if there isn’t agreement.

   What that approach fundamentally misses is the *reason* why the idea of prioritization cropped up in the first place. It is because everyone has a difficult time seeing and understanding the relevance of a particular comment period to them.

   People just see a list of comment periods, and then even if they dig into each one, it is hard to tell how important it really is. Or at what stage in the process it is. Or if this is the best time to comment (are people still looking for new ideas, or comments on specific ideas?)

   The simple fact is that some comment periods are of greater relevance to a larger group than others. And some comment periods have significant implications that can be easily overlooked. Until there is a determined effort to address that, the problem will keep coming up again and again.

   Yes, rankings may be subjective but that doesn’t mean they aren’t enormously helpful. Something can often be better than nothing.

   And if you went through a list of current comment periods, it’s likely that nearly everyone would agree with the level of importance for any given comment period – except in special cases when people would also be able to say “well, this one is of particular interest to me because…”

   There are other options too. Some suggestions:

   • Put an initial rating of importance on a comment period and then allow community members to add their own rankings. That way the community decides its own level of importance.
   • Use stars rather than words (low, high etc)
   • Use highlighting tags e.g. if a “G” is added it means it is of particular importance to a General audience. If an “Ry” appears, it is of particular interest to a Registry, and so on.
4. The same problem appears with the Reply Cycle idea – don’t get bogged down in finding problems with every possible configuration. And try not to look at it through the eyes of the current system. If you do that – and there is plenty of evidence in the report that that is exactly what happened – then you’ll never made any useful progress.

   What needs to be looked at is the fact that the comment periods are unnecessarily static. A document is posted. Comments are sent in. A summary is produced. Changes are made. A new document is put out.

   In the Internet era we are all used to jumping in with comments and interacting in near real time on particular issues. The ATRT suggested a reply cycle because it was the simplest method of introducing a concept – that comment periods need to be more interactive.

   The most important aspect with this Reply Cycle idea is to make sure that what you end up with does *not* include in it arbitrary rules. The idea is to allow people to go back-and-forth a little bit; not to force people to respond in the correct way at the correct time, or to create a one-size-fits-all solution.

5. Re: technical improvements to the software/approach. Some good thoughts here. But beware the use of wikis.

   There are those who think wikis are wonderful. And those who will have nothing to do with them. I think you should experiment for some months before going any particular direction to avoid future arguments.

   As a sidenote: the report says: “Due to the fact that a threaded discussion environment has never been deployed at ICANN for Public Comments…”

   In fact I ran a successful test of a dynamic forum for ICANN which broke a comment period out into different components and had threaded conversations about each part. Ask the ICANN tech team what the software was called. Ultimately, it proved popular and looked promising but no one followed through with the idea.

   Part of the reason for that – and this is what I am warning about in general here – was that people were quick to think up and run through potential and future concerns about changing the current system. This is especially common in the ICANN environment.

   It is very easy to weigh a list of possible problems too heavily against all the future benefits that will accrue. And it is all too easy to overlook significant shortcomings in the existing system just because people have grown used to it.

   Especially in something as moving and transitory as a comment period, it is an ideal opportunity to try out different things. Unless you manage to create a system that actively prevents people from commenting, then you have already hit the current comment period baseline and while people may gripe about changes, they will be able to achieve exactly the same, so don’t let fear of change guide efforts to improve the system.

   One suggestion – you need to find a way to allow people to note they have commented with one click (this is now extremely common with software and posts on Twitter and Facebook). This would draw in others. And there needs to be a quick and easy way to see what others have said.

6. What is missing from the work done so far is any changes to how comment periods are actually run by staff.

   At the moment, staff – who usually have the broadest knowledge of the issue that is out for public comment – have a very passive role. They post the document, then summarise comments at the end, and then try to figure out how to make changes to the document as a result.

   Seeing as public comment is *the* key point where work and ideas start to gain broader acceptance and awareness, it will most likely be in everyone’s interests if staff took on more of a facilitator role wrt public comments.

   It is not hard to drum up interest. Staff (and the GM of Public Participation) could easily use email, Twitter, Facebook etc to highlight that a comment period will soon be opening, and highlight aspects of that comment period that would spark interest.

   You could give a particular comment period its own hashtag – that would spark debate. You could run a discussion forum on the ICANN Facebook page – everyone already understands how that software works and won’t blame ICANN for it. Think positive engagement. Staff could email and actively engage the people that they know and meet at ICANN meetings.

   Staff could also elicit questions and provide answers while the comment period is going. And encourage people who are focussed on the same point to go away and come back with a short summary of their discussions before the comment period closes.

   This facilitation role would have a huge positive impact on any comment period. But it does need to be an active consideration. Having a slightly improved comment period system will not tackle the root problem – which is that people are busy and they aren’t sufficiently encouraged or enthused to bother to comment on every ICANN document.

   This would be a huge – but positive! – shift in staff behaviour so it would need to be carefully and professionally introduced as it would inevitably be met with suspicion and defensiveness. But I have no doubt whatsoever that the rewards would be enormous.

7. Another thing that ICANN really needs to consider is explicitly giving greater priority to particular respondents. Or at least breaking out different respondents.

   It really is a no-brainer that if a supporting organization or advisory committee sends in a response then it should be taken more seriously. This is for the simple reason that these are the structures of ICANN itself that are designed to filter and raise issues.

   Likewise, a party that is directly impacted by a decision can expect greater consideration than a party which is not.

   If someone posts anonymously, that is fine, but they should also generally expect it to be given less weight than someone who is prepared to state who they are and who they work for. ICANN is deciding policy rules, not holding a music festival.

   As to the obvious concern that good material or intelligent responses may be lost through this process (which they already are being through the current system); again, a simple system of community rating – allowing the community to identify its own priorities and valued responses – would not only help flag up particular posts but it may also people to reach a general consensus in public and through a comment period – which is what the whole point of comment periods should be in the first place.

I hope this feedback helps. And I hope you will start making positive changes straight away by responding to this comment period response and/or explaining where and when the ideas were considered and accepted (or not accepted) and the reasons why either way.

That would make me feel that my efforts had been worthwhile and it would encourage me to respond more in future. If you set up a system that does that for every poster before you know it, people may get some real value from commenting on ICANN’s work.

Thanks

Kieren McCarthy

One of the more bizarre situations I have found myself in while covering domain name system overseer ICANN, both outside and inside the organization, was at the Vancouver meeting in December 2005.

It was a particularly difficult meeting. For one, ICANN was under intense scrutiny because it was about to sign an extension to the dot-com contract and literally no one outside Verisign and the ICANN Board liked it. But secondly, it had come to light that the US government, under pressure from right-wing Christian groups, had pushed the Board very hard to *not* approve the dot-xxx contract.

The Board was planning to approve dot-xxx on the last day of the meeting, but had a sudden change of mind and put it off until the next Board meeting. There was all manner of behind-the-scenes shenanigans as the very worst of ICANN came out and it made important decisions in secret, and then spent huge amounts of time and effort trying to make it look like it hadn’t. No one bought it and there was a lot of anger.

Rumours

In the middle of all this, I heard a rumour that the ICANN Board had been receiving threatening emails and faxes over dot-xxx, so I started digging into it. Whereupon I discovered that someone had been faxing the venue hotel with threats. And soon after managed to get hold of a copy of a fax sent from one Grahame Darcy in Florida which specifically focussed on Board member Mike Palage (who, for some reason Mr Darcy thought was called Michael Palach).

Mike Palage had been a consultant for the dot-xxx application in the first round of gTLD expansion, when it failed. He had also been instrumental in bringing on board Stuart Lawley who then carried over the dot-xxx application to the second round and who, incredibly, finally managed to get it approved five years later in March 2011.

Stuart Lawley was there in Vancouver and just to add to whole thing, had just received a large pile of FOIA requests from the US government over the dot-xxx application and was sifting through them.

Among the most damaging revelations were emails that showed: ICANN CEO Paul Twomey colluding with GAC chair Sharil Tarmizi to encourage the GAC to say ‘No’ to dot-xxx; meetings at the White House between right-wing Christian groups and member of the Bush Administration over dot-xxx; pressure from the White House to the Department of Commerce; pressure from the Department of Commerce to the ICANN Board; and what appeared to be members of the Bush Administration providing personal contact details to the Christian groups of the ICANN Board members.

I wrote up most of a story outlining how the ICANN Board was not only under pressure from the US government but was also received threats from US Christian nuts, and how those nuts may have been given their contact details by Bush Administration officials. And then I asked ICANN for comment before I published.

Odd meeting

Whereupon, shortly after in the press room at the Westin in Vancouver, I was confronted by ICANN chairman Vint Cerf, General Counsel John Jeffrey and Board member Mike Palage who sat down and started trying to pressure me not to publish the story.

In fact, for reasons I never fully understood, Mike gave me what were, frankly, juicy details that would bring the story to life. He told me that not only had he and the others received the fax that I had but that a man had hand-delivered a copy of it to his wife and child at his home address in Florida and, to be honest, he was a bit freaked out by it.

I wished I had recorded the meeting because my recollection of it is faded and I have no doubt the others would remember it differently. But here is what I remember:

I basically outlined the story I had half-written, whereupon Cerf’s and Jeffrey’s faces grew darker and darker. I then asked if they had any comment or if there was any element of it that they felt wasn’t true.

I got a pretty angry response questioning my motives and my professionalism and was told it wasn’t a story. Whereupon, I said whether it was a story or not was pretty much up to me, and if it wasn’t a story how come they were all in the room? Vint calmed down and then asked me to consider whether publishing the story would only give publicity to people who were making threats.

I recall I said I would consider it, at which point he turned to John Jeffrey and said angrily: “I told you it would be a waste of time talking to him.” I decided, perhaps unwisely, that this was the best time to ask if he was aware that the Bush Administration officials had been providing his contact details to right-wing Christian groups. Vint reacted by flicking his Google card at me across the table and exclaiming that his contact details were all over the Internet.

And with that I said I would consider their plea not to publish the story, and they walked out in a grumpy mood.

Decision and message

So my final decision was not to publish the story. And I had a look for it this morning to see if it had survived the three laptops since then – it hadn’t. What I do have though is the original fax sent to the Westin from Grahame Darcy, so I’ve transcribed it and posted it below.

Why didn’t I run with the story?

Because, frankly, I *didn’t* want to give the people who were sending threatening emails and faxes any publicity. Especially when they were turning up at people’s homes and intimidating someone’s wife and child.

Was the story in the public interest? Not really. And this wasn’t a really big story. ICANN is, and remains, a little niche world and I was used to dealing with topics that had far wider and more important impact on the world.

The atmosphere was also so oppressive already that I thought it would only serve to make it unbearable – and all for the sake of a story. And of course the truth was that I had a rack of about another five stories ready to go, all of which would cause me far less hassle, take less time and so earn me more money (I had flown from the UK and had a hefty pile of expenses I needed to cover before I even made a profit).

What is interesting on re-reading the fax five years later is that it doesn’t seem that threatening. It is clearly a bit mental, but could easily be from one of the many, shall we say ‘passionate’ members of the Internet community. In the atmosphere at the time though, combined with the fact that I had found out that Grahame Darcy was one of the right-wing Christians that was hounding ICANN, rather than just an over zealous member of the community, I decided against it.

I’m still in two minds as to whether it was the right decision.

Anyway, now that dot-xxx actually exists in the root I figured it was a good time to put this little piece of history out there. Below is the fax. It was sent from a Kinko’s in Florida. I did track down the exact address but I don’t recall it now.

To: Michael Palach

Cc: Vint Cerf, Paul Twomey, Suzan Crawford, Mouhamet Diop, Hualin Qian, Thomas Niles, John Jeffrey, Diane Shrouder

Subject: Michael Palach, taking his baggage to Vancouver

I have become increasingly aware of a growing concern in the community regarding your alleged involvement with .XXX. I believe there have been questions in the past about your on-going relationship with AFlLIAS but your alleged jnvolvement with .XXX brings your credibility into the permanent spotlight this time.

As a Board member of ICANN do you think the “Consulting” to .XXX and its associated companies or even advising its directors and major stake holders is appropriate behavior for an ICANN Board member?

Could it be that these associations could bring the Board into disrepute?

You appear to come across as a family man with strong family values, so why the association with the .XXX movement?

By appearing to have a foot in both camps, your motivations are questionable.
Part of ICANN’s charter is to promote fairness and transparency; this does not appear to be your mantra.

Now you have left the warmth of Florida and traveled to your winter meeting in Vancouver I suggest you ponder these questions and respond. The community eagerly awaits a full explanation.

Could I be forgiven for assuming that you’re traveling on an .XXX ticket to Vancouver and not that of ICANN?

Regards

Grahame Darcy

Background: At a meeting in December, the ICANN Board and GAC agreed to a special session to be held in February that would be dedicated to trying to find a way to deal with GAC concerns over the new gTLD process and the dot-xxx application. The GAC has been preparing documents for the meeting – and so too, it is believed, have been the ICANN staff.

The details of the United States government submission – which is the most crucial submission due to its relationship with ICANN and its dominant position in the GAC – emerged late last week. They have caused somewhat of an outcry particularly because it suggests that any GAC member would be in a position to veto any gTLD application – which would clearly make ICANN’s processes sub-ordinate to governments. Since the whole point of ICANN is to provide for a multi-stakeholder decision-making process, it is no surprise that this request has got people’s backs up.

There are other suggestions that will almost certainly infuriate other arms of ICANN, some of which go directly against others’ policy decisions, as well as a Board resolution, so there is now a big question over how successful the GAC-Board meeting will be, given the size of the gap to be bridged in just two days.

Anyway, a fuller analysis later but in the meantime below is the full text of what is believed to be the final submission from the US government to the GAC:

USG Submission to the GAC Scorecard re New gTLDs

1. Objections Procedures

Currently, the Proposed Final Applicant Guidebook contains a “Limited Public Interest Objection” meant to provide dispute resolution for proposed strings that could be considered contrary to general principles of international law for morality and public order. The GAC proposes that: 1) the “Limited Public Interest Objection” procedure be deleted; 2) the “Initial Evaluation” procedures be augmented to include a GAC review; and 3) the current “Community-Based” objection procedures be clarified to include those strings that purport to represent or that embody a particular group of people or interests based on historical components of identity as well as particular subject to national regulation. Specific details and explanations for each step are below.

Limited Public Interest Objection: The GAC advises the ICANN Board to instruct ICANN staff to delete the procedures related to “Limited Public Interest Objections” in Module 3.

Explanation: Although the new heading has been renamed from “Morality and Public Order Objections”, the body of the text remains unchanged and contains the same fundamental flaws which can only be remedied through deletion.

Specifically, the requirement that governments pay fees and must be bound by determinations by the International Centre for Expertise of the International Chamber of Commerce, which will in turn be guided by the findings of “three experts recognized as eminent jurists of international reputation”, is contrary to the sovereign right of governments to interpret and apply principles of international law on a country-by-country basis. Governments cannot be bound by the determinations of private individuals or organizations on matters that pertain to national law.

The requirement is also inconsistent with the provisions in ICANN’s Bylaws that call for governments to provide public policy advice to the ICANN Board through the Governmental Advisory Committee.

Lastly, there are no “generally accepted legal norms relating to morality and public order that are recognized under international principles of law” (Module 3, Article 2, e, iii), nor is it feasible to expect that any panel of “experts” could reach a determination whether a particular proposed new gTLD string would be considered objectionable on such grounds.

String Evaluation: The GAC advises the ICANN Board to instruct ICANN staff to amend the following procedures related to the Initial Evaluation called for in Module 2 to include review by governments, via the GAC. Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application. (Note that the application fees should be refunded to the applicant).

Explanation: This proposal meets a number of compelling goals. First it will diminish the potential for blocking of top level domain strings considered objectionable by governments, which harms the architecture of the DNS and undermines the goal of universal resolvability. Second, affording governments the opportunity, through the GAC, to advise the ICANN Board that there is consensus GAC advice regarding particular proposed strings that should not be processed is supportive of ICANN’s commitment to ensure that its decision are in the global public interest.

Categories of Community-based Strings: The GAC advises the ICANN Board to instruct ICANN staff to amend the provisions and procedures contained in Modules 1 and 3 to clarify the following:

1. “Community-based strings” include those that purport to represent or that embody a particular group of people or interests based on historical components of identity (such as nationality, race or ethnicity, religion or religious affiliation, culture or particular social group, and/or a language or linguistic group). In addition, those strings that refer to particular sectors, in particular those subject to national regulation (such as .bank, .pharmacy) are also “community-based” strings.
2. Applicants seeking such strings should be required to affirmatively identify them as “community-based strings” and must demonstrate their affiliation with the affected community, the specific purpose of the proposed TLD, and evidence of support or non-objection from the relevant authority/ies that the applicant is the appropriate or agreed entity for purposes of managing the TLD.
3. In the event the proposed string is either too broad to effectively identify a single entity as the relevant authority or appropriate manager, or is sufficiently contentious that an appropriate manager cannot be identified and/or agreed, the application should be rejected.
4. Individual governments that choose to file objections to any proposed “community-based” string should not be required to pay fees.

Explanation: The proposed approach would remedy the failure in the draft Applicant Guidebook to incorporate the GAC’s previous advice that ICANN’s new gTLD process should respect the legitimate interests of governments regarding terms with national, cultural, geographic and religious significance. It also anticipates the strong possibility that there will be proposed new gTLD strings for which an appropriate manager cannot be identified and/or agreed, which should cause the application to be rejected. It also recognizes the right of governments to protect their perceived national interests through the Community objections process without the obligation to pay fees.

2. Market and Economic Impacts

The GAC advises the ICANN Board to instruct ICANN staff to amend the final Draft Applicant Guidebook to incorporate the following:

1. Criteria to facilitate the weighing of the potential costs and benefits to the public in the evaluation and award of new gTLDs.
2. A requirement that new gTLD applicants provide information on the expected benefits of the proposed gTLD, as well as information and proposed operating terms to eliminate or minimize costs to registrants and consumers.
3. Due diligence or other operating restrictions to ensure that Community-based gTLDs will in fact serve their targeted communities and will not broaden their operations in a manner that makes it more likely for the registries to impose costs on existing domain owners in other TLDs.

Explanation: The economic studies conducted by Katz, Rosston and Sullivan contain important findings that the past introduction of new gTLDs provided minimal public benefits in terms of competition for existing gTLDs and relieving name scarcity. The studies further state clearly that the introduction of new gTLDs had imposed costs on intellectual property owners in diluted brand strength, defensive registrations, and other costs associated with protecting their brands.

3. Vertical Integration (Registry-Registrar Separation)

The GAC advises the ICANN Board to instruct ICANN staff to amend the proposed new registry agreement to restrict cross-ownership between registries and registries, except in those cases where ICANN has determined that the registry does not have, or is unlikely to obtain, market power. The GAC further advises the ICANN Board that it considers the absence of a thorough and reasoned explanation of its decision, the rationale thereof and the sources of data and information on which the Board relied with respect to vertical integration to be inconsistent with its commitments under the Affirmation of Commitments.

Explanation: The CRA International report commissioned by ICANN noted that vertical integration between registries and registrars could foster both precompetitive and anticompetitive outcomes. As the key issue is whether a gTLD has market power, it would only be appropriate for ICANN to relax or lift restrictions on vertical integration in cases where ICANN determines that a gTLD faces or will face substantial competition.

Further, ICANN has committed to provide a thorough and reasoned explanation of ICANN decisions, the rationale thereof and the sources of data and information on which ICANN relies. This has not been done yet to explain how the Board moved from a position in March 2010, as articulated in a Board resolution, of no cross ownership, to the May 31, 2010 staff proposal contained in draft Applicant Guidebook, version 4 of de minimus (i.e., no more than 2%) cross ownership, to the November 5, 2010 decision allowing full cross ownership.

4. Intellectual Property Protection

The GAC advises the ICANN Board to instruct ICANN staff to amend the provisions related to intellectual property protection as follows:

Trademark Clearinghouse:
1. Delete the definition of “substantive evaluation” to make it clear that any trademark registration, regardless of whether examined on substantive or relative grounds, can qualify for participation in the pre-launch sunrise mechanisms.
2. Expand the Trademark Clearinghouse to cover “trademark + keyword” or typographical variations specified by the rights holder.
3. Ensure that the Trademark Clearinghouse protection mechanism continues after initial launch.

Uniform Rapid Suspension (URS):
1. Shorten the time for filing an appeal in default cases from the current 2 year review period to a considerably shorter time.
2. Add a “loser pays” model applicable to domain name registrants.
3. Include the ability to transfer a domain name, so that the complainant is not forced to pursue a further UDRP proceeding to secure the transfer.

Post-delegation Dispute Resolution Procedure (PDDRP): Amend the standard of proof from “clear and convincing evidence” to a “preponderance of evidence”.

Explanation: These amendments would ensure that all trademark registrations could qualify for participation in the pre-launch sunrise mechanism, and would be consistent with existing best practices (see e.g. the policies for .eu, .tel, and .asia). They will also ensure that the URS provides an effective remedy, and that the PDDRP is consistent with requirements in a civil action for contributory trademark infringement action or unfair competition. Finally, these amendments are necessary to ameliorate the high costs for brand owners, as outlined in the economic analyses by Katz, Rosston and Sullivan.

5. LEA Recommendations

The GAC advises the ICANN Board to instruct ICANN staff to amend the final Draft Applicant Guidebook as follows:

Module 1:
1. Include other criminal convictions as criteria for disqualification, such as Internet-related crimes (felony or misdemeanor) or drugs.
2. Assign higher weight to applicants offering the highest levels of security to minimize the potential for malicious activity, particularly for those strings that present a higher risk of serving as venues for criminal, fraudulent or illegal conduct (e.g. such as those related to children, health-care, financial services, etc.)

Module 2:
1. Add domestic screening services, local to the applicant, to the international screening services.
2. Add criminal background checks to the Initial Evaluation.
3. Amend the statement that the results of due diligence efforts will not be posted to a positive commitment to make such results publicly available
4. Maintain requirements that WHOIS data be accurate and publicly available.

Explanation: These amendments will improve the prospects for mitigating malicious conduct and ensuring that criminal elements are hindered from using the DNS for criminal and illegal activities. The GAC also strongly encourages, and will contribute LEA expertise to this activity, further work on the high level security zone requirements.

[ends]

I haven’t written for a while. There’s usually two reasons for that: either I have been horribly over-worked, or I need a break from the strange, incestuous and often bitter world of Internet policy and governance. In this case, unusually, it is both.

Here’s the big news from the world of Internet governance: some vague details of a meeting between the ICANN Board and governments, in the form of the Governmental Advisory Committee (GAC), have emerged. But adding concern to the general vagueness is the inclusion of precise wording that means something specific, although no one is quite sure what. It is this:

This meeting is not intended to address the requirements/steps outlined in the Bylaws mandated Board-GAC consultation process.

This wording is indecipherable to any but the greatest of insiders. And that fact, combined with the reality that this Board-GAC meeting is one of the most significant Internet governance meetings in the past five years, makes it all the more frustrating. Despite the global impact, and the open processes, and the much-vaunted bottom-up multi-stakeholder model, here is a very, very small group of people making crucial decisions about the future of the Internet and they are using arcane and indecipherable terminology in order to keep everyone else out.

[But if you *really* want to know what it means, read this post.]

This unprecedented GAC-Board meeting (and it is increasingly more GAC-Board than Board-GAC) was the result of a fudge devised in short order in an effort to overcome a short-term problem at the recent ICANN meeting in Cartagena. It is the latest in a long line of short-term fudges stretching back years, none of which ICANN has any reason to be proud of and which, I would argue, have created a very dangerous culture of bypass over resolution.

The fudge was intended to avoid a confrontation between the ICANN Board and governments over two key issues: the approval of rules to open up the top-level of the Internet’s naming systems; and approval of the controversial dot-xxx application, which openly seeks to provide space online exclusively for adult content.

Cramming

A new meeting just between the Board and GAC scheduled just two months later would discuss these issues with an eye to resolving them before the next ICANN meeting in San Francisco in March, one month after that. But why bother to cram an entirely new and unprecedented process into a tiny two-month window? Because everyone is acutely aware of the frustration that exists around the seemingly endless delays over both the gTLD programme and the dot-xxx application.

However, in trying to move forward quickly, and for the 100th time in ICANN’s tiny 10-year lifespan, both groups’ actions are now likely to delay things even longer and create even more tension and frustration. If an older, wiser institution were to tell ICANN anything, it would be this gem:

More haste, less speed.

Alternatively, it might be a little blunter and say “stop trying to be so bloody clever and get on with it”. The Board and staff think they are being clever, and the GAC thinks it’s being clever. The cleverness is so intoxicating that it’s all too easy to forget that the process has actually become quite idiotic.

The dot-xxx farce (yes, it has gone beyond “saga” and is now firmly in the “farce” camp) is a case in point. Neither the Board nor GAC really know what they are doing from one day to the next. There had to be a public comment period on the substance of course. And a comment period on the process steps that might be taken (which no one agreed with). And then discussions of the upshots of those comment periods. And then a discussion about what the Board was likely to do in response to those comment periods. And then a check whether that likely decision would break the GAC’s advice. And then a discussion about what to do if it did. And then the Board saying ‘we think we disagree with you, do you agree?’ And then a discussion saying ’so you agree we disagree with you. How do we find a way to agree to disagree’. And on and on and on. It would be funny if it wasn’t so appalling.

Of course if you are in the middle of it, this all seems a little frustrating, certainly, but logical and in the interests of the greater good. The larger reality however is quite different – a process has been created that when one looks back at it is so convoluted and erratic that it can never been used again. Rather than surveying the land and building a train line through the best topography, ICANN has instead hacked its way through the forest to the top of the hill and hacked its way back down again and now doesn’t have the foggiest idea where it started from. Or where it came from.

Gymnastics

ICANN can no longer adopt this haphazard, by-the-seat-of-its-pants approach. It is time it grew up. And that means *not* creating new processes out of thin air just because you don’t like where the currrent process is leading you. There is a reason why every significant decision-making body on the planet has procedures and rules that it sticks to even if they seem ridiculous at the time. It’s because they create something lasting, and something that doesn’t leave everyone, including its main actors, unsure about what it going to happen next and when resolution will be reached.

The new gTLD process has been so badly delayed by procedural gymnastics that the processes of other organisations are starting to look enticing by comparison. When you have no idea what is happening, and no control, and the process doesn’t even have the advantage of being fast, what exactly is the point of playing along?

These failed efforts at reaching decisions create a very much bigger problem though. Not only do they undermine confidence in the whole process but they create a culture where obfuscation, distrust, procedural games and misrepresentation of others becomes a norm that is then, perversely, defended.

We have a very damaged process of decision-making at the heart of the Internet governance, and a damaged community surrounding it that doesn’t quite know how things work and feel as though they have been sold a giant lie.

The feeling is that no matter what you do, or how much effort you put in, if either the Board or the GAC don’t like it, you are going precisely nowhere. And the procedural justifications that amount to little more than saying ‘not until I’m happy’ have been stacked so high that they are on the verge of toppling over.

Next steps

This is the reality: unless there is a change of heart or approach, ICANN will screw up yet another deadline and San Francisco will come and go and we will have more pointless comment periods and more tedious pow-wows.

When it is finally done all those involved will be so overcome with relief that they will delude themselves that they actually did a brilliant job given the toughness of the task. And so the hope that any lessons might be learnt will fade into a fog of ill-deserved mutual backslapping.

But the damage is there under the protective clothing of resolutions and communiques. I have spent the past six months creating a conference about new gTLDs that seeks to break free from this divisive and negative atmosphere and create a space for positive dialogue – the creation and sharing of knowledge and viewpoints.

I have been amazed and dismayed as frustration with ICANN occasionally gets thrown in .nxt’s direction. When the Board failed to approve the new gTLD program in Cartagena, a number of people started insisting – rather oddly if you think about it – that the .nxt conference also be put back. Not a chance, I said – the conference is designed to function entirely independently of ICANN’s (lack of) decisions. It is all about the business of new top-level domains, the changes coming, the new models, the new markets, the business environment that exists for new Internet extensions.

The reality is that 95 percent of the real gTLD market is going to remain entirely unaffected whether or not trademark lawyers get their rule changes, or governments don’t have to pay to object to applications. But the process has become so emotive that some have lost sight of the bigger picture. Every strike-out is a disaster; every home run is a victory for the noisy policy sports fans.

The same calls for .nxt to be postponed appeared again in the past few days when the news finally emerged that the GAC-Board meeting was likely to be a colossal waste of everyone’s time and possibly delay the new gTLD process even further. Someone even suggested that it be cancelled altogether – as if the whole future expansion of the Internet depended on a badly worded press release from ICANN (.nxt, incidentally, is still very much on and I have high hopes that it will remind everyone about the exciting opportunities that this name expansion creates).

This emotional response to ICANN’s work has been unusually high as long as I’ve known it but there comes a time when the community needs to ease off trying to force people to make decisions, take a couple of deep breaths and realise that there is always plenty else to do in the meantime.

If there had been more discussions in the past five years about where we were going, rather than fights over where we actually were, we may never have needed to have gone past version three of the Applicant Guidebook.

I’ve actually forgotten what the next one will be – version six?

Credit where credit’s due, the disclosure of Board materials of the organisation that oversees the domain name system, ICANN, has greatly improved since its first and woeful effort.

The materials for a special Board meeting held in September over the “new gTLD” process are clear, organised and understandable. They also help to publicly demonstrate the large amount of professional work that goes on at ICANN. The issues in front of ICANN are clearly and concisely laid out, complete with arguments and recommendations with rationale. ICANN should be rightly proud of this sort of work.

The September materials also show clear improvement over those for the previous meeting in August – which are not as well structured and suffer from many of the same fault as previous months. That said, and despite a clear improvement for September, several significant procedural problems remain with the publication of Board materials, namely:

1. There is no notice that the materials have been published. This is important and very easily rectified
2. There is no explanation or apparent timeline for publishing the materials. This is unprofessional
3. Entire sections – including their titles – continue to be redacted. There is no explanation for this redaction, and no mechanism for querying the redaction. So long as this unaccountable process is allowed to continue, there can never be full confidence in the publishing process as at any time, staff are in a position to redact whatever material they wish with no requirement to justify that redaction. The Board should be in charge of the redaction process – and they should be in a position to justify any redaction publicly. There should also be a process for publishing redacted material after a certain period of time.
4. The materials are published in a very unhelpful format: long PDFs on a page four pages deep on the ICANN website. This hugely limits the ability to find and digest the information. If ICANN were to spend a little more time making its most important documents available as text on webpages, it would benefit significantly from all the tools that exist on the Internet. As a result, its work would find a far greater audience.
5. There are some errors in the work product. If ICANN were to learn to relax its control mechanisms, it may find that the broader community is in a position to *improve* the Board materials, and so improve decisions made by the Board
6. There materials continue to demonstrate a very insular approach to information provision – everything given to the Board comes through a staff filter. What is lost is a broader context. There is plenty of high-quality commentary and analysis on issues before the ICANN Board; the Board should be in a position to see this. If the staff work product is sufficiently high, it will stand on its own. Without a mechanism for external material, Board members will continue to be lobbied on a personal basis, encouraging the insider culture that remains entrenched within ICANN and continues to damage its reputation on the broader stage.

But back to the positives.

The materials for the new gTLD special meeting are a very useful summary of where we are up to with the process for new Internet extensions. It is encouraging to read the materials and overall they give a much greater sense of confidence in the staff, Board and overall organisation.

It is inevitable that there will be complaints from those who did not get their way – in this case the the Registry Constituency made several requests that the staff makes clear it does not accept. But by publishing the documents, everyone can follow the rationale of staff and – if the Board meeting minutes are improved – see the Board’s thinking as well.

This process – the open, transparent approach that ICANN is supposed to be ideologically wedded to – is what allows ICANN to make difficult decisions. By being open, decisions can become easier, not harder.

Here’s hoping that this improvement in Board materials will continue, tackling some of the remaining issues outlined above, and with luck it is possible that ICANN will start to rediscover its original philosophy and wisdom in being open after many years in the darkness.

Board materials:
September: Part One | Two | Three | Four | Five
August: Part One | Two

The International Telecommunication Union is a walking contradiction.

I’m here in Guadalajara, Mexico at the organisation’s Plenipotentiary – a meeting it holds every four years to decide the strategic direction of the ITU.

Here’s what you need to know about the “Plenipot” first off: it goes on for three weeks. Yes, three weeks. It used to be four. The first week is taken up entirely with electing new officials; the second week is used to spread out and discuss the papers that have been provided to the conference; and the third is about refining the details and getting them approved.

If this sounds like an arcane way of doing things in the modern world, it’s because it is.

The clue is in the title – Plenipotentiary comes from Latin: plenus and potens meaning full and power. Government representatives (and no one else, mind) are given full powers to negotiate on their country’s behalf and at the end what is decided has full power on the countries represented (more or less).

Of course this approach was much more useful in 1865 when the ITU was created. It wasn’t until 1903 that the Wright brothers flew for the first time. Henry Ford started producing cars in 1908. John Logie Baird’s first public experiments with television were in 1926. In this world, representatives would take days to reach a meeting, and news of what they discussed and decided would take just as long. They had to be given full power in order to be of any use.

But the Plenipot name, and the fact it goes on for three weeks, is just scratching the surface of ITU arcanery. The election process is, by all accounts, so bizarrely out of step with the 21st century that it takes on an almost surreal air.

One day is taken up with the election of Secretary General (SG) and Deputy Secretary General. The next day with the election of the three bureaux chiefs (which actually stretched into a second day this time around). How can it take a whole day to choose two people with less than 200 voters? Strap yourself in, you’re about to find out.

Election madness

This is the rundown for the SG election. It has been pieced together from the recollections of those who were there, most slipping in and out of consciousness.

There are, roughly, 196 voting countries. Every representative is given a special pen (I am trying to track down a picture of this holy scribing instrument), and a special ballot paper, and a long series of instructions. You must mark a cross, and only a cross. It must not stray beyond the borders of the box provided for the cross. Disobey any of these rules and your vote will be discounted.

Oh, and you’re locked in. You can’t leave the room. Actually you can but you won’t get back in if you do. A lot of attendees bring some food and drink in with them.

Before you vote though, you have to wait for every single government entitled to vote to be read out – all 196 of them. In French. Okay, that’s done, now vote. No, hold on, Japan has two ballot papers. Everyone stop. Okay, we have taken one ballot paper away. Leaving Japan with two minus one ballot papers, which is one. One ballot paper per representative. Okay, we are set. Begin.

No, stop. Malaysia doesn’t have a ballot paper. That must be why the Japanese had two. Hang on while we give a piece of paper to Malaysia. Malaysia, do you have the special pen? Yes? Okay, everyone vote. No, no, wait, hold on, Denmark has done a tick instead of a cross (the pressure must be terrible). Everyone stop. Get Denmark a new ballot paper. Denmark, do you have the special pen? Yes? Ok, everyone vote.

Well this is finally done, all the votes are then put inside the transparent voting box. The transparent box is actually new: it used to be a wooden box flown in especially from Geneva and sarcastically nicknamed the Ark of the Covenant by world-weary delegates. Hang on! France! France! What are you doing? You have folded the voting paper the wrong way. Yes, friends, there are specific instructions about how to fold the ballot slip.

Behold the box for containing paper! (Copyright: ITU)

Once all this is finally done, the names of all the countries are read out *again* in full and in French. The box is taken off to a special Green Room for counting and the empty box is paraded around the room in a depressing effort at showmanship. Look at the see-through box, all the papers have gone. We are now counting them. In the Green Room.

After counting, the election procession comes back in and after a bit more pomp and ceremony the results are announced. If no one reaches the required majority – typically 79 – the process is repeated all over again. Sometimes the next morning if it’s getting late by this time.

This process is repeated five times for each of the five available seats. But here’s the real crunch: three of the five posts only had one person standing.

So 200 government reps spent two days locked in a room to hear that 96 percent of them had voted for Hamadoun Toure as SG; 99 percent had voted for Houlin Zhao as Deputy SG; and 97 percent had voted for Malcolm Johnson as ITU-T head. No one is quite sure what would have happened if they hadn’t all voted in favour.

So let’s get this in context: the ITU is the organisation that develops and decides the standard for, among things, satellite communications, television and cable, DSL, telephones, digital video and many, many other cutting-edge tools of the modern world.

Surely someone in the organisation must have come across ELECTRONIC VOTING KEYPADS in the past 145 years? If they can do it for Who wants to be a Millionaire, then surely they can do it for a $350 million intergovernmental organisation that decides space law!

The truth is that this could all change extremely quickly if there was the political will and if there wasn’t huge cultural inertia to getting rid of these worthless symbols of the past.

Turnaround

But what makes it all the most incredible that such a pointless and time-consuming ceremony is incorporated into the ITU’s make-up is that in other respects, the organisation is at the cutting edge.

It puts out roughly one new standard a day every day, every year. It recently decided on the latest video codec H.264 – used in the iPad and a lot of the new software applications. It also approved a universal mobile phone charger, which is gradually coming in effect. And these are just the ones that get attention. Many more are allowing the modern world to zoom along completely oblivious.

Administratively the ITU is extraordinary – turning around dozens of documents every day, translating them into five languages and getting them out again within 24 hours. Dozens of meetings are coordinated swiftly and efficiently, and ad hoc groups are given extraordinary freedom to create new groups and have them pulled into the overall schedule at a moment’s notice.

The conference itself is extremely well organised and run (although the Mexican government and the state of Jalisco did supply the resources). The staff and other organisers are professional, accessible and helpful. A huge number of ideas are raised, discussed, edited, re-edited, put out for discussion, revolved and approved in tight timeframes and with a general sense of calm.

So, why are people so annoyed with the ITU? And why, in the Internet community at least, is the organisation a byword for malicious intent? Well, to understand that you need to meet the representative from Syria, a Mr Nabil Kisrawi.

But more later about Mr Kiswari, self-defeating ITU discussion rules, the “Big Boys” and their units, and young women in leather mini-skirts at the steak restaurant. It is Sunday afternoon which means of course people are still meeting. After all, you’ve only got three weeks.

I’ve sent the following note to ICANN’s Accountability and Transparency Review Team (ATRT) on its own mailing list that it pays no attention to.

I’m frustrated that they have become a part of the problem, rather than the solution. And in reviewing their draft recommendations, you can’t help but be struck by the vagueness, lack of focus, and weak wording. Anyway…

Becoming what you set out to change. In this, you have failed miserably.

Gandhi said: “You must *be the change* you want to see in the world.”

When you put out a call for ATRT members to provide statements of interest in being a member of the team, you received 26 applicants.

Of these, 17 were “endorsed” – although we don’t quite know through what process or why.

Of these 10 were chosen for the team – although we don’t quite know through what process or why.

When Becky Burr was kicked off the team for an apparent conflict of interest that she had declared from day one, the ccNSO replaced her with Chris Disspain – a very able and respected member of the community but not someone who was in the original 26 applicants, or 17 endorsed candidates.

Just this week, Willie Currie has stepped down from his position on the ATRT because he has taken a job with a regulator in his own country. The NCSG part of the GNSO replaced him with Carlos Alfonso – a very able and respected member of the community but not someone who was in the original 26 applicants, or 17 endorsed candidates.

This begs two big questions:

• What exactly was the point in running a convoluted and largely opaque selection process which chewed up months of the ATRT working time, when members are allowed to be simply replaced by non-applicants chosen by a small group of stakeholders in a process that is unknown? Why were they not replaced with two of the spare seven “endorsed” candidates?
• Does the ATRT not see how this whole process is neither accountable nor transparent? In fact, the ATRT appears to be simply reflecting the insider culture and status which is behind a very large part of the problems with ICANN’s accountability and transparency – and which the ATRT is supposed to be reviewing.

It may also be worth pointing out that none of the actual work done – the discussions about issues and ways to fix them – have been done out in the open.

None of the decision-making has been transparent. Because no one has been in a position to actually see or hear it.

And neither it is accountable. People are not able to respond to the workflow as it happens; there is no mechanism to do so. So what you will actually do is a publish a large document, put it out for public comment for 30 days and delude yourselves that this represents some kind of accountability.

What you should have realised during the course of your work is that it is *precisely* these working practices that are behind the majority of ICANN’s accountability and transparencies problems.

Unless the ATRT’s cunning plan is to highlight accountability and transparency failings in ICANN by becoming an exact carbon copy of the problems themselves, I am afraid you appear to have not only failed miserably in your job but actually strengthened the culture that makes these problems so difficult to deal with in the first place.

The only thing you need to do to put a cherry on top is to ignore this very clear criticism of the process and your work and possibly pretend you’ve never seen it, rather than look at the fact that it may hold some valid pointers. If you read the submissions made to you by the community, you will find that ignoring comments that don’t fit in with pre-conceived notions is very high on the list of issues they have with ICANN.

However I suspect that almost all the ATRT team will never even see this message because what you did was create a process that gave an appearance of public input and accountability – this email list – and then completely failed to include it into actual discussions, thereby making it worthless.

All that remains for you to do is applaud yourselves for the hard work you have all done. I am hoping you will give yourselves at least 10 minutes at the end of your session in Cartagena to slap yourselves on the back, and the Board should also give you at least two resolution paragraphs thanking you for you have done. You may even get some applause.

Won’t you won’t have done however is to fix the accountability and transparency problems at the heart of ICANN.

I have avoided the meetings of the Accountability and Transparency Review Team (ATRT) into ICANN for a few months because it was so incredibly frustrating to listen to 60 minutes of people organising hotel rooms in different parts of the world while the ICANN Board and staff ran rings around them.

But the meeting popped up while I was in front of my computer this afternoon so I decided to listen in. The 90-minute scheduled meeting lasted just over 30, and nothing was discussed except for organising its next trip – to Boston this time – and what sort of meeting the ATRT would have with the Board when the review team is on the final leg of its international tour of pointlessness in Cartagena in December.

While this was going on I noted a new document had appeared called CA-Corp-Law. It’s a PDF so I downloaded it and read it and it comes from ICANN Board/General Counsel. You can download it here [pdf]. And it states that ICANN is *legally* obliged to never allow a process that forces the Board to act. I then spent the next 15 minutes trying, and failing, to get the review team to discuss the fact that its entire work product had no weight whatsoever in ICANN’s eyes.

I thought the ATRT was dead in the water before this point. But now that the team won’t even discuss the fact that it is wasting its time, I think it’s pretty certain that the fearless wolf of review has been beaten, neutered and house-trained and that being forced to recognise that it is also toothless was too much for it to bear.

The ATRT is a dud. ICANN’s accountability problems will remain. Next time this issue explodes, it may take ICANN down with it.

Here’s a copy of the chatroom for the meeting. You may be able to sense my frustration:

Alice Jansen 2: Good evening James!
James Bladel: Hello. joining the bridge now.
James Bladel: lovely hold music….
Alice Jansen 2: :)
CLO: Hi all
CLO: James you still on hold?
James Bladel: No, I’m on mute
CLO: ahh
Erick Iriarte: hi
Kieren McCarthy: I saw that the second document basically says that the ICANN Board is legally obliged not to listen to you
Kieren McCarthy: Yes, I am being facetious but you would think that the Board would have mentioned the fact it doesn’t feel obliged to listen to ATRT recommendations before now
Louie Lee: I think the group understands that the final recommendations would not be legally binding.
Louie Lee: But since the review teams have the backing of a contract, the recommendations would have some weight behind them
Kieren McCarthy: A little unusual that ICANN feels the need to point this out to the review team in the middle of its work
Kieren McCarthy: Also unusual that earlier the ICANN Board felt that the review team didn’t understand the AoC
Kieren McCarthy: And unusual that ICANN staff lobbied the review team to drop its choice of independent reviewer
Kieren McCarthy: A little unusual that the Board withheld a budget for the review team’s work
Kieren McCarthy: Certainly unusual that a member of the ATRT team was removed
Kieren McCarthy: Is the Independent review team into ICANN’s accountability and transparency going to mention all these unusual events? I really hope you find the confidence to do so
Louie Lee: Put together these signs seem to point to something, yeah. :) But we did ask for legal clarification since we were last chatting about the Independent Review and the ombudsman role.
Louie Lee: WG#4
Kieren McCarthy: I am assuming that the legal document provided that says no matter what process ICANN creates it will never have legal weight was produced by ICANN’s own lawyers?
Kieren McCarthy: Would it not make sense to have an independent party review whether that legal opinion?
Kieren McCarthy: Seems like a pretty huge accountability review issue to me
Louie Lee: (brb)
Erick Iriarte: alice a problem with the conexion?
Erick Iriarte: i lost the sound
CLO: SOund was / is very low for me too especially from Brian
Kieren McCarthy: It’s probably worthwhile pointing out that during the .xxx IRP, iCANN made several arguments based on California law that were subsequently dismissed by the eminent panellists
Alice Jansen 2: I ll inform the operator – apologies for the inconvenience
Erick Iriarte: fine now
Kieren McCarthy: Rather than discuss the style of meeting at an ICANN meeting, maybe the Review Team’s limited time would be better spent discussing whether it’s entire work product will be given sufficient respect and review
CLO: We will be producing a product that we expect to be jusged and respected on its merit Keiren our work product will need to stand up to several tests and reviews from community and the Board but wondering ‘if, what & maybe” I doubt is actually a productive use of our time here rather we’ll put out a product we are happy and willing to stand by for all of its intended audience(s)
Kieren McCarthy: But you have been given a document in the middle of your process that says the Board feels it has a legal right to ignore anything you recommend. *Surely* that is a huge accountability issue?
James Bladel: Why wouldn’t that be expectd during the comment period?
Kieren McCarthy: You are relying on the community to do your work

[ends]

Two very interesting things are happening today that may have an enormous impact on the Internet for many years to come.

First, the ICANN Board is meeting at a special two-day retreat in Trondheim, Norway, in an effort to finalise the rules for new Internet extensions. This process have been going on for more than five years – two years longer than was planned – and it appears that everyone is now tired of the back-and-forth and wants results. The hope is that the “Applicant Guidebook” will be formally approved at the ICANN meeting in Cartagena in December.

The second interesting thing is a letter [pdf] from the Governmental Advisory Committee (GAC) of ICANN to the Board giving very precise and useful comments about what it feels about some of the outstanding issues in the new rules. These letters are usually carefully timed and this is no exception – it appears the day before the Board retreat. It is also a fair assumption that the ICANN chairman and CEO and senior management already know much of what was in the letter and may have helped in its production.

So, here’s the big question: will the Board be able to make the decisions necessary for a fifth and final version of the Applicant Guidebook to be produced in time for the Cartagena meeting?

I’m an optimist, so I’m going to say Yes; I think they will be able to do it. Well, almost all of it, with the rest thrashed out in Cartagena. Here’s why and where I think the axe will come down.

Controversies

It is no mistake that the GAC letter covers every controversial aspect remaining, save one.

They are:

• Size of the program
• Economic impact of new extensions
• Vertical integration
• Trademark protection
• Geographic names
• ICANN’s efforts to make itself legally unaccountable
• Community TLDs and applications from developing countries

Size of the program

The previous two additions of new Internet extensions in 2000 and 2004 saw just seven new extensions each time. ICANN as an organisation is still worrying about what will happen if hundreds of new top-level domains appear at the same time.

There is some legitimacy in this concern, although much of it has been nannying and disingenuous. The GAC letter actually lays out a reasoned, albeit conservative case. It wants a “fast track” for non-controversial additions, as well as a limited release of new extensions. It also argues for a study of a limited number before others are released.

There has been a fair amount of work done on this issue of adding alot of new extensions to the Internet by the engineers that actually have to run the systems. Broadly their conclusion was: it can be done, but it’s going to be a struggle. Basically, the systems in place are not prepared for a massive influx of new extensions.

Now, they could be prepared – but it would require money and a huge amount of effort and, frankly, there isn’t that much willingness on the part of the technical community to put in huge resources just because ICANN has decided that’s what it wants to do. Especially when, with the stroke of a pen, ICANN could spread the introduction of new TLDs over a longer timeframe.

ICANN chairman Peter Dengate Thrush made some very interesting comments last week at the IGF in Vilnius that demonstrated a clear plan to keep the number of TLDs released over a given time. He said: “The total number that can be processed in any year is 200 or 300… a number that’s currently equal to or less than the current total number of TLDs. So we’re not talking about orders of magnitude changes we’re talking about in the first year possibly doubling the current TLD numbers. I don’t think that’s mass and I think people will be able to cope with that rate.”

Peter doesn’t make these comments lightly. And now the GAC is suggesting the same thing. So this is my first prediction:

The number of extensions added to the Internet will be limited to a certain number per year. The least controversial will be first in line.

Economic impact of new extensions

This has been a frequent complaint of those who have sought to delay the program for their own reasons. Again though, it comes with a fair amount of truth.

ICANN’s staff failed miserably by not requesting an economic analysis of the impact of new extensions on the market before the whole process kicked off. Instead, it was subsequently forced to keep ordering new economic studies, which were fudged, and so was then forced into ordering another. And so on.

Why the failure to think ahead?

• Because ICANN staff are very rarely allowed to think for themselves, and are in a constant state of reaction
• Because ICANN staff are policy wonks and managers. Five years ago there were zero business and market analysts, for whom an early economic study would have been an obvious step. I think there’s only two now (it should be 10)
• Because ICANN as a whole absolutely hates being told by anyone what the situation is. The Board, staff and community frequently (and rather arrogantly) dismiss the conclusions of experts. So there was no desire at all – until forced to – to hire someone to tell ICANN about the market it oversees. Even now, people that really have no idea what they are talking about attack the economic analyses that have been produced

The GAC wants the Board to use a limited fast-track subset to carry out an economic study. This is a pretty good idea. However the GAC also wants there to be no new extensions while that is going on, which is a less good idea.

Who knows where the Board – which is notoriously risk-averse – will fall on this. There would certainly be value in having a real, live economic analysis of new extensions. But any suggestions that this then delay the already heavily delayed process further is going to be met very unfavourably. So prediction number two:

An economic study will be commissioned into a subset of approved new extensions, although this will be used as feedback to the next round of new gTLDs, rather than as a stop-block in this round.

Vertical integration

This is the most fought-over aspect of the process, at least from the status quo side. And since the status quo provides ICANN with its funds, and is in a position to make life very difficult for the organisation, it is a serious issue.

In a nutshell, the current situation where registries (those running an Internet extension) and registrars (those selling domains under those extensions) are kept separate is rapidly becoming an outdated model. The clearest example is if Canon wants dot-canon, why on earth should it have to pay a third party in order to have a domain under its own extension?

Of course, those who currently benefit most from the status quo – the biggest registries and registrars – don’t want to see this situation change. But it has to. The question is really: how long can the situation be kept in place? And, more crucially for the Board this week: what do you put in its place instead? (See this comment below for additional clarification on the positions of registries and registrars.)

There was a long and tedious working group within ICANN that tried to come up with a solution to this but inevitably it failed miserably. It really does come down to the Board to step up on this occasion and make a decision. It did actually hire an expert to help find answers to this one – and the report was inevitably torn apart by the community. But that report remains the best guide for the Board at this stage.

The GAC suggests relaxing the rules and puts out there the idea that “community TLDs” be granted exemption. It also suggests that there be relaxation of the rules but that there be a regulator aspect draw up (and it advises, quite rightly, that ICANN actually ask regulators around the world for their thoughts).

The Board has to make a call on this one. I would love to think it will be brave, do what needs to be done, and simply weather the storm of protest from its most powerful members. But it won’t. The Board is too big and so there is always dissent which means courage is rarely forthcoming.

So what will it do? Go for the safe option. Prediction three:

Vertical integration rules will be lifted for small-scale community TLDs, the current rules maintained and a study commissioned to look at the issue (possibly tacked onto the economic study mentioned above), with its report used to inform the next round of gTLDs.

Trademark protection

Another significant issue. The IP lobby (standing for intellectual property rather than internet protocol) has been all over this. It was absolutely right to be worried when the first Applicant Guidebook appeared in 2008 – the protections for companies and their trademarks had been horribly overlooked.

Over time ICANN has tried to fix this issue. Unfortunately it botched the effort several times, most famously with the creation of the Implementation Recommendation Team (IRT) which ended up infuriating just about everyone. However, the IP lobby has been backing off in recent months and ICANN’s chairman also said last week that “the IP lawyers… have had their chance… and the intellectual property protection brought in place is with a delicate balance with everyone in the community not just with IP lawyers.” It helps that Peter is an IP lawyer himself.

So, what does the GAC suggest? It worries about the cost of defensive registrations (to which there really is no solution beyond the fact that companies will have to get used to the fact that the rules of the game have changed with the Internet and you can’t expect to claim control over everything). But also it says the Uniform Rapid Suspension System – which would allow companies to quickly bring down sites infringing their rights – is too unwieldy. It also wants trademarks rights extended slightly – so that if your mark is contained within a longer phrase you can also question it.

The solution to all this is actually not that hard – it’s just that everyone will complain vociferously no matter what the outcome is. Basically, trademark holders have to be given a way to take down a website quickly and cheaply if they can clearly prove their rights are being infringed. The hard part is to provide a sufficiently large stick at the other end to stop big companies from abusing this process.

In terms of the Board making a decision this week, they will probably feel obliged to give a little bit back to the GAC and the IP lobby – maybe pull out the most onerous requirement from the URS – and then simply say that they will get an outside expert to review the process in 12 months’ time. Get something in place and then watch to see what happens.

The important thing will be to make sure that the axe falls down in favour of the registrant – because big companies will make themselves heard plain enough if the system needs tightening, but it won’t be the case the other way around. Prediction four:

The current systems in place for protecting trademarks will go through, although with a tweak or two to make trademark holders lives slightly easier. If the Board is in the mood for reviews, it will order a review into the system in 12 months’ time.

Geographic names

This has been a real GAC bugbear – governments have been panicking / being greedy that names in their countries will sprout up everywhere and they will face all sorts of problems. It is also the one area where government can legitimately exercise their innate desire to have control over things.

The Board has consistently pushed back against this landgrab – and quite rightly. Because city TLDs are a very promising form of Internet expansion, and because business in particular sees the value of having a top-level domain for specific geographic locations.

The GAC stamps its foot again in its letter but appears to be recognising that it isn’t going to get what it wants and so has offered a way out: don’t charge us for objections, and allows us more time to review applications. The “don’t charge” is the hard part. With no charge, governments can simply fire objections left, right and center. If money is attached, there has to be a process and an approval process internally.

In terms of the ICANN Board making a decision, again this one takes courage. The Board has stood up to the GAC (well, actually it has pretended not to hear) on this before and could do so again. It may have to or it risks wiping out a really promising area of global competition.

The decision will be based on how much else contained in the GAC letter the Board feels it can accommodate. If the Board gives on a range of other things, it can afford to say no to the no-charge request. In fact, I can’t honestly see the Board agreeing to the no-charge as it would risk destabilising the whole process. So, predicition five:

The current rules surrounding geographic names will be retained, although governments may be granted extra time to review applications.

ICANN’s efforts to make itself legally unaccountable

This will be hotly debated but only because ICANN’s General Counsel will paint 1,000 different scenarios where not giving the organisation effective legal immunity will bringing ICANN crashing down around their ears.

The Board buys this argument every time – which is why ICANN has an Ombudsman with no power, a Reconsideration Committee that always realises it was right in the first place, and a Independent Review Process that is horribly burdensome and which the Board feels it can ignore anyway.

I would absolutely love it if the ICANN Board could finally recognise that its salvation and its legitimacy will stem from it having the confidence to stop constantly grant itself complete control over everything. But I don’t think the Board is there yet. It will still try to insist in the guidebook that people will have to sign something that recognises the Board is as infallible as the Pope (or, at least, you won’t try to get the law courts to say otherwise).

The wording will change but the Applicant Guidebook will continue to give the Board the final say in all matters – which will continue to undermine the organisation in the world’s eyes. Prediction six:

The wording in parts of the Guidebook will change but ultimately it will still grant the ICANN Board, under US California law, the absolute right of final decision and reduce as far as humanely possible the right of people to go to court to dispute a Board decision.

Community TLDs and applications from developing countries

And, finally, efforts to actually get new Internet extensions in the hands of people who aren’t extremely wealthy, powerful and based in the West.

The constant refrain for ICANN to think about developing countries and community TLDs stems from the classic situation where a process is distorted by those who shout loudest and have the most money to spend on people who shout loudly. Plus, with ICANN being based in the US, and with a US mindset, the solution to problems has consistently been financial. If there is an issue here, just raise the cost of it, squeeze out the chancers.

Of course with high costs ($185,000 just for the application, don’t forget) you also squeeze out some of the really valuable uses of the Internet – allowing people to communicate.

Unfortunately, as any African leader will tell you with resignation, the powerless are always considered last. Everyone will agree that it is terrible and something needs to be done, but nothing will be. What will happen is that a significant percentage of the money set aside for communicating the gTLD program globally will be spent on telling people in developing countries about a process that they won’t be able to afford. It will achieve nothing but it will make everyone feel better. Prediction seven:

Developing countries will have more money spent on informing them about new gTLDs that they won’t be able to afford. Community TLDs will continue to have to live with a process that makes their lives harder than it needs to be because otherwise people fear that the system will be gamed by commercial interests.

And that is my summary of where we are and what I think the ICANN Board will do.

Ah yes, public morality

Of course the one area that is possibly most important that hasn’t been mentioned is the “public order and morality” discussions which are in an impossible state. Pull away all the language and basically ICANN is planning to decide what is to be banned in new Internet extensions.

The really big problem at this stage is that there are no decent models or suggestions out there. The GAC threw the wording out at the last minute in Brussels, then presented an alternative that was never going to work, and it was then left to a cross-community working group that created a dog’s breakfast of a report.

This is the one issue that may delay the new gTLD process at this stage – because there is no way the Board can agree on an approach in two days. This will be the big issue at the meeting in Cartagena and the ability to find a solution will be what pushes the process forward or stalls it further.

My feeling is that with the momentum behind getting this done and finally finished, and with the risk that careful compromises could start falling apart if there is further delay, the Board and community will come together in an indelicate fudge that everyone will hate but fortunately may never have to be used. Because, quite frankly, anyone that is willing to spend a small fortune on a purposefully offensive application is never going to get anywhere. It’s self-limiting.

Conclusion

I’m confident we may finally see this very long, and often tedious process finally come to an end. And the Board may come out of it with a renewed sense of confidence. I don’t expect there to be that many serious objections – even from the IP lobby. Everyone basically wants this done.

Plus of course, every one of the individuals on the Board wants to be able to say they were at ICANN when the gTLD process was finally approved. If they pull it off, it will be one hell of an emotional moment on 10 December.

By the way, if more than three of the seven predictions come true, I’ll be amazed.