[governance] IGP Newsletter, Vol 1.06

Wed Dec 6 06:00:46 EST 2006

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Internet Governance Project Newsletter
======================================
Current events in Internet Governance and the activities 
of the Internet Governance Project.
http://www.internetgovernance.org

Volume 1.06
December 5, 2006

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Contents
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[1] NEW DOT COM AGREEMENT
[2] GAC DRAFT WHOIS PRINCIPLES RELEASED
[3] TURKEYS COMING HOME TO ROOST: ITU PLENIPOT
[4] US INFLUENCE OVER INTERNET RESOURCES GROWING?
[5] IG FORUM ADVISORS MEET IN GENEVA IN FEBRUARY
[6] DEVELOPMENT AS A STATE OF MIND

====================================================
[1] NEW DOT COM AGREEMENT: COMMERCE IS "THE DECIDER"
====================================================
ICANN's 8-year experiment in nongovernmental governance of 
the Internet's domain name system all but came to an end 
November 30, 2006. The U.S. Department of Commerce 
announced that it, and not ICANN, would be the ultimate 
"decider" when it comes to dot com. Dot com is the largest 
and most valuable Internet top level domain, accounting 
for about 50% of global domain name registrations.

Several months ago ICANN and VeriSign privately agreed on 
a new .com registry agreement in the process of settling 
litigation. The new deal became intensely controversial 
because it gave VeriSign a renewal expectancy and 
permitted the company to raise wholesale prices for .com 
registrations by a maximum of 7 percent a year.

This week the Commerce Department approved that agreement 
-- and simultaneously asserted broad new regulatory powers 
for itself. In a potentially fatal blow to ICANN's 
autonomy, Commerce asserted sweeping approval powers over 
any future Registry Agreement. From now on the Commerce 
Department, not ICANN's policy making process, will 
provide the final word on renewal of the lucrative .com 
license. This approval power extends into the future 
indefinitely. Not only will Commerce continue to ensure 
the Internet root's "security and stability," it will now 
ensure that the .com agreement provides "reasonable price, 
terms, and conditions." That leaves ICANN with little 
substantive power over .com.

VeriSign's competitors and the registrars who sell .com 
names at retail are sure to howl in pain over VeriSign's 
success in gaining "renewal expectancy" and its new 
price-increase capability. But the real story here is the 
Commerce Department's institutionalization of its 
regulatory role, and the tacit vote of no confidence in 
ICANN and its processes. Only two months after the 
Commerce Department, ICANN, the EU and many media outlets 
hailed the new "Joint Project Agreement" with ICANN as a 
big step toward a fully privatized, autonomous global 
governance authority, the Commerce Department has 
basically said that ICANN lacks the legitimacy and 
authority to act as the steward of the public interest in 
regulating the world's largest registry. From now on .com 
operates under US political oversight.

Read the DoC announcement:
http://www.ntia.doc.gov/ntiahome/press/2006/icanncom_fact_113006.htm

=========================================
[2] DRAFT GAC PRINCIPLES ON WHOIS/PRIVACY
=========================================
Download document here:
http://internetgovernance.org/pdf/DraftGACWhoisPrinciples.pdf

European countries pushed back against U.S. Government 
efforts to stop ICANN from respecting privacy concerns in 
its handling of domain name registrant contact data, but 
their efforts were only partially successful. The current 
draft contains much that is objectionable, including a 
very broad definition of the purpose of Whois that is 
inconsistent with the one adopted by ICANN's policy making 
Council, the GNSO. A U.S.-led Task Force in ICANN's 
Governmental Advisory Committee (GAC) released version 3 
of its "Whois "Principles" in preparation for the ICANN 
meeting in Brazil, where it will be debated and finalized.

ICANN's registrar contract forces domain name registrars 
to indiscriminately publish to anyone on the Internet all 
domain name registrants' name, address, email and 
telephone number. While that data is convenient to many, 
it has also led to spammers harvesting the data and 
various kinds of identity theft and slamming. European 
data protection experts have made it known for several 
years that ICANN's current Whois policy conflicts with 
their national law and with EU data protection principles.

In April, ICANN's GNSO began to seriously consider 
restricting published Whois data to only the data 
essential to ICANN's technical coordination purposes. That 
is when the US Government, in an intervention similar to 
its action in the .xxx top level domain, started pushing 
the GAC to develop "policy principles" that would counter 
the GNSO. The US position was dictated by trademark and 
copyright interests, who routinely data-mine Whois and 
insist on open publication of contact information so that 
it will be easier for their lawyers to serve process on 
people they accuse of violations. Of course, the GAC's 
role in ICANN is advisory only...

=================================
[3] TURKEYS COMING HOME TO ROOST?
=================================
Tunis Agenda Used to Reassert ITU's Quest for Internet 
Authority

At its Plenopotentiary Conference in Turkey, the 
International Telecommunication Union (ITU) made it clear 
that it is not going to go away quietly and leave the 
Internet and its U.S.-dominated governance arrangements 
alone. It passed a long and wordy resolution on "ITU's 
role with regard to international public policy issues 
pertaining to the Internet and the management of Internet 
resources, including domain names and addresses."

The resolution utilized those aspects of the WSIS Tunis 
Agenda calling for "enhanced cooperation" to enable 
governments to develop "globally applicable public policy 
principles" and asserting that "all governments should 
have an equal role and responsibility for international 
Internet governance." The ITU resolved to organize 
consultations on IG issues among the ITU membership

The ITU initiative can be seen as a predictable effort to 
fill the vacuum left by the efforts of some governments to 
prevent the IG Forum from developing any agreed public 
policy principles, and by the lack of any publicly visible 
UN response to, much less progress on, the Tunis Agenda's 
call for "enhanced cooperation" elsewhere. As we claimed 
almost exactly a year ago, WSIS resolved nothing.

We'd like to provide a link to the resolution but, um, you 
can't download it on the web unless you're an ITU member.

======================================================
[4] US INFLUENCE OVER INTERNET RESOURCES STRENGTHENING
======================================================
Several recent developments suggest increasing influence 
for US institutions in shaping Internet governance.  The 
most obvious one is of course the DoC approval of the .com 
agreement, which subjected the largest registry, VeriSign, 
to direct regulatory oversight by the USG. However, two 
other important legal developments indicate the increasing 
relevance of US-based law to the property dimensions of 
Internet resources.

First, ICANN is facing litigation brought by a subsidiary 
of US-based insurance conglomerate AIG over control of a 
ccTLD.  The plaintiff has been trying to recover $23 
million from the Republic of Congo for the past 15 years 
and, given the Congo's refusal to remit, is now seeking 
control of the .cg domain as a creditor garnishing 
property.  ICANN filed to have the suit dismissed but 
suffered an initial rebuff from the Los Angeles County 
court. The California legal system will soon decide 
whether or not the suit will go to trial.  ICANN has 
posted the documents here:
http://www.icann.org/general/litigation-c-itoh.htm

The second development concerns the nature of rights to 
IP-address blocks.  Reported on by IGP last April 
<http://internetgovernance.org/institutionalarchive.html#arinlawsuit_042806>,

arguments were heard October 23rd in US District Court 
(Northern District of California). At this stage, the 
Court is considering ARIN's argument that a 2001 order be 
modified to require that the plaintiff (Kremen) sign a 
Registration Services Agreement and pay for IP-address 
resources.  In addition, ARIN has requested the suit be 
dismissed. The financial motive is clear; at stake is the 
IP-address block Kremen was legally awarded in 2001 and 
which ARIN refuses to remit. The outcome will clarify the 
applicability of US law pertaining to IP-address blocks, 
and more generally the applicability of property concepts 
to IP addresses.

These developments make it clear why ICANN desires to 
extract itself from the clutches of national (i.e., US) 
law, as expressed in its recent strategic plan draft 
<http://www.icann.org/psc/psc-draft-29nov06.pdf>. But 
according to its own hired expert, the feasibility of this 
seems unlikely, simply because ICANN is a creature of 
private law, not public international law. More 
importantly, if ICANN did escape US law, would it not also 
escape formal accountability? This is the quandary created 
by the ICANN regime's attempt to create a global 
governance mechanism without any real international 
agreements.

In the absence of a binding global agreement, ICANN is 
arguably made more accountable to the Internet community 
through its subjection to the well established, 
transparent, and enforceable application of domestic, 
private law - even if it is in the U.S. We can apologize 
to our compatriots in other countries for the bias, but 
private law has to be based somewhere, and until and 
unless other, equally strong forms of accountability are 
created we would not like to see ICANN slip away.

=================================================
[5] IG FORUM ADVISORY GROUP WILL MEET IN FEBRUARY
=================================================
The Internet Governance Forum's Multistakeholder Advisory 
Group (MAG) will meet on 12 February (tentative date) in 
Geneva, Switzerland to review and assess the Athens 
meeting, and there will be open public consultations on 
the 13th.  The open consultations will include translation 
into the 6 UN languages. According to one diplomat, "part 
of the Agenda of the February meeting will be...modalities 
for multi-stakeholder interaction." The Forum Secretariat 
should also be encouraged to take up the status of the 
Advisory Group itself: should a new one be created for the 
next forum? You are invited to provide the Forum with 
feedback at this site: http://intgovforum.org/forum/

==============================================================
[6] LEAPFROGGING, DEVELOPMENT, ICTs: A CONTRARIAN AFRICAN 
VIEW
==============================================================
In his keynote speech to the Caribbean Internet Governance 
Forum, African civil society participant and Syracuse 
University doctoral student Mawaki Chango challenges the 
mindset which views ICTs as a way of "catching up." 
Download the text of the speech here:
http://internetgovernance.org/pdf/MC-Keynote-Grenada.pdf

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