[governance] ICANN’s New US Contract And New Top Level Domains - It’s Not Over

Dr. Francis MUGUET muguet at mdpi.net
Wed Sep 30 17:41:45 EDT 2009


Just coming back home, after a few hectic days

FYI,  an interesting analysis

http://www.ip-watch.org/weblog/2009/09/29/icanns-new-us-contract-and-new-top-level-domains-its-not-over/

*29 September 2009*


    ICANN’s New US Contract And New Top Level Domains - It’s Not Over

By Monika Ermert <http://www.ip-watch.org/weblog/author/monika/> for 
/Intellectual Property Watch/ @ 12:07 pm

With a day to go before the joint project agreement between the Internet 
Corporation for Assigned Names and Numbers (ICANN) and the United States 
Department of Commerce (DoC) is set to expire, calls for continuous US 
oversight role have been reiterated by US politicians and private-sector 
representatives who reason that this oversight is especially needed in 
the face of the planned introduction of new internet top-level domains 
like .shop.

ICANN is a “captured regulator,” the Coalition Against Domain Name Abuse 
(CADNA) warned last Wednesday and asked for additional oversight by the 
Department of Homeland Security (DHS), as ICANN is “risking 
cybersecurity, national security and global security.” Yet The Economist 
magazine ran an opinionated story only a day later asserting that ICANN 
would be “independent,” under the new contract conceding that the core 
infrastructure managed by ICANN - the domain-name system (DNS) root zone 
- will still be controlled by US authorities.

So it’s not over, neither the disputes about new top-level domains 
(TLDs) nor those about further internationalising internet domain name 
system oversight.

ICANN was founded in 1998 to organise private-sector, bottom-up and 
multi-stakeholder management for the coordination of the DNS and also IP 
addresses and so-called protocol parameters. It has since been at the 
centre of a heated debate about the roles of the US, but also global 
governments, industry and civil society groups in internet governance.

Broadsides at ICANN

While it had been quiet about the deadline of its joint project 
agreement (JPA) over the last month, last week ICANN saw some broadsides 
fired at its TLD expansion plans and its work record in general that 
would have been suitable for lobbying by US companies and trademark 
owners seeking to preserve US control. ICANN is “not independent,” “not 
transparent” nor “accessible,” is only after its own profits and is 
risking the stability and security of the internet it is tasked to 
protect, wrote CADNA, that lists companies like Verizon, HP, Dell, but 
also non-telecommunications, non-information technology members like 
Goldman Sachs or Wells Fargo, Nike or Hilton Hotels. CADNA called for a 
“full-scale audit of ICANN.”

The group requested that a special federal commission take up to twelve 
months “to fully audit ICANN and develop recommendations for a revised 
and updated JPA.” The introduction of new TLDs also came under fire from 
CADNA who dismissed the roll-out as “poorly conceived.”

Steve DelBianco, chairman of the Net Choice Coalition, representing 
companies like VeriSign and eBay, complained at a 23 September hearing 
of the House Judiciary Subcommittee on Courts and Competition Policy 
that ICANN had “got sidetracked” in the process of introducing new TLDs.

“ICANN should refocus on international labels [domains],” DelBianco 
said. Countries like China have long asked for internationalised, 
non-Latin domain names at the highest level. By opening up the TLD 
expansion to every new Latin-script string and complicating and slowing 
the process instead ICANN has risked the “splintering of the single root 
system,” he said, because “China has got tired of label makers and made 
a mini-ICANN of their own sitting on top of ours.” DelBianco neglected 
to mention that his parallel proposal to allocate the Chinese versions 
of .com, .net to the registries managing the English versions like 
VeriSign likely would not amuse the respective countries.

DelBianco, joined by Richard Heath, president of the International 
Trademark Association argued, that new generic TLDs in English would not 
bring innovation. Heath said it would instead “decrease competition if 
we (the trademark owners) have to fund a lot more defensive 
registration“ and this would also divert resources from innovation and 
from investment in corporate social sponsorship projects.

Congressional Members: New TLDs Require Oversight of ICANN

Several members of Congress seemed to agree with the two trademark right 
representatives. Chairman Hank Johnson (Democrat, Georgia) for example 
said: “I do not understand [why] they want an unlimited expansion of the 
name space.“ Johnson acknowledged non-Latin TLDs and initiatives like 
.nyc and .eco have merit. Given the planned expansion, US oversight over 
ICANN’s process continued to be necessary to provide stability and 
security for domain name owners, he said.

Republican Congressman Howard Coble (North Carolina) warned that ICANN 
by proceeding with the expansion of the name space had “not for the 
first time ignored what one might think is a mandatory instruction.” 
Governments in ICANN’s own Governmental Advisory Committee (GAC) had 
raised concerns about the new TLD process, and the DoC had asked for 
economic proof of the necessity of new TLDs, he said.

A week earlier a study from Interisle commissioned by ICANN also had 
recommended first introducing a new security feature to the DNS, the DNS 
Security Extensions protocol (DNSSEC), before moving on with the 
introduction of new TLDs, said Coble. The study on “Scaling the Root” in 
fact concluded ICANN could for stability reasons either introduce new 
gTLDs, new international (IDN) TLDs and next generation internet (Ipv6) 
or DNSSEC. It recommended to start with the latter, which will authorise 
answers to name requests in the DNS and therefore make forgery more 
difficult. The DoC already has announced that DNSSEC should be 
introduced by the end of this year. To amalgamate the complicated 
technology into the DNS system, root operators and the community should 
be given 12 to 15 months before another addition to the system is 
started, the study found.

ICANN: No Link between JPA and new TLDs

ICANN officials rejected the link between the dispute over TLDs and the 
JPA contract discussions. ICANN’s new CEO, Rod Beckstrom, in a letter 
dated 22 September wrote to several congressmen who had asked for 
legislation to make US oversight permanent by legislation, that 
consultations on the IP issues were still underway. “There is no link to 
the conclusion of the JPA,,” he said.

ICANN Chief Operating Officer Doug Brent at the hearing outlined the 
process on the future application procedure for new TLDs as an ongoing 
discussion: a third version of the extensive applicant’s guidebook would 
come out beginning of October, Brent said. Several protective measures 
that were proposed by the “Implementation Recommendation Group“ (IRT) 
were called upon by ICANN’s board chairman. The IRT work was seen by 
other ICANN stakeholder groups including registries, registrars, and 
non-commercial domain name holders as yet another round for the IP 
community of undermining and bypassing the multi-stakeholder process 
that had worked for months for a consensus.

“We will not allow an expansion that will not adequately protect 
trademark owners,” reiterated Brent, and “it will not be an unbridled 
expansion.” Delaying the process begun as part of ICANN’s overall 
mandate to bring competition to the originally monopolistic domain name 
system according to Beckstrom and Brent would only serve “to perpetuate 
existing market conditions: concentration within some existing 
registries, with most short generic strings unavailable and those that 
trade on the value of the current marketplace, holding portfolios based 
upon the value of current .com.”

Support for ICANN’s process to now finally push through with new generic 
TLDs and non-English TLDs came from a coalition of domain name 
registries like Core, registrars like ENOM, declared applicants for new 
TLDs including the competitors for the .eco TLD of which one is 
supported by former Vice President Al Gore and a Commissioner of the 
Canadian Regulatory Authority (CRTC). In their letter to the ICANN 
Board, the pro-TLD coalition urged ICANN to initiate the new TLD 
application period without further delay as it would bring more 
competition and consumer choice and avoid chaos stemming from an 
alternative addressing scheme that would pop up if ICANN gave in to what 
they see as fearmongering and “narrow arguments advanced so vociferously 
by those who seek to preserve their advantages.”

End of the JPA, No End to US Control

So what will happen with a new agreement in place this week? ICANN 
officials so far have not responded to requests for detailed 
information. Beckstrom in his letter to the congressmen dated 21 
September wrote: “I am in discussions with the NTIA (DoC National 
Telecommunications and Information Administration) to establish a 
long-standing relationship to accommodate principles including the 
beliefs that ICANN should remain a nonprofit corporation based in the 
United States, and should retain an ongoing focus on accountability and 
transparency.“ ICANN should be made a permanent institution, said 
Beckstrom, adding, “Accordingly, ICANN seeks to have a long-term 
relationship with the United States government and also seeks to build 
long-term relationships with other countries and contractual partners as 
well.“

By the end of last week The Economist came out with leaked information 
about an “independent“ ICANN, quoting a four-page paper about 
“affirmations and commitments” that envisaged four oversight panels over 
ICANN, checking on “competition among generic domains (such as .com and 
.net), the handling of data on registrants, the security of the network 
and transparency, accountability and the public interest.” The US would 
only retain a permanent seat in the latter one, and representatives of 
“foreign governments” would be included in the oversight panels. The 
agreement sets up oversight panels that include representatives of 
foreign governments to “conduct regular reviews of ICANN’s work in four 
areas.”

The potential new oversight model would partly answer long-standing 
requests for internationalisation, not the least from non-US 
governments, according to Wolfgang Kleinwächter, an internet governance 
expert and head of ICANN’s Nominating Committee. The member states of 
Europe have passed another version of their “Guidelines on International 
Management of the Domain Name System” demanding further development of 
the private-sector-led bottom-up multi-stakeholder model for the 
technical coordination and the day-to-day management of the DNS, 
continued efforts towards full transparency and accountability and, 
notably, a “strengthened” GAC “that has increased active membership (in 
particular from developing countries), greater involvement in ICANN’s 
policy development processes [..] and effective secretariat support.”

GAC members might be the ones who could fill the oversight panels, one 
can speculate, and this might have come up during talks the NTIA held 
with the EU Troika (Sweden, Spain and the European Commission) at a 
meeting on the first of September, one of several meetings NTIA had with 
governments around the world in the run-up to the JPA deadline.

The EU guidelines also state a need to stipulate and support dialogue 
and cooperation on public policy issues pertaining to the internet“ in 
general, a possible hint of the need for continued discussions at the 
upcoming UN-led Internet Governance Forum in Egypt. The guidelines do 
not touch on the new TLD process, yet recommend “the establishment of an 
arbitration and dispute resolution mechanism base on international law 
in case of disputes.” The burden to go to a California court to appeal 
against a California-based ICANN decision has been mentioned at many new 
TLD events in Europe recently.

In the end, a change in the JPA might bring some changes and pacify some 
concerns over an overly US-centric ICANN. “From what I read, it looks 
like a smart move,” said Kleinwächter. What it will not bring is 
“independence” as ICANN will continue to be a government contractor for 
what is the core “critical resource” - the root zone and internet 
protocol address allocation management which are delegated via a 
separation contract, the Internet Assigned Numbers Authority (IANA) 
contract. US authorities have always declared that they will hold on to 
that one.

So after the JPA, it’s not over and discussions about the new TLDs can 
be expected to continue, too, for a long time.

/Monika Ermert may be reached at info at ip-watch.ch 
<mailto:info at ip-watch.ch>./

Categories: Access to Knowledge 
<http://www.ip-watch.org/weblog/category/access-to-knowledge/>, English 
<http://www.ip-watch.org/weblog/category/english/>, Features 
<http://www.ip-watch.org/weblog/category/features/>, Information and 
Communications Technology/Broadcasting 
<http://www.ip-watch.org/weblog/category/information-and-communications-technology/>, 
Trademarks/Geographical Indications 
<http://www.ip-watch.org/weblog/category/trademarksgeographical-indications/>, 
US Policy <http://www.ip-watch.org/weblog/category/us-policy/>


PS : Concerning the pizza bet,  my own opinion is that Milton just owes 
a nice but empty pizza  box...
because it  is just a nice packaging change... :-D

-- 

------------------------------------------------------ 
Francis F. MUGUET Ph.D 

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