By Monika Ermert for Intellectual Property Watch
In September 2009, the joint project agreement between the Internet Corporation for Assigned Names and Numbers (ICANN) and the United States government comes to a close. Now the organisation responsible for coordinating the internet domain name, internet protocol address and protocol number systems is seeking to alleviate concerns about accountability and capture by internal or external parties like governments.

At the 1 October Washington, DC session in a series of regional meetings, the ICANN President’s Strategy Committee (PSC) heard complaints by trademark and large business representatives about “waning confidence” in the organisation. The Intellectual Property Constituency of ICANN is still angered by a change of the voting structure in ICANN’s Generic Name Supporting Organization (GNSO), one of the policy bodies, that shifts more power to registries and registrars and away from IP owners.

The end of the joint agreement was just a legal fact, Board Chairman Peter Dengate Thrush told the 1 October hearing. “It is not that somebody has declared independence,” he said. If the USG and ICANN would “keep on extending the period of this memorandum of understanding process then it could undermine confidence in the model rather than strengthen it,” said ICANN Vice President Corporate Affairs Paul Levins after the meeting. The PSC “transition plan” and work on “improving institutional confidence” is an attempt to prepare for ICANN after the joint agreement and to gather support from all constituencies.

Capture by Governments?

ICANN was begun in 1998. Complete privatisation of ICANN as an institution was promised in its constitution, but US government oversight has been extended repeatedly over the years because of conditions not yet fulfilled by the organisation. The PSC had to cut back an original plan to take over the distribution of the DNS root zone from US government contractor VeriSign, which is also the registry for the .com and .net top-level domains. The US National Telecommunications and Information Administration (NTIA) put the brakes on the contractual change immediately after the PSC came out with this special transition plan. NTIA made clear it had no intention to change the tripartite (ICANN-US government-VeriSign) relationship, nor the oversight of changes in the root zone – the underlying network of the global internet.

US government oversight, for some participants at the Washington meeting, is the best antidote against one form of capture, the one by foreign governments or international organisations. Steve DelBianco from the NetChoice Coalition said Russia kept asking for the United Nations to take over ICANN. “If ICANN walks away from the JPA [joint project agreement], what are the mechanisms to prevent external capture?” he asked.

Large attacks on the domain name system of individual countries like Estonia and recently Georgia could “stimulate governments to say that ICANN’s performance is not good enough,” said DelBianco. This would change one major promise for ICANN since its inception, that it would be led by the private sector.

Yrjö Länsipuro, Finnish member of ICANN’s Government Advisory Committee (GAC) and member of the PSC, said the demand to hand over ICANN to the UN or the UN International Telecommunication Union had become much quieter. The UN, moreover, explained that they did not want it. And last but not least, he said that in the GAC, “the governments are watching each other.” French diplomat and PSC member Jean-Jaques Subrenat said it was “the multiplicity of actors which is a safeguard against capture. The Brazilian vice chair of the GAC said governments should be enabled to make their contribution via the GAC and this might need to rethink what the “advisory status” meant.

Dengate Thrush said the fundamental point is that if ICANN, after the end of the joint agreement, had international support by all constituencies, “then it is difficult to capture.”

Whom to Turn to with ICANN Complaints?

Another aspect of an ICANN without US oversight that worries industry is the question of to whom could they turn if they are not satisfied with a decision coming from ICANN’s complex policymaking process. The accountability question is “amplified as ICANN wants to distance itself from the USG oversight,” according to law professor Wendy Seltzer. “US courts,” she said, “to many people only serve as accountability of last resort.”

Accountability mechanisms in place so far are not working, warned Becky Burr, former NTIA official and now a lawyer. She criticised the reconsideration process in place and said she did not see the new mechanism that would allow the dissolution of the board by vote of the community as a relief to the situation. The problem with the reconsideration process is that the ICANN board is free to ignore a ruling of an independent review panel, something she has experienced working for ICM registry, which tried all the appeal mechanisms in place and is now before US courts. ICANN CEO Paul Twomey said that the PSC plan prepared for altogether five accountability mechanisms.

Concerns also were raised in this context because ICANN has announced it is considering incorporating the organisation also in another jurisdiction.

“We are not seeking immunity,” said Länsipuro. “It is not a question to put ICANN somewhere in outer space, outside of responsibility.” ICANN’s leadership repeated several times that the headquarter of the organisation would be kept in California, it would continue to be a California nonprofit organisation and would not shift contracts from the United States.

Twomey answered complaints with regard to inaccuracy of “whois” data – data published about who holds a specific domain name – which according to one participant was closely linked to the distribution of malware, phishing and fraud. But Twomey pointed to the tripling of funds for contract enforcement.

Only Tuesday, Twomey said, one registrar from China and one from Europe lost their accreditation because they did not react to complaints of whois inaccuracies. Tim Ruiz of Registrar GoDaddy on the other hand warned against the idea that ICANN might solve the spam, phishing or fast flux issues. It could contribute to solutions at most. The expansion of the ICANN mandate has been another constant fear in the ICANN community.

IP Owners feel Marginalised

“The overall confidence of IP people today is probably lower than it was a few years ago,” said Steve Metalitz, long-time head of the IP constituency of ICANN. The reason for this is that they felt that the role of IP interests had been marginalised in ICANN, said Metalitz. This came at a time when there were many uncertainties with the upcoming application process for new generic top-level domains.

The IP constituency in the course of the GNSO (Generic Name Supporting Organization) improvement process has lost voting weight, with a bicameral voting structure now in place giving the so-called contractual parties (registries and registrars) half of the votes while the other half has to be shared by all non-contractual parties including the business constituency, IP constituency, internet service provider constituency and the non-commercial user constituency.

“Instead of having a bicameral approach, it would be better to separate the voting power of the commercial stakeholders from the non-commercial stakeholders, ending up with a three-house approach,” Margie Milam, general counsel for MarkMonitor, told Intellectual Property Watch.

Dengate Thrush underlined that the new voting structure was the result of the review process by the self-regulatory process. “Nobody said, let’s take the IP constituency down,” he said.

Nevertheless, the change in voting rights coincides with the upcoming application process for new generic top-level domains, the first draft application document will be out shortly, according to ICANN. There are many uncertainties for the IP community, said Metalitz. The introduction of the new gTLDs would, according to one consultant’s statement, “more or less provide a way for the contracting parties to make a whole lot of money from the non-contracting parties.”

Dengate Thrush countered the argument by saying that the expansion of the namespace should be seen as the offer of “a fantastic number of new lands and new territories.” The expansion of the namespace might also change the landscape of the ICANN constituencies according to one observation at the Wednesday meeting. Governments who might opt to get a non-English version of a .com or similar gTLD might start to populate the self-regulatory bodies of ICANN.

An audiocast of the hearing is available from ICANN here.

Monika Ermert may be reached at info@ip-watch.ch.