ICANN Says Internet Multi-Stakeholder Model Is Its Responsibility 03/07/2012 by Monika Ermert for Intellectual Property Watch Leave a Comment Print This Post PRAGUE, Czech Republic – The multi-stakeholder model of internet governance is the responsibility of the Internet Corporation for Assigned Names and Numbers (ICANN), Fadi Chehadé, designated new CEO of ICANN said at the 44th meeting of the private body in Prague last week. How fragile the model’s future could be was highlighted in a session of the ICANN Government Advisory Committee (GAC) at that meeting, when representatives of Brazil and Switzerland warned that a lack of performance in the programme of new generic top-level domains (gTLDs, like .com) could lead to a loss in legitimacy of the multi-stakeholder self-governance regulatory model. The new gTLD programme is a window of opportunity “to prove that this model is actually working better than others,” said Thomas Schneider, an official of the Swiss Office of Communication (OfCOM). He and his Brazilian GAC colleague Romulo Neves from the Brazilian Foreign Ministry warned that ongoing problems with the application process would make it difficult to defend the multi-stakeholder self-governance model in UN fora where the debate on enhanced cooperation, internet governance and the system of private self-governance is under debate. “Countries like Brazil and others are within a larger discussion, a larger process in bringing more countries to this institution, in legitimizing the GAC’s situation or this multi-stakeholder approach,” Neves said. What Brazil and other “moderate countries” would “bring to other fora that are discussing internet issues” is highly important in this process. Neves asked for a quick commitment by ICANN to pick geographic TLD applications like .london or .africa and those from regions that saw few applications. The fact that Africa had only 17 of 1,930 applications, and Latin America only 24 was said by Mark Carvell of the UK Department for Culture, Media and Sport to be a “catastrophic failure.” Olga Cavalli from the Argentina Ministry of Foreign Affairs said the imbalances are a concern for Latin America, or at least for her country. She also pointed to a potential conflict with trademark applications for geographic names like “Patagonia.” Governments also were critical, because the new gTLD process is still a “work in progress” with many things, from the final shape of IP rights and name rights protection to the way the many contentious bids for new TLDs (e.g., .app was applied for 13 times), yet to be determined while the programme is running. The final communiqué of the GAC is here. Digital Archery Not the First Glitch In Prague, the ICANN leadership had to announce a glitch of a system set up for the new gTLD application process. The so-called “digital archery system” had been heavily criticised before by applicants, expert observers and governments. Just before the meeting and only two days after receiving an angry letter from the governments about fairness and competition concerns, ICANN pulled the plug on the system. Staff had been wary about technical problems with the system that was set up to allow applicants to try for a place in the first batch to be evaluated. Up to three or four batches are expected to be necessary to allow the 1,930 strings to be shepherded through the evaluation process. Yet the final stop of the digital archery system announced in the public forum by the chair of the ICANN Board’s new gTLD committee, Cherine Chalaby, was not the first serious failure. Earlier in May, ICANN took its web-based application system TAS offline and had to sort through piles of data to check for information breaches, while at the same time posting delay messages for a re-opening. It was not the organisation’s “finest moment,” said Akkram Atallah, the ICANN COO who has taken up the interim CEO position for Rod Beckstrom, who left ICANN to make way for the new CEO in October. With Beckstrom out and the manager of the new TLD programme having resigned, ICANN management might be strained under the task of evaluating 1,930 new TLD applications and their potential managers. So far, results of the new gTLD application process are “far from satisfactory,” said Schneider. Future CEO Chehadé, though on the sideline until October, made several commitments in his speech in Prague. Technical excellence, he said, is indispensable for the organisation which as a non-profit must be five or even ten times better than commercial enterprises. Also, ICANN under his leadership will look for more internationalisation and more openness – not become a fortress, but, as the son of Egyptians born in Lebanon and educated in the US put it, an oasis. “I will be super, super, super transparent,” he promised. But above all, he said, was his commitment to the multi-stakeholder model. This approach makes processes less easy but yields better results in the end, he said. Privacy Overlooked at ICANN? In the shadow of the gigantic new gTLD process – according to departing CEO Rod Beckstrom a sisyphean work – there are also the somewhat related debates about the future registrar accreditation agreements. The registrar accreditation agreements (RAAs), together with similar agreements with the domain name registries (from old .com registry to the newcomers like .mail, .news, .africa), are the core element of the self-governing organisation which is said to be “regulating by contract.” The draft RAA contract is here. With companies in all jurisdictions and ICANN being a venue for “global contract regulation,” there have been fierce debates about what can and should be in the contracts. At a recent ICANN meeting in Dakar, ICANN leadership gave in to stern requests from governments to accept recommendations by law enforcement agencies. But after 18 meetings between ICANN, law enforcement representatives from a few countries, and the registrar negotiation team, there still are two issues where the parties are unable to get consensus. These are the validation and verification of Whois data – the data about domain name owners including personal and financial transaction data – and a regime that would oblige registrars to retain data of all their domain customers and of communication with them for at least two years after the end of the registrant’s contract. Several provisions, especially with regard to the data retention requests, would be illegal in Germany, France, and other EU countries, for example. Volker Greimann, counsel to German registry/registrar KeySystems and secretary of the Registrars Constituency, told Intellectual Property Watch: “We have made proposals on all law enforcement recommendations. But they have changed over time and ICANN has taken up the maximalist recommendations as the gospel.” It is the strong focus on law enforcement that resulted in some strong warnings from the non-commercial user constituency and also one community gTLD applicant. Avri Doria from the dotgay LLC team, one of the applicants for a .gay TLD, said: “In none of the lead-up to this discussion have we heard from your conversations with data protection authorities, with the privacy authorities in many countries.” For a specific community, like the gay and lesbian communities, law enforcement is not always seen as the good guys, with some countries not in line with the Universal Declaration of Human Rights. In such cases, collection, storage and publication of personal data could even be life-threatening. Doria recommended in one session that it should be a “rule that ICANN should never talk to a law enforcement agent unless they are at least virtually handcuffed to their data protection equivalent from the country, because unless you’re listening to one in the presence of the other, you are not getting the full story.“ That ICANN was only putting cooperation with law enforcement, but not with data protection officers, into its budget plan was criticised by Robin Gross, chair of the Non-Commercial Stakeholder Group in ICANN. The Whois discussion is also fuelled by the final report of the Whois Policy Review Team that asked ICANN to push for a more standardised, “single” Whois and more policing of ICANN against potential violations. The 16 Whois policy team recommendations were welcomed by the Intellectual Property Constituency and the Business Constituency in ICANN, but were considered by ICANN Board Chairman Steve Crocker as unlikely to become “law” automatically. Privacy Authorities Back into the Whois Discussion The ICANN Non-Commercial User Constituency is preparing to bring the issue to privacy authorities’ attention in a letter sent out over the next day. ICANN’s management itself has asked the Government Advisory Committee for support in gathering input from their data protection authorities. Some government officials when asked for this felt compelled to defend themselves by pointing out, as the Australian GAC representative did, that they would not “come as advocates for law enforcement,” but would certainly consult with all the relevant authorities at home. Andrea Glorioso, the European Commission official in the GAC and an officer of the EU Information Society directorate, said that as the GAC is no party it cannot take sides, but would relay any written questions sent by ICANN to the experts at home. Beside privacy and data protection concerns, the Whois verification discussion also has an economic aspect, as ICANN Senior Vice President Kurt Pritz acknowledged during one session. “The Whois validation steps requested by law enforcement, if inserted into the RAA, would change substantially current practices for registering domain names and their costs,” he said. In fact, Pritz pointed to experiences with .cn, the Chinese country code TLD, with a detailed validation obligation, it takes between three and five days before domains can go live there. Registrars and human rights activists urge ICANN not to go down that road, but allow newly registered domains before the data has been verified. Validation might cost US$7 dollars per domain, Greimann said. And there are many observers who warn that a more costly and more complicated registration standard might add to a digital divide problem. ICANN Budget Games and .Com Agreement While ICANN stumbles towards the extended name zone and the fight about Whois and the RAA rage on, more contentious issues were talked over in Prague, like the somewhat silent renewal of the agreement to manage dot.com for US company VeriSign and a lack of transparency about allocation of funds. The .com contract renewal came after a normal public comment period but was made at a closed meeting of the ICANN Board of Directors just before the open meeting in Prague. With the .com contract being one of the richest in the domain name business and VeriSign being the incumbent domain name registry for a long time, participants at the meeting were critical that the community was robbed of the opportunity to comment on the issue when they got it on their agenda nearly a week later. On allocation of funds, it was the country code TLD managers that complained about ICANN staff having on short notice withdrawn the “Expense Area Group” (EAG) reporting tool. For years, ICANN had used EAG statistics to calculate the contribution requests to the ccTLDs. The ccTLD managers are somewhat reluctant to to fund ever fancier projects of ICANN, and continue to point to the fast-growing budgets that, according to outgoing CEO Rod Beckstrom, rose from US$ 57 million to nearly US$ 450 million during his tenure. That after years of being the tool for allocations, EAG was kicked out, was worrisome, many said. Financially, ICANN has grown considerably, with the 2013 budget just accepted by the Board in Prague proposing around $78 million in revenues and $74 million in expenses. Application fees for new gTLDs are up in the $350 million area, yet would not be used or normal operations, but put to dedicated banking accounts, Crocker said. ICANN budget information is here. Good luck may be wished to the new leadership that has to solve all the issues! It is a Sisyphus thing, as outgoing CEO Beckstrom put it, and that might be an understatement. ICANN with New IANA Contract In what was seen by some observers as unfortunate timing, the US National Telecommunications and Information Administration (NTIA) announced yesterday that it has awarded the IANA contract to the ICANN again. The IANA is the core infrastructure part of the DNS oversight, it holds the registry of all names in the universal root zone and also allocated number blocks to IP address registries. After declining to install ICANN as the steward of the root zone before the ICANN meeting in March, the NTIA now seems to be satisfied with ICANN’s application. The move has not been announced to GAC members or the ICANN constituencies in Prague. 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