Internet Governance Policy In 2009: Transition To New Digital Oversight

This year could be a transitional one for global internet governance policy, as the internet’s technical oversight body may finally lose its ties to the United States, the next generation internet comes into its own, the UN Internet Governance Forum will be reviewed, and the world could see the rapid spread of new internet domains.

Will there be thousands of new .com-like top level domains (TLDs) in 2009 and will this make the Internet Corporation for Assigned Names and Numbers (ICANN) a rich organisation working its way to the end of the joint project agreement it has had with the United States government since its inception more than a decade ago? This is perhaps one of the easier questions to answer with regard to internet governance this year, as nobody expects at this moment that there are many companies prepared to pay the relatively high ICANN application fee (US$185,000) plus extras to give the much-debated and rather complicated application process for new TLDs a try.

Yet there may be changes for that very process in 2009, a year that is expected to bring several decisions with regard to internet governance topics. For some experts, the positioning of the new US administration is the hot thing.

No Road Back from New TLDs

The introduction of new generic top level domains (gTLDs) in English and other language characters (internationalised domain names, or IDNs) has been discussed for years within ICANN, and a new procedure to introduce the possible competitors to the .com or .cn (China) address zones seemed to come closer when ICANN published its draft guide for applicants for new TLDs in summer 2008.

After having received some 300 answers during an extended public comment period a new draft is expected to be published early in 2009. The Generic Name Supporting Organization (GNSO) recently urged that the second draft be published at least two weeks before the first ICANN meeting this year, in Mexico City on 1-5 March.

Johannes Lenz-Hawliczek, spokesman for prospective applicant dot.berlin, said his company expected the application process to start by the end of 2009, after ICANN has sorted through comments to the planned second draft and has tabled a final one that might be voted on by ICANN’s board during or after the ICANN summer meeting in Sydney on 21-26 June.

This timeline is generally consistent with official ICANN statements about the next steps. If ICANN sticks to it, the application period for potential sponsors of new TLD address zones could start during or after ICANN’s last meeting of the year in Seoul on 25-30 October. Notably, during 2009, ICANN will not meet in the United States or Europe, regions from which a high number of applications for new TLDS are expected to come from.

The amount of criticism has been astonishing – especially from large companies ranging from Rupert Murdoch’s News Corp to Scandinavian toy producer LEGO which are afraid of costly fights for their marks in the new zones. The US Department of Commerce, which has an agreement with ICANN, joined in asserting that demand for new gTLDs has not been proven yet and a study promised by ICANN on the domain market had never been done to support the extension of the namespace on the internet. This led many experts to warn that stopping the process would nurture questions about ICANN legitimacy.

While sources see the chance of a full stop as pretty slim, “continued delay becomes similar to killing it after a while,” warned Syracuse University (US) Professor Milton Mueller. Eliot Noss, CEO of the Canadian registrar and technology company Tucows, said if the time between every announcement of a delay and the respectively proposed start of the application process got shorter – as it did – “then there is progress.” Delays in that process were “nothing new,” he added. Instead, the process had been “delayed for years and years,” he said, and “the closer we come, the more nervous some people get.”

Besides the intellectual property rights concerns, the application fee has been criticised as have attempts to allow objections against new TLDs on the basis of “morality and public order,” criteria that easily could be abused for censorship, according to some.

A dispute looming with regard to the launch of new TLDs is about differential treatment for so-called fast track IDN country code top-level domains (ccTLDs). As a number of countries have already started IDN-only zones, ICANN started the policy process to allow some ccTLDs a fast track start to have for example a Chinese version for .cn, the Chinese address zone. Yet especially registry operators claim that no head start (and potential competitive advantage) should be given to the ccTLDs.

Both questions, objections on the ground of morality and public order and the IDN ccTLD fast track are partly a reaction to the pressure of governments gathered in the ICANN Government Advisory Committee (GAC). It always has been difficult for ICANN not to answer GAC requests – in effect the bylaws ask for good reasoning if “advice” is not taken.

End of ICANN Agreement with US?

In midst of coming to grips with the new TLD procedure, on 30 September of this year the joint project agreement (JPA) with the US government comes to an end and either has to be renewed once again or declared completed. In theory, completion would make ICANN an independent, global self-regulatory organisation – with only dispute resolution providers or the courts being able to formally intervene against decisions concerning domain registries, registrars or users. The JPA is the document regulating the oversight role of the US Commerce Department’s National Telecommunication and Information Administration (NTIA).

While many governments have demanded an end of the unilateral oversight role of Commerce, many also do not really want to see ICANN as completely independent from government control. The request made during the 2003-2005 UN World Summit on the Information Society (WSIS) and now during WSIS outcome the Internet Governance Forum (IGF) calls for equal rights to control what is seen as a critical infrastructure, especially when it touches national parts of that infrastructure.

The US government so far has kept to the position that national infrastructure like ccTLD management and delegation are national affairs, yet that it has a special responsibility with regard to the core parts of the systems being located in the US as the core root zone file operations. As long as there was no global oversight body to devolve that power to, experts say, the question was left open where power should be transferred to. This, says a long time observer like Noss, may not change in 2009, even under a new administration. Nevertheless, the approach taken by the new administration of US President Barack Obama and changes in that approach are, according to Noss, the real key topic in 2009. For instance, US coordinator for telecommunications Ambassador David Gross of the State Department now steps aside after 8 years in the role.

Other nations also are examining digital issues. In Australia, the government is discussing its paper on future directions for the digital economy.

IGF Review and Institutional Competition

Not only ICANN is under review this year, but also its less operational little sister, the Internet Governance Forum, will undergo a process of review this year. The IGF was created by the second (2005) WSIS to allow further discussion on critical internet resources, and on ICANN. The IGF’s primary raison d’etre is addressing the failure to come to an agreement about changes in governing core internet resources like the root servers. But from the beginning the forum that stuck firmly to its mandated “consultation mode” underlined that internet governance was much more than the domain name system.

Access, security and openness of the internet have been the foremost topics of the forum. But preparations are underway by civil society groups like the Internet Governance Caucus or the large IGF Privacy Coalition to put topics like privacy and internet neutrality high on the agenda of the 2009 meeting of the IGF, to be held in Sharm El Sheikh, Egypt from 15-18 November. Members of the Privacy Coalition said that so far privacy had no official discussion place in the systems of the United Nations. The Internet Governance Project expert group considered in their posting about this year’s topics that deep packet inspection – the analysis of header and data of IP packets at an inspection point in the network in order to filter what the actor considers as “non-compliant” material – and net neutrality to be core topics for discussion this year.

But perhaps a topic even higher on the agenda for the IGF is the review and decision about the IGF’s future as an organisation. According to the mandate, the UN General Assembly has to decide about this after five years, which is in 2010. In order to prepare, the tiny IGF secretariat, headed by Swiss diplomat Markus Kummer has kicked off a consultation of IGF stakeholders. Kummer confirmed that there will be several face-to-face consultations of the IGF until September, the first one on 23-24 February. “We will set aside one day to focus on the review,” said Kummer.

After a formal consultation with the IGF participants at the fourth IGF in Sharm El Sheikh, a report on the outcome will be transmitted to the UN Secretary General who will present his recommendations to the UN membership around March 2010. After consultations of the UN Committee for Science and Technology for Development (CSTD) and the Economic and Social Council (ECOSOC), the UN General Assembly is expected to decide about renewal or revocation of the mandate in December 2010, after the fifth meeting of the IGF.

“Some want the IGF to be more,” said Kummer in an interview. “Some like it as a discussion forum as it is.” Privacy Coalition members indeed have asked the IGF to at least publish recommendations. Many government representatives including the United States have continuously underlined the non-decision making character of the forum. Kummer did not expect many surprises with regard to these positions, and while he did not completely rule out that some might opt to let the IGF process end by 2010, he seems not to believe that this can be the case.

“Questions like privacy, questions about the internet of things, or the transition from IPv4 to IPv6 will not go away, even if there is no IGF, “said Kummer. IPv4 (Internet Protocol version 4) numbers used to connect computers on the net for decades are running out, not in 2009 but soon, and questions about how to react is a topic heavily discussed by the five Regional Internet Registries (RIRs) of the world that allocate these numbers.

Institutional Competition and Multistakeholderism

With new topics like the transition to IPv6 becoming more prominent, one also can watch how the ongoing institutional competition is evolving between the various organisations that touch upon internet governance topics.

Some eyebrows were raised for example after a speech by UN International Telecommunication Union (ITU) Secretary General Hamadoun Touré, which included comments about the duplication of discussions on internet security and the avoidance of sensitive topics with regard to ICANN. Touré pointed to the lead role of his organisation on cybersecurity according to the mandate of the WSIS Action Plan. The IGF may focus more on solving the riddle of ICANN oversight.

IPv6 is another issue high on the agenda of internet governance bodies in 2009 as the final depletion of the current IPv4 numbers comes closer. While it is a core issue of the five regional Regional Internet Registries (RIRs), ITU has stepped up several times in the past to present itself as a player in IP address allocation. Now the ITU membership will receive a questionnaire asking for their interest in having allocation of IPv6 numbers to their country organised by the ITU.

A lot of the very questions discussed during the IGF, and in ICANN and RIR meetings might now come up at the ITU’s World Telecom Policy Forum in 22-24 April in Lisbon, Portugal, making it another top event in internet governance (and ITU Telecom World will be held on 5-9 October in Geneva). How decisions from the Lisbon event will shape the IGF discussion further in the year will be watched as will possible ITU discussions on how to adapt its own procedures to a process that has been slowly advancing: Multistakeholderism.

The word’s meaning, shaped by believers in new forms of more participatory governing processes like German academic Wolfgang Kleinwächter, is sharing responsibility and decision-making power. First used in the context of ICANN’s stakeholder’s preparation of policies for the DNS – that often have been overruled by the ICANN board under pressure by governments or the private sector – the concept has made a slow carrier in the UN system and beyond it.

The Organisation for Economic Cooperation and Development (OECD) Council for example is about to decide on a formal integration of civil society (adding a Civil Society Council to their Business Council) into their consultation processes on IT issues. Even ITU is witnessing an initiative driven by Switzerland on how other stakeholders could be made participants in their processes.

This slow rise of the new concept of multistakeholder cooperation that now even government representatives from traditionally less multistakeholder-oriented countries like China do not forget to mention in their speeches at internet governance processes might continue during 2009. Perhaps.