Special Interests Seeking Power In ICANN’s New Stakeholder Group

The Internet Corporation for Assigned Names and Numbers, which coordinates the global domain name system, is in the process of reforming its core bodies, and consumer representatives and others see a possibility to inject more balance into the international organisation’s stakeholder groups long dominated by a range of private sector representatives.

One of the bodies up for reform is the so-called Generic Name Supporting Organization (GNSO), which is in charge of policymaking with regard to existing – and possibly soon many new – generic top-level domains (gTLDs like .com).

Civil society representatives see the reform as their chance to gain influence in gTLD policymaking as in the new GNSO non-commercial user representatives will hold six GNSO Council seats (compared to three before), as many as large business and trademark representatives (that together had nine before). But now a dispute has arisen over how to structure the new Non-Commercial Stakeholder Group (NCSG).

“Intellectual property rights and big business interests have historically dominated policy making at ICANN, with trademarks trumping free expression rights and privacy rights at every turn,” the chair of the Non-Commercial User Constituency (NCUC), Robin Gross, executive director of IP Justice wrote in a message that asked for comment and support for the draft NCSG charter [pdf] presented by the group. Now, said Gross, there is an opportunity for better balance.

But the proposal presented by Gross and the constituency has been challenged. A small group of academics that wants to have pornography filtered from port 80 (the port mainly used for World Wide Web data traffic) in internet servers filed an alternative proposal [pdf] on how to fill the seats for the GNSO Council seats. The group is gathered around Professor Cheryl Preston of Brigham Young University in Utah, who is one of the main figures in the anti-porn “CP 80” project.

Constituencies, not the plenary, should nominate their candidates, demands Preston, who has been a member of the NCUC for several years. Her proposal also would allow incoming or small constituencies to get on the Council, and Preston has a constituency in mind which is the “Cyber-Safety Constituency” for which Preston and CP 80 have filed a charter proposal to ICANN already.

That charter proposal has attracted a lot of attention. CP 80 Chair Ralph Yarro, who is Chairman of SCO, a company described by Business Week as “most hated” for its intellectual property law suits against the Linux community, is lobbying for it. Yarro wrote in his comment to ICANN: “It is amazing that it has taken so long to add a voice of family values, decency, and children’s rights to the ICANN family.” He said he hoped for ICANN support for the idea.

The proposal from Preston and Yarro has alarmed some internet security technical experts like the former Chair of the Internet Engineering Task Force, Brian Carpenter.

“Exposure to unwanted information of any kind is not in general an issue of safety,” Carpenter said in comments to ICANN. “As a matter of simple logic, no sort of blanket solution can avoid this, except at the cost of suppressing free speech,”

“There is no issue of human safety here,” he said. “Cyber-safety” is a “one-word polemic, and could easily have been coined by [1984 author George] Orwell’s Ministry of Love. The name should not be allowed to stand.”

Former NCUC Chair Milton Mueller said there is no problem with a “cyber-safety” or “CP 80” constituency, “if we adopt the proper structure as proposed in our NCSG charter. In that structure, constituencies are more like affinity groups who get a seat on the policy committee, and they have to work with other constituencies and vote together with all other NCSG members to select Council members.”

The main issue, according to Mueller, is “whether this small minority view can gain a guaranteed Council seat by calling itself a “constituency.” The constituency approach also would lead to fragmentation and infighting, a “waste of time,” in Mueller’s view, especially as coping with the workload on top-level domain issues already is difficult for the non-commercial organisations.

Preston told Intellectual Property Watch that the new constituency “will not and could not change ICANN’s reach.” She was aware of the concerns about ICANN, the technical body, seeing its mission expand into other areas like content on the internet.

Instead, she said, the community only wants to add the perspective of families, parents and cybercrime victims to ICANN’s usual discussion. One example mentioned by Preston was: “with regard to new generic Top Level Domains (gTLDs), the Cyber-Safety Constituency will support the existing ICANN policy that gTLD strings must not be contrary to generally accepted legal norms relating to morality and public order.”

Mueller said he found it inconceivable that ICANN’s Board would choose the Preston/CP 80 proposal over the NCUC majority proposal that had support from 50 non-commercial entities all over the world, while the CP 80 came from one organisation based in the US. Preston rejected that and said there is a list of constituency members and more were invited.

Preston said: “We believe that, if the NCUC is unwilling to compromise, the ICANN Board is very likely to choose the Cyber-Safety Constituency’s proposed charter (for the new stakeholder group).” Their charter would “encourage the growth of new constituencies, instead of silencing them.” Preston said that to disallow direct representation of constituencies would mean that there were not enough chances for minority views and newcomers to be sufficiently represented.

Robert Hoggarth, ICANN’s senior policy director, wrote to Intellectual Property Watch that it was not likely that wider membership did make a difference when choosing from the proposals. “This is an exercise to establish organisational structures under which the community will operate and organise itself,” said Hoggarth. “The proposed stakeholder group charters will be evaluated on their bona fides and their adherence to the GNSO improvements recommendations endorsed by the ICANN Board last year – the characteristics of the individual proponents are not relevant to that discussion.”

Comment Period Ending 15 April

The two proposals for NCSG were different in many ways, for example in how much new bureaucracy they need. At present, proposals for all of ICANN’s new stakeholder groups (including the two NCSG proposals) are still subject to a public/community comment period ending on 15 April after which ICANN staff would produce a summary analysis of those comments for the community and board to review. The ICANN Board will subsequently review and discuss the various proposals. The first possibility for this is 23 April.

Another set of special interests

The role of special interest groups in the GNSO also is driving another current discussion in ICANN. The organisation, in addition to its reform agenda, intends to finish a big chunk of work this year by finalising the application policy for new generic top-level domains and also a fast-track policy version for internationalised domain name country-code top-level domains. (like .de for Germany). After labouring for years to come up with a consensus document in the GNSO, the IP constituency recently came up with another round of concerns resulting in a board decision that the Intellectual Property Constituency (IPC) would be given the opportunity to come up with solutions about how to protect trademark rights in the application process.

Members of the Implementation Recommendation Team include [pdf] 11 IP lawyers, one law professor for civil society, the legal counsels of Microsoft, Yahoo, toymaker Lego, Neustar and Networks Solutions and Time Warner, plus four officers of the ICANN IP Constituency and two ICANN Board members.

Gross in a first reaction to the composition of the group said: “The entire process of the IP-group on new gTLDs has been a controlled exercise of the intellectual property industry, with little effort to include participants who do not already preach the IPR-maximalist dogma.”

She said there was “virtually no information about the team, where it would meet, when it would meet, what kind of obligation one was undertaking to apply. It is largely an exercise of theatre.”

Gross is afraid that the group will come up with draconian measures. “I think it is at best a waste of resources, and taken seriously, could undermine competition and free expression on the internet,” she said.

[“It’s certainly not a balanced group, but that doesn’t mean it can’t come up with something widely agreeable,” said US lawyer and long-time ICANN expert Bret Fausett. Fausett had also asked to be a member of the IRT, but was denied on the reason that there were too many applicants. Fausett said, had the board have pushed for more balance in the composition, “I think the board would have been committing themselves to accepting the output of the IRT.”

Meanwhile, members of the registry and registrar community made a “pre-emptive strike” by publishing a paper about rights protection measures on the second level of the new TLDs to be introduced.

The paper, according to Richard Tindal from eNom/Demand Media, analysed the effects of trademark lists, sunrise procedures and takedown procedures. “Our conclusion is that takedown is clearly the most effective and practical of these methods,” he said. “We find that lists are not workable and that sunrise is also not workable if it is uniformly applied to every TLD in the same manner,” Tindal told Intellectual Property Watch.

This conclusion was the same as was arrived at by the GNSO Working Group on the Rights of Others. The paper would lay out a detailed proposal for inexpensive and fast takedown that would apply in cases where there was very clear infringement of trademark rights.