[kictanet] ICANN's new gTLD program at a crossroads or the multi stakeholder model?

*http://news.dot-nxt.com/2011/05/18/high-noon-in-singapore * *High Noon in Singapore? ICANN's new gTLD program at a crossroads* by Wolfgang Kleinwachter | 18 May 2011 | To clash or not to clash: that's the question for the forthcoming 41st ICANN meeting in Singapore. Will the booming Lion-City on the South-Asian Peninsula see a Shakespeare drama in June 2011, a shoot out between the ICANN Board and the Governmental Advisory Committee (GAC) to end the nearly 15 years of discussion on the introduction of more generic Top Level Domains (TLDs) into the legacy root of the Internet? *Agree? Disagree? Postpone?* Where we are today? ICANN is committed to start the new gTLD program on Monday, June 20, 2011. Preparations for the Big Party at the Singapore River are already underway. However, Larry Strickling, the US Assistant Secretary of Commerce and member of ICANNs first review team on Accountability and Transparency has expressed serious doubts <http://news.dot-nxt.com/2011/05/05/strickling-speech-giganet> with regard to that timetable during a Giganet meeting in Washington, D.C., May 5, 2011. Unless the GAC believes that ICANN has been sufficiently responsive to their concerns, I do not see how the Guidebook can be adopted on June 20th in Singapore in a manner that ensures continuing global governmental support of ICANN. And, the day before the Giganet meeting, Mei-Lan Stark, Treasurer of the International Trademark Association (INTA) told the Subcommittee on Intellectual Property, Competition and the Internet of the US House of Representatives that INTA has fundamental problems with ICANNs new gTLD program which probably can't be settled before June 20, 2011. On the other hand, Strickling underlined in Washington that the US Department of Commerce sees ICANN as "an example of a successful multi-stakeholder cooperation" and reaffirmed his commitment to the ICANN model "as the best way to preserve the security and stability of the DNS." What will happen? Will we see a shoot out, a last minute compromise, where parties agree to disagree or another postponement? It is not easy to make any predictions. So let's lean back for a moment and put the forthcoming Singapore drama into a historical context. *History Says Something* Fifteen years ago, when Jon Postel proposed to add 150 new gTLDs into the root, there were around 300 million Internet users, less than 30 million domain names and 250 TLDs. Postel's proposal was watered down in 1997 and the mandate to broaden the domain space was given to ICANN in 1998. If the TLD space would have had a similar growth rate as Internet users and registered domain names, we would have today more than 2000 TLDsNow, in the year 2011 we have more than two billions Internet users, more than 200 million registered domains names and 312 TLDs, including the more than 30 TLDs with non-ASCII characters. If the TLD space would have had a similar growth rate as Internet users and registered domain names, we would have today more than 2000 TLDs. The domain name system (DNS) was invented in the early 1980s for less than one million Internet users. Jon Postel, who was behind a lot of DNS-developments, proposed originally six three letter generic Top Level Domains (TLDs) for the DNS tree: three for the US (dot-gov., dot-mil, dot-edu) and three for the world (dot-com, dot-org, dot-net). Only later he had the idea to give also each country a two letter TLD. Trying to avoid to be pulled into a political debate about the question what a country is or not, he used the ISO 3166 list to delegate per handshake to friends (and friends of his friends) the management of ccTLDs. The restriction to 243 ccTLDs and only seven gTLDs (later he added dot-int) was just a practical thing. There was no technical need for this kind of limitation. Nobody could expect, than some day there would be two billions Internet users and more than 200 million second-level Domain Names (SLDs). If Postel would have created the proposed 150 gTLDs already in 1988, nobody would have questioned his legitimacy to do so. *The Domain Name Battle* The domain-name-battle started in the mid 1990s when - after the invention of the World Wide Web -- the Internet entered the commercial space and domain names became a valuable resource. Postel's efforts to introduce 150 new gTLDs in 1996 was blocked by the commercial interests of some new big players in the emerging domain name market: Network Solution Inc. (NSI), which was allowed to charge for domain names under dot-com, dot-org and dot-net since 1993 and which had a monopoly in the gTLD space, was not amused to see its growing business surrounded by new attractive competitors like dot-web. And the trademark owners feared that they will be pulled into an endless and costly battle to save their trademarks in an ever growing virtual space and an uphill battle to fight cybersquatters. In May 1997, Postel wanted to use the ITU, WIPO and INTA to start with the introduction of at least seven new gTLDs (via the so-called IHAC-gTLD-MoU), but the US government intervened and pushed Postel into another process which finally led to the establishment of the Internet Corporation for Assigned Names and Numbers (ICANN) in November 1998. When Postel testified <http://news.dot-nxt.com/1998/10/07/postel-testimony> in the US Congress on October, 7, 1998 he gave the new ICANN full credit when he said: This new organization will be unique in the world -- a non-governmental organization with significant responsibilities for administering what is becoming an important global resource." A couple of weeks later he passed away. *ICANNs mandate and decision making procedure* One of the mandates of ICANN is to introduce new gTLDs. The Articles of Incorporation <http://www.icann.org/en/general/articles.htm> from November 21, 1998, say that ICANN shall develop "policies for determining the circumstances under which new top-level domains are added to the DNS root system." According to its Bylaws, ICANN is a multi-stakeholder platform where policy development and decision making is in the hands of the private sector. Governments have no voting seat on the ICANN Board, they can use the Governmental Advisory Committee (GAC) to make their voices heard and they can give advice to the board on issues related to public policies. However, the advice has no legally binding power for the board. Ira Magaziner in the White House, Becky Burr in the US Department of Commerce, numerous experts and Mr. Jon Postel himself introduced this private sector led modelThis special construction in ICANNs architecture was done intentionally by ICANN's founding fathers and mothers. Ira Magaziner in the White House, Becky Burr in the US Department of Commerce, numerous experts and Mr. Jon Postel himself introduced this private sector led model for an internationalized mechanism as an experiment and an innovation into the political landscape to preserve the bottom-up dynamics of the Internet development, to stimulate further economic growth and the establishment of new jobs by avoiding the emergence of complicated, politicized and costly governmental structures for Internet control and oversight. The establishment of the GAC-ICANN Board mechanism remained rather unnoticed in the broader public for a long time. However it was indeed an incredible innovation in global politics. Normally governments take advice from non-governmental stakeholders, they are the final decision taker, they oversee activities of non-governmental entities and they intervene top down, if needed. In other words when the US government proposed this private sector leadership model with multi-stakeholder participation and an inclusive, open, transparent and bottom up policy development mechanism it took a risk and it could not be sure whether other governments would be ready to accept such a mechanism. But Australia, Japan and Canada were behind the proposal from the very beginning. And when the EU Commissioner Martin Bangemann wrote a letter to US Secretary of Commerce William Daley with the assurance that the EU supports also the US initiative, the deal was done. The first GAC Communique <http://news.dot-nxt.com/sites/news.dot-nxt.com/files/GAC_01_Singapore_Communique.pdf> in its very first paragraph stated clearly: "The national governments endorse the principles of the creation of ICANN". However, only 25 governments, multi-national governmental organizations and treaty organizations (including the ITU and WIPO) participated in the 1st GAC meeting in Singapore, March 1999. *ICANN Board-GAC critical relationship* As long as the ICANN issues were rather technical by nature, nothing was wrong with the advisory role of governments. The only case, which created some tensions, popped up in the year 2000 when governments wanted to reserve their country names in the new dot-info gTLD. The board rejected the proposal by arguing that governments do not really understand how the DNS is working. They should be more specific in their advice and give a concrete list with the names they want to reserve because there are endless variations of country names in different languages which all could be registered (or blocked). Anyhow, this case triggered a discussion in the ICANN reform process in 2002 about the introduction of some more detailed procedures for the interaction between the Board and the GAC which now includes the need of the Board to explain why it rejects a GAC advice and the option to have formal 'consultations' between the ICANN Board and the GAC if both sides can't agree on issues which have a public policy dimension. Nevertheless it remained unclear to a certain degree what in legal terms 'GAC advice' means in an ICANN environment. Also under the reformed bylaws, the final decision making capacity remained in the hands of the ICANN Board. *Growing governmental awareness after WSIS* A new awareness among governments about their role in ICANN emerged after the 2nd phase of the UN World Summit on the Information Society (WSIS) which, more or less, recognized and strengthened the ICANN model. This coincided with the efforts of the ICANN Board to move forward with its new gTLD program. Governments discovered soon, that new gTLDs are much more than a purely technical resource and that TLD-strings can have a lot of political, cultural and social meanings. The dynamism of the process was suddenly confronted with the dynamite of the combination of letters in a top level domain. Governments started to list the public policy issues involved in the new gTLD program: geographical names, religion, culture, moral and public order (the famous MOPO). The Board had, for a long time, no problem with a more active GAC. On the contrary it welcomed GAC advice. The so-called GAC principles on new gTLDs from 2007 were seen by the ICANN Board as a helpful guideline. But like always, the devil is in the detail. The real interaction between the ICANN Board and the GAC started only recently when it became clear that the moment of truth is approaching. The problem both sides discovered was that they did not have only different ideas about different issues but they had also different working methods. That was not really a surprise but it did introduce additional barriers for forward-moving communication. Additionally the two parties discussed the proposed versions of the DAG on different levels: among the GAC speakers the lawyers became the most outspoken group. They referred to the 190+ national jurisdictions and the relevant decisions of national courts which had to be taken into consideration when ICANN wants to introduce new gTLDs, while on the ICANN side, the technical and financial experts concentrated on technical criteria and financial hurdles -- unreachable for many applicants from poorer countries or from local administrations even in richer countries -- which fueled the controversial tone in the debate. It was probably Bill Clinton's speech <http://news.dot-nxt.com/2011/03/17/clinton-speech-at-icann> in San Francisco in March 2011 when he described Internet Governance as "stumbling forward" which changed the tone again and paved the way for another efforts to build bridges. *Risks are high on both sides* Now the stakes and risks are high on both sides. If the GAC would move into a position to dictate to the ICANN Board what to do, this would mean the end of the multi-stakeholder model and introduce a regime of state control over the Internet with all the options for governmental censorship and surveillance. On the other hand the same result could emerge when the Board ignores the GAC. Governments could become furious and look for alternative mechanisms to exercise power over the Internet, probably via the United Nations. And if nothing happens, if the new gTLD project is again postponed to ICANNs 42nd meeting in Dakar in October 2011, the Internet community would lose its remaining trust into ICANN and the multi-stakeholder model. A political innovation, introduced in 1998, would be buried in the fire of misunderstandings, frustrations and incapability to find a solution. This could trigger a search for alternative models and pave the way towards a fragmentation of the Internet. Insofar as the endgame around the new gTLD program is not a zero-sum game, with winners and losers. Either both sides will win or both sides will lose. *A "sliced approach" for the devil's paragraphs?* How to move forward? Here is one option that could be called upon if discussions really get deadlocked: salami-tactics, a "sliced approach". There is a general consensus among all parties to move forward and introduce new gTLDs (sooner or later) and the only remaining barriers are the red-marked scorecards. If consensus cannot be reached quickly on the scorecard issues, one approach could be to cut the package into two parts and move forward at different speeds on two levels. The final version of the "Draft Applicant Guidebook" (DAG) could be adopted "in principle" while at the same time the five to seven remaining paragraphs, where the devil feeds the fire, could be put temporarily into so-called "brackets". ICANN would not move from, DAG 5.0 to DAG 6.0 but to DAG 5.1. Based on such a basic agreement one could do two things at once: 1. start the process with all those strings which are not touched by the devil's paragraphs and do not have the potential to create any type of controversy (this could be a group of about 50+ new gTLDs) and move forward with this 1st basket of uncontroversial applications in Singapore and, at the same time, 2. continue negotiations among the involved parties to remove the brackets from the devils paragraphs as quick as possible, hopefully until the 42nd meeting in Dakar, October 2011 which would than open the door for applications which would go into a 2nd basket. This would certainly need some more bilateral consultations and compromises from both sides, but if it does come to an impasse, it would demonstrate that ICANN and GAC are able to act, to manage controversies and crisis moments if the diplomatic clock moves towards midnight. It would also not create too much damage and different treatment because the process for the first basket would not come to a final end -- the signature of registry agreements -- before the brackets have been removed from the DAG for the 2nd basket so that needed adjustments for the first group could be made before the signing ceremony. *Need for Confidence Building Measures* Erika Mann, a new ICANN director with 15 years of experiences in the European Parliament said in San Francisco in the debate on the new gTLD dot-xxx that life is not without risks. If you (and ICANN and the GAC) try to avoid any risks, it will freeze the status quo. And indeed neither a DAG 8.0 nor a DAG 9.0 could clear all the legal and financial details which could appear within the next 50 years in the unknown territory of the domain-name space. There is a moment where you have to put aside your doubts and where you have to jump, being aware that after landing there is probably another issue you have to deal withThere is a moment where you have to put aside your doubts and where you have to jump, being aware that after landing there is probably another issue you have to deal with. Such risk-taking works only in an environment of mutual trust. This raises obviously the question: how can trust between the ICANN Board, the GAC and the ICANN community can be enhanced? What could be sustainable confidence building measures in this field? This is obviously a good agenda item for forthcoming ICANN and GAC meetings. Multi-stakeholderism can be best describe by a circle. In the multi-stakeholder model there is no formal hierarchy. All partners are needed and have to make a contribution according to their specific role. There is an interdependence among the various stakeholders. One can't live without the other. And also here Jon Postel's philosophy "Be conservative in what you send; be liberal in what you accept" is a good guideline for all stakeholders. If all stakeholders in the Internet Governance circles concentrate on substance and give up procedural power games, there is chance the crisis we are facing now will end with a solution which will strengthen all partners. ICANN can demonstrate that it is able to deliver; the GAC can show that it is able to protect the public interests and the community can experience that the decision makers are able to move forward. *Remember the Legend of Singapore* The interesting side effect of the controversial discussions of the last two years is that new procedures, a new discussion culture, new forms of interaction have emerged as a result of the "tit-for-tat-battle". If this controversy leads to a positive result, the used methodology -- from joint ad hoc working groups and informal meetings to public comment and scorecards - could become a blueprint how conflicts in the future can be channeled. It could become a best practice model for how governmental and non-governmental stakeholders can work hand-in-hand to the benefit of the global Internet community by putting aside individual interest and serving the public. Such a model would influence also the discussion in the IGF, the United Nations, the ITU, the OECD, the Council of Europe, the G8 and G20 which all are dealing now with Internet Governance issues. Probably, both the ICANN Board and the GAC can get some inspiration from the legend around the establishment of Singapore. It was in the 14th century, when a young prince from Sumatra, called Sang Nila Utama landed at the shores of the peninsula. One day, when he inspected the jungle he met a huge lion. This was a critical moment for both sides: would the lion eat the prince or would the prince kill the lion? What happened? The legend tells us that the lion looked sharp into the eyes of the prince and the prince looked even sharper into the eyes of the lion. And then, after a critical and tense minute, both the lion and the prince turned silently around and moved away. The lion disappeared in the jungle and the prince went down to the sea, established a city and named it Singapore, the Lion-City. By the way, historians have found out, that there are no lions in the Singapore jungle. It was probably a tiger. So go ahead and enjoy your Tiger Beer at the Singapore Riverside. But please don't ask who plays the lion and who the prince in the forthcoming 41st ICANN drama. --