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

24 May 2011

      *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.

--

Alice Munyua

Alice Munyua

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