EC policy papers on ICANN

2 Sep 2011

      http://news.dot-nxt.com/2011/08/31/ec-papers-analysisAnalysis: 

EC policy papers on ICANN

 by Kieren McCarthy | 31 Aug 2011 |

For those that have followed the interplay between the organizations that maintain and evolve the Internet and the world’s governments, this series of six policy papers from the European Commission is likely to provoke the same despairing response: Here we go again.

Together the papers represent a wholesale effort to put governments in charge of the Internet. They would be put in a position to decide how the Internet’s underlying naming structure – the domain name system – expands and evolves.

If the DNS evolves in the right way of course, governments won’t need to do anything, they will let others get on with it. But just in case people decide to do something that isn’t in the public’s interest, then governments will be there to firmly but politely inform them that they are not allowed to do that. Well, that’s the theory anyway.

It’s a mindset that is familiar, but that doesn’t make it any less ridiculous.

The sudden and surprising shift in the EC position follows precisely from the first appearance of the head of its Internet Directorate, Gerard de Graaf, at an ICANN meeting in Singapore in June.

De Graaf caused an immediate outcry when he told ICANN Chairman Peter Dengate Thrush at a public meeting that the conversation between Board and GAC struck him as “a discussion between the deaf and the stupid” (the GAC is the governments’ body within ICANN). He simply could not understand why people would not take his word as fact and do his bidding.

On a discussion over trademarks, De Graaf asked, perplexed: “Why don't you take the European trademark regime and make that the model for the rest of the world?”

During a discussion on competition law, De Graaf chimed in: “I think there is a bit of a misunderstanding particularly about how the ICANN board or the legal counsel how competition law is enforced… we would encourage the legal counsel to continue to improve his understanding of competition law in the European Union.”

Later on, the same mindset: “I find it interesting that the ICANN board members think that they have more knowledge about the competition than the competition authorities.”

There were reports of De Graaf insulting and offending his European colleaguesThis inability to understand why governmental authority was not immediately accepted extended beyond the public meetings. 

There were reports of De Graaf insulting and offending his European colleagues for not forcing change through ICANN. ICANN’s management was also at the end of De Graaf’s indignation. And even the chair of the Governmental Advisory Committee (GAC), Canada’s representative Heather Dryden, was forced to deal with a number of efforts to undermine her authority when she failed, in De Graaf’s eyes, to push through government-mandated changes.

Undaunted and apparently still with the backing of EC Commissioner Neelie Kroes, the policy papers produced by the EC this month need to be seen in that light: as the products of an outsider determined to bring people to their senses whether they like it or not.

Not that the papers do not contain some ideas that ICANN observers will recognize and may agree with. Most have been taken from reports or public comments from others.

One point in one of the six papers argues for the automation of changes at the top-level of the Internet – something registry managers have been requesting for yearsOne point in one of the six papers argues for the automation of changes at the top-level of the Internet – something registry managers have been requesting for years.

It is also suggested ICANN draw up a stronger conflict of interests policy for Board members and staff – an issue that has been hotly debated for several months.

One of the papers calls for election candidates to Board positions to be made public, along with their conflict of interest statements. Greater resources for the GAC are needed, along with higher-level representation and more efficient decision-making processes. And there should be a stronger independent review of ICANN’s decisions and finances. All of these things have been argued for by a large number of people within the Internet community over a number of years.

However, it is the strident tone, the apparent refusal to accept counter-balancing views, to recognize work in progress, or to identify ways to make changes through existing systems, on top of several clear misunderstandings of how ICANN and the domain name system actually functions, that give cause for alarm.

A European statement nearly derailed the negotiationsAll this is like déjà vu from WSIS, the World Summit on the Information Society (2003-2005), a UN process which was characterized by tense inter-governmental negotiations about how the Internet should be regulated. Towards the finale, 

a European statement nearly derailed the negotiations – and diplomatic relations between the EU and the United States – by seeming to support authoritarian governments who wanted more governmental control over the domain name system.

Despite this, WSIS led to the formation of the Internet Governance Forum, and introduced the world to multistakeholder governance – where governments, private sector and civil society, technical and academic communities participate on an equal footing.

Since WSIS, a whole new generation of Internet policymakers has evolved. Through regular contact with others from widely different backgrounds and widely different cultures talking about the same issues, there is an extraordinarily broad understanding of Internet problems from multiple perspectives.

Agreement remains difficult but most recognise that all stakeholders need to have an equal say for the simple reason that policies created that way end up working better online. And, conversely, those that don’t benefit from all perspectives and a broad buy-in, invariably fail.

Ever since, that Class of 2005 has been diligently working on making the “multi-stakeholder model” work properly, and the results of that work can be seen in the fact that the G8 and the OECD recently agreed to use the model as the main means by which they would reach agreement on future Internet issues.

Quite some achievement for a model that’s barely 10 years old and which aims to supersede an inter-governmental approach that has been in place for over 100 years, with a notion of sovereignty that has been in place for over 350.

What stands out in this model however is when a newcomer, almost always from the governmental world, turns up and proceeds to tell everyone else they have gone mad and that they should be putting their foot down. This is the way of the world, the confused newbie yelps, the Internet is no different.

Except of course, the Internet is different. Its most valuable quality – the ability to allow people to communicate simply and directly at almost no cost – does away with the need for many of the previous systems for information. You can view it as a threat, or as an opportunity; it usually depends on how comfortable you are with a lack of control.

ICANN far from blameless

It should be noted that ICANN has brought many of its problems on itself. The organization continues to labor under the false belief that it has people’s support because of the job it does. In reality, it gets widespread support *despite* its actions.

Following WSIS, the staff and Board at ICANN convinced themselves that it was their hard work, cogent views and smart lobbying that had led to governments supporting them. The reality was quite different: governments had decided to support ICANN as the lesser of two evils. Its management was widely mistrusted, and its Board members seen as ideological and out-of-touch, even deluded.

While representatives like De Graaf have one narrative – that governments need to be put in charge and every problem is a reflection of the fact that they aren’t – ICANN has its own narrative to compete with it – we are right, we need to protect ourselves from these efforts to change what we have, and the silent majority support us.

WSIS effectively gave ICANN five years to prove itself on the world stage. Could it become sufficiently internationalized, professional, reliable and self-sufficient to be trusted with managing a critical global resource – the Internet’s domain name system?

For the first three years at least it started down the right path. ICANN’s then CEO Paul Twomey had seen first-hand how close the organization came to annihilation and determinedly set out to fix it. He was, in part, successful. New staff, independent reviews, greater resources, better operational effectiveness, expanded communications. It was far from perfect but it was working and ICANN was becoming more able and professional.

Sadly, that process started to unravel under a new CEO, Rod BeckstromSadly, that process started to unravel under a new CEO, Rod Beckstrom. Rushed into place in order to have a new man at the helm when ICANN signed an historic agreement that gave it autonomy from the US government, Beckstrom had little or no understanding of the geo-political situation and, it turned out, was also insecure, a hopeless manager and a relentless self-publicist.

With a new Chairman coming from the legal field, and with ICANN’s senior staff either edged out or leaving in order to escape the one-man-show that ICANN was rapidly becoming, the organization lost its institutional memory, lost the trust of many of its natural allies, and many of the reforms that were put in place to avoid a rerun of WSIS were left to wither.

As change slowed and ICANN started to believe in its own infallibility again, it was met with an extraordinary series of public letters and speeches from US Assistant Commerce Secretary Larry Strickling 

 lambasting ICANN for its failure to consider government issues. The relationship between the GAC and ICANN was left untended and began to turn sour.

When the GAC finally put down its foot, it was met with indignation and, on occasion, sheer arrogance. Rather than try to fix the problems, ICANN staff started drawing up systems to ignore governments. When it tried to force the GAC onto a tight timeline and through a process of its own choosing, it threw up its hands in disbelief when those efforts 
were dismissed.

As the community began to notice and started criticizing the organization, ICANN fell back into its persecution complexAs the community began to notice and started criticizing the organization, ICANN fell back into its persecution complex and chose to believe that the wider Internet community was behind it, despite mounting evidence otherwise.

But it was when Beckstrom failed to show for the third day of a crucial GAC-Board meeting in Brussels, and Chairman Peter Dengate Thrush attempted to bully representatives from the United States and European Union that the wheels came off the wagon.

Following a further tortuous series of meetings in San Francisco where the Board openly 

stalled a room of over 50 government representatives for two days, and then the next day approved the controversial dot-xxx Internet extension despite strong GAC advice to the contrary, governments took events into their own hands and held their 

 own bilateral meetings, even revealing their dates, agenda, correspondence and releasing select minutes.

The results were inevitable. The US government announced an 

overhaul of the IANA contract from which ICANN derives much of its authority, dismissing ICANN’s request to be handed the contract on a permanent basis out of hand; and the EC sent in its enforcer to remind ICANN that it is only one World Summit away from oblivion.

So where is this all going?

Unfortunately for Internet governance experts, the EC policy papers represent just the latest example of a government or organization deciding by itself what changes need to be made to the Internet’s overall functioning, without taking the time to consult with, or consider the views of, the many other affected parties.

The fact that it comes from the European Commission, which everyone had considered a strong proponent of the current model, will come as a shock, and may bolster efforts by some governments, including China and Russia, to move the Internet into an entirely inter-governmental context.

We understand that EU member states are also furious at what they see as heavy-handed and misguided efforts by De Graaf’s team to force change on ICANN and DNS management.

Fundamentally, the papers derive from a weak understanding of the complexities of Internet governance, having cherry-picked and extrapolated criticisms of the current system without accounting for the broader eco-system.

They also reflect a dangerous arrogance. The problems within the domain name system do not exist within a vacuum or as a result of a lack of energy, forward-thinking or efforts to introduce change.

As the EC will most likely find out over the next 12 months, it is easy to make a lot of noise within the Internet governance world, but it is far, far harder to introduce effective change that works.

alice＠apc.org

Harry Delano

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