It is going to be a particularly crazy year in terms of Internet policy and governance, maybe even more than so than 2005, when the World Summit on the Information Society happened.

NPR used the launch of the new gTLD program last week to cover the other big issue – actual governance of the Internet. The slow build up of pressure to again try to bring the Internet under United Nations control is going to let out another big blast of steam this December in Dubai at the WCIT meeting when governments – and only governments – try to rewrite the ITU’s International Telecommunication Regulations (ITRs) to incorporate the Internet. It will be a big fight and I’ll be heading over there to shine as big a spotlight on the weird world of inter-governmental politics as possible.

Anyway, I was interviewed as was Super Rod of ICANN and David Gross – who was the US’ main man in charge during the WSIS negotiations. You can read the piece online, but it was designed for radio, so listening is much better in this case.

Download MP3 of NPR piece on Net governance

It’s a good piece considering the complexity of the subject and the length of time available.

Which reminds me – I *really* need to write a couple of pieces about what is going on with WCIT. It’s vital that something akin to the outcry over SOPA – albeit much more diplomatic – is generated to try to protect the Internet as it exists today, and keep it out of the hands of government representatives who view lack of control as something inherently dangerous.

Quick update: Ha! I see that the bad journalist posing as an academic, Milton Mueller, has taken huge exception to the fact it wasn’t him interviewed for the NPR piece and has written a rambling, bitter post about it. Internet governance is a very silly little world sometimes.

I wrote an extensive review of the dot-jobs saga earlier this week on .Nxt called: The case study that could kill ICANN.

This afternoon, I saw the Stephane van Gelder had referenced it in a blog post: What ICANN is doing wrong.

I wrote a lengthy response to Stephane’s post, but for some reason it repeatedly could not get past his anti-spam mechanisms. Having spent a little bit of time writing a response, I figured I would post it here instead. It’s below:

————

I think you’re being a little unfair to me. It is relatively easy to follow the article, even though the process itself was a little convoluted.

But anyway, this is the real problem: a very large number of people now know exactly what has happened and how bad it is. But what will happen? How will anyone be held to account? Will anyone even admit publicly that this is an example of poor governance?

Even if you were to raise it as GNSO Chair at the next ICANN meeting, you would likely be shouted down or told it is not in the GNSO’s remit, or be put under enormous peer pressure to keep it out of the public sphere. You’d probably be offered a private briefing. Anything to prevent the taboo being broken.

The best anyone can expect is that some Board members will dig into the issue.

And in response they will be told by the staff that some of the criticisms are valid, but they are old news and have already been dealt with. We have already moved on.

Then they’ll be told that there are inaccuracies in the article (but won’t go into too much detail over what they are because they’ll be very minor). And let’s not forget this was written by Kieren McCarthy [insert some slur].

Some weak reason will be given for the delays and the redactions and there will be a promise to do a review, or point to an ongoing review, or some kind of related delay tactic.

And then it will be pointed out that this is really a minor issue and ICANN is dealing with so much at the moment that some things are bound to slip through the cracks…

If a Board member continues to push, they will find themselves under pressure by other Board members: why are you pushing this so hard? Their motives will be impugned and they will find themselves given the cold shoulder by staff. They will find themselves being briefed against on the Board and in the community (and there are a few Board members that can testify to this).

Basically, everything will be thrown at the issue in order to avoid hard questions being asked, and real explanations being extracted.

Once it has then become far too big an issue, the Board members will get their secret apologies and promises to improve and be made to feel as if they have done their job.

But at that stage, they certainly won’t want to embarrass the staff or ICANN: that would only aid the organization’s enemies, and it would only encourage people to do-down the organization. So no one will say anything publicly.

And then you’ll find that absolutely nothing changes.

And when no one follows up on the lack of change (because it was never written down or made public), the impact will be to reinforce the reality that there is no actual accountability.

Now, the staff are not *bad people* – I worked there for years and have a lot of respect for them and the job they do: they work hard, deal with a lot of stress in a complex situation and they keep a smiling public face despite it all.

However, over time the wrong culture has developed and it is *that* which is demonstrated time and again in this dot-jobs issue. When you add up all the small, wrong decisions being made for the wrong (self-serving) reasons, you are left with a pretty poorly functioning organization.

This is why the calls for improved transparency and accountability continue to cry out, again and again, year after year. You can’t *make* ICANN do anything. And those that have been there the longest know that.

So they continue to do what they think is best, and they develop a raft of defense mechanisms for when people tell them they have got it wrong.

Until ICANN is forced to admit it is wrong on occasion. Until someone is publicly disgraced to set as an example for what is not acceptable. And until ICANN recognizes that the longer it keeps screw-ups ‘in the family’, the more this damaging culture will be reinforced, nothing will change.

That change can only come with a new CEO. And whoever takes over in July will have to constantly focus on the culture issue if they are to impact it because it is so entrenched in key people. Will they have the time and energy to fight that battle when there is so much else going on? Probably not.

So how do you fix an institutional problem? It’s not that hard in reality.

First, you stop making excuses and acknowledge that there is a problem.

And then you hold a proper public review of yourself where the truth, warts an’ all, is allowed to come out.

That is what happens in properly functioning democracies – the unpleasant truths are pulled out in public. And things are always better off as a result.

I’m not holding my breath though.

We’re heading to the UK for Christmas. I’ve been meaning to try out this online video/picture tool at Animoto for work reasons. The two combined…

I need your help. And I am counting on you and the power of the Internet to fix an issue dear to my heart.

I have a gorgeous 1966 split-screen VW camper van. And rather cruelly I have left it on its own for basically a year at my mother-in-law’s house because the practicality of having it in the heart of San Francisco is not great (plus we never use our other car anyway).

To cut a long story short, I was starting up the van every few weeks, and asking my mother-in-law’s husband to do the same. But, inevitably, the frequent start-ups lapsed for about three months and when I next tried to start her up, she refused. I thought it was the battery, so I got a man from AAA out to start her up – he said the battery was fine and drove off. The van hasn’t started since.

So today – finally – I decided to have a big stab at getting the van started. I bought some petrol/gasoline to top up the tank (it was low); I connected my portable jumpstarter to the battery to get it to kick in; I even give the top of the carburetor a tap in case the float valve was stuck. To no avail, the van won’t start.

I recall once when this happened when I was living in LA, a wise old mechanic turned up and told me about a trick to add a small amount of gasoline to the top of the engine (where, I don’t know) and that would help it kickstart itself. I have searched online for this tip and found nothing.

This is where you come in. I recorded my efforts to start the van. And I’ve posted the file here. What you can hear is me turning it on next to the engine, leaving the device (my iPhone), going to the van, starting it up, turning it off, starting it up, turning it off, a car driving by and me returning to the engine.

I just know that there are plenty of people out there that will know *exactly* what this sounds means. And I am trying to find just one of them. So please help me out and link, post, whatever this to anyone who has some VW know-how. And you will get a very appreciative Kieren.

Why not just go to a garage?

1. I’ve got to get the van there
2. Most garages these days have no idea about old vehicles like this
3. I want to fix the issue myself – a big part of why I have the van in the first place

So come on social media / Internet / humankind – help me out.

You can download the MP3 here.

I am both happy and depressed to see a public comment period open at ICANN talking about making changes to ICANN’s public comment period process.

With appalling inevitability, everything about the comment period highlights the problems that exist with the public comment period process. No one really knows about it, and it’s not being promoted anywhere. The text talking about it is indecipherable. The main thing it is about comes as a hefty PDF report that no one will read. The report itself was put together by a small group of people who didn’t engage is any useful effort to dig into any data, evidence or information.

Very few people will respond. Those that do will not have their comments listened to. There will be no follow-up. And the end result will be that ICANN convinces itself that actually the comment period process isn’t that bad after all.

I was working on this issue *five years ago*. And the only thing that has changed is that the comment period page is now in pastel colours.

But…

I swallowed all that frustration and just sent in a comment (the first but hopefully not the only one) in a pathetic attempt to actually help. It is, I think, positive and helpful. I expect it to be partially read and then ignored. And for the complaints about the process to start up all over again in two years’ time. Still, you’ve got to try.

Here’s what I sent:

Some thoughts on improving public comment periods

Hello,

I’m pleased to see some progress being made with respect to improving the public comments process – something that has been a bone of contention for all stakeholder groups for a number of years now.

I read the Focus Group report with interest and I have a few responses which I hope ICANN will reflect on and consider.

I have been a follower and observer of ICANN for many years and have spent a lot of time considering how to involve people more in the organisation’s processes, particular in my role as general manager of public participation for ICANN for nearly three years.

1. The current suggestions look unlikely to solve many of the problems that sparked this review in the first place. You may well find that months of hard work amount to only a small incremental improvement and continued complaints if you don’t reflect on the underlying issues that have led to suggested specific changes.
2. The suggested topic categories are a good example. They are all extremely ICANN-focussed and are focussed on issues that are current ICANN priorities.

   Those priorities will change in just a few years, necessitating the need for more categories, and causing some categories to fall into disrepair.

   The categories also act as a barrier to engagement – they are too precise. Someone who isn’t already highly versed in the ICANNese is unlikely to browse them, or understand what they mean. You are making it less likely that people will comment.

   The idea of specific or exclusive categories is also likely to be a problem, especially when there is a crossover on a subject – which happens frequently.

   I would strongly suggest that ICANN consider the use of GENERIC TAGS to help identify different comment periods. Tags would enable you to flag a given comment period as being relevant in one or more areas. And using more generic subject areas will help with a broader understanding and identification of what a particular comment period is about.

   This approach will work better, mean more and last longer that the current category suggestions. Here is a suggested list that would cover just every about comment period ICANN produces:

   • Top-level domains
   • Second-level domains
   • Security
   • IP addressing
   • Internet governance
   • Reviews & Reports
   • Policy processes
   • Internal issues
   • Legal issues
   • Events & Conferences
   • Openness, Accountability and Transparency
   • Finances
3. It is very disappointing to see the issue of prioritization raised and then rapidly dismissed as “being too subjective”.

   This is a dangerous way of making improvements to a system – to put out a specific suggestion and then walked away from it if there isn’t agreement.

   What that approach fundamentally misses is the *reason* why the idea of prioritization cropped up in the first place. It is because everyone has a difficult time seeing and understanding the relevance of a particular comment period to them.

   People just see a list of comment periods, and then even if they dig into each one, it is hard to tell how important it really is. Or at what stage in the process it is. Or if this is the best time to comment (are people still looking for new ideas, or comments on specific ideas?)

   The simple fact is that some comment periods are of greater relevance to a larger group than others. And some comment periods have significant implications that can be easily overlooked. Until there is a determined effort to address that, the problem will keep coming up again and again.

   Yes, rankings may be subjective but that doesn’t mean they aren’t enormously helpful. Something can often be better than nothing.

   And if you went through a list of current comment periods, it’s likely that nearly everyone would agree with the level of importance for any given comment period – except in special cases when people would also be able to say “well, this one is of particular interest to me because…”

   There are other options too. Some suggestions:

   • Put an initial rating of importance on a comment period and then allow community members to add their own rankings. That way the community decides its own level of importance.
   • Use stars rather than words (low, high etc)
   • Use highlighting tags e.g. if a “G” is added it means it is of particular importance to a General audience. If an “Ry” appears, it is of particular interest to a Registry, and so on.
4. The same problem appears with the Reply Cycle idea – don’t get bogged down in finding problems with every possible configuration. And try not to look at it through the eyes of the current system. If you do that – and there is plenty of evidence in the report that that is exactly what happened – then you’ll never made any useful progress.

   What needs to be looked at is the fact that the comment periods are unnecessarily static. A document is posted. Comments are sent in. A summary is produced. Changes are made. A new document is put out.

   In the Internet era we are all used to jumping in with comments and interacting in near real time on particular issues. The ATRT suggested a reply cycle because it was the simplest method of introducing a concept – that comment periods need to be more interactive.

   The most important aspect with this Reply Cycle idea is to make sure that what you end up with does *not* include in it arbitrary rules. The idea is to allow people to go back-and-forth a little bit; not to force people to respond in the correct way at the correct time, or to create a one-size-fits-all solution.

5. Re: technical improvements to the software/approach. Some good thoughts here. But beware the use of wikis.

   There are those who think wikis are wonderful. And those who will have nothing to do with them. I think you should experiment for some months before going any particular direction to avoid future arguments.

   As a sidenote: the report says: “Due to the fact that a threaded discussion environment has never been deployed at ICANN for Public Comments…”

   In fact I ran a successful test of a dynamic forum for ICANN which broke a comment period out into different components and had threaded conversations about each part. Ask the ICANN tech team what the software was called. Ultimately, it proved popular and looked promising but no one followed through with the idea.

   Part of the reason for that – and this is what I am warning about in general here – was that people were quick to think up and run through potential and future concerns about changing the current system. This is especially common in the ICANN environment.

   It is very easy to weigh a list of possible problems too heavily against all the future benefits that will accrue. And it is all too easy to overlook significant shortcomings in the existing system just because people have grown used to it.

   Especially in something as moving and transitory as a comment period, it is an ideal opportunity to try out different things. Unless you manage to create a system that actively prevents people from commenting, then you have already hit the current comment period baseline and while people may gripe about changes, they will be able to achieve exactly the same, so don’t let fear of change guide efforts to improve the system.

   One suggestion – you need to find a way to allow people to note they have commented with one click (this is now extremely common with software and posts on Twitter and Facebook). This would draw in others. And there needs to be a quick and easy way to see what others have said.

6. What is missing from the work done so far is any changes to how comment periods are actually run by staff.

   At the moment, staff – who usually have the broadest knowledge of the issue that is out for public comment – have a very passive role. They post the document, then summarise comments at the end, and then try to figure out how to make changes to the document as a result.

   Seeing as public comment is *the* key point where work and ideas start to gain broader acceptance and awareness, it will most likely be in everyone’s interests if staff took on more of a facilitator role wrt public comments.

   It is not hard to drum up interest. Staff (and the GM of Public Participation) could easily use email, Twitter, Facebook etc to highlight that a comment period will soon be opening, and highlight aspects of that comment period that would spark interest.

   You could give a particular comment period its own hashtag – that would spark debate. You could run a discussion forum on the ICANN Facebook page – everyone already understands how that software works and won’t blame ICANN for it. Think positive engagement. Staff could email and actively engage the people that they know and meet at ICANN meetings.

   Staff could also elicit questions and provide answers while the comment period is going. And encourage people who are focussed on the same point to go away and come back with a short summary of their discussions before the comment period closes.

   This facilitation role would have a huge positive impact on any comment period. But it does need to be an active consideration. Having a slightly improved comment period system will not tackle the root problem – which is that people are busy and they aren’t sufficiently encouraged or enthused to bother to comment on every ICANN document.

   This would be a huge – but positive! – shift in staff behaviour so it would need to be carefully and professionally introduced as it would inevitably be met with suspicion and defensiveness. But I have no doubt whatsoever that the rewards would be enormous.

7. Another thing that ICANN really needs to consider is explicitly giving greater priority to particular respondents. Or at least breaking out different respondents.

   It really is a no-brainer that if a supporting organization or advisory committee sends in a response then it should be taken more seriously. This is for the simple reason that these are the structures of ICANN itself that are designed to filter and raise issues.

   Likewise, a party that is directly impacted by a decision can expect greater consideration than a party which is not.

   If someone posts anonymously, that is fine, but they should also generally expect it to be given less weight than someone who is prepared to state who they are and who they work for. ICANN is deciding policy rules, not holding a music festival.

   As to the obvious concern that good material or intelligent responses may be lost through this process (which they already are being through the current system); again, a simple system of community rating – allowing the community to identify its own priorities and valued responses – would not only help flag up particular posts but it may also people to reach a general consensus in public and through a comment period – which is what the whole point of comment periods should be in the first place.

I hope this feedback helps. And I hope you will start making positive changes straight away by responding to this comment period response and/or explaining where and when the ideas were considered and accepted (or not accepted) and the reasons why either way.

That would make me feel that my efforts had been worthwhile and it would encourage me to respond more in future. If you set up a system that does that for every poster before you know it, people may get some real value from commenting on ICANN’s work.

Thanks

Kieren McCarthy

One of the more bizarre situations I have found myself in while covering domain name system overseer ICANN, both outside and inside the organization, was at the Vancouver meeting in December 2005.

It was a particularly difficult meeting. For one, ICANN was under intense scrutiny because it was about to sign an extension to the dot-com contract and literally no one outside Verisign and the ICANN Board liked it. But secondly, it had come to light that the US government, under pressure from right-wing Christian groups, had pushed the Board very hard to *not* approve the dot-xxx contract.

The Board was planning to approve dot-xxx on the last day of the meeting, but had a sudden change of mind and put it off until the next Board meeting. There was all manner of behind-the-scenes shenanigans as the very worst of ICANN came out and it made important decisions in secret, and then spent huge amounts of time and effort trying to make it look like it hadn’t. No one bought it and there was a lot of anger.

Rumours

In the middle of all this, I heard a rumour that the ICANN Board had been receiving threatening emails and faxes over dot-xxx, so I started digging into it. Whereupon I discovered that someone had been faxing the venue hotel with threats. And soon after managed to get hold of a copy of a fax sent from one Grahame Darcy in Florida which specifically focussed on Board member Mike Palage (who, for some reason Mr Darcy thought was called Michael Palach).

Mike Palage had been a consultant for the dot-xxx application in the first round of gTLD expansion, when it failed. He had also been instrumental in bringing on board Stuart Lawley who then carried over the dot-xxx application to the second round and who, incredibly, finally managed to get it approved five years later in March 2011.

Stuart Lawley was there in Vancouver and just to add to whole thing, had just received a large pile of FOIA requests from the US government over the dot-xxx application and was sifting through them.

Among the most damaging revelations were emails that showed: ICANN CEO Paul Twomey colluding with GAC chair Sharil Tarmizi to encourage the GAC to say ‘No’ to dot-xxx; meetings at the White House between right-wing Christian groups and member of the Bush Administration over dot-xxx; pressure from the White House to the Department of Commerce; pressure from the Department of Commerce to the ICANN Board; and what appeared to be members of the Bush Administration providing personal contact details to the Christian groups of the ICANN Board members.

I wrote up most of a story outlining how the ICANN Board was not only under pressure from the US government but was also received threats from US Christian nuts, and how those nuts may have been given their contact details by Bush Administration officials. And then I asked ICANN for comment before I published.

Odd meeting

Whereupon, shortly after in the press room at the Westin in Vancouver, I was confronted by ICANN chairman Vint Cerf, General Counsel John Jeffrey and Board member Mike Palage who sat down and started trying to pressure me not to publish the story.

In fact, for reasons I never fully understood, Mike gave me what were, frankly, juicy details that would bring the story to life. He told me that not only had he and the others received the fax that I had but that a man had hand-delivered a copy of it to his wife and child at his home address in Florida and, to be honest, he was a bit freaked out by it.

I wished I had recorded the meeting because my recollection of it is faded and I have no doubt the others would remember it differently. But here is what I remember:

I basically outlined the story I had half-written, whereupon Cerf’s and Jeffrey’s faces grew darker and darker. I then asked if they had any comment or if there was any element of it that they felt wasn’t true.

I got a pretty angry response questioning my motives and my professionalism and was told it wasn’t a story. Whereupon, I said whether it was a story or not was pretty much up to me, and if it wasn’t a story how come they were all in the room? Vint calmed down and then asked me to consider whether publishing the story would only give publicity to people who were making threats.

I recall I said I would consider it, at which point he turned to John Jeffrey and said angrily: “I told you it would be a waste of time talking to him.” I decided, perhaps unwisely, that this was the best time to ask if he was aware that the Bush Administration officials had been providing his contact details to right-wing Christian groups. Vint reacted by flicking his Google card at me across the table and exclaiming that his contact details were all over the Internet.

And with that I said I would consider their plea not to publish the story, and they walked out in a grumpy mood.

Decision and message

So my final decision was not to publish the story. And I had a look for it this morning to see if it had survived the three laptops since then – it hadn’t. What I do have though is the original fax sent to the Westin from Grahame Darcy, so I’ve transcribed it and posted it below.

Why didn’t I run with the story?

Because, frankly, I *didn’t* want to give the people who were sending threatening emails and faxes any publicity. Especially when they were turning up at people’s homes and intimidating someone’s wife and child.

Was the story in the public interest? Not really. And this wasn’t a really big story. ICANN is, and remains, a little niche world and I was used to dealing with topics that had far wider and more important impact on the world.

The atmosphere was also so oppressive already that I thought it would only serve to make it unbearable – and all for the sake of a story. And of course the truth was that I had a rack of about another five stories ready to go, all of which would cause me far less hassle, take less time and so earn me more money (I had flown from the UK and had a hefty pile of expenses I needed to cover before I even made a profit).

What is interesting on re-reading the fax five years later is that it doesn’t seem that threatening. It is clearly a bit mental, but could easily be from one of the many, shall we say ‘passionate’ members of the Internet community. In the atmosphere at the time though, combined with the fact that I had found out that Grahame Darcy was one of the right-wing Christians that was hounding ICANN, rather than just an over zealous member of the community, I decided against it.

I’m still in two minds as to whether it was the right decision.

Anyway, now that dot-xxx actually exists in the root I figured it was a good time to put this little piece of history out there. Below is the fax. It was sent from a Kinko’s in Florida. I did track down the exact address but I don’t recall it now.

To: Michael Palach

Cc: Vint Cerf, Paul Twomey, Suzan Crawford, Mouhamet Diop, Hualin Qian, Thomas Niles, John Jeffrey, Diane Shrouder

Subject: Michael Palach, taking his baggage to Vancouver

I have become increasingly aware of a growing concern in the community regarding your alleged involvement with .XXX. I believe there have been questions in the past about your on-going relationship with AFlLIAS but your alleged jnvolvement with .XXX brings your credibility into the permanent spotlight this time.

As a Board member of ICANN do you think the “Consulting” to .XXX and its associated companies or even advising its directors and major stake holders is appropriate behavior for an ICANN Board member?

Could it be that these associations could bring the Board into disrepute?

You appear to come across as a family man with strong family values, so why the association with the .XXX movement?

By appearing to have a foot in both camps, your motivations are questionable.
Part of ICANN’s charter is to promote fairness and transparency; this does not appear to be your mantra.

Now you have left the warmth of Florida and traveled to your winter meeting in Vancouver I suggest you ponder these questions and respond. The community eagerly awaits a full explanation.

Could I be forgiven for assuming that you’re traveling on an .XXX ticket to Vancouver and not that of ICANN?

Regards

Grahame Darcy

Sorry to always be harping on about ICANN; it’s the not exactly the most important organisation in the world. But it is the one bureaucracy I have come to know really well and so just can’t help but rail against all the things that infuriate people the world over when they come up against unthinking bureaucracies.

I just saw a tweet from some bloke talking about outreach efforts by the GNSO. Since it was my job for a number of years to engage people in the ICANN processes (often despite those already involved), it was intriguing to see that a report has been produced that is now out for public comment about exactly how to do this. This might be one of the those times where ICANN actually impresses.

The work began in January 2009, so they have had over two years to get this right. And the result is… absolutely horrifying.

How do you engage people? Well, the first thing you *don’t* do is begin the document with a long explanation about the process you followed to get to the report. And fill it full of acronyms. This is, literally, the first paragraph:

The ICANN Board Governance Committee (BGC) created a working group (the BGC WG) to consider the results of the reviews and recommend a comprehensive proposal to improve the effectiveness of the Generic Names Supporting Organization (GNSO), including its policy activities, structure, operations and communications. This BGC WG produced a comprehensive set of recommendations: the “Report of the Board Governance Committee GNSO Review Working Group on GNSO Improvements” (hereinafter the BGC Report) that were approved by the full Board in July 2008.

If you ever wondered why there was a need for outreach in the first place, it is rather neatly encapsulated in this opening paragraph: who the hell would want to get involved in an organisation that promotes its own lingo and processes above all else – even when a report’s entire focus is on reaching out to others.

That’s just the start. But I won’t go on because, frankly, what’s the point? It’s a complete dog’s dinner full of management speak, vague nice-to-haves, and plans for action that could have been drawn up on a bar napkin in five minutes 24 months ago. But here is the most stark reminder that the people inside of a bureaucracy are the absolute worst at recognising what they need to do to pull in outsiders:

The report has two sections of recommendations. Just two. Both stress, heavily, that language – particularly the almost exclusive use of English – is a major factor in excluding people. Here are the descriptions of the two sections:

• Section 2.1: Recommendations for a global outreach strategy to relevant members of the public, particularly non-English speakers and those from developing countries/regions; and
• Section 2.2: Recommendations for development of global outreach programs aimed at increasing participation both from current members of the ICANN community as well as potential members, particularly non-English speakers.

And yet:

• The announcement is available in English only
• The paper [pdf] is available in English only
• The public comment period is in English only

And it’s not even as if ICANN’s doesn’t have the translation capabilities to deal with this. I know because I set them up. And they have been hugely expanded and professionalized by Christina Rodriguez. Did it honestly not occur to anyone to translate this document and the accompanying announcement before publishing it? Because I think herein you, the GNSO, have located the answer to your problems: YOU!

The [bang!]s in the title of this blog post are me smacking my head against my desk. Please wake me up when the nightmare is over.

The first preparatory meeting for the 2011 Internet Governance Forum has ended with a significant degree of uncertainty thanks to ongoing bureaucratic delays.

Over two days, representatives from business, government, civil society and the technical community met in Geneva in order to decide the path forward for the sixth annual meeting of the Forum, dedicated to discussing global governance issues for the Internet and due to be held in Nairobi toward the end of the year.

Those plans have been hamstrung by the United Nations in New York, which continues to delay crucial decisions about the event dates and the event’s key decision-makers.

Closing the meeting, Kenya’s representative and meeting chair Alice Munyua repeatedly asked for others’ indulgence as she explained she did not have final dates for the event – it will be somewhere between September and December, she said – nor had dates been finalised for the second preparatory meeting in May.

On top of that, there is still no replacement for the main meeting organizer, Markus Kummer, who left the United Nations in December, with a representative from the UN’s Department of Economic and Social Affairs (UNDESA) telling attendees that they were still finalising the job description, which will then be put through the usual UN recruitment process.

And to make matters all the more surreal, the Multistakeholder Advisory Group (MAG), which was in the room trying to decide the agenda and structure of the next IGF, may not even formally exist.

The MAG has been put together and chaired by former special advisor to the Secretary-General, Nitin Desai, since 2004. Desai was appointed by former Secretary-General Kofi Annan, with whom he shared a good relationship, but ended his term earlier this year.

The new Secretary-General has yet to decide a replacement Special Advisor and only that person can decide on the make-up and structure of the MAG, the UN has decided. In response to questions about this crucial role, a UN representative said he did not know when a decision would be made and refused to even be drawn on the process that will be used to arrive at a decision.

Bureaucratic delay – or something else entirely?

While many would be tempted to write off the destabilising delays as typical United Nations bureaucracy (and a good reason why the organisation should not be given a central role in governing the Internet), the widespread suspicion is that they are deliberate.

The Chinese government in particular has been behind efforts to turn the open and “multistakeholder” IGF – where everyone has an equal say – into a traditional inter-governmental body where decisions are made solely by government representatives.

Those attempts have been consistently stymied by Western governments – as well as business, civil society and the technical community – who wish to maintain the broader form of decision-making that has made the Internet what it is today.

However, with China a rising force in the United Nations under Secretary-General Ban Ki-moon, the end of the IGF’s initial five-year remit has been used to try to force the IGF onto a different path. The head of UNDESA, Chinese national Sha Zukang, has made various efforts to move the IGF into a more governmental direction.

At the same time, UNDESA is half-competing with another arm of the United Nations, the Commission on Science and Technology for Development (CSTD), which is in charge of deciding broader changes to the structure of the IGF. The CSTD has also taken a very pro-government approach, most recently causing outrage when it held a last-minute and late-night meeting in December in order to push through a decision that the crucial IGF working group would only be comprised of government representatives.

In this context, delays to deciding the two key posts for the IGF – the Executive Coordinator and the Special Advisor – as well as the continued failure to name actual dates for the meeting (ostensibly in order to fit in with Under-Secretary Sha’s schedule) provide the pro-governmental forces with greater leverage over the process while frustrating efforts by the pro-multistakeholder group to continue on in the same vein as the previous five years.

Pushing on

Nevertheless, attendees in Geneva appeared determined to push on with the business of the Internet Governance Forum – designed to act as a global focal point each year for the world to discuss big issues stemming from the Internet.

In the course of discussions, the theme that has been on the minds of many in recent weeks – the role the Internet has played in the Middle East uprisings – came to the forefront. As topics go, it is likely to be extremely interesting to a very broad group of individual worldwide, although MAG members were at pains to ensure the IGF maintained its traditional neutrality, as well as continued the work from previous years.

The end result was the final title: “Internet as a catalyst for change: Access, development, freedoms and innovation.”

With traditional governments doing everything they can to impose old and outdated structures on the IGF, the irony was far from lost on those in the room.

Where is ICANN’s 2010 Annual Report?

It is typically produced at the end of the calendar year. The 2009 Report was published on 24 December 2009, and the 2008 Report on 31 December 2008. It is currently 23 February 2011 and so far no 2010 Annual Report.

Two months late is sloppy by any measure, and it is most likely down the high level of exits in ICANN in the past 12 months – not least in this case Sara Stohl who as publications manager was responsible for chasing the disparate groups in ICANN and pulling together the report in time (Sara left in November 2010 and her post is still unfilled).

But there’s sloppy and there’s breaking bylaws. According to ICANN’s bylaws:

The Board shall publish, at least annually, a report describing its activities, including an audited financial statement and a description of any payments made by ICANN to Directors (including reimbursements of expenses). ICANN shall cause the annual report and the annual statement of certain transactions as required by the CNPBCL to be prepared and sent to each member of the Board and to such other persons as the Board may designate, no later than one hundred twenty (120) days after the close of ICANN’s fiscal year.

ICANN’s Fiscal Year ends on 30 June each year. In this case it means that Board should have received the annual report no later than 29 October 2010. The fact that the report still hasn’t been published doesn’t mean Board members didn’t actually receive the report before 29 October – they may still be holding it or checking it – but it might be worth asking as four months is a pretty long time to read 50 pages.

However the bylaws say that “The Board shall publish, at least annually” – and it is pretty clear that 14 months and counting is definitely not “at least annually”. No one is going to bat an eyelid if an Annual Report is published a week within the previous year’s but it is now 60 days later than the 2009 Annual Report (taking today, 23 February as the date).

So has ICANN broken its bylaws? I’d say, well, yes.

And I would lodge that complaint with the ICANN Ombudsman, but he left on 31 January, and ICANN is still looking for his replacement as well.

It makes you wonder what else is going on – or not going on – in other departments where the flood of exits has left big gaps. The compliance department is still missing a senior director, senior auditor and manager (David Giza left in July 2010; William McKelligott resigned in May 2010). How long until that blows up?

There is no Chief Security Officer; or Chief of Staff; no Vice President at ICANN’s costly headquarters in Brussels (how will that impact relations with the EU at a crucial time?); and two At Large Officer posts are currently waiting to be filled, months after the first At Large member was pulled onto the Board. That’s not all the vacant posts either.

In the meantime, the organisation has to deal with a hastily organised and unprecedented meeting between the Board and governments in Brussels next week – a last-second compromise decision between the ICANN and GAC chairs that borders on irresponsible given the resources it has chewed in a very short period of time with no certainty of outcome.

And then there is the ICANN San Francisco meeting two weeks after that. Not to mention the loss of the June meeting in Jordan because of protests in the Middle East. ICANN is frantically looking for a replacement city – but would it not do better to get its own house in order first?

You have to wonder whether this organisational shambles comes as a result of losing the majority (someone calculated it over 70 percent) of senior management since the new CEO came on board.

And talking of Board, isn’t this why they exist in the first place – to keep an eye on these issues and make sure that poor management doesn’t bring down the organisation with it? Even – in fact, especially – when it is the Board who are breaking their own bylaws.

ICANN has always been a hot-bed of intrigue and petty-minded politics but with first the independent review of a Board decision, and then an independent review of the organisation’s transparency and accountability both finding significant problems with the organisation, you have to wonder whether the problems rest less with the difficulties of the model and more those charged with managing it.

Background: At a meeting in December, the ICANN Board and GAC agreed to a special session to be held in February that would be dedicated to trying to find a way to deal with GAC concerns over the new gTLD process and the dot-xxx application. The GAC has been preparing documents for the meeting – and so too, it is believed, have been the ICANN staff.

The details of the United States government submission – which is the most crucial submission due to its relationship with ICANN and its dominant position in the GAC – emerged late last week. They have caused somewhat of an outcry particularly because it suggests that any GAC member would be in a position to veto any gTLD application – which would clearly make ICANN’s processes sub-ordinate to governments. Since the whole point of ICANN is to provide for a multi-stakeholder decision-making process, it is no surprise that this request has got people’s backs up.

There are other suggestions that will almost certainly infuriate other arms of ICANN, some of which go directly against others’ policy decisions, as well as a Board resolution, so there is now a big question over how successful the GAC-Board meeting will be, given the size of the gap to be bridged in just two days.

Anyway, a fuller analysis later but in the meantime below is the full text of what is believed to be the final submission from the US government to the GAC:

USG Submission to the GAC Scorecard re New gTLDs

1. Objections Procedures

Currently, the Proposed Final Applicant Guidebook contains a “Limited Public Interest Objection” meant to provide dispute resolution for proposed strings that could be considered contrary to general principles of international law for morality and public order. The GAC proposes that: 1) the “Limited Public Interest Objection” procedure be deleted; 2) the “Initial Evaluation” procedures be augmented to include a GAC review; and 3) the current “Community-Based” objection procedures be clarified to include those strings that purport to represent or that embody a particular group of people or interests based on historical components of identity as well as particular subject to national regulation. Specific details and explanations for each step are below.

Limited Public Interest Objection: The GAC advises the ICANN Board to instruct ICANN staff to delete the procedures related to “Limited Public Interest Objections” in Module 3.

Explanation: Although the new heading has been renamed from “Morality and Public Order Objections”, the body of the text remains unchanged and contains the same fundamental flaws which can only be remedied through deletion.

Specifically, the requirement that governments pay fees and must be bound by determinations by the International Centre for Expertise of the International Chamber of Commerce, which will in turn be guided by the findings of “three experts recognized as eminent jurists of international reputation”, is contrary to the sovereign right of governments to interpret and apply principles of international law on a country-by-country basis. Governments cannot be bound by the determinations of private individuals or organizations on matters that pertain to national law.

The requirement is also inconsistent with the provisions in ICANN’s Bylaws that call for governments to provide public policy advice to the ICANN Board through the Governmental Advisory Committee.

Lastly, there are no “generally accepted legal norms relating to morality and public order that are recognized under international principles of law” (Module 3, Article 2, e, iii), nor is it feasible to expect that any panel of “experts” could reach a determination whether a particular proposed new gTLD string would be considered objectionable on such grounds.

String Evaluation: The GAC advises the ICANN Board to instruct ICANN staff to amend the following procedures related to the Initial Evaluation called for in Module 2 to include review by governments, via the GAC. Any GAC member may raise an objection to a proposed string for any reason. If it is the consensus position of the GAC not to oppose objection raised by a GAC member or members, ICANN shall reject the application. (Note that the application fees should be refunded to the applicant).

Explanation: This proposal meets a number of compelling goals. First it will diminish the potential for blocking of top level domain strings considered objectionable by governments, which harms the architecture of the DNS and undermines the goal of universal resolvability. Second, affording governments the opportunity, through the GAC, to advise the ICANN Board that there is consensus GAC advice regarding particular proposed strings that should not be processed is supportive of ICANN’s commitment to ensure that its decision are in the global public interest.

Categories of Community-based Strings: The GAC advises the ICANN Board to instruct ICANN staff to amend the provisions and procedures contained in Modules 1 and 3 to clarify the following:

1. “Community-based strings” include those that purport to represent or that embody a particular group of people or interests based on historical components of identity (such as nationality, race or ethnicity, religion or religious affiliation, culture or particular social group, and/or a language or linguistic group). In addition, those strings that refer to particular sectors, in particular those subject to national regulation (such as .bank, .pharmacy) are also “community-based” strings.
2. Applicants seeking such strings should be required to affirmatively identify them as “community-based strings” and must demonstrate their affiliation with the affected community, the specific purpose of the proposed TLD, and evidence of support or non-objection from the relevant authority/ies that the applicant is the appropriate or agreed entity for purposes of managing the TLD.
3. In the event the proposed string is either too broad to effectively identify a single entity as the relevant authority or appropriate manager, or is sufficiently contentious that an appropriate manager cannot be identified and/or agreed, the application should be rejected.
4. Individual governments that choose to file objections to any proposed “community-based” string should not be required to pay fees.

Explanation: The proposed approach would remedy the failure in the draft Applicant Guidebook to incorporate the GAC’s previous advice that ICANN’s new gTLD process should respect the legitimate interests of governments regarding terms with national, cultural, geographic and religious significance. It also anticipates the strong possibility that there will be proposed new gTLD strings for which an appropriate manager cannot be identified and/or agreed, which should cause the application to be rejected. It also recognizes the right of governments to protect their perceived national interests through the Community objections process without the obligation to pay fees.

2. Market and Economic Impacts

The GAC advises the ICANN Board to instruct ICANN staff to amend the final Draft Applicant Guidebook to incorporate the following:

1. Criteria to facilitate the weighing of the potential costs and benefits to the public in the evaluation and award of new gTLDs.
2. A requirement that new gTLD applicants provide information on the expected benefits of the proposed gTLD, as well as information and proposed operating terms to eliminate or minimize costs to registrants and consumers.
3. Due diligence or other operating restrictions to ensure that Community-based gTLDs will in fact serve their targeted communities and will not broaden their operations in a manner that makes it more likely for the registries to impose costs on existing domain owners in other TLDs.

Explanation: The economic studies conducted by Katz, Rosston and Sullivan contain important findings that the past introduction of new gTLDs provided minimal public benefits in terms of competition for existing gTLDs and relieving name scarcity. The studies further state clearly that the introduction of new gTLDs had imposed costs on intellectual property owners in diluted brand strength, defensive registrations, and other costs associated with protecting their brands.

3. Vertical Integration (Registry-Registrar Separation)

The GAC advises the ICANN Board to instruct ICANN staff to amend the proposed new registry agreement to restrict cross-ownership between registries and registries, except in those cases where ICANN has determined that the registry does not have, or is unlikely to obtain, market power. The GAC further advises the ICANN Board that it considers the absence of a thorough and reasoned explanation of its decision, the rationale thereof and the sources of data and information on which the Board relied with respect to vertical integration to be inconsistent with its commitments under the Affirmation of Commitments.

Explanation: The CRA International report commissioned by ICANN noted that vertical integration between registries and registrars could foster both precompetitive and anticompetitive outcomes. As the key issue is whether a gTLD has market power, it would only be appropriate for ICANN to relax or lift restrictions on vertical integration in cases where ICANN determines that a gTLD faces or will face substantial competition.

Further, ICANN has committed to provide a thorough and reasoned explanation of ICANN decisions, the rationale thereof and the sources of data and information on which ICANN relies. This has not been done yet to explain how the Board moved from a position in March 2010, as articulated in a Board resolution, of no cross ownership, to the May 31, 2010 staff proposal contained in draft Applicant Guidebook, version 4 of de minimus (i.e., no more than 2%) cross ownership, to the November 5, 2010 decision allowing full cross ownership.

4. Intellectual Property Protection

The GAC advises the ICANN Board to instruct ICANN staff to amend the provisions related to intellectual property protection as follows:

Trademark Clearinghouse:
1. Delete the definition of “substantive evaluation” to make it clear that any trademark registration, regardless of whether examined on substantive or relative grounds, can qualify for participation in the pre-launch sunrise mechanisms.
2. Expand the Trademark Clearinghouse to cover “trademark + keyword” or typographical variations specified by the rights holder.
3. Ensure that the Trademark Clearinghouse protection mechanism continues after initial launch.

Uniform Rapid Suspension (URS):
1. Shorten the time for filing an appeal in default cases from the current 2 year review period to a considerably shorter time.
2. Add a “loser pays” model applicable to domain name registrants.
3. Include the ability to transfer a domain name, so that the complainant is not forced to pursue a further UDRP proceeding to secure the transfer.

Post-delegation Dispute Resolution Procedure (PDDRP): Amend the standard of proof from “clear and convincing evidence” to a “preponderance of evidence”.

Explanation: These amendments would ensure that all trademark registrations could qualify for participation in the pre-launch sunrise mechanism, and would be consistent with existing best practices (see e.g. the policies for .eu, .tel, and .asia). They will also ensure that the URS provides an effective remedy, and that the PDDRP is consistent with requirements in a civil action for contributory trademark infringement action or unfair competition. Finally, these amendments are necessary to ameliorate the high costs for brand owners, as outlined in the economic analyses by Katz, Rosston and Sullivan.

5. LEA Recommendations

The GAC advises the ICANN Board to instruct ICANN staff to amend the final Draft Applicant Guidebook as follows:

Module 1:
1. Include other criminal convictions as criteria for disqualification, such as Internet-related crimes (felony or misdemeanor) or drugs.
2. Assign higher weight to applicants offering the highest levels of security to minimize the potential for malicious activity, particularly for those strings that present a higher risk of serving as venues for criminal, fraudulent or illegal conduct (e.g. such as those related to children, health-care, financial services, etc.)

Module 2:
1. Add domestic screening services, local to the applicant, to the international screening services.
2. Add criminal background checks to the Initial Evaluation.
3. Amend the statement that the results of due diligence efforts will not be posted to a positive commitment to make such results publicly available
4. Maintain requirements that WHOIS data be accurate and publicly available.

Explanation: These amendments will improve the prospects for mitigating malicious conduct and ensuring that criminal elements are hindered from using the DNS for criminal and illegal activities. The GAC also strongly encourages, and will contribute LEA expertise to this activity, further work on the high level security zone requirements.

[ends]