Drinking from a Fire Hydrant

While Rod is no stranger to the technical sector, he was by no means an ICANN insider and getting up to speed on the myriad of issues confronting ICANN is no easy task. But since taking office, he has demonstrated an impressive willingness to listen to an almost unlimited number of sources, both within and outside the ICANN community, and to synthesize a sophisticated understanding of ICANN's mission and how that mission is perceived globally. In conducting this outreach, Rod has engaged contracted parties (registrars and registries), the business community, national and international organizations, the non-commercial community, and individual stakeholders via Twitter.

Affirmation of Commitments

Over much of the last 12-18 months, ICANN and the United States Government (USG) appeared to be engaged in a high-stakes game of chicken, seeing who would blink first regarding the expiration of the MoU/JPA. The Affirmation of Commitments (AOC), which succeeded the MoU/JPA, produced no clear winner or loser, but a win-win-win situation for ICANN, the USG and the broader Internet community by building into the ICANN governance framework increased accountability to the global private-public stakeholder community. It would be unfair to the many other participants in the AOC negotiations to give Rod sole credit. But he certainly does deserve credit for using this defining moment in ICANN's continued evolution as an opportunity to both reinvigorate participation by long-time ICANN stakeholders such as myself and to engage new stakeholders in the ICANN process.

The ICANN Board appears poised to approve an internationalized country code top-level domain name (IDN ccTLDs) fast-track process at its annual meeting in Seoul later this month. This represents a critical step forward in giving the entire global Internet stakeholder community equal access to the Internet's domain name system through their native languages and scripts. Consistent with Rod's can-do attitude, ICANN staff has proposed an ambitious implementation process that will potentially enable the inclusion of these IDN ccTLDs into the Root by the end of the year.

Such a timetable would not be possible without the efforts of ICANN staff, particularly Tina Dam, who shepherded the IDN ccTLD initiative over the past several years. While the underlying technical issues appear to have been effectively resolved, the legal/governance framework into which ICANN and these ccTLD administrators and/or national governments will enter still requires discussion. Rod will play a critical role in developing that framework in consultation with ICANN's legal counsel to ensure the support and backing of the ICANN Board. All too often in the past, ICANN's ability to enter into formal relationships with third parties has been complicated by placing complicated legalese above practical operational and governance principles in ICANN's best interest.

Domain Name System Security Extensions (DNSSEC)

Sneaking in just under the 100-day time line, ICANN and VeriSign jointly announced at the RIPE meeting on October 6 in Lisbon, Portugal, a proposed timeline for the implementation of DNSSEC:

• December 1, 2010: the Root zone would be signed, although the initial signed zone will remain accessible only to ICANN and VeriSign.


• January - June 2010: ICANN and VeriSign would begin incremental roll-out of the signed root.


• By July 1, 2010: a signed root will be fully deployed (assuming no unforeseen obstacles).

According to ICANN's latest job postings, ICANN is currently soliciting candidates for two new Vice President positions to supplement the existing four. These hires will present Rod with the opportunity to begin putting his imprint on ICANN's operational character--much as Paul Twomey did over six years ago when John Jeffrey and Kurt Pritz were Paul's first two new senior management hires. With any luck, the ICANN community will be able to meet his new hires at ICANN's Seoul meeting at the end of the month. If not, the community will have to wait until ICANN's next meeting in March 2010 to meet this new key management.

New gTLDs

This issue will eventually define Rod's legacy. Rod is currently in a no-win situation: Any statement he makes on new gTLDs will be perceived by the TLD-promoter community as evidence of insufficient commitment to swiftly launching the new gTLD program, while simultaneously being perceived by the trademark and business communities as rushing the launch of new gTLDs. The significant issues that remain outstanding have polarized the debate to the extent that, no matter how they are ultimately resolved, there will be clear "winners" and "losers."

Rod must ensure that the "losers" in the process feel that their positions were fully and properly heard, and that ICANN's ultimate decision is carefully grounded in fact and reached through an open and transparent process--as opposed to the current perception (fair or not) that ICANN simply pulls policy and implementation detail from their hats.

Complicating this task is the reality that participants in the gTLD debate, including ICANN staff and Board, have already formed strong opinions that are unlikely to change. Fortunately, Rod's lack of any ICANN "baggage" allows him to assess where the debate stands starting from a clean slate. If ICANN's past work on this issue (and especially its more controversial aspects) has been conducted in an open, transparent and fact-based manner, Beckstrom should be able to reproduce that decision-making process on his own and reach the same result--just as a starfish (to borrow Rod's favorite analogy from his 2006 book) can regenerate a new leg when one is severed simply by referring back to its genetic code. If the results of the process cannot be reproduced, that may indicate that the process ICANN has followed in implementing new gTLDs has been more "spider-like" (highly centralized and top-down) than "starfish-like" (decentralized and bottom-up).

Conclusion

Rod's early success with the AOC has set a high bar for measuring his future performance. But I believe he is more than up to the challenge, and that we will soon see Team ICANN run up the score with successful touchdowns on issues such as IDN ccTLDs and DNSSEC.

Click here to download my latest paper on this subject (below), published by The Progress & Freedom Foundation, or click here to read more of my recent work at PFF.

Fourth Down and Goal from the 1 Yard Line

Besides the normal organizational and staff review that any new CEO undertakes, the immediate challenges confronting Rod on Day 1 include:

• The pending expiration of ICANN's Joint Project Agreement (JPA) with the US Government;
• The introduction of internationalized country code top-level domains (IDNs) such as (例子.测试); and
• Introduction of new generic top-level domains such as .WEB and .BLOG.

Together, these challenges create a unique opportunity for Rod to "punch the ball across the goal line" and bring to conclusion the hard work of ICANN's three previous CEOs over the last decade in "moving the ball down the field" on these issues. If Rod helps in scoring this critical "touchdown" early in his tenure as ICANN's next CEO, it will be a team accomplishment that the entire ICANN community could celebrate.

Listening to Rod's speech to the ICANN community that Friday morning in Sydney inspired a sense of community that had been missing in recent years. He reminded me of my early days in ICANN when people like Mike Roberts, Louis Touton, and Andrew McLaughlin truly made me believe in a model of Internet governance to which I have devoted over a decade of my life. Over the last several years, that sense of community has been lost as ICANN has become more about expanding its own global reach and budget. While there is no doubt that ICANN's humble budget during its first couple of years of existence was insufficient to meet the herculean tasks confronting the organization, it is unacceptable that over the last several years of institutional growth, ICANN has let deteriorate that sense of community that was so critical to its creation. That's why I was so encouraged to hear Rod talk about "community" and his intention "to serve as a catalyst."

Prior to his speech, I looked over at Rod, who was sitting in the audience and he had his eyes closed. He appeared to be in a Zen-like state, rehearsing the speech he was about to give. In addition to inspiring me, Rod ticked all the necessary boxes in his speech that an incoming ICANN CEO should: recognition of Internet pioneers such as Jon Postel and Steve Crocker, acknowledging the various stakeholders within the ICANN process, and embracing the inherent "noise" (music) within the ICANN process. Rod's speech, given without notes, was not only inspiring and inclusive, but humble in his acknowledgment that he is not an expert on ICANN and that he would need the "help and support" of the community in accomplishing his job.

While Paul Twomey, his predecessor, had the benefit of being involved in ICANN since its creation, Rod does not come with that institutional knowledge. While some may view that as a liability, given the important tasks confronting the organization in the short-term, I see that as an opportunity for someone with his management and leadership skill-set to take a fresh 360° perspective of the entire ICANN organization. Through this review, Rod could serve as a catalyst to inspire the next billion Internet users to take a more active role in the ICANN community.

Additional Data Points

I look forward to working with Rod, the ICANN staff and the rest of the global ICANN Community in ensuring that ICANN continues to serve as a global trustee of the Internet's unique identifiers. Rod is sure to hear an endless number of suggestions as to what's wrong with ICANN or how it could be made better. But I will leave it to him to discern the symphony of genuine consensus and wisdom from the cacophony of strongly held beliefs and opinions of the many stakeholders across the ICANN community.

While Rod likely has no shortage of assigned reading, hopefully he might find the time to speak to the following four people that were not in attendance in Sydney but who were instrumental in helping shape my views of ICANN as a unique global community: Mike Roberts (ICANN's original CEO); Louis Touton (ICANN's first General Counsel); David Johnson (Attorney) and Sharil Tarmizi (former Chair of the GAC). He might start by listening to the audio or reading the transcript--of the PFF discussion I recently moderated on Capitol Hill with two of these four sages (Roberts and Johnson), as well as Milton Muller and ICANN's then-CEO Paul Twomey

I have been an active participant within the Internet Corporation for Assigned Names and Numbers (ICANN) process since its inception as an intellectual property lawyer and information technology specialist.  Over the last ten years, I have served in a number of leadership positions within ICANN, including a three-year term on its Board of Directors (2003-2006).   I applaud the NTIA for using the broad scope of this NOI to refocus the global Internet community on the original intent/focus of ICANN's MoU/JPA with the Department of Commerce (USG).  Unfortunately, over the last few years, ICANN has strayed from its narrow mission as the technical coordinating body originally envisioned in the 1998 White Paper, and has instead become a quasi-monopolistic regulator accountable to no one but itself.  This NOI provides the global Internet community the opportunity to deconstruct the current 

"ICANN 2.0" governance model and refocus on a successor "ICANN 3.0" governance model.  I submit that ICANN 3.0 needs to be a mix of getting "back to basics" (restoring ICANN's original mission) and implementing important "lessons learned" since ICANN's creation about how to make the organization more effective and accountable.  I discuss four broad issues:

1. ICANN's Periodic Review of its internal operations and supporting organizations has failed, and has become nothing more than a "perpetual motion machine of public comments and documentation producing no meaningful results." Only a second Evolution and Reform Process can solve ICANN's current deficiencies;
2. ICANN must hardcode into its policies and its contracts the principle that its policies cannot supersede national laws;
3. ICANN must cease any operational role in technical infrastructure as required by its bylaws and focus instead on its mission as a technical coordinator; and
4. Congress must avoid "kicking the JPA can down the road" and instead provide much-needed leadership by creating a solid foundation for ICANN 3.0 in legislation after proper consultation with the Government Accountability Office.

The IRT consists of 24 members:

• Chairwoman Caroline G. Chicoine; and
• Seventeen members; and
• Six ex officio members: Four IPC-elected officers and two-GNSO elected Board Directors (Bruce Tonkin and Rita Rodin Johnston). 

I've previously proposed a number of rights-protection mechanisms that IRT should consider. Today, I offer a few suggestions that I hope will guide IRT as they embark on their important work tomorrow. In particular, I hope they'll implement some of my suggestions intended to make the IRT process more transparent-so the rest of the global Internet can follow along with their important work and provide constructive input where possible.
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• How to roll out new gTLDs like .BLOG, which I've discussed here and here (PDF).
• ICANN's future as an increasingly independent organization, which I've discussed here.

But I strongly disagree with TPI's conclusion that:

ICANN should remain a nonprofit organization, but it should be governed by and accountable to its direct users: the registries and the registrars. The seats on ICANN's board could be rotated among the major operators in a manner that would reflect the diversity of viewpoints among the registries and registrars.

Having invested over 10 years of my life in ICANN's diverse and inclusive public/private partnership model, I speak from first-hand experience that ICANN is far from perfect as an organization. I've often feared that ICANN is heading in the wrong direction and I've never hesitated to say so. But despite these shortcomings, the various stakeholders I work with in the seemingly byzantine "ICANN process" remain as committed as ever to the principles set forth in NTIA's 1998 White Paper as the foundations of Internet governance. The staying-power of this shared belief in a common set of principles among all stakeholders reaffirms my faith in the public/private partnership-whatever other changes need to be made.

Lenard and White are right about one thing: We do need a new model for ensuring ICANN's accountability after the expiration of ICANN's current relationship with the U.S. Government. But the model they suggest isn't it--as Steve Delbianco has pointed out.

the Joint Project Agreement will conclude in September 2009. This is a legal fact, the date of expiry of the agreement. It's not that anyone's declared it or cancelled it; it was set up to expire in September 2009.

ICANN's recently published 2008 Annual Report stuck to this theme:

"As we approach the conclusion of the Joint Project Agreement between the United States Department of Commerce and ICANN in September 2009..." - His Excellency Dr. Tarek Kamel, Minister of Communications and Information Technology, Arab Republic of Egypt

"Concluding the JPA in September 2009 is the next logical step in transition of the DNS to private sector management." - ICANN Staff

"This consultation's aim was for the community to discuss possible changes to ICANN in the lead-up to the completion of the JPA in September 2009." - ICANN Staff

ICANN's effort to make the termination of the JPA seem inevitable is concerning on two fronts. First, ICANN fails to mention that the current JPA appears to be merely an extension/revision of the original 1998 Memorandum of Understand (MoU) with DoC, which was set to expire in September 2000. Thus, because the JPA does not appear to be a free-standing agreement, but merely a continuation of MOU-as Bret Fausset argues in his excellent analysis of the relationship between the MoU and the JPA (also discussed by Milton Mueller). Therefore, it would be more correct to talk about whether the "MoU/JPA"-meaning the entire agreement as modified by the most current JPA-will expire or be extended.

Some stakeholders have expressed concern about the idea of ICANN not being directly held accountable to any government entity, but ICANN appears to have attempted to preemptively address this concern, when it acknowledged in its 2008 Annual report that "[t]he California attorney general is the legal overseer of California nonprofit public benefit corporations such as ICANN."

With the future stability and security of the Internet hanging in the balance, a neutral third party ought to analyze the current existing relationship between the USG and ICANN-before ICANN decides in September 2009 whether to renew the MoU/JPA or walk away. The General Accounting Office (GAO) is the ideal candidate for such a task, given its well-established reputation for independent analysis and prior experience studying these matters-especially its detailed 2000 analysis of the early stages of DoC's relationship with ICANN.

In conducting a new study, GAO ought to consider the following issues:

• Since the original 2000 GAO report on ICANN, ICANN's annual budget has skyrocketed to more than $60 million. That budget is set to grow significantly once ICANN begins accepting applications for new gTLDs on a large scale: Using ICANN's own projections of new gTLD applicants and the minimum fees that will be assessed suggests that ICANN's budget will soon exceed $100 million. As ICANN's budget grows, one must ask: Are these fees-paid by largely gTLD registrants, registrars, and registries-consistent with the GAO's conclusion in its 2000 report that ICANN is limited to recovering only actual costs (because "ICANN is a project partner with the Department under the memorandum of understanding, and it is the Department's policy to allow project partners to recover only actual project costs")?

• If ICANN walked away from the MoU/JPA without the USG formally acknowledging that ICANN had successful fulfilled its obligations under the agreement, would ICANN be able to rely upon its existing contracts with registry operators to continue collecting fees?

• In its 2000 report, the GAO asked whether the DoC "had the authority to transfer control of the authoritative root server to ICANN." The GAO did not definitively answer this question, but concluded that it was "uncertain whether transferring control would involve the transfer of government property to a private entity" thus giving rise to implications involving the Property Clause of the U.S. Constitution (Art. IV, § 3, cl. 2.), which requires statutory authority for the disposal of government property.

• GAO investigated, but did not resolve, whether or not an act of Congress would thus be required to transfer control of the root server to ICANN. But GAO did not undertake the same analysis as to whether the contractual rights associated with the top-level domains themselves constituted "government property" requiring Congressional action for any to transfer to ICANN. This may have been because U.S. courts had, at that time, held that domain names were not "property" in general, but simply a contractual right to a service provided by the registration authority. But this potentially changed with the Ninth Circuit's 2003 decision in Kremen v. Network Solutions concerning sex.com. Thus, if the GAO concludes that ICANN's gTLD contracts with registry operators involve property rights and that statutory authority would be required for the DoC to transfer these rights to ICANN, it is difficult to see how ICANN would be able to enforce these rights if ICANN ended its relationship with the USG as a project partner by walking away from the MoU/JPA-regardless of ICANN's success in removing references to the USG in these contracts.

These are just some of the initial questions the GAO needs to answer well before September 2009, independent of whether the USG and ICANN decide to extend the MoU/JPA. The stakes are just too high for these questions to remain unanswered.

This past June, the ICANN Board directed its staff to draft implementation guidelines based upon the policy recommendations of the Generic Names Supporting Organization (GNSO) that ICANN should allow more gTLDs such as .cars to supplement existing gTLDs such as .com. In late October, the ICANN staff released a draft Applicant Guidebook detailing its proposal. The initial public forum on this proposal closed on December 15-with over 200 comments filed online.

In its December 18 comments, the USG questioned whether ICANN had adequately addressed the "threshold question of whether the consumer benefits outweigh the potential costs." This stinging rebuke from the Commerce Department merely confirms the consensus among the 200+ commenters on ICANN's proposal: ICANN needs to do more than merely rethinking its aggressive time-line for implementing its gTLD proposal or tweaking the mechanics of the proposal on the edges. Instead, ICANN needs to go back to the drawing board and propose a process that results in a responsible expansion of the name space, not merely a duplication of it.

The comments submitted by the USG consisted of two letters. The first, from the Commerce Department's National Telecommunications and Information Administration (NTIA) began by citing the failure of ICANN staff to conduct a detailed study on the costs, benefits and implementation of a new gTLD process-as called for by an October 2006 ICANN Board resolution. NTIA then listed a number of prerequisites for implementation of any gTLD proposal, including:

• Ensuring that the introduction of a potentially large number of new gTLDs would not jeopardize the stability and security of the Domain Name System (DNS);
• Revising the gTLD approval process to take into account (i) adverse competitive welfare effects; (ii) competitive bidding mechanisms; and (iii) maximum price caps or other term to protect consumers;
• Demonstrating ICANN has sufficient contract compliance staff;
• Explaining further how ICANN will conduct legal reviews of gTLD applications;
• Requiring ICANN to focus on technical functions related to the management of the DNS and leaving other matters such as the adjudication of morality and public order to be addressed by governments;
• Developing a mechanism to expand the gTLD reserved names associated with technical or infrastructure-related names; and
• Expressing a clear rationale for the gTLD fee structure, as well as a transparent mechanism for the disposition of any excess revenues.

Just as the U.S. government filed comments on the proposal only after ICANN's deadline for public comment had passed, other governments have indicated that they need more time to provide substantive comments on ICANN's proposal-including the Government Advisory Committee and the Australian government. The U.S. government's strong opposition to ICANN's proposal may inspire other countries to voice their own concerns in the next two months-which could derail ICANN's current plans to publish a revised draft of the proposal shortly before its next meeting in Mexico City the first week of March, 2009. If ICANN does not revise its aggressive timeline, the GAC and other governments will be commenting on the October 2008 Draft just as the ICANN staff is seeking new comments on the February 2009 draft. Given the timing of GAC deliberations, GAC probably will not be able to provide comments on any draft released in February until ICANN's June meeting in Sydney.

Global Business Community Opposition

A common thread of concern expressed among the majority of the submissions from the business sector is how the proliferation of gTLDs will significantly increase the cost of defensively registering domain names to protect trademarks and prevent consumer confusion. Currently, many global brand holders must maintain enormous portfolios of domain names (sometimes in excess of ten thousand). Only a tiny percentage of these domain names are actually used; the vast majority are variants on the names of a company's products or services, such as yah00.com. Because the existing procedures for protecting trademark holders cost far more than it costs to register a single domain name, there currently exists a gross imbalance between "offense" (cyber-squatting) and "defense" (brand protection). Without additional safeguard mechanisms in any new gTLD application procedure to protect existing trademarks, every new gTLD created would simply compel existing trademark holders to duplicate their domain portfolio for that new domain name-for example, if .search were created, Yahoo might have to register yah00.search (as well as every other domain name it has currently defensively registered). This could mean additional costs of millions of dollars every year in purely defensive registrations-all because of the lack of procedural safeguards.

The sheer outpouring of opposition to ICANN's proposal makes it difficult for the non-expert to know where to start, and few readers are likely to take the time to digest all 200+ comments. So here's a quick overview of those comments I'd consider required reading for anyone who wants to understand the problems raised by ICANN's proposal-which might seems very attractive on its face. After all, having "more choices" is something we'd all generally agree with.

The comments of corporate registrar MarkMonitor (endorsed by over seventy global corporate giants such as 3M, Costco, eBay, FedEx, Nike, Goodyear, Verizon and Viacom) provide an excellent summary of important points raised that were common threads in many of the other submissions, including:

• Reevaluation of the new gTLD process and its associated costs in light of the global economic downturn;
• The need for increased safeguards above and beyond the Uniform Dispute Resolution Policy and Sunrise registrations periods to protect brand-holders and prevent consumer confusion;
• Removing any costs to a successful challenger under ICANN's various dispute processes; and
• A commitment to publicly accessible, free and accurate WHOIS data.

The comments of AT&T offered detailed recommendations for improving ICANN's proposal, including:

• A tiered roll-out of new TLDs with an initial focus on internationalized domain names (IDNs, which display non-ASCII characters) and "sponsored/community TLDs," such as .coop or .travel;
• That ICANN conduct an economic analysis of the impact new gTLDs will have on the domain name marketplace;
• Creating a "white list" for global brand holders that could be utilized at both the top (.ibm) and second level (ibm.com); and
• A mandate for "thick" WHOIS data, as opposed to "thin" WHOIS data. The WHOIS service identifies who owns a particular domain name. "Thick" WHOIS data incorporates specific registrant information, and would allow law enforcement to track down illegal activity or trademark-holders to discover the identity of someone cybersquatting a domain related to their mark.

International Concern

While U.S.-based businesses (e.g., Adobe, TimeWarner, eBay, HP and ITT) were strongly represented among the comments, a substantial number of non-U.S. businesses and organizations also submitted comments expressing their concerns about ICANN's draft proposal including the BBC, economiesuisse ( the largest umbrella organization representing the Swiss economy), and MARQUES (the European Association of Trade Mark Owners).

Financial Sector Concern

The financial services sector has traditionally not been a very active on ICANN policy matters except those related to the WHOIS domain-look up service. But this sector expressed its concerns about the new TLD process-especially concerning the possibility that banking or finance related gTLDs (such as .bank) might be created without necessary safeguards. See the comments of GE Money, Bank of America, Securities Industry and Financial Markets Association, Visa, the American Bankers Association, and FDIC.

What's Next?

The ball is clearly in ICANN's court, as both the private and public sector wait anxiously for ICANN's next steps. ICANN has planned to release a revised Draft Applicant Guidebook sometime in late February (shortly before the next ICANN regional meeting in March in Mexico City). But at a minimum, ICANN owes both the global business community and governments a detailed response to the many concerns raised about its proposal. ICANN's existing public forum format offers an excellent vehicle for ICANN to engage affected parties constructively. Let us hope that ICANN takes advantage of this opportunity to discuss the October draft proposal at the Mexico City meeting in March-before issuing yet another draft.

But more fundamentally, it is difficult to see how the ICANN Board can adopt any new gTLD process and claim bottom-up consensus unless substantial and substantive modifications are made to the October Draft Applicant Guidebook. In advance of the March ICANN regional meeting, I will be working with the staff of The Progress & Freedom Foundation as an Adjunct Fellow to develop a number of changes that address the serious concerns expressed about ICANN's proposal.

The stakes in the discussion are high. The second letter in the USG's comments, from DOJ's Antitrust Division to NTIA, raised a number of concerns about the competitive dynamics of the gTLD marketplace, and declared that "ICANN has not come close to fulfilling its obligations to employ competitive principles in its management of TLD registry obligations." While there has been growing international demand for the USG to set ICANN free of its oversight, the rather pointed analysis from the DOJ regarding the inadequacy of ICANN process to date on this critical mission objective raises serious questions about whether a extension/renegotiation of the Joint Project Agreement currently set to expire in 2009 is warranted.

ICANN has a lot of work to do between now and September.