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Avoiding an ICANN Monopoly on Policy

Jay Daley

With all the focus in the TLD world on the imminent arrival of more than a thousand new TLDs and the still unfinished discussions within ICANN on what policy framework those TLDs will need to follow, it is often forgotten that there are hundreds of other TLD policy frameworks that are mature, stable and well tested. These of course are the ccTLD policy frameworks that have been actively developed over 20 years.

There are some stark differences in maturity between many ccTLD policy frameworks and the volatile ICANN environment. Key characteristics of these mature ccTLD policy frameworks include:

  • They are based on a long established set of principles that have shown themselves robust enough to shape the ccTLD policy however the DNS environment has changed. For example in many ccTLDs the principle of 'first come first served' is absolute and abusive protectionism such as that proposed for the Red Cross and IOC would not even be considered.
  • A balance of interests in the multi-stakeholder policy development process has been achieved with the participants settling down and recognising the extent and limits of their influence.
  • The policies themselves, while reviewed regularly, change infrequently. For example, in the ccTLD world WHOIS policy is long settled and we look upon the gTLD struggle with WHOIS with disbelief.
  • A structural balance has been achieved between the three key roles of operating the TLD, regulating the TLD and using the surplus from the TLD for public good.

If we were to take a guess at how long it will be before ICANN can claim these characteristics then it would be quite some time into the future. Worse, unless it grows a backbone and draws a line in the sand beyond which the intellectual property community and governments cannot cross then this maturity may never be reached.

The time has come, before it's too late, to provide a way for new TLD operators to choose to operate under one of these mature policy frameworks, a decision that would save many of them a world of grief and enable them to provide a far better service. There are two complementary routes to achieving this.

  1. The first is to allow applicants under the second round of new TLD applications, whenever that will be, to select which policy framework they wish to operate under. We would still need a similar central application process to assure us of the integrity and viability of the applicant and to handle contentions, retaining an important role for ICANN.
  2. The second is to allow any new TLD that is so far restricted to following the ICANN policy framework (whatever that might turn out to be) to opt to change to a ccTLD policy framework as a one-off, no going back, change.

Clearly there need to be some rules around this, the key one being eligibility. Ultimately ccTLD policy frameworks are country based and so for a new TLD to opt to be under a particular ccTLD policy framework then it must be legally and physically based in that country. There would also need to be a negotiation with the ccTLD as to how the new TLD accesses the local dispute resolution service and whether they take the policy framework as a snapshot or shadow the ccTLD policy framework as it changes. But these are significantly less of an issue than dealing with the chaos created by something like the GAC safeguards appearing at the very last minute.

The alternative is that the ICANN policy framework becomes the one and only policy framework for every new TLD ever. I'm pretty clear this will means that innovation in policy slows to a crawl, vested interests harden their positions, the stakes are raised around every decision and ultimately the registrant suffers.

As a disclaimer let me note that I am the CEO of the .nz registry but I have nothing to do with the policy framework for .nz which is set by our independent regulator. We are not involved in any new TLD application. Our parent organisation, the membership society for protecting and promoting the Internet in NZ, considered whether or not to apply for a new TLD and one of the key reasons for deciding not to was because the emerging ICANN policy framework was contrary to our principles.

By Jay Daley, Chief Executive of the .nz registry
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Race To The Bottom George Kirikos  –  Jul 25, 2013 7:07 PM PDT

This would be a race to the bottom, due to jurisdictional arbitrage, especially given the existence of countries like Tuvalu and the like who've essentially allowed for-profit companies to take full control of their TLD.

I was pretty clear there needs to Jay Daley  –  Jul 25, 2013 7:46 PM PDT

I was pretty clear there needs to be some rules around this and jurisdictional arbitrage and poor policy frameworks are obvious issues those rules must mitigate against.

You wrote that key among the rules George Kirikos  –  Jul 25, 2013 8:42 PM PDT

You wrote that key among the rules is "eligibility." That isn't key at all.

If you think the current situation in the GAC is chaotic, try to imagine how it'd be for some countries to argue that rules/laws of another country constitute "poor policy frameworks." That'd bring up issues of national sovereignty. Do you really think the community would agree that "Registries can pick the policy jurisdiction of their choice, except for (fill in the blanks)?" Or that even if such a list of "bad apples" could be created, that there still wouldn't be jurisdictional "shopping", where rules of even the current "good apples" would be twisted over time via lobbyists (i.e. promises of money, etc.)?

Countries could already obtain IDN versions of ccTLDs. gTLDs are an entirely different ballgame, which need international coordination and rules, to prevent the gaming by registries that would certainly happen in their absence.

And where would the registry oversight exist for policy violations? Would ICANN be expected to oversee registries operating under potentially dozens or even hundreds of policy variations? If it's instead left up to the local jurisdiction's regulators, then why would that registry be paying ICANN any fees per domain name at all? Create a framework where the nations can receive the ICANN fees instead, and that sets up an environment for gaming.

Here's what would be the outcome of your proposal. Instead of having ICANN as the policy regulator, over time one nation's jurisdiction would emerge as the most "friendly" towards the for-profit registries (just like many US corporations are incorporated in Delaware, or insurance companies are based in the Bahamas, or hedge funds are based in the Cayman Islands, etc.). Instead of those for-profit registries being regulated with global input, they'd only answer to regulators in a single "friendly" jurisdiction, where that regulation would ultimately be minimal (i.e. the "race to the bottom" that I mentioned in my earlier comment), or alternatively would give that one country (and its citizens) disproportionate rule-making power over all the TLDs (without input from other nations). Then you'd need to develop rules to allow those TLD operators to change jurisdictions, and that would create even more incentives for gaming.

Every TLD needs to work within a Jay Daley  –  Jul 25, 2013 9:15 PM PDT

Every TLD needs to work within a legal and regulatory framework.  By a single ICANN policy framework that is restricted to the US legal framework and the ICANN regulatory framework.  There is already one country with 'disproportionate rule-making power over all TLDs' - the US - and that's only going to get stronger unless ICANN legally moves to another country and then whatever country it moves to will be in the same position.

Setting the standards that a local policy framework must meet is nowhere near the geo-political issue that you describe.  And it would be a community driven process, not a GAC process.  If some are preferred among those that make the cut then that's competition not gaming, a key principle that ICANN should enshrine.  I see no reason to let a TLD move countries as you suggest, nor would it simply being a case of 'picking a jurisidiction'.  Legal and physical residency is not a trivial requirement.

Finally, yes they most certainly should be paying whatever fees to the local regulator and not ICANN.  Again that's competition not gaming.

Competition as a principle is clear to me - if you don't allow it then there needs to be a very good reason why not.  There isn't a good reason to disallow competition of policy frameworks for new TLDs.  Many of us fought for new TLDs to enable competition even though it had the potential to reduce our own sales because we knew it was the right thing.  The argument doesn't suddenly change when it comes to policy frameworks.

Shows us the way, then, using dot-nz George Kirikos  –  Jul 25, 2013 10:18 PM PDT

Shows us the way, then, using dot-nz as the testbed. By your "logic", gTLD registries (who are delegated a domain to the left of the "root") should be able to choose their own policies, essentially.

Continuing with that "logic", registrants within .nz (who are delegated a domain to the left of ".nz") should be able to choose which country's policies their registration is governed by, and pay fees accordingly to that country. For example, a Canadian company registering example.co.nz would pay fees to CIRA (and follow Canadian rules). Similarly, if a UK company registered example.co.nz, it would pay fees to Nominet, and so on.

Let us know what happens when such "policy competition", as you call it, is brought to the .nz namespace. Get all the wrinkles out, before you try to assert it will work a level higher, in the root.

Access to policy development Antony Van Couvering  –  Jul 30, 2013 10:32 AM PDT

One trouble with ICANN is that it could become a policy monopoly.  It's by no means perfect, and I among many other criticize it on a regular basis.

But the ccTLD world, although it has well-run TLDs, also has really abysmal failures. All of the qualities you claim for ccTLDs are shown on their dark side by rogue ccTLDs. As you well know, some are run by barely-accountable ministries, some by near madmen, and some by out-and-out scoundrels. There's nothing about the ccTLD model that makes it better — rather, there just happen to be some enlightened administrators. 

Although I agree with you about ICANN "growing a backbone" to help it deal with overweening IP and government intrusion, ccTLDs with excessive government intrusion are a dime a dozen. And the ccTLD grouping within ICANN maintains a polite silence on these issues - wasn't Bahrain recently welcomed as a ccNSO member despite their recent well-publicized jailing of bloggers?

In theory, I agree with a lot of what you say.  But in theory, theory and practice are the same thing…

Antony

Not all the same Jay Daley  –  Jul 30, 2013 2:39 PM PDT

If we disregard the barely-accountable, madmen and scoundrels would you agree that there are quite a few ccTLDs who have a policy framework and accountability model that's a fair alternative to ICANN?  Ultimately their long-standing existence makes this much more than a theory!

I don't agree that government interference is a fair comparative measure.  With the recent apparent subservience of ICANN to the GAC, allowing the GAC to unilaterally set policy, I struggle to think of many ccTLDs that have greater government interference.  If someone chose to be governed by a policy framework with excessive government interference then I have no issue with that.  Unfortunately it now looks like nobody will be able to make the opposite choice of being governed by a policy framework with minimal government interference.

Jay,I have long said publicly that ICANN Antony Van Couvering  –  Aug 01, 2013 9:43 AM PDT

Jay,

I have long said publicly that ICANN should stop try re-inventing the wheel and to take the best practices from well-run ccTLDs as a great starting point for policy development and as a sanity check for already-developed policies.  But that's based on the actual policies, not the idea that ccTLDs are an inherently better policy development arena. 

The political interference in ccTLDs is legion and longstanding.  I spent the late 90s and early 2000s at ICANN fighting a largely losing battle against the notion of "sovereignty" over ccTLDs and to prevent nonsensical re-delegations.  Those have occurred and continue to occur, and ccTLDs can be "disappeared" as well: .PF, .MQ, .WF, .BV, .PM, .UM — there are many examples.  Many of these "barely-accountable scoundrels" responsible for making ccTLDs disappear are so-called respectable national governments — the U.S., France, and Norway in the examples above. 

In other ccTLDs, the pricing, the rules, the corruption or other barriers prevent any noticeable use at all — and there is no appeal.  This to me is the essential point — for all of its craven subservience to the GAC (and they do stand up to the GAC from time to time by the way) ICANN conducts its business largely in public and when something untoward happens, there are lot of people like you and me who will scream foul.  That is not the case in the ccTLD world, where Bad Things can happen in the middle of the night. 

In a country like New Zealand, where civil society is strong and there are norms of transparency, the ccTLD can easily be better than anything ICANN can come up with.  In a country like Zimbabwe or Turkmenistan, which are run by vainglorious madmen (and mind you, there are more than a few), the opposite is likely to be true.  In countries like France and the US, where there is great lip-service paid to good governance, but a strong tendency to do the opposite while no-one is looking, ICANN is useful because it's pretty hard to slip one through unnoticed.

Having watched with alarm as more than a few ccTLD operators I used to correspond with completely disappear, and the ccTLDs they ran revert to silence, and having watched the very unseemly strong-arming of local ccTLD admins by governments, I cannot honestly say that the ccTLD set-up is necessarily a better one.  It can be better, certainly, but often it is worse.

Antony

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