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ICANN's gTLD Proposal Hits a Wall: Now What?

Michael D. Palage

Michael Palage, an Adjunct Fellow at PFF’s Center for Internet Freedom, has just published the following piece on the PFF blog. Reproduced here with permission.

ICANN's plan to begin accepting applications for new generic top-level domains (gTLDs) in mid-2009 may have been derailed by last week's outpouring of opposition from the global business community and the United States Government (USG). Having been involved with ICANN for over a decade and having served on its Board for three years, I've never seen such strong and broad opposition to one of ICANN's proposals.

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.

United States Government's Wake-Up Call to ICANN

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.

More Feedback to Come from Other Governments

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.

MarkMonitor's position is perhaps unsurprising, given its obvious interests as a registrar for large corporations with extensive trademark portfolios. But some of these same concerns were raised by GoDaddy-which, as the world's largest domain name registrar, represents a far more diverse array of interests.

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.

Last, Microsoft filed two sets of comments. The first emphasized Microsoft's legal concerns, which were consistent with the criticism of other major brand holders: questioning the demand for new TLDs, stressing the need for rights protection mechanisms, and urging transparency in the dispute challenge processes. Microsoft also stressed the need to protect against 'gTLD flipping" where top-level domain names could be traded by speculators in the secondary market. The second emphasized Microsoft's technical concerns, such as single label names; hosting services in new gTLDs; DNS heuristics in web based sub-systems; and intranet certificates.

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.

By Michael D. Palage, Intellectual Property Attorney and IT Consultant
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Niccolò Machiavelli was right Simon Waters  –  Dec 24, 2008 2:13 AM PST

About the issue of making changes....

"It ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them."

ICANN have introduced TLD frequently over the years with no significant technical or security issues, so why more domains should alter this is unclear.

Defensive registration is expensive, but it is also futile. Yahoo already don't own yah0o.co.uk or yah00.co.uk, and presumably a large number of other similar domains. Indeed Yahoo's extensive registrations of variants of Yahoo causes me minor issues with people who mistype their yahoo email address, which could be avoided if Yahoo simply left well alone or simply didn't set name servers for domains like this (when we could easily refuse the mistyped domains as non-existent).

I don't believe ICANN can put forward a policy proposal that would address the defensive registration issue, since it is difficult to design systems that work well for people intent on doing silly things. Would we prevent the creation of countries to appease those people who are trying to travel to all of them once?

The brand whitelist idea is simply stupid. Trademark names are limited to domains of endeavour for a reason, hence the Apple v Apple cases, so there are likely many people with a valid reason to have a given name. I mean I can see why AT&T;might think the International Brotherhood of Magicians should have first shot at any new IBM domain names, since some US business is hogging them clogging up the current TLDs, but I don't think that is what is being proposed.

Ultimately adding domains reduces the value of domains held, and a lot of the people involved in the domain business have a vested interest in preventing this (my employers included - I told them domain names are depreciating assets and they should liquidate early but they haven't done it yet, preferring to fiddle with meaningless trademark paperwork in the vague hope it will prop up the asset value). Even if the general population are better served by more choice in domains names.

It is a common pattern, where there is no, or little, representation for groups who gain by a bigger emptiness, or new companies that would emerge to take advantage of the new space and opportunities. Although making that space bigger would appear to be a low cost way of stimulating innovation on the Internet, you'd think in the current climate the DoC would be desperate for low cost, or nearly free ways to stimulate the economy.

Another example of this pattern was ICANN's slow action over domain squatting. Domain squatting isn't a victim-less activity, it is just the victims aren't visible, the people who didn't get the domain name they would want, and in most cases they don't understand why they are just surprised the domain is already registered.

You see a similar pattern in UK health care, where lobby groups bring pressure for expensive drugs to treat their specific disease, but there is no equivalent lobby for the people who aren't treated because the money was spent already on over priced ineffective medications for the most vocal and successful lobby groups.

Visit http://International.Brotherhood.Magicians/ to learn more.

The DoC as a government body should be representing the interests of the unheard majority on this point, and not pandering to current big business interests who fear some minor non-compulsory additional expense, or simply fear change.

Myth and truth about trademark owners complaints Dirk Krischenowski  –  Dec 28, 2008 11:27 PM PST

Thank you for passing the ball, Michael. Let's have a look on how the situation with the typo term "yah00" really looks like:

• yah00.com/.net/.info/.biz/.eu are registered by with Yahoo! Inc.
• yah00.fr/.fi/.gr/.hu/.be/.dk/.at/.cz/ and most other European ccTLDs as well as nearly all global ccTLDs etc. are not registered at all.
• yah00.org/.de/.co.uk seem to be registered by typical typo squatters.

I tried many other typical Yahoo typos and the situation is unsurprisingly identical. That means if a large company's legal department speaks about a large domain portfolio they have to manage to protect their brand, they mean that over 80% of these domains are actually .com domains, a further 10% other gTLDs and only 10% ccTLDs.

Some facts I'd like to add to the discussion are:

• 89% of WIPO trademark cases are within the .com/.net/.org name space (source: WIPO press release March 2008)
• 80-90% of large company domain registrations (I mean defensive and typo-/cybersquatting preventive ones) are within the .com/.net/.org name space (source: whois queries for typical typos / interviews with trademark owners and company representatives)

Adding both facts to a recommended course of action would logically mean to implement asap effective notice & takedown measures within the .com/.net/.org name space (and of course the other gTLDs). This would be, for years and by far, the most effective measure to make trademark holders happy.

The new TLDs, even if there are hundreds, will never reach the importance and thereby attract the interest in typosquatters and cyberquatters as .com does all the time. I predict that all new TLDs in the next 10 years will not even reach 10% of the typosquatting and cyberquatting level as .com does.

The whole discussion is like the one about reducing casualties by cars on the streets. The appropriate measure is not to forbid more cars to enter the street, but to increase safety in the millions of existing cars.

Voices from individual end-users: nearly half says domain names have depreciated CHRISTINA LIN  –  Dec 29, 2008 7:36 PM PST

Thank you very much for the overview. To evaluate the demand for new gTLDs, opinions and online behaviors of individual end-users may be taken as a reference. An online survey with 4,281 unrepeated respondents of the local individual end-users in Taiwan last month showed nearly half (47.5%) agreed domain names had depreciated with the growing habit of using searching engines while the other half (51.7%) worried cyber-squatting would become rampant and violate brand holders’ rights.

Though viewpoints of individual end-users on new gTLDs may vary from region/country to region/country and from ASCII scripts users to non-ASCII scripts users, the online behavior studies of the U.S.A. also indicate the usage of searching engine has been growing continually and only second to email service at present.

ICANN is an amazing participatory global multi-stakeholder Paul Tattersfield  –  Jan 01, 2009 4:06 AM PST

ICANN is an amazing participatory global multi-stakeholder organization which truly deserves to survive, but one has to wonder what will happen in September?  How could such an ill considered and poorly drafted key proposal document for underpinning the very future of the Internet, ever have been allowed to see the light of day?

It is almost as if elements that should have known better have been mesmerized by their own glossy marketing materials “for a major initiative that will transform the Internet”. The whole Draft Applicant Guide Book and associated documents smack of an extremely rushed process from a committee captured by vested interests, rather than a well considered proposal for improving the DNS system as a whole.

The lack of thought and foresight on the most basic of matters is, quite honestly, astounding.

The letters from the DOJ and the DOC (18th, Dec, 2008) begin to touch on some of the problems and ICANN would be well advised to consider what they are both saying very, very carefully.

Are you not missing something rather fundamental? Kieren McCarthy  –  Jan 05, 2009 3:44 PM PST

I'm somewhat surprised that a veteran of the ICANN process would find criticism during a public comment period so disturbing.

There's no doubt that business has concerns about the Applicant Guidebook - it has made that clear through a number of responses. But I think you are missing something fundamental here: ICANN is a multistakeholder organization and all the critical voices, as loud as they are, have come from one stakeholder - business.

The USG's letters are, of course, from a government but from a government that has a very unique relationship with ICANN. And, if you read the letters, virtually all of its concerns stem from the business and competition perspective.

Not only is this perfectly normal - there was always going to be at least one stakeholder that was not happy with the Applicant Guidebook (that's why the public comment periods exist) - but this is actually a good thing.

If the whole community was saying new gTLDs won't work then that would be a problem. As it is just one stakeholder group is unhappy - which means that it should be comparatively easy to assuage their concerns. Don't forget that there are others out there - the technical community, civil society, governments, registrars, TLD managers. The voices of disagreement are always going to be louder than those of agreement.

What's more the ICANN process is historically and structurally designed to work on criticism - something is publicly posted in order to attract review in an effort to develop an open consensus approach. The fact that criticism stems from something as large and significant as the new gTLD process is not only to be expected but is vital to the whole process' success.

This is simply how policy-making for the domain name system has developed through the ICANN model. Of course the Applicant Guidebook process is noisy - I don't recall it ever being otherwise. It will continue to be noisy. And then new gTLDs (and IDNs) will launch, and the Internet will continue on its revolutionary arc, with its billions of users making the most of the new lands that fresh gTLDs create.

I can only encourage people to continue participating in this noisy model and continue making the Internet and the domain name system an extraordinary force for change in the world.

Kieren McCarthy
General manager of public participation, ICANN

Kieren,Thanks for your reply. I hope your Michael D. Palage  –  Jan 07, 2009 5:46 AM PST

Kieren,

Thanks for your reply. I hope your holidays and extended vacation went well and your New Year is off to a good start.

First, I do not disagree with your view that “noisy process” of criticism is a good thing.  In fact, I often quote Stuart Lynn, ICANN’s former CEO, who said “A noisy ICANN, is a healthy ICANN.” However, I believe that the general public has become increasingly apathetic in recent years about the direction and leadership of ICANN—or, more precisely, the public has lost any sense that ICANN will actually respond to their concerns.  The public outpouring of criticism about the new gTLD RFP is important precisely because it showed revived involvement from the “bottom up” of the very stakeholders to whom ICANN is supposed to be accountable.  If a noisy ICANN is really a healthy ICANN, let’s look at some recent closed ICANN public forums.

- Draft 2009-2012 Strategic Plan Final Comment: 6 comments
- Proposed Bylaw Changes: 14 comments
- Independent Review of ICANN Board: 9 comments
- ALAC Improvements Working Group: 6 comments
- Individual Participation in GNSO: 12 comments

I could go on.  But perhaps ICANN, with its substantial financial and manpower resources, is better suited to conduct a similar analysis of every public comment forum—documenting the number of submissions, and perhaps more importantly, the number of substantive changes requested by the community during the public forum and the number of changes that ICANN actually adopted in response to such public comments.  Instead, I will simply point out that ICANN’s gTLD proposal drew an astounding 317 comments. 

Another reason for a growing disconnect between ICANN and its stakeholders is the incredibly short time windows that ICANN allows for public comment.  Notwithstanding the occasional extension of a public comment period, the apparent default public comment period of around 30 days is ridiculously short.  Even a veteran such as myself cannot possibly keep up with the flood of paperwork that ICANN’s growing army of staff and consultants push out.  Unfortunately ICANN seems more focused on the size and quantity of the documents they produce than on ensuring that there is a meaningful consultation with the community about the underlying issues.  Again, this is why the public uprising against the new gTLD RFP is so important:  It shows that stakeholders have not totally given up on the bottom-up consensus driven ICANN process.

Now, as for your substantive comments, I’m puzzled by your suggestion the USG correspondence slamming ICANN’s gTLD proposal was focused primarily on “business and competition perspectives.” I see the USG correspondence as addressing a range of concerns:  security and stability, compliance, consumer benefits, etc.  Could you or other ICANN staff please elaborate on why you have construed so narrowly the broad scope of concerns I believe the USG articulated on behalf of both individuals and businesses?

You assert that there will always be at least one stakeholder group not happy about any new ICANN proposal, so we shouldn’t be too concerned by opposition to the new gTLD process.  Perhaps you could document for me precisely which individuals, businesses and other organizations that actually support this new gTLD proposal—and what is the basis for their support?  The USG letter notes that the ICANN staff apparently failed to follow the direction of the ICANN Board in conducting an economic analysis of the domain name registration market to assess the costs and benefits of allowing new gTLDs.  But there’s hardly a shortage of highly paid ICANN consultants whipping out reports analyzing and justifying any number of ICANN staff proposals, including senior staff compensation, auctioning off new TLDs, etc.  But it’s striking that ICANN staff would chose not to address this threshold question before expending $16 million on this initiative.  In the private sector, someone would have already lost their job for this kind of gross oversight.  If, on the other hand, the ICANN staff actually did conduct such an economic survey—as requested by the ICANN Board—could you please advise how the community could review this crucial document?  Surely, ICANN’s stated principles of openness and transparency demand nothing less.

While I will note that there have been a number of individuals and businesses within the GNSO that have been supportive of new gTLDs, many if not all have a vested financial interest in seeing new gTLDs added to the root—as does ICANN itself, given the substantial new fees at stake.  I would really like to see ICANN document those non-interested parties that are in favor of new gTLDs and how the potential consumer benefits outweigh the potential costs associated with this initiative—which is precisely what the ICANN Board and the USG have requested. 

I believe it is important to stress that “consumer benefit” should not be measured solely in the number of registrations a TLD accumulates, as a number of people often do.  A number of TLDs such as .AERO, .COOP and .JOBS provide a benefit to their respective communities with less than 10,000 domain name registrations (much like .EDU) while more importantly causing little or no harm to other communities.  I am not aware of any UDRPs that have been filed in any of these three TLDs, nor of any complaints from the IP community about the need to maintain expensive defensive registrations in these highly specialized TLDs.

Thanks again for your response to my article.  I look forward to future constructive public exchanges on this topic.  I eagerly await the summary analysis of public comments received in connection with the new gTLD RFP that Paul Twomey previously promised would be available by the end of the year. 

Best regards,

Michael

Don’t mind me, ICANN -- I’m Just One Stakeholder Steve DelBianco  –  Jan 11, 2009 10:44 AM PST

The theory behind ICANN is that the Internet “community” – which is to say, all of us – determines what’s best for the Domain Name System (DNS). Many of us in the community have long questioned whether ICANN really allows our input to influence its decisions, but rarely are those suspicions so clearly demonstrated as they were this week.

Mike Palage's post described broad-based criticism of ICANN’s proposal. Both the Commerce Department and the Justice Department posted substantive criticisms, as did NetChoice and many other businesses.

Palage posits that with so much outcry from the “community,” ICANN might be re-thinking increasingly unrealistic timeline for adding new TLDs. But Kieren responds by brushing aside the mountain of criticism, saying it was “perfectly normal - there was always going to be at least one stakeholder that was not happy”

It’s surprising that ICANN dismissed the letter from the U.S. Department of Commerce so causally.  After all, that letter represents the views of the entire executive branch of the US Government — including the Obama transition team.

But it’s even more troubling that ICANN so casually dismisses a massive cross-section of the global business community with a brush-off like “just one stakeholder group is unhappy”.  The business community includes ISPs, content companies, application providers, and device makers who have spent a trillion dollars to bring the Internet to a billion people.  It also includes the consumer brands and financial services companies that want to protect their customers from fraud and phishing enabled when criminals abuse the DNS.

By dismissing the concerns of business as the complaints of just one stakeholder, maybe ICANN is reaching for the concept of “multistakeholderism” advocated by the United Nations. But as much as they may want to forget it, ICANN’s true DNA remains rooted firmly in the private sector. Moreover, only private sector investment will bring the Internet to the next billion users. 

The preamble to its Joint Partnership Agreement with the US Government says ICANN is to promote “private sector leadership in the innovation and investment that has characterized the development and expansion of the Internet around the globe”. And under ICANN’s responsibilities, that same agreement reads, “ICANN shall continue in its commitment to the private sector management of the Internet DNS, by promoting the security and stability of the global Internet...”

I get that ICANN intends to just walk away from its partnership with the US Government later this year.  But I really didn’t expect ICANN to boldly declare independence from the private sector, too.

Where exactly are they going once ICANN becomes independent? And to whom, if anyone, would ICANN be accountable?

By letting this new TLD process spin out of control, ICANN threatens injury to businesses that give it life.  And they’ve just added insult to injury by dismissing the US Government and multinational businesses as just “one stakeholder”. 

Does ICANN believe this is inspiring “institutional confidence”?  Sounds more like institutional OVER-confidence to me.

Steve DelBianco
executive director, NetChoice

I doubt think ICANN has that level George Kirikos  –  Jan 11, 2009 11:15 AM PST

I doubt think ICANN has that level of sophistication to have engaged in such deep thought as "reaching for the concept of “multistakeholderism” advocated by the United Nations."

It's more likely they simply see new gTLDs as a new cash cow that taxes the internet (due to all the externalities from defensive registrations, etc.), and will fund more cushy jobs for insiders to manage the mess. It's the modern equivalent of getting paid to dig holes, and fill them back up again, albeit without the hard work (unless one considers travel to exotic places, free meals and 5-star hotels "hard work").

That's why important things like DNSSEC and IPV6 sit on the back burner, because there's just little money in them for ICANN. There's just little attention to the important but non-glamorous issues. Making things more complex, more costly, less efficient — those are ICANN's legacy and dubious achievements that NTIA will need to consider.

Not in agreement Kieren McCarthy  –  Jan 07, 2009 9:57 AM PST

I have to say I don't agree with the basic thread through which you are weaving a multitude of other issues, Michael: that there is some kind of public outpouring on this issue of new gTLDs.

We have both followed and been involved with ICANN long enough to know that "noisy" invariable flips over into hyper-critical. I don't think I have ever written anything as an ICANN employee that hasn't been immediately dissected (and frequently misrepresented) in a purely critical manner. Almost as frequently that dissection turns into personal attack if the dissector in engaged in debate.

But that aside, re: the public comments statistics you refer to. As you can probably expect, I keep a close eye on the public comment process as part of my job. And yes I do have a wide range of stats that cover, for the past year, the number of comments made, the number of comment periods opened, the length of the comment period and the delay between the period closing and the summary/analysis being posted.

Those stats were in fact supposed to go up last month on the ICANN dashboard. I'm not sure why they haven't but yesterday I did talk to the person who helps coordinate such stats across the organization and he was chasing me for the latest stats. I will make sure they are public as soon as possible.

What do those stats show? Something different to what you see since you are looking at it through purely critical eyes while I am looking at it in terms of how to increase participation.

This is the reality:

* ICANN is producing more public comments each year

* This is for two reasons. Firstly, the organization is doing more work. In fact, in my opinion, it is doing too much work because the link between staff and the community is such that there is no way for staff to say no to the SOs and ACs. As ICANN grows as an organization - and by ICANN I mean all of us, everyone that gets involved in this process - the amount of work inevitably increases. This leads to more public comment periods.

* Secondly, the reason we have more public comment periods is because the drive to make the organization's workings entirely transparent and the organization as accountable as possible has meant that basically everything the organization does is now put out to public comment. I have started considering splitting up public comment periods in important ones where the community needs to know about it, and less important ones that are simple changes or tweaks that have already been agreed to by the only people that really care about them.

* I agree with you that the increased amount of work is making it increasingly difficult for a full range of responses to public comment periods. This is something that ICANN staff have been acutely aware of for some time. And the community has become increasingly vocal on this issue as well. The easy fix, everyone appears to believe, is to extend the length of comment periods. I think this is a seductive idea but only one part of a bigger solution that is needed. The stats show, incidentally, that comment periods *are* increasing in length. The reason they were held so tight for so long is down to the bylaws which state very clear period lengths. Staff are still stuck with those bylaws lengths, although a number of ways to make more time available for community comment have been introduced. The hope is that the GNSO review of the whole PDP process will deal with this issue and we can settle on longer comment periods (incidentally, there are a number of official documents such as the Transparency and Accountability Principles that specifically include longer public comment period times).

Longer comment periods is not the solution though. The whole comment approach needs to be reviewed. Does ICANN need to put everything out to public comment? Would fewer comment periods enable greater interaction on the important ones? Who gets to decide what is important and what isn't? Is the mechanism for commenting on work out-of-date or unduly restrictive? (I would argue yes and in fact am leading an internal project to identify new software that will encourage easier and larger participation.) Is the approach of releasing a large document and then asking for comments restricting feedback? Again, I would argue yes, but there is no agreement yet on what different approach ICANN should take.

I've gone on about public comment periods a bit too long here - suffice to say that I am aware of it, and there is a lot of work going on to improve the system involving a large number of staff, and the new Board Committee on Public Participation, and at some point I want to invite a number of community members into the process.

What I do think you have to bear in mind, Mike, is that staff work incredibly hard to provide what the community asks for. It is very disheartening when those efforts are mischaracterized as conspiratorial. For example you say: "Unfortunately ICANN seems more focused on the size and quantity of the documents they produce than on ensuring that there is a meaningful consultation with the community about the underlying issues." If staff were able to produce a smaller number of smaller reports and have the community accept that, it would happen in an instant.

The reality however is that the demand for work is too high, and the community view anything less than 100 percent accuracy as a failing of staff and/or some kind of effort to hide information. You only get that level of accuracy with long reports. Fewer words inevitably mean summarizing.

[cont...]

comment above continued... Kieren McCarthy  –  Jan 07, 2009 9:57 AM PST

Now, with respect to the Applicant Guidebook, I think that is a great example of ICANN staff working to boil down hundreds of thousands of words and many thousands of different viewpoints into a clear, easy-to-understand guidebook, split up into logical modules. As a lawyer, you will no doubt recognise how hard this is to do. The difference with a good brief and an ICANN document however is that many thousands of eyes will look at it, rather than just the legal teams and the judge. And of course, the many thousands of eyes on an ICANN documents are all entitled - in fact actively invited - to suggest changes.

Now I still think that most of ICANN's documents are too long, too legalistic in their wording, too full of jargon and lacking in simple summary points, but I also understand entirely why they are like that.

To get back to my point about length and accuracy. I think to a certain degree you are guilty of precisely that when you raise my brief summary of the USG letters re: the Applicant Guidebook. You say: "I’m puzzled by your suggestion the USG correspondence slamming ICANN’s gTLD proposal was focused primarily on “business and competition perspectives.” I see the USG correspondence as addressing a range of concerns:  security and stability, compliance, consumer benefits, etc. Could you or other ICANN staff please elaborate on why you have construed so narrowly the broad scope of concerns I believe the USG articulated on behalf of both individuals and businesses?"

Now in one respect you are, of course, right. One of the USG letters in particular covers a number of areas. When I wrote about the USG's unique role wrt ICANN that's why I was intending to cover. But, yes, you are right, I was being brief, I was summarizing, it was not 100 percent accurate. Needless to say, my very brief summary in a short blog comment on a small website has absolutely no impact on how ICANN as an organization views or responds to the USG letters. So don't be surprised if staff don't post responses here outlining precisely what their views are on each point made in those letters.

Re: support for the new gTLD process. I'm not going to trade tit-for-tat responses for and against the process. Firstly because every one I name, you will then approach in a purely critical manner and explain why that support is less significant than something else. Secondly because that's not how the process works - it's not as if we pile everyone for an idea on one side and everyone against it on the other, see who wins and then go ahead.

It's also, frankly, a little bizarre that a number of community members are painting this comment period as if ICANN staff went way and cooked up some new idea to expand the domain name space. This has been going on for years. I can't recall the number of public meetings I have sat through where this has been discussed - sometimes word for word in a text. What is new here is that ICANN staff took everything that community had come up with - which included a large number of ambiguous and contradictory suggestions - and devised a guidebook that would make that thinking a reality. It was never going to be right first off, and no one expected it to be. That's why we have public comment periods.

With respect to some of the comments - especially from businesses that have not been a regular part of the ICANN process. My suspicion is that they may not have understood how the public comment process works - that changes do happen in response to comments. Even if they did understand, you can hardly blame them for making their points forcefully if they are genuinely concerned that the process as currently outlined is going to make their lives much harder. But this is good - much better to hear these concerns now than in six months' time when the process is getting near to completion.

Needless to say, ICANN staff takes this very seriously and will develop a number of ways to deal with and assuage those concerns. That's what we do. We have already announced that we will run a series of conferences that will deal exclusively with the intellectual property issue where arguments will be thrashed out and from which a number of changes will be developed. This is the job of ICANN staff: it's not easy, it's requires alot of discussion, careful development and occasional innvovative thought and ideas, but that's what we get paid the big bucks for ;-).

I've gone on too long. I'll stop here and let you pick up on anything you think I haven't covered but should.

Kieren McCarthy
General manager of public participation, ICANN

I don't always often agree with Michael, George Kirikos  –  Jan 07, 2009 1:47 PM PST

I don't always often agree with Michael, but in this case he makes a good analysis that I generally agree with (with a few minor differences). If Kieren's attitude of denial in this regard is typical of ICANN staff and the Board in regards to the public's opposition of new gTLDs, I expect even more firings of ICANN staff in the future than is already warranted. Heck, even PIR is saying "On December 18, NTIA posted a comprehensive set of comments to ICANN’s proposal which effectively halt the current plan and timetable due to some of these same concerns and lack of research."

If ICANN decides to go rogue and move full steam ahead, they do so at their peril. I'd expect early termination of ICANN's contract by the NTIA, if ICANN was so foolish, as NTIA would work to ensure the stability of the DNS by removing reckless custodians.

Blind criticism Kieren McCarthy  –  Jan 07, 2009 2:26 PM PST

I'm fairly certain from recent comments on this site that you would agree with almost anything at all so long as it was critical of ICANN, George.

The discussion about compensation practices has descended into farce amid vague and incoherent calls for firings: something that has now been dragged over her to a completely unrelated post. And look at the language here:

rogue, peril, termination, foolish, reckless

This is all, sadly, way over the top - there is nothing at peril here, it is simply discussion for moving forward. How is anyone supposed to take this kind of response seriously? I was trying to have a reasoned discussion here about the issues raised by Michael by giving the perspective from the staff side. Your conduct George, is rapidly becoming Troll-like.

Kieren McCarthy
General manager of public participation, ICANN

Kieren: You're simply an apologist for ICANN George Kirikos  –  Jan 07, 2009 2:49 PM PST

Kieren: You're simply an apologist for ICANN at this point, trying to be a spin-doctor. People can see through that. Is Michael a troll now for saying above that "In the private sector, someone would have already lost their job for this kind of gross oversight.” That sounds like "firing" to me. Apologists don't survive very long. I expect you won't be at ICANN in 2010. You should work on your resume, and plan an exit strategy, instead of putting all your eggs in ICANN's wobbly basket. And I mean that sincerely.

If you think I'm not having an impact, recall who it was that initiated the opposition to the elimination of pricing caps. Re-read my new gTLD comments, and all the other public comments (and I've read EVERY comment), and see how many other organizations borrowed my ideas (and in many cases, exact language). This is no coincidence, as the IP addresses of many of those organizations can be seen in my company webserver logs, direct hits with ICANN webserver referrer URLs from reading my comments, before polishing up their own, or direct clicks from copies of emails sent to the BC mailing list that get widely forwarded. But, if you really think I'm a "troll", you know that the best way to handle trolls is to ignore them. Your actions betray your true feelings, though, because you don't ignore my comments, but instead try to undermine and silence/censor them, unsuccessfully. This is a public forum. If you want to have a private discussion with Michael, send him an email or call him by telephone

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