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What ICANN Can Learn from Humpty Dumpty

Michael D. Palage

I have been an active participant in the ICANN "grand experiment" from the beginning. An experiment in which a private sector led organization was entrusted by the Internet community and governments to be a trustee of a global public resource. However, at no time during my twelve years of participation in ICANN have I been more concerned about the long term viability of this organization than I do now heading into the Singapore meeting. Failure of the ICANN Board to do the right thing in Singapore will have a profound impact on the future of the private sector led model.

While ICANN and the Governmental Advisory Committee (GAC) have made slow but steady progress toward the resolution of their outstanding new generic Top-Level Domain (gTLD) implementation issues, ICANN's proclamation for a June 20th new gTLD party is imprudent at best. Specifically, it has engaged in a high stakes game of chicken with the GAC that it will lose. While the ICANN Board on the advice of its general counsel has a clear path under the bylaws to disregard GAC advice, it is questionable whether the entire ICANN Board has taken the time to evaluate the future consequences of its actions.

The purpose of this article is two-fold: to provide a solution to bridge the current differences between the ICANN Board and GAC in bringing about a responsible closure to the new gTLD implementation process; and memorizing the future consequences of ICANN's actions should they decide to disregard GAC advice again.

History Lesson 101

To understand the threat to ICANN's private sector led model, it is important to first begin with how that model has helped spur innovation and consumer choice. When ICANN accredited the first thirty-four ICANN accredited registrars in 1999, those companies were soon after able to begin providing domain name registration services to a truly global marketplace. The same was true for the new registry operators approved in the 2000 and 2004 new gTLD rounds.

This approach is in total contrast to the traditional telco model in which providers must become licensed in each individual country in which they provide services. Back in 2000 in my capacity as Chair of the ICANN Registrar Constituency I assembled twenty ICANN accredited registrars who were later to become Afilias, the registry operator of the .INFO TLD. It is highly unlikely that Afilias as a grassroots technology startup would have had the resources to enter into licenses in all of the countries in which it initially provided domain name registration services. Out of the seven selected new gTLD applicants in 2000 proof of concept round, only NeuLevel (the former join venture between Melbourne IT and NeuStar) would have likely had the resources to embark on such a global licensing campaign.

However, as a result of ICANN's non-telco model of accreditation start-up companies like Afilias were able to flourish and become the second largest gTLD infrastructure provider in today's market. Similarly, GoDaddy, who was not one of the first 34 ICANN accredited registrars in the spring of 1999, was able to begin operations the following year and grow into the world's largest ICANN accredited registrars with over 40 million domain names under management today.

Consequences of the ICM Registry Resolution

While certain governments are actively engaged in the blocking of individual domain names within the DNS at a national level, the wholesale blocking of an entire TLD within a country has largely been an isolated and rare incident. This is likely to change as a direct result of the ICANN Board's decision to enter into a registry contract with ICM Registry. Undoubtedly there will be a number of governments that will begin imposing requirements on national internet infrastructure providers to block resolution of the triple X TLD. The cause for concern is that once national internet infrastructure providers have built the tools to block an individual TLD, these tools will be more aggressively used by national governments to advance other economic and policy initiatives that could be inconsistent with widely held policies and practices within the broader Internet community.

For example, a national government could implement legislation requiring individual registry operators to become licensed within that country or have their TLD blacklisted using these new tools. Using existing widely available filtering tools, this licensing regime could easily be extended to registrars with governments blocking access to any non-licensed registrar websites used for domain name registration and maintenance. While this national licensing scheme is likely to be an initiative in only a small handful of counties at first, imitation is the highest form of flattery in the domain name industry. It would likely not take long for other national governments to implement a similar system if there was perceived revenue to be collected.

The fact that ICANN's annual budget will likely exceed 100 million dollars in the near foreseeable future as a direct result of the new gTLD expansion, it would be logical for governments struggling with budgetary shortfalls to look at a California non-profit reaping substantial economic windfalls and want a cut of the action. The sad irony of this chain of events is that only the dominant incumbent registration authorities will be able to bear this regulatory/administrative burden thus defeating one of the principle reasons for the new gTLD program, increased consumer choice and competition.

Humpty Dumpy

As more and more governments begin to enact similar national legislation, ICANN will have to engage a public relationship firm to devise a new tag line as One World, One Internet, Everyone Connected will become obsolete as the Internet as we know it today will cease to exist. However, unlike in the children's nursery rhyme Humpty Dumpty where all of the Kings horses and all of the Kings men could not put Humpty Dumpty back together again after his great fall, governments do have a way of harmonizing national laws when it is related to global critical infrastructure, and it is called a treaty.

Many readers are likely to be dismissive of these very real concerns by relying on the false belief that most treaties generally take years if not decades to negotiate and implement. However, the beginning of the end may be closer than you think. Next November the governments of the world will convene at the World Conference on International Telecommunication (WCIT) where they will discuss potential amendments to International Telecommunication Regulations (ITRs). ITRs are a binding treaty administered by the ITU which governs how countries link information and communication networks. The scope and breath of subject matter covered by the ITRs include: definition of international services; cooperation among national administrations; emergency telecommunications; and determining international accounting rates and practices.

While the ITU and other intergovernmental organizations have been a convenient boogeyman used by ICANN and others over the years, the sad irony is any organization that truly wishes to undermine ICANN's legitimacy simply has to sit back and hand ICANN more rope with which to hang itself. As GAC members have tried to remind ICANN on several occasions, it is hard to defend their investment of limited resources in defending the ICANN private sector led model when ICANN ignores GAC advice. Therefore for those entrepreneurs looking to make a quick profit off of the new gTLD Gold Rush, circle next November 2012 on your calendar and re-adjust your exit strategies accordingly depending upon the WCIT resolutions.

Keeping Humpty Dumpty on the Wall

While there may be no single solution to delay the inevitable expansion of government regulation over the technical administration of the Internet there are three steps which could mitigate this potential expansion and perhaps preserve a model as close to the status quo as it exists today:

  1. Do not ignore GAC advice. The ICANN Board needs to ensure that every GAC concern is fully addressed to their satisfaction. If the ICANN Board cannot ensure this before its planned June 20th party, then it needs to provide a suitable safety net in the ICANN Bylaws to ensure that any future GAC consensus advice is treated on an equal basis as a GNSO Council supermajority vote.
  2. Focus on maximizing the number of corporate .brand gTLDs. One of the lessons that the ICANN community has hopefully learned from this new gTLD implementation exercise is that large multi-national businesses have very constructive relationships with their national governments. If multi-national corporations begin to adopt .brand gTLDs these businesses will want to ensure that there remains a unified Internet marketplace to sell their goods and services, thus becoming ICANN's biggest ally in preventing any fragmentation of the Internet.
  3. Follow the opinion of the US General Accounting Office 2000 report which stated that ICANN should operate on a cost recovery basis. ICANN's annual budget which has grown substantially over the years is about to explode exponentially with a cash windfall expected from new gTLD auctions and annual registration fees. These excess sums of money attract all of the wrong type of attention that ICANN does not need.

The Affirmation of Commitment specifically recognizes "the important role of the GAC with respect to ICANN decision-making and execution of tasks and of the effective consideration by ICANN of GAC input on the public policy aspects of the technical coordination of the Internet DNS." Therefore it is difficult to reconcile how the ICANN Board would be willing to disregard GAC advice on such an important public policy issue, although perhaps the following excerpt from the Lewis Carroll classic Through the Looking-Glass provides some insight.

"When I use a word," Humpty Dumpty said, in a rather a scornful tone, "it means just what I choose it to mean — neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master that's all."

The ICANN Board and GAC need to reach a mutually acceptable resolution to all of their current differences prior to June 20th, because the consequences of finding out who is the "master" is NOT in the best interest of the future stability, security and unity of the Internet.

By Michael D. Palage, Intellectual Property Attorney and IT Consultant
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I have two points I want to Avri Doria  –  Apr 30, 2011 5:33 AM PDT

I have two points I want to make in this comment on Humpty Dumpty.

The first point is to express my surprise as I read this latest column by Michael Palage.  As we were coauthors on a piece on CircleID in 2007 called the "Please, Keep the Core Neutral," it shocked me to see this shift in position.  In that article we stated:

Regardless of what is contained in the final GAC principles on new TLDs, governments have made their intentions clear. They believe that entries into a domain name database involve public policy considerations that fall within their purview.  Exercising this newly claimed right by the GAC has unfortunately put a new dimension of international politics into one of the Internet’s core infrastructure components, the Root A server.  Instead of governments regulating what their citizens can and cannot access at the edge of the network in their own countries, as they have successfully done to date, they are now seeking to regulate actions at the core of the Internet.  Unfortunately, when governments take such draconian actions at the core, they negatively impact the ability of Internet users in other countries where there are different, and sometimes even opposite, public policy considerations.

and

Given the potential Catch 22 scenario that ICANN finds itself in, the question that needs to be asked is whether any action can be taken to preserve the integrity of the root and ICANN’s technical coordinating role. The answer is yes, but the solution is almost counter-intuitive. Instead of specifying the number of governments to meet a required threshold that can block a potential TLD applicant from being added to the root, the new standard should be that any applicant operating properly under the laws of the country in which it is organized should be subject only to ICANN’s technical, operational and other criteria.  Assuming the basic TLD application criteria and processes are met, the TLD should be added to the root.

http://www.circleid.com/posts/please_keep_the_core_neutral/
Mar 25, 2007

Can this really be the same person who now writes:

While certain governments are actively engaged in the blocking of individual domain names within the DNS at a national level, the wholesale blocking of an entire TLD within a country has largely been an isolated and rare incident. This is likely to change as a direct result of the ICANN Board's decision to enter into a registry contract with ICM Registry. Undoubtedly there will be a number of governments that will begin imposing requirements on national internet infrastructure providers to block resolution of the triple X TLD. The cause for concern is that once national internet infrastructure providers have built the tools to block an individual TLD, these tools will be more aggressively used by national governments to advance other economic and policy initiatives that could be inconsistent with widely held policies and practices within the broader Internet community.

At that time I thought that my co-author believed, as I still do. that a GAC, or an individual government's, threat to block a TLD was never to become cause for making decisions that ran counter to ICANN's agreed upon processes or that imposed national prejudices on the Internet's Root.  This new position of Michael's appears to be a complete 180 degree shift and appears to be an Intergovernmental view of what ICANN should be and how it should behave. 

My second comment involves Michael's comment about the Board ignoring the GAC's advice.  It is a marvel to me that anyone watching the Herculean efforts the Board is going through in repeatedly considering each and every word of GAC advice could consider the Board as ignoring GAC advice.  Or does one have accept every word of advice in order to avoid being accused of ignoring that advice.  The Board is devoting a great deal of effort and attention in its negotiations with the GAC and is quite clearly giving them the greatest consideration.  In fact sometimes I would argue the Board is giving the GAC advice far greater weight than it has ever given to any other entity within ICANN.

To treat advice the way Michael seems to be suggesting, would be to give the GAC a veto, over decisions made according to ICANN policy development processes. It would amoiunt to treating GAC advice as a command, which would be the last step in a process of setting the GAC up as an oversight body for ICANN.  This, however, d theoes not fit multistakeholder model.  Michael says he wants the Board to give the GAC the same consideration it gives a GNSO supermajority.  I remind Michael that is the Board can vote down the GNSO's supermajority according to the By-laws.  And the Board can reject the advice of the GAC after due consideration and negotiations, also according to those same By-laws.  Each of the GAC and GNSO is being regarded by this Board appropriately according to its roles and responsibilities.  To go further, I would ask that the GNSO continue to receive the proper treatment from the Board in these considerations with the GAC, and if the Board, in any agreement with GAC issues, decides to go against the GNSO supermajority recommendations on new gTLD recommendations, then that decision be taken in accordance to the By-law's rules on Board rejection of supermajority policy recommendation from the Supporting Organization.

The by-laws do not call for the Board and the GAC to reach a mutually acceptable resolution as Michael suggests.  There is no requirement for binding arbitration.  They call for due consideration, negotiation and a Board decision.  Let's not allow fear of a possible future ITU conference activity scare ICANN into placing GAC into an oversight role that was never intend by the ICANN By-laws. 

Getting back to Humpty Dumpty.  In the last line of the quote an important question is asked:

“The question is,” said Humpty Dumpty, “which is to be master that’s all.”

Let us hope that it is the ICANN By-laws that support the ever evolvong multistakeholder mastery of the ICANN process, that remain master.

Avri,I believe this article is consistent and Michael D. Palage  –  Apr 30, 2011 7:38 AM PDT

Avri,

I believe this article is consistent and complimentary to our original article. Obviously we seem to disagree, but allow me to explain why I see this glass as being half full, instead of half empty.

I have not wavered in my belief that the keeping the core neutral (removing politics from the entry of individual TLDs from the root) is the preferred/default mechanism. However, a lot has changed in the world since then, e.g. entry of triple x into the root and some governmental regime changes directly/indirectly related to Internet activity. 

Notwithstanding these changes I have remained committed to the private sector led coordination of the Internet's technical coordinating functions. However, I believe the GAC is an important public policy safety valve in this model, to ensure that the private sector does not go down a road that would compromise the long term legitimacy of that model.

In advocating to have the ICANN Board treat GAC consensus advice on par with a GNSO Council Supermajority vote, I am just seeking to treat both partners in the private-public partnership the same. Recognizing that consensus advice within the traditional UN/intergovernmental setting is not an easy thing to accomplish, I have no problem treating this level of advice on par with a GNSO Council Supermajority vote.

We both come from different backgrounds, me business and you civil society. Although we tend to agree on a number of issues which are important and core to civil society, my primary interest in participating in ICANN is about empowering businesses to responsibly use the Internet and helping them to create jobs and spur innovation and choice. Now as I said in my original article businesses want to sell their goods and services to a unified marketplace so fracturing the Internet is not a good thing.

Therefore I think it is in the Internet's best interest to focus on expanding the name space with non-controversial strings. These businesses then become a natural ally in potential excessive government regulation. I am not naive and recognize that when choosing between making a profit and doing the right thing, BIG Business will choose a profit.

The one point where I will choose to more vehemently disagree with you on is the statement about ICANN's by-laws being deemed the "master." I believe it is in the best interest of the global internet community to leave this question unanswered at this time.  Specifically, we should focus on the private-public "partnership" upon which ICANN is suppose to be founded upon, instead of trying to find out who has 51% because we may not like the answer. As I was taught in law school, never ask a witness a question on the stand during trial in which you do not already know the answer.

Michael,Thanks for your considered response to my Avri Doria  –  Apr 30, 2011 1:01 PM PDT

Michael,

Thanks for your considered response to my comment.  In it you clarified at least one thing for me: from your article I thought that you were accepting this latest claim by the GAC that Bylaws level advice did not require consensus.  But from your latest response I see that you still expect that GAC advice would be defined by consensus, and as I understand from statements made by GAC members, that is the same notion of consensus that nations work towards in the UN in plenary settings.  While I believe one would have to alter the Bylaws to enforce supermajority requirements on the Board rejecting GAC consensus advice, it is an interesting idea. I wonder, though, why you think this Board does not have that level of agreement in the current negotiations.  Even on the ICM decision, the causus belli of your article, among those voting and not abstaining, the Board met a 75% threshold. (Although I grant that counting abstentions they only met a 56% threshold.  Incidentally how do you propose this supermajority of the Board be calculated? Well, that is probably a discussion for another time.)

Of greater concern to me is your rejection of the ICANN Bylaws as the Master's voice in making decisions in ICANN.  While there are certainly things I would change in the Bylaws and in the legal framework of ICANN, the organization as legally constituted is what we need to work with - it is the rule of law.  And while not a lawyer and certainly not the greatest devotee to the rule of law in all global situations, in ICANN we fail if we do not adhere to our Bylaws.  Even the AOC does not advocate abrogating the Bylaws, though the improvements called for in reviews may require duly constituted changes to the Bylaws.  I believe that if we abandon ICANN Bylaws at this point we unilaterally give up any claim to legitimacy.

As you say, we come from different perspectives.  You want to empower business and I want to protect the global public interest, which includes business as one of the stakeholders. Nonetheless, I think both our aims are best served by an ICANN Board that adheres to the Bylaws it is governed by.

Hey Michael,Welcome to the real world. Your Constantine Roussos  –  May 01, 2011 3:15 PM PDT

Hey Michael,

Welcome to the real world. Your recommendations are inconsistent. On one hand you talk about the private sector and on the other hand you are warning ICANN about GAC. So your recommendation is for ICANN to listen to GAC and do what needs to be done to please them. How is this beneficial to the private sector?

Furthermore, your definition of the private sector is rather biased. Could you disclose who you represent? Is it dotBrands? Are the big corporates the only constituents of the private sector for you that could bring innovation and competition in the domain space?

Traditionally the private sector and government are in two opposite sides. So are you suggesting for a compromise? I think that is what ICANN is doing and I believe they have made progress on many fronts.

Also your claim that ICANN is ignoring GAC advice is absolutely incorrect. Do you want me to go through the new Applicant guidebook to let you know the sections that were GAC-influenced?

Your "practical approach" is inconsistent with how the business world works. You look at the music industry and having songs licensed through global registry where every song can be licensed without the red tape. Great idea right? Yes, it is but there is a reason why it has not happened. Not only are there different laws in different countries, there are also players that will benefit from this because remaining the gatekeeper is in their best interests.

I suggest you re-read the new Applicant Guidebook and give ICANN some kudos for a change for listening to GAC, which can be reflected in the new Applicant Guidebook.

Also, I think we need to start talking about 2011 and the future as opposed to talking about Humpty Dumpty. That means no more talk about 2000. The Internet has evolved. For example, the 1976 Copyright Act did not predict the Internet. It is all about today and what we can do to move forward.

Your suggestions are quite conflicting with many things you have written in the past as well as misleading. Not sure this is the best article you ever wrote.

Looking forward for more progress. Kudos to ICANN for taking a stance with ICM and doing their best to please GAC. Both governments and the private sector are important. ICANN has been working overtime to do what is fair and reasonable. Unless you are suggesting governments or the big corporates control both the Internet and ICANN. I really doubt you believe that but someone who reads your article does get mixed messages.

Looking forward to Singapore and giving ICANN their props.

Best,

Constantine Roussos
.music

Constantine,I agree that we live in different Michael D. Palage  –  May 01, 2011 4:14 PM PDT

Constantine,

I agree that we live in different worlds/realities. However, I will respectfully disagree with who is living in the real world. While I am sure ICANN is happy to have your endorsement that they have adequately addressed the GAC concerns, I will wait for May 20th to hear from the GAC.

Best regards,

Michael

Michael,The true reality is that neither GAC Constantine Roussos  –  May 01, 2011 4:47 PM PDT

Michael,

The true reality is that neither GAC or the Trademark community will ever be 100% happy. If you have the silver bullet on real solutions, then please provide them as opposed to just warning ICANN. It is impossible to make either the governments or trademark community 100% happy and you know it. That is the reality.

"I will wait for May 20th to hear from the GAC."

Michael, it is fascinating that you choose the easy route and not really offer a significant solution to ICANN to appease GAC concerns. We all know GAC will never be entirely content. You are stating something that we all know and playing it safe. So what do you suggest ICANN do with the governments? Can you provide some suggestions in regards to what ICANN should implement for GAC in the guidebook? Do you believe GAC control is healthy for the Internet? If it was up to the governments, they would want full veto on everything as well as control. That is not happening because it is inconsistent in regards to having an open Internet.

So in your opinion what should ICANN do? What policies should they implement exactly? Don't just say they need to please GAC. How will they please GAC? You must understand the dangers of too much government control. Governments are important and serve an important role. So does the private sector and entrepreneurship. The key is balancing both. I am sure you would agree to this. You can not please both entirely.

Best,

Constantine Roussos
.music

Constantine,I have been providing specific recommendations, however, Michael D. Palage  –  May 02, 2011 12:43 AM PDT

Constantine,

I have been providing specific recommendations, however, since you seem to have a hard time finding them I will provide them to you in a nice succinct document on Wednesday.

Best regards,

Michael

GAC advice has been substantially followed for new TLDs Richard J Tindal  –  May 02, 2011 4:33 PM PDT

If you leave aside the personal dynamics between GAC and Board, and focus on their substantive requests (i.e. what did they actually asked for) the GAC should be well pleased with ICANN's responsiveness.  Since 2008 GAC has provided approx 120 pieces of advice regarding new TLDs — and by my count over 90% of this has been adopted. 

In some cases where advice has not been accepted it's because the GAC's position represents poor policy making (e.g.  expand Sunrise rights beyond exact match).  I think over time the GAC will realize some of their advice was not well thought through. 

If the working premise (for some) is that ALL GAC advice should be taken for new TLDs I think we need to encourage GAC to be more careful about advice formulation, and encourage them to take input from a broader range of interests.  At the moment GAC advice on new TLDs is very heavily weighted toward trademark lobby interests.

Richard

Richard,I do not deny that ICANN has Michael D. Palage  –  May 02, 2011 4:56 PM PDT

Richard,

I do not deny that ICANN has made a number of positive changes, however in retrospect I believe there should have been a much less stressful way of getting toward these compromises.

However, given the slow but steady progress we have made, should we take the time to educate the GAC. Given that I know your answer to this question is NO, than I think the community needs to provide the GAC with adequate safeguard mechanisms so that we can move forward on June 20th.

Best regards,

Michael

P.S. Congratulations on your new venture with Paul and Jon.

Hi Everybody,This reminds me of another character JoeC  –  May 03, 2011 3:30 AM PDT

Hi Everybody,

This reminds me of another character in “Through the Looking Glass,” that being the Red Queen. At one point, she takes Alice by the hand and leads her on a wild chase. They run, run, run, but in fact, they never actually go anywhere. They end up in the same place as before the chase.

It's a metaphor for maintaining an equilibrium throughout an evolution. Everything is evolving and changing around you. The only way to maintain your place in the equilibrium is to charge ahead and stay in the race.

I think that the ICM episode shows the kind of perils that will be encountered along the road, not only concerning new gTLDs, but in ICANN's evolving relationships with its governmental and private stakeholders. Nobody, including the GAC, is ever going to be fully satisfied. At some point, a concession can only followed by more demands because that's how you stay in the race. For instance, once any gTLD string is determined to be controversial, the game changes. Here on out, ANY gTLD string CAN be determined to be controversial, as long as one party puts enough effort into making it so.

I might go so far as to say that for the ICANN Board to satisfy all of the GAC's demands, they would ultimately have to pull out of the race and close the shop. I doubt that that's what (most of) the GAC really wants. After all, why did the Red Queen take Alice's hand in the first place?

Joe

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