On Friday, April 24th the Department of Commerce’s National
Telecommunications and Information Administration posted a Notice of
Inquiry (NOI) requesting comment on the upcoming September 30, 2009
expiration of the current Joint Project Agreement (JPA) with ICANN. The
NOI can be found at http://edocket.access.gpo.gov/2009/E9-9409.htm
as well as
http://www.ntia.doc.gov/frnotices/2009/FR_ICANNVol.74_No78_Apr242009.pdf.
The comment period closes on June 8th.
This NOI seems destined to set off an intensely contentious process,
particularly as it coincides with concern and controversy surrounding
ICANN’s proposed launch of dozens or even hundreds of new gTLDs by the first part of 2010, the replacement of ICANN’s CEO by the end of 2009, and growing Congressional concern about cybersecurity and whether ICANN
has adequately performed in assuring a secure Internet addressing
system.
NTIA’s NOI recounts that the four principles that guided ICANN’s launch
in 1998 were stability, competition, private, bottom-up coordination,
and representation. The NOI goes on to ask eight non-exclusive
questions regarding ICANN’s performance, noting in particular that its
2008 mid-term review of the current JPA “revealed that, while some
progress had been made, there remained key areas where further work was
required to increase institutional confidence in ICANN. Specifically,
these included long-term stability, accountability, responsiveness,
continued private sector leadership, stakeholder participation,
increased contract compliance, and enhanced competition.” That is a
pretty long and serious list of “incompletes” for ICANN to make up
before NTIA can issue a final passing report card this summer.
Of course, the JPA is a contract and it takes two willing parties to
enter into one. The NOI notes that top ICANN staff have repeatedly
stated that the JPA will conclude this fall, which raises the
possibility of a heads-on confrontation with international political
ramifications in September should the U.S. conclude that ICANN is not
ready to graduate and ICANN responds that it is unwilling to enter into
a new JPA. The most intriguing questions posed by DOC may be the ones
that hint it is willing to entertain the possibility of scrapping the
ICANN experiment and instituting an entire new model of DNS governance
– “Is this still the most appropriate model to increase competition and
facilitate international participation in the coordination and
management of the DNS, bearing in mind the need to maintain the
security and stability of the DNS? If yes, are the processes and
structures currently in place at ICANN sufficient to enable industry
leadership and bottom-up policy making? If not, what is the most
appropriate model, keeping in mind the need to ensure the stability and
security of the Internet DNS?”
The stakes in this decision are very high for ICA members, given
ICANN’s control over the processes that set fees and establish rights
for registrants. Most domainers remain dissatisfied with the 2005
.com settlement that ICANN engineered with VeriSign, question the need
for massive numbers of new gTLDs and the problems that may be
associated with them, and have other concerns about ICANN’s
performance. On the other hand, ICANN appears to be more responsive to
industry input – perhaps because it now has a permanent voice within
ICANN through the ICA’s membership in the Business Constituency – and
there is that old saying, “Better the devil you know than the one you
don’t.”
ICA certainly intends to file comments on this critical matter, and we
solicit feedback from our members and also urge them to file their own
comments.
Our starting point for that input will be the Midterm Review letter
that we filed with the Department of Commerce on February 15, 2008. An
initial review of the points it made indicate that ICANN has made real
progress in some areas, but is still falling short in others.
That letter’s Executive Summary stated —
While the ICA has observed some improvements in
ICANN’s general transparency and accountability over the first half of
the JPA, and while we do perceive some greater sensitivity to the needs
and objectives of the professional domain investment and development
community, we cannot support termination of U.S. oversight over ICANN at this point in time for the following reasons:
•
ICANN has failed to assure domain name (DN) registrants that the
pricing and performance of generic top level domain (gTLD) registries
will be optimized. To the contrary, it has entered into near-perpetual,
above-competitive rate contracts with these registry operators.
• ICANN failed to protect registrant interests
or adequately respond to registrant requests for assistance during the
initial collapse of RegisterFly in 2006-7. While ICANN has taken some
ameliorative steps since then it is still unclear when a strengthened
Registrar Accreditation Agreement (RAA) will be finalized, much less
when it will be implemented, whether such implementation will be on a
uniform basis, and whether enforcement will be adequate to protect
registrant interests and rights.
• ICANN has under consideration a proposal for
“improvements” of its Generic Names Supporting Organization (GNSO) that
would substantially downgrade the role of all business interests,
including the domain monetization industry, in shaping ICANN policies.
• ICANN’s Governmental Affairs Committee (GAC)
has grown substantially in membership and has become increasingly
influential in ICANN policymaking. Yet the GAC continues to close all
its meetings to the public and the press in complete contravention of
ICANN’s commitment to greater transparency and accountability. The ICA
must oppose any suggestion that U.S. oversight of ICANN be terminated
until such closed sessions become the rare exception rather than the
general rule.
• ICANN recently considered a proposed dispute
resolution policy (DRP) for new gTLDs that is substantially less
protective of DN investments than the current Uniform Dispute
Resolution Policy (UDRP) and would abet reverse hijacking of DNs
presently controlled by ICA members. Further, it has been proposed that
this DRP should eventually be applied retroactively to existing gTLDs,
including .Com.
• ICANN has failed to exercise adequate
oversight over the presently approved providers of UDRP arbitration
services and, as a result, has allowed a growing degree of
non-uniformity that encourages complainant forum-shopping that is
disadvantageous and fundamentally unfair to DN registrants. Further,
ICANN has failed to consider additional procedural safeguards to assure
adequate due process in UDRP proceedings, and has just approved a new
UDRP arbitrator that is viewed by many in the DN community as biased in
its administration and decision-making.
• ICANN’s policy development process remains
deficient insofar as ICANN often fails to articulate the rationale for
a particular proposal or recognize and elaborate upon its long-term
implications.
In addition to the above reasons, which we discuss at greater length in
the remainder of this comment letter, we believe that the U.S. should
only consider termination of oversight over ICANN after ICANN provides
firm and enforceable assurances that it will maintain a physical
headquarters and organizational form that assures that aggrieved
parties will have adequate recourse, by litigation or other means, to
take issue with ICANN decisions. Further, any decision to terminate
oversight must be preceded by receipt of a clear and credible
transition plan that contains a detailed description of how a post-JPA
ICANN will operate in a manner that preserves the private sector
orientation envisioned for ICANN at the time of its creation.
It appears to us that there are three potential alternatives for ICANN’s future development:
1. Realization of the goal of full
privatization in a manner that maintains ICANN as a private sector
enterprise operating in a bottom-up, consensus-driven manner
encompassing all affected and interested constituencies.
2. The effective transformation of ICANN into
something akin to a trade association for contractual parties
(registries and registrars).
3. The de facto transformation of ICANN into an
intergovernmental organization (IGO) similar in operation and mindset
to an UN-affiliated entity and under the primary influence of its
Government Affairs Committee (GAC).
Only the achievement of alternative 1 would be
consistent with the original vision of ICANN’s creators, while a detour
toward alternatives 2 or 3 (or some combination thereof) would be a
most unfortunate outcome.
The ICA is fully committed to supporting and realizing the goal of
ICANN’s full privatization at the earliest feasible time. But we
believe that the issues raised in this letter must be fully addressed
and resolved in advance of U.S. oversight termination if our members’
existing DN investments are to be protected and if an environment is to
be maintained that encourages further capital investment inflows. In
short, DN owners and investors must know that ICANN’s future evolution
maintains acceptable levels of risk.
Finally, as our members are based around the globe, we do not view the
U.S. as inherently superior to other nations in the ability to exercise
ICANN oversight. However, continued U.S. oversight is favored at this
point in time because the U.S. was the source of the concept of
spinning off DNS management from the government sector to the private
and is most likely to press for successful completion of this
transition in a manner that maintains an adequate role and a positive
environment for entrepreneurial business sector investments related to
Internet DNs.