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ICANN Transparency

ICANN Transparency

As ICANN attempts to persuade the world that it deserves to be cut loose  from the apron-strings of the United States’ government, it is perhaps appropriate to review whether it is fulfilling the requirements of its founding community, never mind going forward.

The ICANN by-laws state, in Section 1 of Bylaw 3 that:

The Corporation and its subordinate entities shall operate to t’he maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.

Now this is pretty unambiguous.  In the first few ICANN meetings this meant that anyone could participate in the work of ICANN. You just turned up, registered (at no cost), attend and speak the sessions that interested you.

The Government Advisory Committee was a special case — it was formed specifically outside of ICANN, so it is not bound by the bylaws, and membership is restricted to accredited representatives of governments and multi-national organisations.

GAC meetings were originally held entirely behind closed doors, leading to all kinds of speculations. But over the years, the GAC began to feel more and more comfortable — holding joint meetings with other constutiencies and become more transparent. And we learned that, far from devil-worship, the GAC were doing extremely useful work that quite often had a lot in common with the ccTLD community.

Unfortunately, ICANN itself seemed to be going the other way.

In recent years, the perception is that more and more meetings were being held behind closed doors. You only have to look at the proliferation of the ‘CLOSED’ tags on the schedule.

And many of these ‘closed meetings’ are unnecessarily so.

I’ve been in a number of meetings when literally none of the participant knew why it had been scheduled behind closed doors.

It’s fairly self-eviden that if there’s a meeting of the members of a particular Council, or Working Group, that the participants in that group are the only people you’d expect to be debating, but there’s no reason why the general public can’t attend, and follow the discussions.

Transparency demands it, in fact.

The only time a meeting needs to resolve to close its doors, is if, for example it is discussing staff salaries, appointments, or reviewing privileged legal advice.

It was that dangerous radical, Margaret Thatcher, who in 1962, in a Private Members Bill, brought transparency to English local government.

Given the binding nature of the by-law that requires the ‘maximum feasible’ transparency, ICANN should not be doing worse.

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Victims of terrorism versus ICANN (round 2)

In an earlier article I wrote about the court case of Ben Haim (& others) -v- Iran (& others) where the successful Claimants (Plaintiffs) were attempting to attach the Iranian, Syrian and (just for good measure) North Korean country code domain names (.IR, .SY and .KP) and wanted ICANN to hand them over, and took it to court to force it.

A DC court rebuffed the attempt stating that while top-level domains might be property (like any other domain name) they weren’t the sort of property that could be garnished.

Well, as I write this in the aftermath of the Sony hack, and what seem to be countermeasures taking North Korean off the Internet entirely, details are slowly emerging that (not entirely unexpectedly, given their historic persistence) the Claimants, or at least one of them, has launched an appeal.

What is mildly interesting is that it’s just one of the Claimants (lead Plaintiff Seth Ben Haim, and just one of the Defendants (Iran). All the Court filing says is, in essence “I appeal”.

You don’t have to be legally qualified to work out that this is a placeholder, designed to ‘stop the clock’. It also allows the Plaintiffs a breathing space so they can work out whether Washington, DC is the best forum to haul ICANN into court.

Even if, as Judge Landreth clearly foreshadows, (cc)TLDs are property, if .COM names can’t be attached in DC, then the Claimant’s may still have some difficulty with attaching TLDs (which after all, are just dotless domain names).

It always puzzled me anyway that this lawsuit was in DC. After all, ICANN is a California corporation, and the California district courts saw the first lawsuit over TLDs back in November of 1999.

Still, no doubt the Federal Appeal Court in DC is as good a place as any.

 

 

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Spats and show tunes

spat  (spt) n. 
(1)  An oyster or similar bivalve mollusk in the larval stage, especially when it settles to the bottom and begins to develop a shell. (2) A cloth or leather gaiter covering the shoe upper and the ankle and fastening under the shoe with a strap: The waiter wore spats as part of his uniform.. (3) A brief quarrel. (4) [Informal] A slap or smack. (5) A spattering sound, as of raindrops.

 

There’s a spat between MarkMonitor and the Non Commercials.

You can read about it here. To be honest, even after reading this twice, I’ve no idea what the issue might have been.But whatever it was, I hadn’t heard of it before the refutation was publicised.

There’s something called the Streisand Effect, after Barbara Streisand.

And sometimes that’s worth bearing in mind, no matter how much one may feel or want to respond by yelling back.

 

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Reflections on ICANN turning 46 in China

I’ve just returned from Beijing, China where ICANN held its 46th International Meeting.

As many of you know, ICANN is a strange and interesting organisation. Part United Nations of the Internet, part International Olympic Committee, part knockabout yah-boo-sucks debating chamber (like the British House of Commons, perhaps with Marilyn Cade in the part of the late Margaret Thatcher), part charitable good cause, part travel club, and a few other things I’ve no doubt overlooked.

But I’m getting the feeling that somehow, in all of this, something fundamental is starting to be overlooked.

When ICANN was founded (and I was — as one of the participants in the US Government’s International Forum on the White Paper — one of ICANN’s founding “members”¹), it was designed, by Ira Magaziner and the rest of us to be a multi-stakeholder, agile, organisation that “co-ordinated” internet naming matters.

That sort of organisation was needed because “internet time” moves at a much quicker pace than normal intergovernmental regulation could hope to keep up with technological development.

But — it seems — ICANN is beginning to do what it should not, and stray into matters of content.  Although some of the more authoritarian governments are attempting to use ICANN as a lever to control content (such objections to .GAY and .HIV), it’s not only from such quarters that the challenges to fundmental rights are coming.

ICANN will have to find a path through this thicket.

It appears to me that new CEO Fadi Chehadé may (and at this point I only say ‘may’) be the right person to do it.

Certainly, it seems to me the celebrity Hollywood style of his predecessor, although highly entertaining would — if allowed to continue — have probably sunk the boat.

Now back from China, I am reminded of an ancient chinese curse:

‘May you live in interesting times’

 

 

(¹ I put ‘members’ in quotes becuase, peculiarly, for a non-profit org, it HAS no members).

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Welcome to DomainPulp!

Since about half of my articles are about the Internet Domain Name industry, I was challenged to come up with a clever brandname for that side of my writing the other day.

You know, one that might be even half as clever as the paronomasiac  DOMAININCITE.COM

Sadly, I was unable to match Mr Murphy’s cleverness.

But I did find something that expresses what is a wide sweep of the domain name industry that I cover. So welcome to Domain Pulp!

For the time being we’ll still be carrying on as normal on WordPress, kindly hosted by BLACKNIGHT.COM.

But we manage to get more material, including guest contributors (HINT), I will move it to its own platform.

 

 

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How I learned to stop worrying and love the insecurity

A ‘source close to’ ICANN, the International Organisation responsbile for the co-ordination of the internet’s naming system, tells me that they are :

“assuming that every inbound/outbound IP packet over the course of the ICANN conference will be thoroughly inspected and dissected” and that “it’s likely that it will be  impossible or extremely difficult for anyone attending to establish a VPN.”

First of all, I doubt things will be as blatant as this. Beijing is not Pyongyang.

China is the worlds largest nation, Its prosperity depends on its relationships with the rest of the world. No matter what it does with its own population’s access to information, it seems to me that it is not likely to jeopardise its standing in the world by excessively locking down normal standard internet access for some of the most important people in the internet world while they meet in its capital to decide the future shape of the ‘net.

Of course that doesn’t mean that things will be quite as straightforward as they are in, say, Canada or Germany. China hosted a similar (but smaller) international meeting in Shanghai somewhat over ten years ago. Most things worked. I did find BBC news to be inaccessible — which was a bit of a black mark — but that was just a duhka, easily overcome with the right kind of meditation.

Now I have no doubt that Unit 61398 will also have a plan to to safeguard the economic well-being [of the People’s Republic]’.  After all, it’s only reasonable to expect that China would avail itself of opportunities that the UK and USA would not fail to pass up, would you?

Unit 61398

 

So what could attendees do? I mean that’s proportionate and sensible.

First of all, as Douglas Adams would say: ‘DON’T PANIC’.

I mean, really, you are probably not as important as you think you are.

But, if you work for a corporation, you do have a duty of care to your employers and shareholders so you should not be blind to the possibilities.

The easiest thing is, that unless you have skills in data destruction (DBAN is your friend),  it would be quite sensible to take a brand new laptop to Beijing. Data can’t be stolen from it if it was never there in the first place.

And, unless you are going to keep your electronics close to your breast 24 hours a day, even when sleeping, it seems to me that, rather than interception of your emails,  the biggest threat is that of the ‘evil maid attack’.

If you leave a laptop unattended for even a short time, mirroring your harddisk is a trivial task for someone who has physical access to it.

You can buy a cheap netbook at Tesco (UK) or BestBuy (US) for not much more than two or three hundred dollars.  Cheap at twice the price. There are slightly more sophisticated techniques you can use, too.

Secondly, don’t forget that you might have sensitive information etc on your tablets and iPhones. Leave them at home and take a new GSM only device if there’s a possibility of commercially sensitive data being on them.

Finally, if my sources worst fears are confirmed, and you find that after all you cant ‘call home’ securely (i.e. using your corporate VPN) over the internet, then just sit back and enjoy the holiday away from the routine rush of work emails.

You’ll probably realise that 90% of them you didn’t need to see.

Consider the time you will gain as sesshin.

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Glass houses

ICANNIt’s easy to throw rocks at ICANN, which has once again good-naturedly blundered into a hornet’s nest. So I won’t.

But see http://ta.gg/5oL for one take on this.

No complex information system can be guaranteed problem-free. Everyone who manages or runs such systems is in a glass house, and it behoves us to be constructive in our criticism.

I spend a lot of my professional life running game-theory situations about what to do to fix systems (including human systems) that break under unexpected loads and I think it’s a little harsh on ICANN to scream about this. There’s a tinge of schadenfreude in this afternoon’s commentary, I think.

You see, ICANN’s greatest problem is really one perception. It has set it itself up, over an evolutionary period of 15 years (gosh, is it really that long?) as, to use a common phrase I hear, as “the galactic lords of the Internet”.

And a common, but unspoken, thesis among ICANN people (and by that I do not distinguish between staff and participants)  is that ‘Daddy knows best’.

But those of us who know (and still have a great deal of affection for) ICANN know it as being (these days) entirely well-meaning, but not always as sharp as it might be.

One rumour is that the site was attacked by Anonymous. There’s no shame if that’s true — they had the resources to take the UK interior ministry’s website down last week, after all!

But the reality seems to be emerggin, is that ICANN in its insistence on micromanaging the business models of TLD applicants, wanted  EPP schemas in the applications.

Now EPP is based on XML which like HTML has lots of < and > characters. And the latest information is that ICANN’s application system may not have been able to handle those Yes, really! (If they can’t handle that, what about Unicode characters like you find in IDNS!)

If this is true, it tells me one thing.

ICANN didn’t test its system as it should have done.

That is to say, its likely that no dummy application was made by ICANN before releasing the system to go live with one of the most important systems on which several million dollars worth of applicant’s businesses were required to rely?

It begs a question as to whether an organization that is happy with this level of testing should be regarded as suitable for being awarded the contract to run the IANA and one of the 13 root-servers on which we all rely. But that’s a matter for others to ponder, not me.

I’m really not going to throw rocks. They have enough to cope with, without me sniping. They need a little space to get their act together now. So maybe we should leave the poor so-and-sos be?

But, really …  tsk tsk.

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Poachers and Gamekeepers

Rod Beckstrom, ICANN’s CEO is today highlighting certain apparent structural issues with the ICANN Board and conflicts of interest.

And you know what, a lot of what he is saying is making sense!

But why has it taken him till the lame-duck phase of his reign for him to speak up?

Back in the early days, ICANN CEO Stuart Lynn similarly criticised the structure of the original ICANN, which led to the abolition of elections and the creation of the Nominating Committee under the banner “ICANN 2.0”.

But he did this early on, and actually achieved the changes to ICANN that produced the current structure. Whether you liked them or not (and the abolition of elections was something that was, perhaps, to be regretted), Lynn had the time to follow through, and implement.

Sadly, Rod’s contribution just sounds like the plaintive cry of an albatross flying off into the distance.

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Manwin’s squeaky wheel

ICANN has been taken to an Independent Review Proceeding by Manwin Licensing International.

Independent Review is a form of arbitration, which is provided for in ICANN’s By-laws.

What is ironic, is that this suit appears to be filed on behalf of a number of major players in Internet

pr0n

That is, the people behind such hit websites as ‘YouP*rn’ and ‘Br*zzers’ among others. (No, I’m not going to hyperlink them — Google is your friend if you really are curious ).

Internet porn has been major beneficiaries of the US First Amendment and the constitutional law doctrine that protects distasteful speech (such as ‘Net porn itself, or demonstrating about military presence in Afghanistan or similar at soldiers’ funerals!)

But it seems to be sauce for the gander tine when someone else wants to exercise their rights of free expression (that is to say, expression in the form new TLDs, and specifically in the form of .XXX) in a way which the pornsters don’t like.

In Europe the equivalent of the First Amendment is Article 10, which all Governments are under a legal obligation positively to protect.

It says: “Everyone has the right of freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without inference by public authority and regardless of frontiers.”

Pretty clear.

It’s worth pointing out that free expression is not unlimited.

Restrictions can be placed on it, for example, balancing and protecting the rights of others. (Libel laws are an obvious example; there are many others).

The difference in approach can be see that, in the Land of the Free protesting at a soldiers funeral and causing distress to the bereaved is constitutionally guaranteed expression (Snyder v Phelps) where as in the UK you’d probably get locked up for Behaviour Likely To Cause a Breach of the Peace.

Burning the flag is perfectly acceptable behaviour in the USA, while burning poppies on Armistice Day attracts a criminal conviction, albeit attracting a fine. (Poppies are worn in remembrance of the dead on Armistice Day, our equivalent of Veterans Day).

However, the default position in Europe as in the USA, remains, that you have the right of expression, unless a qualifying factor is present and can be shown to be.

Article 10 goes on to say say: “The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary”.

So surely this would mean that presumption must be that proponents of newTLDs can express themselves in the way the want to unless restrictions are necessary in a democratic society.

Censoring .XXX does not protect health or morals — there’s plenty enough internet porn under .COM, and I don’t think Manwin are arguing here for the content restrictions that this caveat might allow, anyway. They probably don’t want to open that door!

The only other aspect in 10(2) that they could pray in aid is the protection of the rights of others — in this case the very real property rights of Manwin and their allies. After all, intellectual and intangible property are equally property as any other kind.

And it’s a reasonable point, particularly as Luxembourg headquartered Manwin is, on the face of things, a European company, and Manwin therefore inherently has these Convention rights

But the starting point of Article 10 is that the expression must be allowed, and it’s only after considering the balancing exercise of considering the harm to Manwin’s Article 1 (Protocol 1) property rights, could the censorship they seem to be seeking be lawful.

And, this, I suggest, will be an uphill struggle.

Although Manwin’s property rights are in essence, and in law, exactly the same property rights that, for example, Google and Facebook have in their brands, Manwin’s task is made no easier by the unredeeming nature of their own content.

And the harm that they claim — well, why should they have special treatment above the thousands of WIPO cases over other, non-porn relating cybersquatting. A proper UDRP process and timely access to the Courts, is really all they can demand, and .XXX, and the forthcoming newTLDs will, at ICANN’s insistence, deliver this.

In conclusion, it seems to me that Manwin’s Independent Review Claim is just a case of a squeaky wheel not realising it is already sufficient lubricated, and demanding more oil.

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Don’t mention the war …

A couple of days ago, at the ICANN conference in Dakar, a rumour flew around that there had been an application for redelegation of the .FK domain (Falkland Islands). And that the originator of the request was from, you guessed it, somewhere in Argentina. A quiet word with an official source within the ICANN community then confirmed that, indeed, there had been “some sort of communication along those lines”.

Historically, unlike UN or other international bodies, ICANN has been pleasantly free of the tired old arguments and flashpoints that bedevil relations between nations. Neither the Gibraltar issue, the Cyprus division nor the name of the Former Yugoslav Republic of Macedonia have ever featured in the meetings of country-code administrators Over in the gTLD world, two of the key players who have worked well together for years – well, one is from Argentina, and the other is from the UK.

There was a hint in the ICANN public forum as to where the sensitivities might lie. It may simply be a matter of a dispute over the name of the territory when ICANN produces documents.

The unfortunate thing is that the label (in this case the country or territory name) often implies much more than the content (delineating a political entity or geographic area).

For many years between 1945 – 1989, Germans born in Königsberg, Memel or Danzig would not have been allowed to visit their birthplace unless their passports were issued to show the Russian, Lithuanian or Polish name. There are many other examples. “Derry/Londonderry”, for example.

These things are all shibboleths.

In his response to Sergui in the Public Forum, Rod Beckstrom’s courtly Spanish although accented, seems extremely fluent, eloquent, and stunningly impressive.

But Sergio is misguided if he thinks ICANN should make its own lists. That way lies chaos. ICANN is not mature enough, nor capable of diplomatically squaring these circles.

And it’s unreasonable to expect ICANN to do this task, since the best minds in the FCO, State Dept, and Foreign Ministries around the world struggle with these issues.

Steve Crocker is right of course.

Then I again, you would expect me to say that, because he is agreeing with me!

In the end, all that is really required is mutual tolerance, courtesy and a determination to work together in the multi-stakeholder model. And that I believe we have in spades in this unique organisation.




SERGIO SALINAS PORTO: I’m going to speak in Spanish.

To members of the ICANN board, good afternoon. My name is Sergio
Salinas Porto. I am the president of the Argentine Internet Society
of Users. And I participate in LAC-RALO, and I am ALAC member in our
region.


Aside from all of this, I am going to talk like an Argentinian user
who is happy to be participating in this ICANN meeting and in this
multistakeholder proposal implemented. So that we can all
participate.


And I’m going to talk about the Malvinas Islands. You all know that
the Malvinas Islands is an issue that is very related to Argentinians.
And we have identified. In the study of geographic regions, that at
some point the Malvinas Islands were marked as a territorial state.


And the position that the Argentine government has had, as well as the
countries in the Latin America and Caribbean — and that position is
that the Malvinas Islands are not a state and not a territory, but
rather they belong to the national territory of the Argentine
Republic.

But I want to explain that I am not here to say that ICANN has to make
a political decision on political policies. Precisely what I want to
say is that ICANN should not take part or should not get involved in
this. Because, when ICANN speaks about territories, when ccTLDs are
created, when regions are assigned for certain ccTLDs or when services
are given to an Internet service, the RIRs, these imply stake in their
position. Especially when it is said that Malvinas or the Falkland
Islands are a territory. When a dot FK is created or when LACNIC or
something is created, this is taking the position of the Internet
community, even though the Internet community does not decide to take
this position.


We are asking two things, only two. First, that, when ICANN documents
are released, when they’re released in Spanish, that the word
“Malvinas” is used when referring to the Malvinas and then the
Falkland Islands. And, when the English documents are released, that
you first mention Falkland Islands and Malvinas in brackets as nation
states in their resolution 3160.28.


And we also ask that there be a revision on this issue and there be a
revision by the legal team so that we do not incur in the mistake of
having to make a definition in this issue.
Thank you very much. That’s all.

ROD BECKSTROM: Thank you very much for your very clear and strong intervention.

And, as you know, we use a list of the ISO 3000 — ISO 3160.
Thank you very much for the history lesson and the territorial
lesson that you gave us.

SERGIO SALINAS PORTO: There is only one suggestion (says Sergio). It would be — I know — I don’t want to say what ICANN has to do. But I think we are mature to make our own country lists. I think ICANN is mature enough to do it. Thank you very much.

.
.
.
.

NIGEL ROBERTS: Nigel Roberts, ccTLD manager for the Channel Islands.


In light of the eloquent response in Spanish by the CEO to the
previous question relating to the Falkland Islands, in the wise words
of Jon Postel, would the board agree with me that ICANN should not be
in the business of deciding what is and is not a country?


STEVE CROCKER: As you heard, we use the ISO 3166 list. That was a very, very smart move, very wise move laid down by Jon Postel long before we were formed. Served us well. There are, of course,
controversies. One of the things you try to do in a situation like
this is not take on all possible controversies. So it served us
well, and that’s what we do.

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