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<h1 class="title"><b><a class="moz-txt-link-freetext" href="http://news.dot-nxt.com/2011/05/18/high-noon-in-singapore">http://news.dot-nxt.com/2011/05/18/high-noon-in-singapore</a>
<br>
</b></h1>
<h1 class="title"><b>High Noon in Singapore? ICANN's new gTLD
program at a crossroads</b></h1>
<div id="content-content" class="content-content">
<div id="node-215" class="node odd full-node node-type-blog">
<div class="inner"> <span class="submitted"> by Wolfgang
Kleinwachter | 18 May 2011 | </span>
<div class="content clearfix">
<p>To clash or not to clash: that’s the question for the
forthcoming 41st ICANN meeting in Singapore. </p>
<p>Will the booming Lion-City on the South-Asian Peninsula
see a Shakespeare drama in June 2011, a shoot out between
the ICANN Board and the Governmental Advisory Committee
(GAC) to end the nearly 15 years of discussion on the
introduction of more generic Top Level Domains (TLDs) into
the legacy root of the Internet? </p>
<p><strong>Agree? Disagree? Postpone?</strong></p>
<p>Where we are today? ICANN is committed to start the new
gTLD program on Monday, June 20, 2011. Preparations for
the Big Party at the Singapore River are already underway.
</p>
<p>However, Larry Strickling, the US Assistant Secretary of
Commerce and member of ICANNs first review team on
Accountability and Transparency has <a
href="http://news.dot-nxt.com/2011/05/05/strickling-speech-giganet">expressed
serious doubts</a> with regard to that timetable during
a Giganet meeting in Washington, D.C., May 5, 2011.</p>
<blockquote>
<p>Unless the GAC believes that ICANN has been
sufficiently responsive to their concerns, I do not see
how the Guidebook can be adopted on June 20th in
Singapore in a manner that ensures continuing global
governmental support of ICANN.</p>
</blockquote>
<p>And, the day before the Giganet meeting, Mei-Lan Stark,
Treasurer of the International Trademark Association
(INTA) told the Subcommittee on Intellectual Property,
Competition and the Internet of the US House of
Representatives that INTA has fundamental problems with
ICANNs new gTLD program which probably can’t be settled
before June 20, 2011. </p>
<p>On the other hand, Strickling underlined in Washington
that the US Department of Commerce sees ICANN as “an
example of a successful multi-stakeholder cooperation” and
reaffirmed his commitment to the ICANN model “as the best
way to preserve the security and stability of the DNS.” </p>
<p>What will happen? Will we see a shoot out, a last minute
compromise, where parties agree to disagree or another
postponement? It is not easy to make any predictions. So
let’s lean back for a moment and put the forthcoming
Singapore drama into a historical context.</p>
<p><strong>History Says Something</strong></p>
<p>Fifteen years ago, when Jon Postel proposed to add 150
new gTLDs into the root, there were around 300 million
Internet users, less than 30 million domain names and 250
TLDs. Postel’s proposal was watered down in 1997 and the
mandate to broaden the domain space was given to ICANN in
1998. </p>
<p class="pullquote-container"><span
class="pullquote-processed pullquote-quote">If the TLD
space would have had a similar growth rate as Internet
users and registered domain names, we would have today
more than 2000 TLDs</span>Now, in the year 2011 we have
more than two billions Internet users, more than 200
million registered domains names and 312 TLDs, including
the more than 30 TLDs with non-ASCII characters. <span
class="pullquote pullquote-processed">If the TLD space
would have had a similar growth rate as Internet users
and registered domain names, we would have today more
than 2000 TLDs</span>. </p>
<p>The domain name system (DNS) was invented in the early
1980s for less than one million Internet users. Jon
Postel, who was behind a lot of DNS-developments, proposed
originally six three letter generic Top Level Domains
(TLDs) for the DNS tree: three for the US (dot-gov.,
dot-mil, dot-edu) and three for the world (dot-com,
dot-org, dot-net). Only later he had the idea to give also
each country a two letter TLD. </p>
<p>Trying to avoid to be pulled into a political debate
about the question what a country is or not, he used the
ISO 3166 list to delegate per handshake to friends (and
friends of his friends) the management of ccTLDs. </p>
<p>The restriction to 243 ccTLDs and only seven gTLDs (later
he added dot-int) was just a practical thing. There was no
technical need for this kind of limitation. Nobody could
expect, than some day there would be two billions Internet
users and more than 200 million second-level Domain Names
(SLDs). </p>
<p>If Postel would have created the proposed 150 gTLDs
already in 1988, nobody would have questioned his
legitimacy to do so.</p>
<p><strong>The Domain Name Battle</strong></p>
<p>The domain-name-battle started in the mid 1990s when -
after the invention of the World Wide Web – the Internet
entered the commercial space and domain names became a
valuable resource. </p>
<p>Postel's efforts to introduce 150 new gTLDs in 1996 was
blocked by the commercial interests of some new big
players in the emerging domain name market: Network
Solution Inc. (NSI), which was allowed to charge for
domain names under dot-com, dot-org and dot-net since 1993
and which had a monopoly in the gTLD space, was not amused
to see its growing business surrounded by new attractive
competitors like dot-web. And the trademark owners feared
that they will be pulled into an endless and costly battle
to save their trademarks in an ever growing virtual space
and an uphill battle to fight cybersquatters.</p>
<p>In May 1997, Postel wanted to use the ITU, WIPO and INTA
to start with the introduction of at least seven new gTLDs
(via the so-called IHAC-gTLD-MoU), but the US government
intervened and pushed Postel into another process which
finally led to the establishment of the Internet
Corporation for Assigned Names and Numbers (ICANN) in
November 1998. </p>
<p>When Postel <a
href="http://news.dot-nxt.com/1998/10/07/postel-testimony">testified</a>
in the US Congress on October, 7, 1998 he gave the new
ICANN full credit when he said: </p>
<blockquote>
<p>This new organization will be unique in the world – a
non-governmental organization with significant
responsibilities for administering what is becoming an
important global resource.” </p>
</blockquote>
<p>A couple of weeks later he passed away. </p>
<p><strong>ICANNs mandate and decision making procedure</strong></p>
<p>One of the mandates of ICANN is to introduce new gTLDs.
The <a
href="http://www.icann.org/en/general/articles.htm"
target="_blank">Articles of Incorporation</a> from
November 21, 1998, say that ICANN shall develop “policies
for determining the circumstances under which new
top-level domains are added to the DNS root system.” </p>
<p>According to its Bylaws, ICANN is a multi-stakeholder
platform where policy development and decision making is
in the hands of the private sector. Governments have no
voting seat on the ICANN Board, they can use the
Governmental Advisory Committee (GAC) to make their voices
heard and they can give advice to the board on issues
related to public policies. However, the advice has no
legally binding power for the board. </p>
<p class="pullquote-container"><span
class="pullquote-processed pullquote-quote">Ira
Magaziner in the White House, Becky Burr in the US
Department of Commerce, numerous experts and Mr. Jon
Postel himself introduced this private sector led model</span>This
special construction in ICANNs architecture was done
intentionally by ICANN’s founding fathers and mothers. <span
class="pullquote pullquote-processed">Ira Magaziner in
the White House, Becky Burr in the US Department of
Commerce, numerous experts and Mr. Jon Postel himself
introduced this private sector led model</span> for an
internationalized mechanism as an experiment and an
innovation into the political landscape to preserve the
bottom-up dynamics of the Internet development, to
stimulate further economic growth and the establishment of
new jobs by avoiding the emergence of complicated,
politicized and costly governmental structures for
Internet control and oversight. </p>
<p>The establishment of the GAC-ICANN Board mechanism
remained rather unnoticed in the broader public for a long
time. However it was indeed an incredible innovation in
global politics. Normally governments take advice from
non-governmental stakeholders, they are the final decision
taker, they oversee activities of non-governmental
entities and they intervene top down, if needed. </p>
<p>In other words when the US government proposed this
private sector leadership model with multi-stakeholder
participation and an inclusive, open, transparent and
bottom up policy development mechanism it took a risk and
it could not be sure whether other governments would be
ready to accept such a mechanism. </p>
<p>But Australia, Japan and Canada were behind the proposal
from the very beginning. And when the EU Commissioner
Martin Bangemann wrote a letter to US Secretary of
Commerce William Daley with the assurance that the EU
supports also the US initiative, the deal was done. The <a
href="http://news.dot-nxt.com/sites/news.dot-nxt.com/files/GAC_01_Singapore_Communique.pdf">first
GAC Communique</a> in its very first paragraph stated
clearly: “The national governments endorse the principles
of the creation of ICANN”. </p>
<p>However, only 25 governments, multi-national governmental
organizations and treaty organizations (including the ITU
and WIPO) participated in the 1st GAC meeting in
Singapore, March 1999. </p>
<p><strong>ICANN Board-GAC critical relationship</strong></p>
<p>As long as the ICANN issues were rather technical by
nature, nothing was wrong with the advisory role of
governments. The only case, which created some tensions,
popped up in the year 2000 when governments wanted to
reserve their country names in the new dot-info gTLD. </p>
<p>The board rejected the proposal by arguing that
governments do not really understand how the DNS is
working. They should be more specific in their advice and
give a concrete list with the names they want to reserve
because there are endless variations of country names in
different languages which all could be registered (or
blocked). </p>
<p>Anyhow, this case triggered a discussion in the ICANN
reform process in 2002 about the introduction of some more
detailed procedures for the interaction between the Board
and the GAC which now includes the need of the Board to
explain why it rejects a GAC advice and the option to have
formal ‘consultations’ between the ICANN Board and the GAC
if both sides can’t agree on issues which have a public
policy dimension. </p>
<p>Nevertheless it remained unclear to a certain degree what
in legal terms ‘GAC advice’ means in an ICANN environment.
Also under the reformed bylaws, the final decision making
capacity remained in the hands of the ICANN Board. </p>
<p><strong>Growing governmental awareness after WSIS</strong></p>
<p>A new awareness among governments about their role in
ICANN emerged after the 2nd phase of the UN World Summit
on the Information Society (WSIS) which, more or less,
recognized and strengthened the ICANN model. This
coincided with the efforts of the ICANN Board to move
forward with its new gTLD program. </p>
<p>Governments discovered soon, that new gTLDs are much more
than a purely technical resource and that TLD-strings can
have a lot of political, cultural and social meanings. The
dynamism of the process was suddenly confronted with the
dynamite of the combination of letters in a top level
domain.</p>
<p>Governments started to list the public policy issues
involved in the new gTLD program: geographical names,
religion, culture, moral and public order (the famous
MOPO). </p>
<p>The Board had, for a long time, no problem with a more
active GAC. On the contrary it welcomed GAC advice. The
so-called GAC principles on new gTLDs from 2007 were seen
by the ICANN Board as a helpful guideline. But like
always, the devil is in the detail. </p>
<p>The real interaction between the ICANN Board and the GAC
started only recently when it became clear that the moment
of truth is approaching. The problem both sides discovered
was that they did not have only different ideas about
different issues but they had also different working
methods. That was not really a surprise but it did
introduce additional barriers for forward-moving
communication. </p>
<p>Additionally the two parties discussed the proposed
versions of the DAG on different levels: among the GAC
speakers the lawyers became the most outspoken group. They
referred to the 190+ national jurisdictions and the
relevant decisions of national courts which had to be
taken into consideration when ICANN wants to introduce new
gTLDs, while on the ICANN side, the technical and
financial experts concentrated on technical criteria and
financial hurdles – unreachable for many applicants from
poorer countries or from local administrations even in
richer countries – which fueled the controversial tone in
the debate. </p>
<p>It was probably <a
href="http://news.dot-nxt.com/2011/03/17/clinton-speech-at-icann">Bill
Clinton's speech</a> in San Francisco in March 2011 when
he described Internet Governance as “stumbling forward”
which changed the tone again and paved the way for another
efforts to build bridges. </p>
<p><strong>Risks are high on both sides</strong></p>
<p>Now the stakes and risks are high on both sides. If the
GAC would move into a position to dictate to the ICANN
Board what to do, this would mean the end of the
multi-stakeholder model and introduce a regime of state
control over the Internet with all the options for
governmental censorship and surveillance. </p>
<p>On the other hand the same result could emerge when the
Board ignores the GAC. Governments could become furious
and look for alternative mechanisms to exercise power over
the Internet, probably via the United Nations.</p>
<p>And if nothing happens, if the new gTLD project is again
postponed to ICANNs 42nd meeting in Dakar in October 2011,
the Internet community would lose its remaining trust into
ICANN and the multi-stakeholder model. A political
innovation, introduced in 1998, would be buried in the
fire of misunderstandings, frustrations and incapability
to find a solution.</p>
<p>This could trigger a search for alternative models and
pave the way towards a fragmentation of the Internet.<br>
Insofar as the endgame around the new gTLD program is not
a zero-sum game, with winners and losers. Either both
sides will win or both sides will lose. </p>
<p><strong>A “sliced approach” for the devil’s paragraphs?</strong></p>
<p>How to move forward? Here is one option that could be
called upon if discussions really get deadlocked:
salami-tactics, a “sliced approach”. </p>
<p>There is a general consensus among all parties to move
forward and introduce new gTLDs (sooner or later) and the
only remaining barriers are the red-marked scorecards. If
consensus cannot be reached quickly on the scorecard
issues, one approach could be to cut the package into two
parts and move forward at different speeds on two levels.
</p>
<p>The final version of the “Draft Applicant Guidebook”
(DAG) could be adopted “in principle” while at the same
time the five to seven remaining paragraphs, where the
devil feeds the fire, could be put temporarily into
so-called “brackets”. </p>
<p>ICANN would not move from, DAG 5.0 to DAG 6.0 but to DAG
5.1. Based on such a basic agreement one could do two
things at once: </p>
<ol type="a">
<li>start the process with all those strings which are not
touched by the devil’s paragraphs and do not have the
potential to create any type of controversy (this could
be a group of about 50+ new gTLDs) and move forward with
this 1st basket of uncontroversial applications in
Singapore and, at the same time, </li>
<li>continue negotiations among the involved parties to
remove the brackets from the devils paragraphs as quick
as possible, hopefully until the 42nd meeting in Dakar,
October 2011 which would than open the door for
applications which would go into a 2nd basket.</li>
</ol>
<p>This would certainly need some more bilateral
consultations and compromises from both sides, but if it
does come to an impasse, it would demonstrate that ICANN
and GAC are able to act, to manage controversies and
crisis moments if the diplomatic clock moves towards
midnight. </p>
<p>It would also not create too much damage and different
treatment because the process for the first basket would
not come to a final end – the signature of registry
agreements – before the brackets have been removed from
the DAG for the 2nd basket so that needed adjustments for
the first group could be made before the signing ceremony.
</p>
<p><strong>Need for Confidence Building Measures</strong></p>
<p>Erika Mann, a new ICANN director with 15 years of
experiences in the European Parliament said in San
Francisco in the debate on the new gTLD dot-xxx that life
is not without risks. If you (and ICANN and the GAC) try
to avoid any risks, it will freeze the status quo. </p>
<p>And indeed neither a DAG 8.0 nor a DAG 9.0 could clear
all the legal and financial details which could appear
within the next 50 years in the unknown territory of the
domain-name space. </p>
<p class="pullquote-container"><span
class="pullquote-processed pullquote-quote">There is a
moment where you have to put aside your doubts and where
you have to jump, being aware that after landing there
is probably another issue you have to deal with</span><span
class="pullquote pullquote-processed">There is a moment
where you have to put aside your doubts and where you
have to jump, being aware that after landing there is
probably another issue you have to deal with</span>. </p>
<p>Such risk-taking works only in an environment of mutual
trust. This raises obviously the question: how can trust
between the ICANN Board, the GAC and the ICANN community
can be enhanced? What could be sustainable confidence
building measures in this field? This is obviously a good
agenda item for forthcoming ICANN and GAC meetings. </p>
<p>Multi-stakeholderism can be best describe by a circle. In
the multi-stakeholder model there is no formal hierarchy.
All partners are needed and have to make a contribution
according to their specific role. There is an
interdependence among the various stakeholders. One can’t
live without the other. And also here Jon Postel’s
philosophy “Be conservative in what you send; be liberal
in what you accept” is a good guideline for all
stakeholders. </p>
<p>If all stakeholders in the Internet Governance circles
concentrate on substance and give up procedural power
games, there is chance the crisis we are facing now will
end with a solution which will strengthen all partners.
ICANN can demonstrate that it is able to deliver; the GAC
can show that it is able to protect the public interests
and the community can experience that the decision makers
are able to move forward.</p>
<p><strong>Remember the Legend of Singapore</strong></p>
<p>The interesting side effect of the controversial
discussions of the last two years is that new procedures,
a new discussion culture, new forms of interaction have
emerged as a result of the “tit-for-tat-battle”. </p>
<p>If this controversy leads to a positive result, the used
methodology – from joint ad hoc working groups and
informal meetings to public comment and scorecards - could
become a blueprint how conflicts in the future can be
channeled. It could become a best practice model for how
governmental and non-governmental stakeholders can work
hand-in-hand to the benefit of the global Internet
community by putting aside individual interest and serving
the public. </p>
<p>Such a model would influence also the discussion in the
IGF, the United Nations, the ITU, the OECD, the Council of
Europe, the G8 and G20 which all are dealing now with
Internet Governance issues. </p>
<p>Probably, both the ICANN Board and the GAC can get some
inspiration from the legend around the establishment of
Singapore. It was in the 14th century, when a young prince
from Sumatra, called Sang Nila Utama landed at the shores
of the peninsula. One day, when he inspected the jungle he
met a huge lion. </p>
<p>This was a critical moment for both sides: would the lion
eat the prince or would the prince kill the lion? What
happened? </p>
<p>The legend tells us that the lion looked sharp into the
eyes of the prince and the prince looked even sharper into
the eyes of the lion. And then, after a critical and tense
minute, both the lion and the prince turned silently
around and moved away. The lion disappeared in the jungle
and the prince went down to the sea, established a city
and named it Singapore, the Lion-City. By the way,
historians have found out, that there are no lions in the
Singapore jungle. It was probably a tiger. </p>
<p>So go ahead and enjoy your Tiger Beer at the Singapore
Riverside. But please don’t ask who plays the lion and who
the prince in the forthcoming 41st ICANN drama. </p>
</div>
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