ICANN

Wherefore whereas?

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Those who know me well know that I have an intense interest of the English language, often annoyingly so.

The Board of ICANN (the non-profit corporation that co-ordinates the internet’s naming system,) like most companies in the English speaking world, records its decisions by way of written Resolutions.

In my own company, we do something similar.  — It’s needed to documents important decisions taken by the ‘corporate mind’. For example: “The Board resolved to open a bank account with the London branch of Bloggs Bank’.

But for some reason, ICANN peppers its Board resolutions with arcane and archaic rehearsals of fact before getting to the meat of the decision recorded.

“WHEREAS it is recognised that blah blah blah”

For all we Brits look to the USA as being modernistic and at the forefront of new things, American English  — which., in the study of linguistics is regarded as a quite separate language to BBC English, Scots or Irish English —  yet has so many archaisms which survive into everyday use and are redolent of pre-Revolutionary 18th century English.

For example, Americans are always surprised that we don’t have felons any more. (This is because European society has evolved and moved on from the view that someone who commits certain criminal offences cannot ever be rehabilitated, and therefore after serving their sentence must continue to be punished in pettifogging ways like being ineligible to vote forever — we think this promotes recidivism).

Other words, like ‘beverage’ are mutually understandable, but seem quaint, and almost never used in England in common speech. So, no one in England would ask: “Would you like a beverage” (except in a deliberately affected manner for humorous effect ( usually when the beverage concerned was alcoholic) in nature.  The word ‘bevvy’ on the other hand, deriving from the same root, WAS a very common dialect word in my home country, and it invariably meant beer. (Clue: my father taught at the school atttended by John Lennon and Paul McCartney).

Anyway, back to ‘Whereas’.  Really, I don’t see the point. Wherefore the nub, in fact!.

(The word  ‘wherefore‘, contrary to the common misapprehension does not relate to location, but means ‘why?‘. Juliet was not inquiring where her paramour was hiding as is usually believed, but was bemoaning the fact that she was a Hatfield and he was a McCoy).

But always assuming that it is helpful to rehearse factual background before recording Board Decisions decision, Plain English must be preferable, surely?

Kieren McCarthy, CEO of dot-nxt has started a campaign to reform the wording used by ICANN’s boarrd resolutions. It’s a laudable goal, and I support it.

But for myself, I think I’ll suggest replacing it with ‘the Humble Petition of the gNSO sheweth that ..’

ICANN

Glass houses

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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.

ICANN

Poachers and Gamekeepers

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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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“No proposals met the requirements” – ICANN’s IANA function contract in doubt?

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As reported at domainincite.com and .NXT the US Government has scrapped the current IANA contract procurement process, reportedly saying in the process that ICANN’s submission didn’t meet the requirements of the global community.

The effect of this, although ICANN have another six-month stay of execution, has to be to cast medium-to-long-term doubt over ICANN’s role as IANA manager.

It would also might be perceivable by some (whether intended that way or not) as somewhat of a sour note for departing CEO Rod Beckstrom to end his time at ICANN on

Whether any of the criticisms that have been leveled at Mr Beckstrom during his tenure have substance or not, it would appear that one success he should have expected to bank upon would have been ICANN to be awarded  the IANA contract, a job it’s effectively been doing since it was formed.

The apparent message  that ICANN is ‘not fit-for-purpose’ in respect of the IANA contract does not augur well.

It’s also a shame that ICANN’s failure to get a grasp on the global community’s IANA needs may result in demotivating the very staff that I know from personal experience provide dedication above and beyond the call-of-duty.

Whoever Rod’s replacement as CEO may be, she (or he) will have to put “getting a grip” as being the very highest priority on taking post.

After all, gTLDS use IANA equally as ccTLDs. And can ICANN REALLY have the moral or other authority to sign contracts with newTLDs if its future as the  IANA is in this much doubt?

Legal

Censorship, fundamental rights and the DNS (part 1)

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It seems clear to me that the next field of engagement over fundamental rights is going to involve the Domain Name System. The recent skirmishes over SOPA (the proposed Stop Online Piracy Act, recently holed below the waterline by Pres. Obama) seems to confirm this view.

The DNS is the technical system at the heart of what nearly everyone who uses the Internet does.

It enables people and  applications to locate things on the Internet. Things such as website addresses, email servers and many other things. Watch the video at youtu.be/lsutsPeCbak.

The DNS is run by a diverse group of people and organisations which evolved from the Internet’s early research within academia. This group includes universities, government agencies and private businesses and is co-ordinated at its apex by a California organisation called the Internet Corporation for Assigned Names and Numbers (ICANN).

A recently hot topic in the DNS world is something called ‘Notice and Takedown’.

That is to say, “someone” (in the British Isles this is most usually the owner of some intellectual property or an organisation such as the Internet Watch Foundation which monitors the Internet for illegal content such as child abuse images or extreme pornography) will send a Notice to an ISP or domain name registrar to inform them that a domain name (or web address) is being used by what is becoming known in the industry as ‘bad actor’.

The recipient of such a Notice is then expected to take the appropriate action; the expectation being that the domain name concerned is blocked, filtered or ‘taken down’.

Much of the activity, as you might expect, in this regard has come from IP rights-owners as well as anti-phishing & anti-spam organisations.

Now your author’s anti-spam credentials cannot be doubted but it is submitted that there are significant dangers in the understandable wish of  registrars, ISPs and others to ‘do the right thing’. One insufficiently considered action could pose great reputational or even existential risk to the ISP executing takedown. On the other hand, there are equally significant risks to inaction as well.

There is a certain amoun of protection in Europe law for ‘mere conduits’, for example, under the e-commerce Directive.

But what if a registry (rather than a registra) receives a notice drawing its attention to the fact that a domain name is being used for bad purposes?

Such bad behaviour doesn’t have to be illegal (that is to say, criminal) conduct. It can equally well be an infringment of the civil rights of a third party, such as a defamation.

In England, defamation is a very great risk for any person or organisation that can be said to publish or assist publication. Ask any newspaper editor.

The UK libel laws are archaic and arcane. This basically means that it is extremely risky and extremely expensive to be either a Claimant or a Defendant, whether willingly or unwillingly.

Indeed, it’s no surprise that one of the early cases on the principles of notice and takedown are set out early on in an internet  libel case in England .. Godfrey -v- Demon Internet.

The effects of that regime on intermediaries has been ameliorated by subsequent European legislation — the e-commerce Directive but nonetheless, it is clear that not only are there risks to an ISP or registrar or registrar in taking positive action over a domain name that is alleged to be being used for illegal (criminal) or unlawful (civil) purposes, there are risks in NOT taking action.

I predict this debate will continue for several years, and is likely to engage the law enforcement, legislative and judicial authorities in a number of countries at the highest levels.

ICANN, Legal

Manwin’s squeaky wheel

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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.

ICANN, Legal

Don’t mention the war …

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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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European Commission backpedals? Restating the obvious.

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“Clearly an organization like ICANN, which has been conferred with important responsibilities with clear public policy impacts should meet the highest standards of transparency, accountability, and independence.”

These are the words of Jonathan Todd, a public spokesman for the European Union, reported by Kieren McCarthy.

It is undeniable and unarguable that ICANN Board decisions have public policy implications and impacts around the world.

So that is why bodies with responsbility for public policy, such as national and territorial governments, the European Union, the Council of Europe and even the Olympic Committee must be important voices in the ICANN process.

And so are the figures we love to hate, the intellectual property lawyers.

And civil society and human rights advocates as well.

It has been said to me, by way of negotiation theory, that sometimes the indicator of the best deal is that each party is equally UN-happy.

The words of Mr Todd are a statement of the obvious. But we need to be reminded of them.

I am sure that neither TLD Holdings plc nor Peter Dengate Thrush envisaged the furore that the announcement of the former ICANN Chairman’s new job would provoke.

That omelette can’t be turned back into eggs, but ICANN’s role must now be to produce even-handed, workable guidelines for the future that pass the balancing act test of being fair on the employee or former officeholder, as well as upholding not only the absence, but the appearance of absence of conflict of interest.

I wonder, is everyone equally unhappy with ICANN yet?

ICANN, Legal

.APPLE -v- .APPLE?

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@TCompuMark said recently on Twitter that

“Some interesting/complicated #gTLD objections to come from when #brands are also generic terms.”

In the root, there’s nowhere to hide.

“Apple” is a trademark. But whose is it? In fact, as we all know, two very well know companies, one in computers and an older one, in the music industry have rights to ‘APPLE’ in the context of computers, and music respectively.

But what if I, say, wanted to start a register of producers of apples. Why should a computer manufacturer and a record company have a right to stop me. The answer is, in terms of fundamental rights, that they don’t.

Yet the ICANN club seems to be geared up to give brand holders prior rights over areas that their brand is not valid in.

Now suppose Apple Computer apply for .APPLE. Apple Records object, causing the application to fail. Mutally assured destruction.

What in fact needs to happen is that the two need to cooperate on a joint venter (say .APPLE Registry LLP in which they are equal partners), obtain the name, and work out for themselves how to issue the names under .APPLE.

Sensible? Of course.

Would it ever happen. Well, I will eat a pickled herring if it does!

EU, ICANN, Legal

Commission Paper 6: Respect for applicable law.

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Of all the six papers, this one appears to be the most significant.

It says “ICANN’s role …. is a central issue for competition authorities such as the European CommissionI”.

You bet it is!

ThisPaper is an indication that the sleeping giant of DG Competition has finally woken up to the fact that rather than replace a single gTLD registry (Network Solutions as was) with liberalised market, the creation of ICANN has resulted in a structure which has many of the characteristics of a cartel.

There is absolutely no question about the Commission’s competence here.

As noted earlier, competition matters affecting the Single Market are an exclusive competence of the Union. In other words, the Union is the sovereign power here not the Member States.

The most fundamental thing about European law in the competition sphere is that it is right at the heart of the Union, stretching almost right back to its roots when six countries signed the Treaty of Rome.

And the fundamental point when considering any question of Single Market Competition enforcement is this :-

“Arrangements between undertakings” are illegal when they involve “prevention, restriction or distortion of competition within the common market”. (Article 81 ex 85 TEU)

As this is part of the Treaty, it is ‘directly applicable’ in the Member States. This means it IS already the law of all 27 countries who are part of the Union without their Parliaments needing pass additional legislation. It is a major, major, part of the acquis communitaire.

It makes intentional cartels are illegal. No surprise there. But unintentional “arrangements between undertakings” are illegal too. The effective word in the law is “or” not “and“.

Now, there’s no doubt that ICANN is at the heart of a number of ‘arrangements between undertakings’, particularly in the gTLD space.

Does any of them have the intention of distorting competition. Well, no. In fact as noted in the Paper ICANN’s constitution seems to require it to promote competition.

But do any of these ‘arrangements’ in ICANN have the effect of ‘prevention, restriction or distortion of competition’ in the Single Market?

The answer to this question is left as an exercise for the reader, but it seems that author of the paper seems to think that they very likely might do, and I would agree.

It would be interesting to see how European competition law can be integrated into a contract with no consideration between the US government and a California corporation!

I don’t think the USG would necessarily have the political will to defend such a move before Congressional or Senatorial interest where there may still be a residual view of ‘why are people outside the US trying to tell us how to run our Internet?’.

But that’s not necessary.

gTLDs by definition are designed to be operated in all 27 Member States. And therefore the EU can take any enforcement action it wishes to, if it feels ICANN is in breach of competition law.

It’s particularly handy that ICANN’s Brussels office is right next door to the Commission.

Really handy, and not far to walk when they decide to launch a raid, like they did to the mobile phone companies

Ancient Chinese curse: May you live in interesting times!