[bc-gnso] FW: New ICA Webpost

[Phil Corwin <psc@xxxxxxxxxxx>]

BC members may find my latest opinion piece of some interest - especially those 
based in the US, in regard to this question: How can the NTIA best serve US 
business interests over the long haul?

Kudos and criticism are equally welcome...


http://internetcommerce.org/NTIA_Balancing_Act

NTIA Caught Between a Congressional Rock and a Hard Place GAC
Submitted by Philip Corwin on Sun, 07/28/2013 - 19:03
On July 18th the Senate Appropriations Committee issued Report 113-78 on S. 
1329, the "DEPARTMENTS OF COMMERCE AND JUSTICE, AND SCIENCE, AND RELATED 
AGENCIES APPROPRIATIONS BILL, 2014". The Report contains language that is 
harshly critical of the role played by the National Telecommunications and 
Information Agency (NTIA) within ICANN's Governmental Advisory Committee (GAC), 
and would require NTIA to report back within thirty days after enactment of 
this spending measure on ICANN's compliance with the Affirmation of Commitments 
and whether the new gTLD program is proceeding in a manner consistent with 
cybersecurity concerns.
We have no idea which lobbyists may have whispered in the Committee's ear to 
shape this language, nor do we know whether these exact words will be in the 
final compromise bill agreed to between Senate and House appropriators. 
Nevertheless, the "power of the purse" is the ultimate Congressional chokehold 
on Executive Branch activity,  and such expressions of dissatisfaction cannot 
be ignored by those at the other end of Pennsylvania Avenue.
While we haven't agreed with every position taken by NTIA vis-à-vis ICANN and 
within the GAC, we are quite familiar with all the personnel involved and know 
that they take their work quite seriously and labor long and hard on behalf of 
the U.S. Their challenge, not reflected in the Report language, is that they 
have a difficult and sometimes near-impossible balancing act to perform. On one 
hand, as the Committee states, "NTIA...represents the interests of the Nation 
in protecting its companies, consumers, and intellectual property". On the 
other hand, heavy-handed U.S. influence upon ICANN and within the GAC would be 
grist for the mill of ICANN critics, who are always primed to allege that 
beneath its multi-stakeholder façade it remains subject to undue U.S. influence 
and ultimate control. Therefore, defanging such charges and preserving ICANN's 
multi-stakeholder model, which allows meaningful participation by business and 
civil society, is in the long-term U.S. interest - but doing so sometimes 
requires the U.S. to take a low profile and pull its punches.
The main charge against NTIA comes in this sentence of the Report: "The 
Committee is concerned that the Department of Commerce, through NTIA, has not 
been a strong advocate for U.S. companies and consumers and urges greater 
participation and advocacy within the GAC and any other mechanisms within ICANN 
in which NTIA is a participant." Frankly,  that deviates from our observations, 
and fails to consider the NTIA's perpetual balancing act.

Let's look at the NTIA's most significant decision in recent days - the 
issuance of the "U.S. STATEMENT ON GEOGRAPHIC NAMES IN ADVANCE OF ICANN DURBAN 
MEETING"[1]<file:///C:\Users\pcorwin.PCorwin-W7\Documents\ICA-NTIA_Appropriatons-webpost.docx>
 that "the United States is willing in Durban to abstain and remain neutral on 
.shenzen (IDN in Chinese), .persiangulf, .guangzhou (IDN in Chinese), .amazon 
(and IDNs in Japanese and Chinese), .patagonia, .yun, and .thai, thereby 
allowing the GAC to present consensus objections on these strings to the Board, 
if no other government objects... the choice made in this discrete case does 
not prejudice future United States positions within the ICANN model or beyond." 
(Emphasis added)

As for compliance with the Affirmation of Commitments, the NTIA statement 
characterizes that as something to be considered down the road and not at this 
moment, saying that the new gTLD program rules and related issues should "be 
considered in the review of the new gTLD program as mandated by the Affirmation 
of Commitments."

What NTIA did in the above instance was to step back and let two U.S. 
corporations - Patagonia and Amazon - become subject to GAC consensus 
objections against their applications for company name gTLDs that elicited 
sharp pushback from Latin American nations. Soon after the statement was 
released Patagonia, reading the writing on the wall, withdrew its application. 
Amazon's is still pending and, while ICANN's Board is not bound to accept all 
GAC consensus objections, there is a strong presumption toward doing so - and 
significant potential political repercussions for refusing.

That action came with some significant backdrop. At the prior April 2013 ICANN 
meeting in Beijing the U.S. stood fast against GAC consensus objections to 
.Patagonia and .Amazon, reportedly straining relationships and even impairing 
the U.S. ability to be effective on other GAC matters. Further, the State 
Department reportedly weighed in prior to the Durban meeting and urged the NTIA 
team to take a less confrontational profile within the GAC due to considerable 
foreign angst over the revelation of the NSA's metadata-gathering Prism 
program, and its even more pervasive and intrusive collection and analysis of 
Internet traffic involving foreign businesses and nationals. Let's face it, any 
U.S.-connected Internet enterprise, whether it's a private cloud service or 
ICANN, faces intense global scrutiny at this moment.

IP interests were apoplectic in Durban, correctly noting that there was no 
precedent in trademark law for geographic indicators to trump a valid trademark 
(on the other hand, they failed to note that while .brand gTLDs may trigger 
legal evolution, up to now top level domains have been held uniformly by courts 
and trademark authorities to possess no trademark rights because a TLD like 
.com or .uk cannot serve as a source identifier). There's some irony in that 
angst, as those same IP interests had no past hesitation in lobbying GAC 
members to advocate changes in the new gTLD program's rights protection 
measures (RPMs) that were detrimental to registrant due process rights and 
appeared to some observers to expand trademark law beyond the bounds of 
existing statutes and case law. Some even came to ICANN meetings sporting 
t-shirts with "Mind the GAC" slogans emblazoned across the chest. Now they want 
ICANN to do anything but mind the GAC  -- but all were well aware that the 
Applicant Guidebook provided that the GAC could object to any proposed "string" 
for any reason.

Should the U.S. operate within the GAC in an inflexible manner, dogmatically 
asserting on behalf of all domestic interests at all times without weighing 
relative importance, it risks losing the ability to sway the GAC on the higher 
priority issues - and also risks feeding the impression that ICANN is still 
unduly dominated by the U.S. But formal U.S. oversight was ended in 2009, and 
the ultimate remaining U.S. authority over ICANN decisions - the ability to 
block or delete TLDs from the authoritative root server via the IANA contract - 
is a politically fraught "nuclear option" with little likelihood of being 
exercised.

Let's take what just happened - if the U.S. representative on the GAC had 
literally adopted the Report's admonition to be "a strong advocate for U.S. 
companies" it would have maintained its opposition to the GAC advice against 
.Patagonia and .Amazon. The GAC would likely have still issued a strong (but 
not consensus) recommendation against them that ICANN would have to seriously 
evaluate, and the rift within  the GAC would have been raw and public. But 
there are multiple other major GAC issues awaiting final resolution that have 
serious implications for U.S. companies and consumers, including the enhanced 
safeguard advice for sensitive strings and regulated industries and 
professions. As well as the view that "closed generic" gTLDs should be 
generally rejected unless surmounting a high and yet-to-be-determined public 
interest standard. Whatever the ultimate U.S. position on these matters, its 
ability to sway others within the GAC has likely been enhanced by its retreat 
on the two geography-linked names that caused such angst among South American 
GAC participants. Indeed, the GAC's current positions and their ultimate 
resolution will determine the operation of ICANN's multistakeholder model well 
into the future, addressing the reality that governments are the only 
stakeholders with the ability to promulgate and enforce laws against the other 
stakeholders. (And let's not forget that this is not a permanent setback for 
the two companies involved --Amazon can always submit an application for its 
stock symbol, .AMZN, in the second round of the gTLD program; privately held 
Patagonia will need to be more creative.)

ICANN, while nominally a U.S. non-profit corporation, is now clearly evolving 
into an international enterprise that  requires the support and involvement of 
multiple nations. Recent management decisions such as opening co-equal 
operational hubs in Singapore and Istanbul to supplement the Los Angeles 
headquarters just drive home the point. U.S. participation in ICANN will 
sometimes require compromise on some issues in order to preserve U.S. influence 
on others and protect the overall credibility of its multi-stakeholder model. 
While compromise is currently in short supply on Capitol Hill, Senators should 
still be familiar with the concept.


Relevant excerpts from the Senate 
Report[2]<file:///C:\Users\pcorwin.PCorwin-W7\Documents\ICA-NTIA_Appropriatons-webpost.docx>
 follow:
Domestic and International Policies.-NTIA is the only executive agency with a 
core mission of ensuring that the Internet remains a platform for economic 
growth and consumer activity. The Committee supports the Administration's 
request to promote the development of a policy framework and international 
outreach that supports the U.S. marketplace, protects citizens, and maintains a 
free and open Internet.

ICANN.-NTIA represents the United States on the Internet Corporation for 
Assigned Names and Numbers [ICANN] Governmental Advisory Committee [GAC], and 
represents the interests of the Nation in protecting its companies, consumers, 
and intellectual property as the Internet becomes an increasingly important 
component of commerce. The GAC is structured to provide advice to the ICANN 
Board on the public policy aspects of the broad range of issues pending before 
ICANN, and NTIA must be an active supporter for the interests of the Nation. 
The Committee is concerned that the Department of Commerce, through NTIA, has 
not been a strong advocate for U.S. companies and consumers and urges greater 
participation and advocacy within the GAC and any other mechanisms within ICANN 
in which NTIA is a participant. NTIA has a duty to ensure that decisions 
related to ICANN are made in the Nation's interest, are accountable and 
transparent, and preserve the security, stability, and resiliency of the 
Internet for consumers, business, and the U.S. Government. The Committee 
instructs the NTIA to assess and report to the Committee within 30 days on the 
adequacy of NTIA's and ICANN's compliance with the Affirmation of Commitments, 
and whether NTIA's assessment of ICANN will have in place the necessary 
security elements to protect stakeholders as ICANN moves forward with expanding 
the number of top level Internet domain names available.



________________________________
[1]<file:///C:\Users\pcorwin.PCorwin-W7\Documents\ICA-NTIA_Appropriatons-webpost.docx>http://www.ntia.doc.gov/files/ntia/publications/usg_nextsteps_07052013_0.pdf
[2]<file:///C:\Users\pcorwin.PCorwin-W7\Documents\ICA-NTIA_Appropriatons-webpost.docx>http://www.gpo.gov/fdsys/pkg/CRPT-113srpt78/pdf/CRPT-113srpt78.pdf


Philip S. Corwin, Founding Principal
Virtualaw LLC
1155 F Street, NW
Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/cell

Twitter: @VlawDC

"Luck is the residue of design" -- Branch Rickey

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