Re: [bc-gnso] New ICA Webpost

[stephvg@xxxxxxxxx]

Thanks Philip, this is an interesting read for people who want a better grasp 
of the political tensions going on behind the scene at ICANN.

FYI, I have uploaded a link to this piece from my firm's Facebook page on 
www.facebook.com/DomainConsultant.

Best,

Stéphane Van Gelder
Chairman and Managing Director/Fondateur
STEPHANE VAN GELDER CONSULTING

T (FR): +33 (0)6 20 40 55 89
T (UK): +44 (0)7583 457053
Skype: SVANGELDER
www.StephaneVanGelder.com
----------------
Follow us on Twitter: @stephvg and "like" us on Facebook: 
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Le 29 juil. 2013 à 01:43, Phil Corwin <psc@xxxxxxxxxxx> a écrit :

> 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] 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] 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]http://www.ntia.doc.gov/files/ntia/publications/usg_nextsteps_07052013_0.pdf
> 
> [2]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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