Response to Philip Sheppard comments

["Yoav Keren" <yoav@xxxxxxxx>]

Two submissions by Philip Sheppard have focused on the "public private"
and the related "structural challenge" challenge. One on behalf of
Business Constituency and the other on behalf of the Business and ISP
constituencies together. Both of these constituencies are existing
constituencies which are renewing under the new proposed Commercial
Group, together with a third existing constituency - the legal
constituency. Outside of the proposed new IDNgTLD constituency no other
commercial group has applied to join after 5 years of debate and now
actual implementation of long needed structural reform of the GNSO.

 

He claims that since govt-related agencies are open to join the proposed
IDNgTLD this would somehow allow governments to vote and be able to
influence the GNSO decisions. And that this would be a precedent within
ICANN and therefore the application should be denied.  Unfortunately as
Miltom Muehler also points out, in our view such clean divides are not
possible and in fact many such instances have been the case within ICANN
since inception, even now and to the foreseeable future.

 

For example, there are many ccTLDs that are either government-run or
govt-controlled that belong to the ccTLD/ccNSO side of ICANN, and yet by
virtue of whose operations being de facto outsourced and run by large
ICANN registry companies (e.g. Afilias and VeriSign) have (and will
have) a significant voice within the Registry constituency of the
Contracted Party side of the proposed bicameral GNSO house. There is a
clear case of conflict of interests - they are paid money to run their
registries. 

And very often in the past on many topics the registries seem to have
aligned themselves with such govt-controlled ccTLDs and in fact on
occasion one speaks for the other when the other did not make it to a
particular  ICANN meeting. This is not within GNSO but at a higher layer
across ICANN.

 

As for within ICANN, most of today's ISP's are owned by national or
majority-national govt.-owned Telephone companies. In fact, if you
factor all the Internet users who use Chinese ISP (100%), the
overwhelmingly dominant ISPs in Malaysia (90%), Israel (40%), India
(50%), Korea (45%), Singapore (80%), most Persian Gulf countries have
govt-owned phone/ISP monopolies,  it is likely more than half the global
Internet users connect thru ISP's that are government controlled
partially owned phone companies. 

(BTW - A few days ago the Sri-Lanka govt-controlled telephone company
(the 90% ISP as well as being only telephone company) was ordered by the
country president to send an SMS message to all citizen/phone owners
declaring victory against the 30-year rebels. Talk about government
control !). 

Similarly several major Internet portals, i.e. local equivalents of
Yahoo, that are as importnmat as Yahoo for locals are part-owned by
governments, if not outright, then by virtue of them being subsidiaries
of the aforesaid phone/ISP companies and thereby being able to voice or
influence a vote for govt/public through them. (We have a clear such
case in Israel - Walla, the no. 1 portal and Bezeq the partially
govt.-owned phone company). 

We know that Yahoo is an influential and active member of the Biz
constituency and therefore they can define a typical bona fide member of
the current Biz constituency.

 

So if we take the biz constituency and the ISP constituency arguments
(as submitted by Phil) and deny govt-related membership via a
constituency under the GNSO Commercial group, then one would logically
conclude that the current petition for both the ISP and the biz
constituency to renew within the GNSO should be denied at the same time
as the proposed IDNgTLD. In fact given the envisaged diversity of
IDNgTLD membership, the govt-related agency members are likely to be few
in contrast to the currently far more pervasive govt-related
potential/current membership within  the ISP constituency. So on Phil's
" 

public-private challenge" count both the ISP and the Biz constituency as
of now/future should be denied renewal even more than the IDNgTLD
application.

 

Moving to the structural challenge - as pointed out governments are not
neatly just under GAC or just under ccTLDs (in itself a double
representation) but also are already under/can be under GNSO
constituencies like ISP constituency and the Biz Constituency. In many
countries, like virtually all of the Gulf countries - Oman, Dubai,
Bahrain, Saudi and African countries like Ethiopia, the govt-owned
phone/ISP monopoly ISP operates the ccTLD as a division. Thus even
ignoring the government angle here, currently many ccTLD operators
(probably in the many tens ! ) or their parent organizations can be part
of the ISP constituency. Thus a cross-over from ccTLD side to GNSO side.


Other examples abound - ISOC should be part of non-commercial GNSO group
but it sponsors PIR which is on the contracted party side ! In the new
gTLD round many contracted party registrars intend to apply and become
contracted registries - Enom and GoDadday (in fact not so long ago Go
Daddy petitioned US Congress types to take over and run .com for far
less than VeriSign). Actually its worse - the second biggest contracted
GNSO registry besides having conflict-of-interest roles on the ccTLD
side, owing to the fact that its collectively owned since inception by
major registrars as shareholders has a conflict of interest (actual $$$
openly and legally changing hands) with the contracted registrar side of
that house. And then within GNSO commercial group itself as mentioned
before there are non-trivial cases of ISPs that are portals and eligible
for both ISP and Biz constituency membership. We can go on like this....
and given the complex ways the corporate global multinationals operate
(and ownership changes repeatedly through acquisitions) would anyone bet
that in the past and right now, there are not many cases of companies
(themselves or through complex subsidiary shareholdings) that are not
double-dipping - two ISP members of ISP constituency may have at some
level cross-ownership and thus double votes. How about a single large
company that ultimately is a member of both the legal constituency and
the business (or ISP) constituency - is anybody checking constantly as
corporate buy each other up in this day of convergence?

 

So once again from the "structural challenge" side, not only have we
lived with such structural challenges in the past and now right across
the ICANN Board, but even within the GNSO we are surely living with same
or dollar-related parties in two different GNSO constituencies like the
examples above of possible membership in both ISP and Biz
constituencies. The same two constituencies that wish to deny IDNgTLD
application on "structural challenge" grounds have been "structurally
challenged" in the past and by all accounts intend to be in the proposed
reform.

 

I think these 2 grounds for denial are simply untenable on the grounds
of clear thinking and logical consistency with precedence.

One would think that any attempt at reform should at the very least be
consistent. And given that it is hard to slice/dice the whole world into
pre-conceived ways the only practical solution is to be creative and
flexible and accommodating in policy - just like the Internet itself.

 

 

 

Yoav Keren

CEO

 

Domain The Net Technologies Ltd.

81 Sokolov st.      Tel:  +972-3-7600500

Ramat Hasharon   Fax: +972-3-7600505

Israel 47238

 

 

 







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