Closing Remarks and Comments from the Petitioner

["S. Subbiah" <subbiah@xxxxxxxxx>]

*Closing Remarks and Comments from the Petitioner *

I write this as the principal applicant for this petition. I am writing 
this on the final day as a concluding statement  to the ICANN Board and 
staff in view of all the public comments received thus far.
First, I (for myself and on behalf of all the supporting group) am very 
grateful to all  who have contributed their time and effort  in making 
thoughtful comments to this Public Comments Forum.
Next I note there have been many dozens of comments from companies, 
institutions and individuals that appear to be from many diverse parts 
of the worlds and from dozens of language/script communities. Most of 
them seem to be uniformly supportive and positive, with the most popular 
refrain being "its high time we had a group focused on IDN in the gTLD 
side of ICANN".
I only see 3 separate postings that while supporting the general need 
for  a group focused on IDN that also included IDN gTLDs somewhere 
within ICANN, nevertheless reject the current IDNgTLD petition on 
technical grounds.
Two of these were submitted by Philip  Sheppard who leads the existing 
Business Constituency- one in his name and the other on behalf of both 
the Business and ISP constituencies jointly. Both of these deal with the 
same exact 3 criticisms and since no other names are mentioned, it is a 
reasonable surmise that they were both penned by Philip Sheppard. A 
third rejection, from Marilyn Cade, in passing raises one of the same 3 
points, in her "individual capacity". It is well-known in ICANN history 
that Marilyn Cade and Philip Sheppard have worked closely together for 
many years co-leading the Business constituency and for many multiple 
terms representing their constituency alternatively on the GNSO Council. 
Given these connections one cannot rule out that at some level the 3 
criticisms are coming from a shared source the-  Philip 
Sheppard-Business Constituency and therefore I take that as a working 
assumption.
The 3 points can be all flatly denied on the basis of long-time 
precedent alone. All 3 issues revolve around the presumed logical 
inconsistency of fitting the IDNgTLD constituency into the present 
2-house, 4-group GNSO structure.  While there is on the surface some 
seeming credibility to all 3 criticisms, further examination clearly 
demonstrates that in reality most existing constituencies, including the 
Business  and the ISP Constituencies, already do not themselves meet the 
same 3 tests of logical constituency that Philip Sheppard raises. In 
fact they violate them even more than the proposed IDNgTLD constituency. 
So there is no basis to deny our application on these 3 grounds, unless 
you deny most of the other existing constituencies within GNSO and even 
at other ICANN layers, including the Business Constituency and Business 
Constituency themselves. Clear and many long-standing examples of these 
have already been pointed out by several voices ranging from Milton 
Mueller of NCUC and voices from within the IDN community on these Public 
Comment forum pages. I shall not dwell further on these.
On the other hand to be constructive and knowing that no one overarching 
structure in GNSO  can capture global divisions in clean and neat ways, 
we can be flexible to some degree. While we have left application open 
to all except direct political parties within countries, our current 
group does not as of now include contracted registries nor direct 
government entities. It does include govt-related non-profits, regular 
non-profits, individuals and commercial companies (some happen to be 
ICANN accredited registrars who would possibly be willing to decide and 
join only one constituency within ICANN if the IDNgTLD is approved). In 
any case, our charter strictly limits any member from holding 
high-office within the Constituency or in its Council representation if 
they already serve in similar capacities in  another constituency or 
group anywhere within ICANN). And we also limit regular membership to no 
more than 3 groups/constituencies altogether within GNSO/ICANN. (One 
could conceivably consider reducing this to two). An example of a 
flexible definition would be the following: A non-profit is 
indistinguishable in practice from a profit company that chooses or 
ensures that its profit is minimal or zero. A also, a non-profit can 
register as a for profit in almost any country and do little actual 
business.
Having given my firm opinion (in conjunction with comments made by 
others on these matters ) on why these 3 criticisms cannot be the basis 
of rejection, I would like to move on to some troubling aspects of 
potential motives and agendas behind these criticisms. These would not 
be troubling if it were not for a long-standing repeated history within 
ICANN in the past 3 years - most of it documented in  ICANN archives. 
Before I start, let me make clear I myself have an agenda - (1) after 10 
years of waiting to see a technology I co-invented actually get deployed 
globally rather than only regionally to date and (2) having helped 
raised the first $50M that made IDN (a term I coined) a household word 
in many parts of the world, we would like the original investors 
including the National University of Singapore see a return of even the 
principal, let alone interest while many others, including ICANN have 
already collectively profited hundreds of millions already and billions 
in the future. Further, I also concede as the principal petitioner, I am 
de facto an interested party to the outcome of the Board decision and 
thus my comments should be viewed with that in mind.
Now the relevant ICANN history.

- About 3 years ago just as ICANN announced a serious intention of 
launching a process to culminate in the deployment of IDN gTLDs finally. 
A GNSO IDN Working Group was started and was recruiting members.
- My company/Myself and many others from the IDN community volunteered 
but owing to restrictions on the basis of prior membership of existing 
GNSO constituencies the then-GNSO chair Bruce Tonkin (now ICANN Board 
member) determined that we had to join an existing constituency quickly 
first.
- Seeing that most were commercial entities, Bruce Tonkin then directed 
many of us to naturally join the Business Constituency. Many of us 
filled out the simple on line paperwork.
- After some silence as the working group began its work, there began a 
series of phone calls emanating from Belgium to many of the applicants 
questioning their "interests in IDN" and if  it were the only reason to 
seek membership ( I wish I was making this up !). Eventually after much 
lengthy stonewalling,  kinds of "rules" (they seemed to be ad hoc and 
made up along the way) were used to deny legitimate membership for 
companies involved in Internet and domains. In fact by their argument 
all of the 100 000 or more domain name resellers worldwide (the next 
thing to the proverbial end-user much vaunted by ICANN in most 
countries) and domain name software research and technology companies 
like mine were not eligible to join the one constituency that could even 
remotely include such resellers
- try registries, or non-profits, or ISPs, or trademark ? It became 
clear that Philip Sheppard and Marilyn were at the time making the 
decisions with regard to our requests.
- I then learnt of others who having encountered the same problem, had 
then gone to the ICANN ombudsman through the ministries of their parent 
countries.
- At the same time I complained to some nom-com GNSO councilors (whose 
job is to represent those who have no voice). Others did as well.
- As the IDN WG was in full swing making non-reversible decisions by 
volunteers either largely from Anglo-Latin countries or those working 
for Anglo-Latin companies and representing their interests (most of them 
non-experts in IDN to boot),  Bruce tried to work on trying to get  
ICANN to allow us as in as novel "observers". By the time this became 
possible, most of the IDN policy making was over and the many of us who 
joined - almost all people from IDN-needy countries and IDN experts - 
were unable to reverse many policies in which in our collective opinion 
were bad and that we knew would come back to haunt us later. On those we 
could still influence the majority opinion was recorded/archived but the 
minority position accepted since "observers" had no voting rights. Of 
all the "bad" policies for IDN deployment, the most egregious one from 
my point of view that won out - that of lumping new the ASCII gTLD 
process with the new  IDN gTLD process on the theory that there were in 
the end just bits of ultimate ASCII strings on the wire  - has already 
resulted in material consequence for the IDN community. The mostly ASCII 
new gTLD centered "overarching" trademark issues has crippled the 
already 10-year delayed IDN process by a further year, since ASCII and 
IDN were unwisely fused at the hip.
- As Bruce worked to change the observer laws - many of us came to know 
more about the Business  Constituency. That it had a long history of a 
tight knit group at the top led by Philip Sheppard and Marilyn Cade for 
many many years.  None of us  could tell if there were more than a 
handful of members at all in the constituency. Then it became clear that 
the then recently released issued London School of Economics Report 
(LSE) on GNSO reform commissioned by the ICANN Board had singled out the 
Business  Constituency on its operation and of its support for 
indefinite term limits for its GNSO representatives to the GNSO Council.
- At this point a newish member of the Business Constituency, who then 
went on to be on the GNSO council as one of the Business Constituency 
representatives, took over from Philip Sheppard the discussions with 
those who had been denied, possibly as a result of the Ombudsman led 
publicity.  While the new  rep  was much more sympathetic , but by then 
the WG group was about over and the urgency was over. Nevertheless  the 
Business  Constituency  never  did follow-up or ask us  to re-apply  
and  noone from the denied group ever allowed to join.
- At this juncture the idea of starting an  IDN constituency within GNSO 
was brought to my and some other IDN community members' attention by a 
number of existing GNSO councilors. As we explored that possibility, we 
were advised that the process had never been attempted before at ICANN 
and would take at least a year or more and it would make much more sense 
to wait until the expected GNSO reform.
- So I and others  have waited the 2+  years and now are seeking to take 
advantage of that suggestion/offer. Hence our petition, which for 
unrelated reasons - dealing with new the comments to the new gTLD 
guidebook that took in our opinion "bad" IDN policy and implementing it 
even more "badly" with respect to the poorer IDN parts of the world - 
ended up being a fairly rushed one.
- The logic for petitioning is as we did - under Commercial group is as 
follows.  Given the 10-year no show of ICANN on IDN is precisely because 
there is no effective voice within GNSO for IDN - i.e. a  constituency. 
For example we spent years discussing trademarks and whois (secondary 
issues for IDN populations) while IDNs languished for lack of ICANN time 
and attention, precisely because the GNSO constituencies already existed 
to raise the issue. Thus we need a focused voice and breaking that voice 
across different constituencies (some in commercial side of house and 
some on non-commercial side ) is basically a return to the status quo., 
especially since the IDN community is already less functional in English 
and the assumed ways of Anglo-Western style decision making (that's why 
they want IDN remember, they are not as good at English !). Marilyn 
Cade's idea of making IDN issue a larger one and pan-ICANN is a good one 
(and has been suggested  by other Councilors 2 years ago) but it would 
be a much larger re-think and re-structuring of ICANN that we think that 
ICANN is not yet mature enough to make, let alone get around to. In any 
case pushing it up as a higher layer pan-ICANN issue, is a sure way of 
ensuring that another ten years passes before any such possibly more 
ideal focused voice emerges for IDN gTLDs.
- Hence after thinking about it and seeking advice from staff and 
elsewhere we saw commercial group as best fit and with some 
flexibility/creativity could be tailored to fit.
- Then just as we met the deadline we learnt the following. All parts of 
the new double-house GNSO structure have to turn in charters at both the 
group and the constituency levels and all but the commercial group had 
turned in a final or full fledged drafts of the charter.
We learnt  that the commercial group draft (put together we are told 
under the leadership of primarily the Business constituency (Philip 
Sheppard) with the ISP constituency assisting on behalf of the Business, 
Trademark and ISP ones) was an interim/transition one with only a very 
few pages. In substance it basically limited itself for now to 2 or 3 
main criteria for limiting further constituency applicants. The first 
criteria is the long-standing one of ICANN board's  final approval veto 
of any new constituency. The other we learnt was the requirement that 
all existing Constituencies (presumably the said 3) have to UNANIMOUSLY 
approve of any new constituency that wishes to join, like the IDNgTLD 
constituency.
- Basically unless the old constituencies ALL approve, the old 
constituencies won't allow any new ones. So where in this process is the 
claim for the much ballyhooed current exercise of GNSO reform ? After 5 
years of debate, and LSE report based vilification, we now belatedly 
embark on reform at great expense only to find that any single of the 
old people by fiat can block any new one coming in. Under this scheme, 
logic dictates that CHANGE/reform cannot occur because the new reform 
rules do not in practice allow change. This makes catch-22 seem junior 
league.
- And 2 of the 3 existing constituencies, under the penmanship of  
Philip Sheppard,  the very same Business constituency, together with the 
ISP constituency,  has for whatever reason, justifiable or not,   
already rejected  this application through these Public Comments.
This brings us to  the present.

Having now to the best of my knowledge related the history relating to 
the IDN focused folks to get their voices heard the history points to a 
disturbing plausible and admittedly extreme conclusion. This follows.
Despite all claims to the contrary and stated support for IDN matters, 
the 2 of the existing GNSO commercial constituencies, in particular the 
Business  Constituency, and in particular Philip Sheppard, starting from 
some 3 years ago when IDN gTLDs were first seriously invoked by ICANN 
CEO until the current public comments have collectively demonstrated a 
singular pattern of behavior that seems to be indistinguishable from 
some specific singular underlying agenda that I cannot fathom, to deny 
those, like myself,  who wish to find a focused voice for IDNs within 
ICANN's GNSO.
Extreme view ?  Likely so. Possible view ? Yes. Assuming the background 
above is true, there is an undeniable possibility, slight or not, of a 
serious-conflict-of interest of the objecting group, in the guise of 
some other underlying singular agenda against the formation of the IDNgTLD.
Therefore I respectfully conclude, as the petitioner by asking  ICANN 
staff and ICANN board that will review this petition and make a 
decision, that  in as much as I myself as petitioner am an interested 
party with an agenda and so my thoughts and comments be accordingly 
discounted,  that similarly the criticisms and objection to the petition 
brought by the parties led by Philip Sheppard be taken as from an 
interested party with a possible biased agenda against the IDN 
community. Please set both our biased views aside and make a decision 
based on neutral and more diverse global input.
Finally we understand that flexibility and creativity will be needed to 
fit a not so-neat-and-tidy real world into some artificial construct 
that for genuine practical reasons an idealized world of  neat-and-tidy 
non-overlapped boxes. This IDNgTLD constituency is such a case. The  the 
petitioner and the supporting initial members are prepared in return to 
match with some flexibility.  Denial for technical reasons is likely to 
be received with yet another global, widespread disappointment in 
ICANN's record and the technical reasoning, and any bona fide reason for 
such, to be completely lost in the context of a decade of continuing 
"technical reasons" for why the ASCII-centric ICANN world continues to 
shortchange the IDN world.
S. Subbiah
Principal Petitioner for proposed IDNgTLD Constituency Formation
i-DNS.net Inc.