ACT Comments on Institutional Confidence Plan

["Jonathan Zuck (ACT)" <jz@xxxxxxxxxxxxx>]

Confidence is defined in the dictionary as "The state or quality of being 
certain."  Going 
through the "DRAFT Implementation Plan for Improving Institutional Confidence" 
it seems 
clear that "confidence" is not seen as an obtainable goal but rather an 
abstraction without 
measure demanding programs without metrics. I believe it is here that the 
central frustration of our membership lies.
 
On behalf of the nearly 4,000 small IT companies represented by the Association 
for 
Competitive Technology I would like to thank the ICANN Board for the 
opportunity to provide 
a business oriented perspective on this thoughtful document. 

To provide some background, it should come as no surprise that ICANN has 
enjoyed a status of benign neglect by the IT industry (and most others) who 
have had the attitude, "if it is not broken, do not fix it." Therefore, the 
ICANN community has consisted primarily of academics, governments and the 
businesses whose businesses were most directly affected by ICANN policies and 
contracts. 

Two events transpired to dramatically change this situation: the WSIS 
discussions that were temporarily addressed through the creation of the IGF and 
the new policies surrounding gTLDs. Change, or even the suggestion of change, 
breeds scrutiny and even suspicion in such a high stakes environment.
 
The primary interests of the business community are the free flow of 
information and 
commerce, the security and stability of the DNS system, end user confidence in 
the DNS 
system, and the protection of intellectual assets such as reputation and 
trademarks. 

For better or worse, the system has largely worked by relying on private sector 
leadership and the United States Government (USG) playing a kind of ?bodyguard? 
role.  Actual intervention and "oversight" by the USG has been minimal but 
strong messages about protecting the existing structure and governance of the 
DNS have emanated from the USG from the beginning.  Rumblings at WSIS and the 
IGF from various governments suggest that "confidence" in the current structure 
is not universal in the public sector.
 
The talk of late has been about "transition" and again it should come as no 
surprise that such talk causes nervousness, scrutiny and ultimately criticism 
(hopefully constructive). This document is a recognition that there is an issue 
worth addressing, that concerns have been raised, and it attempts to suggest 
ways in which those issues could be addressed. The ICANN Board clearly 
recognizes the need for "confidence" generally and in the context of transition 
in particular. Where this document falls short is in identifying specific 
measures of confidence, goals for particular initiatives, and consequences for 
failing to meet those objectives. In the world of business, the market has the 
tendency to enforce metrics on companies but ICANN lacks that environment.
 
Perhaps the area of greatest concern, and hence lack of confidence, is the 
danger of capture both externally by the public sector and internally by 
non-business interests. Ongoing rhetoric from various governments suggests 
there is dissention on the notion of a private sector led ICANN. The DRAFT plan 
contains a number of recommendations for addressing governmental confidence in 
the form of greater interaction and participation but ideally there would be 
some feedback from government suggesting these actions, if successful would 
change their perspectives on the structure of ICANN. Furthermore, our members 
would like to know what happens if ICANN does NOT succeed in gaining the 
confidence of governments. How is that confidence measured and demonstrated? 
What are the objectives vis a vis governments and what is the "plan B" if the 
current recommendations do not achieve institutional confidence in that arena.
 
Another area of concern is contract compliance and enforcement. This is an area 
with clear data, identifiable objectives and measures of success and yet no 
such metrics are available, at least publically. Clearly investments are being 
made in achieving greater success in this area but without clear objectives or 
measures of success. The mere implementation of new policies and plans is 
insufficient to garner institutional confidence.
 
And of increasing concern, even beyond the IT industry, is the treatment of new 
gTLDs and the internationalization of existing TLDs. It is not at all clear 
that the existing plan, as reflected in the guidebook, ensures sufficient 
protection for existing investments and intellectual assets. A policy is 
surging ahead without clear justification nor clear measures for success and 
consequences for failure. It seems clear to everyone in the community, other 
than those with a planned gTLD, that these policies seem rushed and 
ill-considered. 
 
All of this leads to a discussion of accountability to the private sector from 
within ICANN. After ongoing discussion, it still seems as though the suggested 
mechanisms are insufficient. The choices between asking for a review and 
dissolving the board seem to run the extremes between ineffective and 
improbable. Without some mechanism for true appeal, the current structure does 
not offer real accountability. The ongoing demand for an avenue for appeal only 
makes it more likely that governments will step in to fill the gap, perhaps in 
the form of Commissioner Redding?s G12 suggestion. The best approach to 
addressing this deficiency is to take the time to develop a private sector 
mechanism as an alternative.
 
Mark Twain once wrote, ?Whatever you say, say it with conviction.? Nowhere is 
that more true than in the summary of comments from the previous comment period 
on this draft. The very structure of the summary itself suggests that there was 
virtual consensus, with a few parenthetical concerns.
 
The objective of these efforts do not appear to be improving "confidence,? but 
demonstrating ?effort to improve confidence? in time for the expiration of the 
JPA. It is the equivalent of a teenager about to reach the legal age to drive 
(16 in the US) promising to work on her driving skills prior to her birthday. 
There's a reason everyone must take an exam before driving. Transitions are not 
a given and we cannot treat the expiration of the JPA as its own benchmark. 
Instead, the benchmark should be a set of milestones related to particular 
objectives and metrics for ICANN that should then begin the discussion of 
"transition." While I would agree with statements by ICANN staff that 
confidence is not an absolute, there ARE metrics that can be put in place.  
Demonstrations of governmental confidence that can be made and mechanisms for 
accountability can be instituted. Effort is not sufficient.
 
To be clear, it has NEVER been the objective of this organization to increase 
the intervention of the USG or any other government into the private sector. 
Instead, our members (1,500 of which are outside the US) fail to see the 
interventionist role the USG has played.  Instead, they primarily see their 
current role as guardian and fear its absence without replacement. It is 
certainly the lesser of several evils, real or imagined, and this leads to 
concerns and a lack of confidence.
 
Rest assured that our members are enormous supporters of ICANN.  They believe 
fully in the objective of private sector leadership. They are, however, worried 
that this bullet train process, based on an arbitrary deadline, potentially 
threatens success the organization has enjoyed. 





Jonathan Zuck | President | Association for Competitive Technology              
              
                                                                        
202-331-2130x101 | 202-331-2139 (fax) | jz@xxxxxxxxxxxxx