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” 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 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.
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