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2016-04-20

ICANN and the Global Public Interest, A Contradiction in Terms

ICANN--the Internet Corporation for Assigned Names and Numbers--and the Global Public Interest, a Contradiction in Terms?

Efforts by some within ICANN to "define" (and thereby "restrict") the term "public interest" is a misguided, ill-advised, attempt to supplant the proper role of governments, and will most likely result in a definition favorable to the clients and employers of the lawyers-lobbyists-stakeholders who infest, and have largely captured, ICANN structures and processes, principally representing domain name industry and other special interests, all to the actual detriment of the global internet community and the global public interest.

Multistakeholderism, insofar as it applies to ICANN, is just another term for regulatory capture (Wikipedia):

"Regulatory capture is a form of political corruption that occurs when a regulatory agency, created to act in the public interest, instead advances the commercial or political concerns of special interest groups that dominate the industry or sector it is charged with regulating." (emphasis added)

A prime example of ICANN regulatory capture is ICANN's new gTLDs program, which was designed and implemented primarily for purposes of making money for ICANN (for exorbitant salaries, exploding budget, staff levels, etc.), and the domain name industry, principally, new gTLD registry operators, registry service providers, and registrars. The dramatic increase in costs to members of the global internet community to defend against what ICANN enabled by adding over a 1000 new gTLDs to the global DNS, from cybercrimes to trademark infringement a/k/a cybersquatting, matters little to ICANN. By the time legal processes have caught up with the offenders, ICANN, together with the registry operators and registrars, have all collected their respective fees from the abusive domain name registrations and do not have to pay one cent to the victims in the global internet community. ICANN and the new gTLD domain name industry, in effect, constitute a public nuisance, making money by enabling and providing the platforms by which global bad actors, from terrorists to cybercriminals to cybersquatters, profit by exploiting the global economy and the global internet community. It's all win-win, wink-wink, for ICANN and ICANN's partners (@5:35 and 33:06) a/k/a ICANN's customers, or at least, was supposed to be. Read more at ICANN's Boondoggle | MIT Technology Review, August 21, 2012 and ICANN Damaged a Competitive Domain Name Market With Its New gTLDs | DomainMondo.com. ICANN and its domain name industry 'partners' are engaging in rentier capitalism at its worst--"as the economy becomes more and more about information, the crucial ends of capital holders is to take things that could [and should] belong to the commons and instead appropriate them as property rights and sell them off..."

"ICANN is an organization rooted in the private sector (including civil society) with governments in an advisory capacity. In the Affirmation of Commitments of 2009, ICANN committed itself to act in the global public interest. ICANN is a bottom-up organisation which has its origins in one country and is driven by a community that is dominated by the domain industry and other special interests ... a discussion has started in ICANN about how to better understand the notion of global public interest and how to improve its accountability mechanisms so that the global public interest is better reflected in its decisions ..." -- Thomas Schneider, Swiss cyber-diplomat and the Chairman of ICANN's Governmental Advisory Committee (GAC); Geneva Digital Watch: Issue 5, November 2015 (pdf),(links and emphasis added).

Contrast ICANN Board Chairman Steve Crocker's letter below with ICANN's current denial in a U.S. District Court of any public interest in new gTLD applications and processes, i.e., the new gTLD guidebook, which resulted from ICANN policy-making! See News Review: dotAFRICA, Public Interest, Judge Holds ICANN Accountable | DomainMondo.com.

ICANN Board Chairman Steve Crocker's letter to GNSO Council Chair James Bladel, 12 April 2016 (emphasis added):

"... historically at ICANN, there has been no explicit definition of the term “global public interest,” the Board has understood the term within the context of Paragraph 3 of the [ICANN] Articles of Incorporation:

“In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation [ICANN] shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv).” (emphasis added)

"... Future conversation and work on exploring the public interest within ICANN’s remit will require
global, multistakeholder, bottom-up discussion and I am glad to see the GNSO Council, along with other groups, is already taking a keen interest in these next steps."--Letter embedded below (yellow highlighting added):

Resources:

Exploring the Public Interest within ICANN's Remit Home - Exploring the Public Interest within ICANN's Remit - WIKI Page (information, resources, links)
The Public Interest Mailing List Archives

See also on Domain Mondo:

News Review: dotAFRICA, Public Interest, Judge Holds ICANN Accountable 17 Apr 2016
ICANN Accountability, What Is The Global Public Interest (GPI)? 23 Dec 2015
ICANN, Domain Industry, Special Interests, and the Global Public Interest 4 Nov 2015
ICANN, Public Interest, New gTLDs Registry Operator Code of Conduct 12 Aug 2015
ICANN, Dysfunction, the Public Interest, and the IANA Transition 7 Apr 2015
ICANN, the Internet, and Acting in the Global Public Interest 16 Mar 2015
ALAC Call for Freeze on New gTLDs, Safeguards, Public Interest, All Disregarded by ICANN 15 Dec 2014
Tim Berners-Lee on ICANN, new gTLDs, public interest 18 May 2014

Below is the slide Presentation from ICANN 55, Marrakech, March 7, 2016, Exploring the "Public Interest" Within ICANN's Remit:

Session Overview: Discussions on the topic of the "public interest within ICANN's remit" and potential definitions of this term have been ongoing for years. In 2013-2014, the Strategy Panel on Public Responsibility Framework, led by Nii Quaynor, explored this topic. Based on community input at sessions and webinars, the Panel defined the global public interest in relation to the Internet as: "ensuring that the Internet becomes, and continues to be, stable, inclusive, and accessible across the globe so that all may enjoy the benefits of a single and open Internet. In addressing its public responsibility, ICANN must build trust in the Internet and its governance ecosystem." While some recommended the report, at individual and ICANN meetings, and at ICANN 52 in particular, it is evident there is a need and a desire to revisit this topic. Given limits on bandwidth for additional projects, and given the intense focus on other ongoing dialogues, a wikispace was established as a resource space for all to populate with background documents that will be useful in guiding this conversation forward. As set out in the ICANN Operating and Strategic Plans, ICANN will be facilitating a conversation in Financial Year 16 to explore the "public interest" within ICANN's mission and mandate, and this High Interest Session will form an important part of this work.

2016-01-27

ICANN New gTLD Program Review: Domain Name System, DNS Abuse

Or which of ICANN's new gTLDs are the "shadiest" in the global DNS?

Above: ICANN 2015 Presentation on "DNS Abuse Handling"

From the ICANN Announcement--
ICANN is currently engaged in data collection on DNS (Domain Name System) abuse and mitigation efforts implemented as part of the New gTLD Program. Members of the community and general public are invited to join ICANN on 28 January 2016 in an open discussion on the topic. This work will help inform the efforts of the review team examining the effects of the Program on Competition, Consumer Choice, and Consumer Trust, which will assess the safeguards in the Program as part of its work.

Discussion Details & How to Attend--

ICANN will hold two discussions to enable participation in all regions:
Discussion 1: Jan 28, 2016 at 02:00-03:30 UTC time converter (9-10:30pm EST Jan 27)

Discussion 2: Jan 28, 2016 at 16:00--17:30 UTC time converter (11am-12:30pm EST Jan 28)

Online participation: https://icann.adobeconnect.com/gdd or
via teleconference: Download numbers [PDF, 89 KB]. Passcode: 144 144 2688

Discussions will be conducted in English. Recordings will be posted at: https://newgtlds.icann.org/en/reviews/dns-abuse.

Register to attend the discussion and ICANN will send you an email with participation information OR unable to attend, but want to contribute? Give ICANN the OK to send you a questionnaire so you can tell ICANN about your experiences. Visit: http://survey.clicktools.com/app/survey/go.jsp?iv=25apb9wqx72s8

The goals of the discussion are to help formulate a definition of DNS abuse, brainstorm methods for measuring abuse, and gather qualitative, experiential input on whether safeguards to mitigate DNS abuse in new gTLDs have been effective. The discussion will be structured around 4 central topics, which participants are encouraged to consider prior to joining:

Topic 1: Which activities do you consider to be DNS abuse? If you could put forth a globally accepted definition of DNS abuse, what would it be? This definition should be broad enough to cover various malicious uses of the DNS.

Topic 2: What are the most effective methods to measure the prevalence of abusive activities in the DNS?

Topic 3: As part of the New gTLD Program, ICANN introduced safeguards [PDF, 128 KB] to mitigate potential DNS abuse in new gTLDs (listed below). How can we measure the effectiveness of these safeguards?

Vetting registry operators
Requirement for DNSSEC deployment
Requirement for Thick WHOIS records
Prohibition of "wild carding"
Removal of orphan glue records
Centralization of Zone file access
Abuse contact and documented anti-abuse policy requirements for registries and registrars
Availability of expedited registry security request process
High-security zone verification

Topic 4: What has been your experience, personally or on behalf of an organization, with these safeguards? Please tell us: Which were and/or were not effective? How so and why do you believe they were or were not effective? Are there safeguards that should have been included but were not? Any remaining time will be open for questions and related discussion.

Further Information: DNS Abuse Review | ICANN New gTLDs

ICANN's New gTLD Program has enabled hundreds of new top-level domains to enter into the Internet's root zone since the first delegation occurred in October 2013. Comprehensive reviews of the program have begun and will cover a variety of topics including competition, consumer trust and choice (CCT), security and stability, rights protection and other areas. Along with commissioning third-party analyses,ICANN is capturing stakeholder experiences regarding operation of the New gTLD Program and its effects on the domain name industry. Lessons learned as a result of these efforts will help shape future rounds of the program.

ICANN's Suggested Reading:

"Mitigating Malicious Conduct," ICANN, New gTLD Program Explanatory Memorandum https://archive.icann.org/en/topics/new-gtlds/mitigating-malicious-conduct-04oct09-en.pdf [PDF, 128 KB], (3 October 2009).
New gTLD Program Review page: http://newgtlds.icann.org/en/reviews

Source: ICANN Discussion: Reviewing New gTLD Program Safeguards Against DNS Abuse

See also on Domain Mondo:

2015-12-23

ICANN Accountability, What Is The Global Public Interest (GPI)?

A dispute is brewing between the ICANN Board of Directors and the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability)--which is part of the IANA Stewardship Transition process--over the definition of, or application of, the term "global public interest" (GPI) as it applies to the CCWG-Accountability proposal.

The term global public interest is used in ICANN's Articles of Incorporation as set out by Board Member Bruce Tonkin in his response below to the question recently asked by the CCWG-Accountability:

CCWG-Accountability Question: "What are the legal basis and criteria by which the Board considers a given Recommendation to be contrary to the Global Public Interest? Clarification would really be useful to help our group, but also the Chartering Organizations, to check our own recommendations."

Response from the Board Liaison (Bruce Tonkin): "Coming to an agreed definition of the global public interest is part of ICANN’s strategic plan. It is the 5th of five strategic initiatives: “Develop and implement a global public interest framework bounded by ICANN’s mission.” Until this is done, the Board is guided by the global public interest as set out in our Articles of Incorporation: "... in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, ICANN shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by

(i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet;

(ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space;

(iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system;

(iv) overseeing operation of the authoritative Internet DNS root server system;

and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv)."

By inference therefore any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board."

One Comment, of several, in Reply by one CCWG-Accountability participant:

"With respect Bruce, that is not responsive. Your last statement that " any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board" is a truism -- but there are many things that might limit your ability (lack of funding say) that are not in any way connected to the global public interest. You cannot possibly mean that if the Board thinks it limits ICANN it is, by definition, not in the GPI -- or if you do mean that then the Board has a very, very inflated sense of itself and the relative importance of its mission.

"Likewise there are many things in the global public interest that would improve (or at least not diminish) ICANN's ability to deliver the services it is tasked with delivering. You can't possibly be saying that things which are affirmatively in the global interest (greater diversity, for example) are not in ICANN's definition of GPI if they can be judged by ICANN to interfere with its operations. That, in effect, gives the Board a veto to say that it if adversely effects us, it can't be in the GPI -- even when the broader definition of GPI clearly suggests that it is.

"The Board's objection to enhanced transparency (in its comments on the Third Proposal) is a perfect example of this latter case -- the Board substituting its own judgement of what is good for ICANN for a judgment of what is in the GPI. I am more than willing to agree that greater transparency might impose greater process restrictions on Board activity and thus, in some perverse sense, be read to "limit ICANN's ability to deliver" its services -- by putting in more restrictions on what the Board can do. But for the Board to equate that with a restriction that is contrary to the GPI is to mistake ICANN for the globe and ICANN's interests for those of the people it serves.

"I continue to be dismayed at this type of response from the Board which reflects a lack of understanding of what the accountability project is all about."

See also on Domain Mondo: ICANN, Domain Industry, Special Interests, and the Global Public Interest - excerpt:

... The Institute of Chartered Accountants in England and Wales argues that applying a detailed definition [of "Public Interest"] is likely to result in unintended consequences .... Meaning of public interest | ALRC | Australian Law Reform Commission: "... Should public interest be defined? 8.35 ‘Public interest’ should not be defined, but a list of public interest matters could be set out ..." (emphasis added)

Also note the public interest is a term used in the Affirmation of Commitments (AoC) agreement between ICANN and the U.S. government (NTIA) dated September 30, 2009 (to be incorporated into ICANN's bylaws in accordance with the latest draft proposal):

".... 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. 4. DOC affirms its commitment to a multi-stakeholder, private sector led, bottom-up policy development model for DNS technical coordination that acts for the benefit of global Internet users. A private coordinating process, the outcomes of which reflect the public interest, is best able to flexibly meet the changing needs of the Internet and of Internet users. ICANN and DOC recognize that there is a group of participants that engage in ICANN's processes to a greater extent than Internet users generally. To ensure that its decisions are in the public interest, and not just the interests of a particular set of stakeholders, ICANN commits to perform and publish analyses of the positive and negative effects of its decisions on the public, including any financial impact on the public, and the positive or negative impact (if any) on the systemic security, stability and resiliency of the DNS .... 9.1 Ensuring accountability, transparency and the interests of global Internet users: ICANN commits to maintain and improve robust mechanisms for public input, accountability, and transparency so as to ensure that the outcomes of its decision-making will reflect the public interest and be accountable to all stakeholders...."

See also on Domain Mondo:

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DISCLAIMER

2015-03-16

ICANN, the Internet, and Acting in the Global Public Interest

Public interest, according to the Random House Dictionary, is "1. the welfare or well-being of the general public; commonwealth..." The Institute of Chartered Accountants in England and Wales* (see infra) argues that applying a detailed definition is likely to result in unintended consequences, in Acting in the Public Interest (2012). Instead, each circumstance needs to be assessed based on criteria such as the relevant public, wants, and constraints. The key to assessing any public interest decision is transparency of the decision making process, including balancing competing interests.

The public interest | Ethics | *ICAEW: "'The public interest' is used by many to justify a wide range of actions and proposals. However, it is often unclear (even to those using the term) what they mean by this, and there can be a natural suspicion that the phrase may be used as a smokescreen to garner support for something that is actually in the advocate's own interests.

"Acting in the public interest: a framework for analysis:

Download the summary report
Download the full report
Download the framework template

"From a broad perspective, ICAEW does not believe that a detailed general definition would serve a useful purpose: individual circumstances are too variable and such a definition would inevitably result in unintended consequences. What we propose in our paper is a framework of matters to consider when justifying an action as being in the public interest. Using such a framework will allow those advocating an action in the public interest to understand what they mean, and, if explained, will allow those assessing the action or proposal to determine whether they can support the measure as being in the public interest."

At ICANN 52 - NCUC Singapore Meeting 2015-02-10 - GNSO Council Meetings - Confluence:

ICANN and the Global “Public Interest” (Megan Richards, Principal Adviser of the Director General at DG CONNECT, European Commission)

Background Information:
The Strategy Panel on the Public Responsibility Framework (revised May 2014) https://www.icann.org/en/system/files/files/prf-report-15may14-en.pdf proposed that, “ICANN defines the global public interest in relation to the Internet as ensuring the Internet becomes, and continues to be, stable, inclusive, and accessible across the globe so that all may enjoy the benefits of a single and open Internet.” The panel’s analysis was discussed inter alia in a February 2014 webinar https://www.icann.org/news/announcement-2014-02-12-en. A Development and Public Responsibility Department was created to coordinate with the community and organization on related work, and held sessions at the London and Los Angeles meetings.

The ICANN Draft Five-Year Operating Plan for FY2016- FY2020 (v.1, November 2014) lists “Strategic Objective 5 - Develop and implement a global public interest framework bounded by ICANN’s mission,” including the development of a “common consensus based definition of public interest”https://www.icann.org/en/system/files/files/proposed-opplan-budget-2016-2020-10nov14-en.pdf

At a meeting with NCSG in Washington DC on 13 January, Fadi Chehadé told us, “clearly it's my job to define ICANN's public interest framework. This is clearly something we ought to do together. And I frankly welcome the NCSG to, if anything, take the lead on that.”

see also: domainmondo.com: Affirmation of Commitments, ICANN Board, Global Public Interest

Links for more information--video replay, etc.--

Non Commercial Users Constituency (NCUC)
10 February 2015 Transcript: Download transcript-ncuc-10feb15-en.pdf (394.84 KB)

Archival Media:
Non Commercial Users Constituency NCUC | Adobe Connect: Full [EN] Virtual Meeting Room Stream Archive English
Non Commercial Users Constituency (NCUC) | Audio: Full [EN] Audio Stream Archive English

The Noncommercial Users Constituency (NCUC) is the home for civil society organizations and individuals in ICANN's GNSO. NCUC currently comprises 378 members from 85 different countries, including 98 noncommercial organizations and 280 individuals. NCUC advocates positions on domain name-related policies that protect and support noncommercial communication and activity on the Internet. Among its key areas of interest are human rights, freedom of expression, privacy, access to knowledge, diversity and consumer choice, development, and global internet governance.

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