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Monday, October 22, 2012

What One ICANN Journalist Thinks

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I had the opportunity to participate on the "What the Journalists Think" panel at last week's Internet Corporation for Assigned Names and Numbers meeting in Toronto, and that was enjoyable, and flattering, and I had the opportunity to meet a few other folks that I have admired for a long time. All good, eh, except for the fact that the panel moderator didn't ask many of the questions he said he would ask. So now I have several pages of "unused" notes. Unused until now.

ICANN 45 Hockey Puck

What are the frustrations of a journalist covering ICANN?

There aren't many frustrations covering ICANN, actually. Covering ICANN is a treat compared to covering Congress. At ICANN, the discussion topics are interesting and thoughtfully explained by experts in their fields. Nobody is going to describe the internet as a "system of tubes," or deliver long-winded commentaries about irrelevant topics1, or pander to humanity's basest motivations, or treat the audience as if it were composed entirely of third graders.

At ICANN meetings, nearly everyone from ICANN officials to attorneys to networking techies will take a question from a journalist. Even on mundane "I can't believe you don't know this" topics. 

 I have a few small frustrations, however.

Frustration #1. The ICANN multi-stakeholder model (businesses working together to reach consensus outcomes, with direction from government and input from the internet user community) takes a long time to produce results. My publication has been writing about WHOIS reforms, negotiations over the registrar accreditation agreement, and the new top-level domains initiative forever.

Frustration #2a. At ICANN, the "news" comes from many sources: email lists from constituencies and working groups, reports, correspondence and wiki pages, to name just a few. This makes tracking ICANN a long slog at times. The new MyICANN website, published as a beta at the Toronto meeting, appears to reflect a recognition on ICANN's part that following its activities can be challenging.

Frustration #2b. In the early ICANN days, I did not think our readers were all that interested in ICANN news, save for discussions on possible changes to the Uniform Domain Name Dispute Resolution Policy. Today, however, there are numerous policy development processes taking place at ICANN that affect the practice of law:

  • the prospect of over 1,000 new top-level domains, creating a large need for attorneys to work through legal issues involved in obtaining a top-level domain, operating a top-level domain, and protecting a client's trademark interests across all of these possible new domains;
  • government and IP owner prodding for WHOIS reforms;
  • regulation of privacy/proxy registration services;
  • trademark protection generally and the Trademark Clearinghouse specifically;
  • the new Uniform Rapid Suspension ("UDRP Lite") for domain names;
  • Locking domains subject to UDRP proceeding;
  • DNSSEC;
  • ICANN's relation to global internet governance policy.

The "frustration" aspect of all this is that important sessions now occasionally overlap, and it is no longer a viable coverage strategy to merely follow the ICANN board or its Government Advisory Committee from room to room.

Frustration #3. Among attorneys, the BNA brand is well-known. Outside the legal profession, however, a source's initial response circa 2000 was invariably "Who are you with? Is that government?" The brand recognition issue was a hurdle for reporters during the early days of our ICANN coverage. Subsequent developments have pretty much erased the brand recognition issue, however. First, we are working the ICANN beat a lot harder than we used to; we attend every meeting. Second, Bloomberg's acquisition of BNA in 2011 raised considerably the profile of the "Bloomberg BNA" brand outside the legal profession. Third, there are a lot more lawyers at ICANN meetings these days! The "Who are you?" factor is still there, but not so much anymore.

What is the next big ICANN-related story?

The question is an invitation for ill-informed, vapid punditry/prognostication, a staple of modern journalism. Thank you, don't mind if I do. I wrote down a lot of these predictions, and some of them are quite stretch. However, in these sorts of events, it is good idea to write down both strong and weak ideas in order to guard against the prospect that prior speakers will catch all the low-hanging fruit.

  1. Top-level domains "do over." Did ICANN receive a legally valid delegation of authority to create new top-level domains? Do conflicts of interest by key ICANN officials render the system fundamentally unfair? Does the new top-level domains program foster trademark infringement to such an extent that some judge somewhere might enjoin the entire operation on contributory trademark infringement grounds? I have a feeling that a well-timed lawsuit could delay payday for ICANN and the domain name industry yet again.
  2. Online identity policy. Governments' push for better cybersecurity and more reliable online identity frameworks in the United States and in the European Union will overtake and swamp slow-moving discussions on WHOIS reform at ICANN.
  3. Online intermediaries enlisted. ICANN is almost certainly going to be asked to do more to help fight cybercrime, stem trafficking in counterfeit or otherwise unauthorized drugs, and aid copyright and trademark owners. I wouldn't be surprised if trademark owners ask for the Anticybersquatting Consumer Protection Act to be revised to deal with new trademark threats due to the vast number of new top-level domains.
  4. Let's have a look-see at those internets. Shortly after Congress returns to Washington in January 2013, at least one high-ranking legislator will announce a series of hearings on internet governance and ICANN's new top-level domains initiative. He or she might say that Congress has never taken a serious look at internet governance issues. He or she would be right about that.
  5. Multi-stakeholder breakdown. The ICANN multi-stakeholder, consensus-based approach to policymaking will break down as key participants (intellectual property owners, law enforcement officials) realize they can get a better deal from Congress. This is exactly what is happening in the World Wide Web Consortium's efforts to write a "do not track" standard for web browsers, and in the Department of Commerce's effort to have businesses write a consumer bill of rights on privacy.
  6. Uprooted. The U.S. Department of Justice will, in 2014, seek a court order to take an entire top-level domain out of the root.
  7. Much ado about .nothing. What if, after all the guidebook changes, all the ultimatums and congressional hearings and lawsuits, the new new TLDs turn out very similar to the old new TLDs? As sleepy and unobjectionable as .jobs, .pro, .travel. Was all the fuss over .xxx really worth it?
  8. ICANN burdened by increased government oversight. One thing is for certain: On the day the first new top-level domain goes live, the Government Advisory Committee will be vastly more powerful, more engaged, and more entrenched in ICANN business than ever before. Will the heightened presence of dozens of government officials within ICANN be a good or a bad thing? (Remember: These are the people that President Clinton and Ira Magaziner believed should not be making domain name policy.)
  9. Compliance meltdown. During the Costa Rica meetings, a big area of GAC attention was the allegation that ICANN was not putting enough effort into enforcing its policies with accredited registrars and registries. That problem can only get worse when hundreds of new top-level domains go online.
  10. Litigation between new top-level domain aspirants. Just because ICANN says that one particular entity is entitled to operate a new top-level domain doesn't mean that all legal rights to using a particular string as a domain have been resolved.
  11. Data breaches everywhere. Dozens of inexperienced TLD operators + increased data collection duties for WHOIS + new data retention obligations = data breach. A data breach at a new top-level domain operator seems like a near certainty to me.

Is the public engaged by issues of internet governance?

No, and the absence of the "man on the street" from domain name policymaking might be a good thing. Hear me out on this.

Good thing. ICANN can focus on the technical and policy aspects of DNS management without dealing with grandstanding by lawmakers.

Bad thing. Without public engagement, domain name policy will skew toward whatever outcome is most revenue-enhancing for the domain name industry.

Good thing. Public engagement attracts Congress. The quality of the discussion and eventual policy outcome to emerge from ICANN will be superior than whatever result might come out of Congress.

Is ICANN as transparent as it should be?

ICANN could be more transparent. And it could pay more attention to conflicts of interest, and in building confidence and trust in its operations. Yet I think this is not quite the right question. I would ask: Is ICANN more transparent than any likely alternative?

The answer to this question is definitely yes. ICANN is definitely more transparent than the Department of Commerce, or Congress, or the International Telecommunication Union, or ICANN's own Government Advisory Committee. None of these entities make public who is lobbying them, they are all expensive to lobby, all except Congress operate behind closed doors, and all of them operate for the benefit of businesses and governments. At ICANN, internet users are explicitly recognized as a constituency and an important source of policy views. The ICANN internet user community is a frustrated lot (they do not prevail on most issues), but their voices are heard.

All in all, ICANN is not a bad forum for the internet user, especially when you consider the alternative. 

By Thomas O'Toole

Follow @tjotoole on Twitter Follow me on Twitter at @tjotoole.


  1. Long-winded commentaries about irrelevant topics are reserved for the Public Forum, a regular ICANN meeting feature that takes place just before the ICANN board meeting. 

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