A rock or a hard place? The post-NTIA era

30-04-2014

A rock or a hard place? The post-NTIA era

The NTIA has ruled out handing over to a government-led or inter-governmental organisation, but the US authorities hold all the cards, and can cling on until they see an acceptable proposal for the new regime, as TBO explains.

It came as a hammer blow to Amazon. In July 2013, ICANN’s Governmental Advisory Committee (GAC) voted to kill off the e-commerce company’s application for the .amazon generic top-level domain (gTLD), based on objections from South American governments, mainly in Brazil and Peru. They were unhappy because the term clashed with the name of the Amazon region, which is also referred to as ‘Amazonas’ or ‘Amazonia’ locally.  

With a final ICANN decision yet to arrive, there remains a sense among brand owners (not to mention Amazon itself) that the ruling was highly unfair. While the term ‘Amazonas’, which translates from Portuguese and Spanish as ‘Amazon’, did feature on ICANN’s list of territory names that required government approval to be applied for, ‘Amazon’ did not. In the eyes of IP owners, as well as other ICANN stakeholders, the GAC’s ruling made it abundantly clear how powerful the body has become.

The role and power of the GAC is coming into the limelight again, following the US government’s announcement that it will walk away from the contract that allows it to oversee ICANN. In March 2013, the National Telecommunications and Information Administration (NTIA) said its overnight of several internet functions—which, in essence, allow ICANN to carry out its role as the domain name system’s overseer—will be transferred to the “global multi-stakeholder community”.

It’s a vague term, but ‘multi-stakeholder’ is common in ICANN circles, referring to the ‘bottom-up’ way in which multiple groups make policy, including governments, internet users and IP owners. Using this approach, ICANN has set in motion a process for deciding what should replace the NTIA, but it’s early days yet.

The NTIA has explicitly ruled out handing over to a government-led or inter-governmental organisation solution. Although the current NTIA-ICANN contract, which covers the Internet Assigned Numbers Authority functions, expires in September 2015, the government holds all the cards, and can cling on until it sees an acceptable proposal.

In theory, this means governments will not assume any contractual sway over the internet’s address book, but that has not stopped people worrying. Some US politicians are concerned that the US might hand ‘control of the internet’ to countries such as Russia and China, which might impose restrictions on free speech. Under one bill, named the Dotcom Act, the NTIA would be blocked from approving any ICANN proposal by up to one year while the General Accountability Office reviews it.

These fears are partly based on Russia and China’s unsuccessful attempt in 2012 to bring ICANN under the remit of the International Telecommunication Union (ITU), a UN agency responsible for information and communication technologies. That attempt might have failed, but there is nothing to suggest they won’t try again at the next ITU plenipotentiary meeting, set for October 2014.

Notwithstanding the NTIA’s vow to block any government from replacing it, the chance of China coming in and cracking down on free speech doesn’t seem likely anyway.

“For years, authoritarian regimes have pointed to the NTIA’s oversight role of ICANN as an example of why other governments should be given greater control of the internet, on a level par with the US,” says Crescent Ezekwu, client project manager at domain name consultant Valideus.

“More recently, the US has become concerned that this idea had become more widely accepted by ‘middle countries’, such as Brazil, concerns that were accelerated in the wake of the Edward Snowden revelations.”

If followed through, the NTIA’s handover to the multi-stakeholder community would remove that argument from the table at a politically sensitive time, says Ezekwu, pointing to the ITU meeting later this year.

Pushing for influence

There may, however, be another way for governments to gain more power in the new NTIA-free era, and this is where the GAC comes in. As Ezekwu notes, there have already been growing signs of governments seeking to use the GAC’s advisory role within ICANN as a means to push for greater controls, particularly over content-related issues outside ICANN’s purview.

“In some cases, this has seen pushes by the GAC in the ‘ICANN sphere’ for rights that are currently inconsistent with international or national laws,” she says, citing the controversy over the applications for the .wine and .vin gTLDs.

In March 2014, ICANN agreed to let three applications for .wine and one for .vin proceed through the gTLD programme, despite some GAC members asking for additional safeguards within those gTLDs, including special protection for geographical indications such as ‘Champagne’. ICANN’s decision is subject to an internal appeal by the UK, France, Spain and the European Commission.

Roland LaPlante, chief marketing officer at domain name registry Afilias, says the GAC will become more powerful when the NTIA walks away from ICANN.

“It will remain either as an advisory group with expanded power or it will evolve into a constituent group, with some level of actual votes (and potentially some government-named board members).”

If this prediction becomes true, he says, “everyone will be worried”.

LaPlante says the groups involved in the new multi-stakeholder approach should include at least the following: governments; private sector; civil society; technical community; academia; and internet users. But, he says, at this point it is hard to tell what ICANN’s solution will look like, whereas it’s much easier to say what it will not look like.

When change does come, there are more questions to consider, such as a possible move for ICANN from its base in California. Under the affirmation of commitments (AoC) agreement with the US government, ICANN must be set up as a US corporation, but this dynamic may alter in the future, as Ezekwu explains.

“Will governments turn their attention to amending or even replacing the AoC? Will ICANN seek to become an international organisation, legally constituted in Geneva? How would this impact the hundreds of brand registries contracted to ICANN over the coming years?” she asks.

“ICANN’s leadership says it currently has no intention to relocate, but history offers a precedent that’s close to home. The World Intellectual Property Organization had its roots as a private corporation, but as its functions grew in global importance over time, it evolved into the specialised agency of the UN, answerable to member states, that we know today.

“So while the stated intention of the NTIA is for things to remain as they are under a new symbolic multi-stakeholder oversight mechanism, how governments fit into this picture will be subject to much discussion within ICANN, and among governments themselves, in the months to come,” she adds.

If a government-led solution is off the table, more or less everyone else with a stake in the running of the internet will breathe a sigh of relief. But as Amazon will testify, if the GAC assumes even more power at ICANN, that will not be such a welcome solution either. A replacement for the NTIA could be years off yet, but brands will be watching closely as the new era plays out.

NTIA, Amazon, ICANN, gTLD,

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