President's Strategy Committee Consultations
21 July 2006
Note: The following is the output of the audio captioning taken during President's Strategy Committee Consultations held on 21 July 2006 via audio conference call and audio streaming. Although the captioning output is largely accurate, in some cases it is incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.
ICANN STRATEGY COMMITTEE CONSULTATIONS
21 July 2006
>>PAUL TWOMEY: Marc, can I just check we are up and audio streaming?
>>MARC FRIEDMAN: I will check with Steve right now and be right back.
>>THERESA SWINEHART: Paul, yes, we are. It's Theresa. Yes, we are.
>>PAUL TWOMEY: We'll then commence and those members of the committee will join at the time for this particular set of hearings and inquiries.
Why don't I just make a few introductory points and then also go through the timetable that we presently have of people wishing to participate.
As ICANN considers the process of completion of its extension of the Memorandum of Understanding with the United States Department of Commerce, three of the (inaudible) actually pivotal to ICANN's mission, and this strategy committee, drawing on a range of -- a range of people, and I'll come to that grouping shortly, is looking for a long-term model feedback on what is needed to ensure deep-rooted stability of ICANN and the DNS. And the members of the President's Strategy Committee realize that input from the community is fundamental to the ICANN model and the ICANN strategic planning processes.
And the board also feels that the ICANN community could benefit from the advice of the group responsible for making observations and recommendations in setting the strategic issues facing ICANN. And as always, the committee feels the membership in that committee should be broad and deep.
The committee itself continues to expand to meet its range of appropriate representation while being a committee that is not a committee that actually sets the strategy of ICANN. ICANN strategy is set through its strategic planning process and is (inaudible) consultation process and up through to the board.
But this group has been convened since the ICANN meeting in November of 2005 in Montreal to give advice on a range of issues, one of which is perceptions on potential issues of emerging (inaudible) in the Memorandum of Understanding.
I think the people that are on this call, if at any time you are in a position where there is outside noise or you are in a noisy environment, you can push *6 and that will put a mute on your telephone. So if anybody is using a mobile phone or a noisy environment, I advise of you that.
>>HANS CORELL: Excuse me, I didn't get that. This is Hans Corell.
>>PAUL TWOMEY: Hans, if there is noise in the background or if you are on a cell phone, it is useful to push *6 on your phone. That will take your phone to mute.
>>HANS CORELL: Yes.
>>PAUL TWOMEY: And when you wish to return, just push *6 again. That will --
>>HANS CORELL: Okay. Fine.
>>PAUL TWOMEY: ICANN is committed to a single authoritative stable public root for the Internet's DNS, and from the management of that unique group, the public trust, according to policies developed through community participation and acceptance.
And I think the key issues there is acting in the public trust and developing
(inaudible) to a bottom-up consensus to that process is very important.
The-- By offering users an easy-to-use and reliable means of unambiguously referring to Web sites, e-mail servers, and the internet's many other services, the DNS is helping the Internet to achieve its promise in the global communications medium for commerce, research, education, social and cultural and other expressive activities. And effectively ICANN operates as a steward for users who depend on the internets standing resources. Therefore, it's important that ICANN focus on participation and input to decision-making regarding this valuable resource.
The President's Strategy Committee has asked the community to be involved in a consultation process concerning the -- some key questions, and this set of hearings is one step along the way of taking -- pursuing that consultation process and developing a brief report back to the board and the community on some of the things that this committee considers might be important for the status of the post-MOU or the conclusion of the MOU process and (inaudible) going forward.
I hope members of the community have the view and certainly that the assumption shouldn't be that things here are broken but rather what can we do to improve. And the questions put before the community, which I will come to in a minute, are directed very specifically towards opportunities for improvement.
Members of the committee already in their conversations have expressed the view that the community believes the basic element of the ICANN model is strong. One of its main strengths is accountability to the Internet community and emphasis on broad and informed participation.
Another strength is that the ICANN model has the ability to evolve, if necessary, in order to accomplish its mission. I think that evolution is something that could well be important in the sorts of ideas that we hear today. Members will have the opportunity to talk about what's necessary to continue to strengthen what we consider to be a pretty well-operating multistakeholder framework.
And the questions that we want to focus on, that we have asked the community to focus on what are some of the main challenges to ensuring continued stable and secure operations of the Internet domain name and IP addressing system, and are there steps that could be taken to improve this? Already in conversations members of the committee have come to the conclusion that there are a number of administrative challenges that ICANN faces as it is a unique model of bottom-up participation and coordination of policy decision-making.
And there's interest in furthering discussions that have already taken place in the committee about how the global organizations have met similar challenges, and can experiences of other organizations be applied to ICANN to inform consideration of how to best serve the global community.
Is the organization's ability to scale internationally affected by its legal personality being based in a specific jurisdiction? That's a key question I think some of the people talking today will be addressing.
Given ICANN's narrow technical coordination mission and responsibilities, how should ICANN respond to relevant issues or challenges deriving from the WSIS decisions, including those related to Internet Governance?
Specifically, how should ICANN further enhance cooperation of all ICANN stakeholders on Internet Governance issues that fall within ICANN's scope of activities?
What can ICANN do to further improve the value of the GAC and its individual members offer to the multistakeholder framework and addressing public policy concerns?
What can be done to assist in the evolution of a more widely informed participation for all regions from all interested stakeholders, including government representatives?
And are there activities or steps that will build on existing processes to continue to enhance global accessibility to the transparency of ICANN's processes and input into the decision-making process?
>>PAUL TWOMEY: Just had music join us.
Obviously it's a fine introduction. It's been heralded by an orchestral accolade.
>>MARC FRIEDMAN: I am going to check with the operator to see if she can make that go away.
>>PAUL TWOMEY: Thank you, Marc.
>>ERIKA MANN: Luckily, it's not Beethoven.
>>PAUL TWOMEY: I was going to say it could be "Ode to Joy."
>>ERIKA MANN: Of course.
>>PAUL TWOMEY: Okay. It seems that we may have addressed that.
>>PIERRE DANDJINOU: Okay. Thank you.
>> (Speaking in another language.)
>>PAUL TWOMEY: Hello?
>>PIERRE DANDJINOU: Hello.
>>HANS CORELL: Hello.
>>PIERRE DANDJINOU: Hello, yeah, this is Pierre.
>>PAUL TWOMEY: Is that Pierre?
>>PIERRE DANDJINOU: Yes, from Dakar.
>>PAUL TWOMEY: Hello, Pierre. Thank you for joining us.
>>PIERRE DANDJINOU: Is that Paul?
>>PAUL TWOMEY: Yes that's right.
Pierre, I am just finishing our opening remarks.
>>PIERRE DANDJINOU: Okay.
>>PAUL TWOMEY: Reinforce some of the processes we are following today. And then we are going to ask the first of our panel members to speak to the committee.
If at any stage you have a noisy background, I will ask you to push *6 on your telephone. That would mute the phone.
>>PIERRE DANDJINOU: Okay. They called me on my mobile, so what I'll try to do maybe is ask them to try the fixed line.
>>PAUL TWOMEY: That's a good idea.
Marc, can you look after that?
>>MARC FRIEDMAN: I certainly will.
>>PAUL TWOMEY: Could you speak to Pierre directly?
>>MARC FRIEDMAN: Will do.
>>PAUL TWOMEY: Okay. Just to reinforce --
>>PIERRE DANDJINOU: Hello?
>>PAUL TWOMEY: Just to reinforce the timetable, we -- this committee posted a notice of the questions it was asking of the community on July the 11th. We have asked for submissions to be lodged by the community hopefully by the 18th of July but that's not a closing date. We have it open for people to post to the Web site comments or submissions they may have.
The agenda for this consultation was posted 24 hours ago, last night California time, I think, and we are holding the consultations today.
One of the opportunities we will have to at least give some summary of the initial consultations may be provided on the 26th of July at the when the Department of Commerce is holding its own consultations and there might be an opportunity to summarize at that meeting some of the things, points that were made.
August the 15th is the final date that the committee has set for receiving submissions and comments from the community. And we'll be -- this committee will be looking to post a summary of the consultations by the 25th of August, and to provide some report to the ICANN community and board by the end of August on the things that it says.
And the questions it's asking are obviously directed to the issues covered, posed by the MOU preparation period coming towards this, but also by the sort of broader questions facing -- facing ICANN's future.
Members of the committee include Carl Bildt, Peter Dengate Thrush and myself as co-chairs. Marilyn Cade is a member of the community. Art Coviello, the CEO of RSA is a member of the committee. Janis Karklins, Thomas Niles, Adama Samassekou, and Pierre Dandjinou, are members of the committee.
The committee's membership is not yet complete and there are conversations continuing with other representatives of a wide range of people who have an interest in the DNS worldwide and have knowledge of ICANN, but are not necessarily involved in the day-to-day operations or policy development processes of ICANN.
The-- So that's sort of an introduction, I think.
We have as an agenda today that we'll first ask Erika Mann, a member of the European Parliament and chairperson of the European Internet Foundation to address the committee. The plan will be to let people -- panelists speak for 15 or 20 minutes and then I will allow the committee and others to ask questions following on from that.
We will then be followed by -- She will then be followed by Hans Corell, former Under-Secretary-General for legal affairs and legal counsel for the United Nations.
Roelof Meijer, the CEO of SIDN, the operator .nl, and Stefano Trumpy from the
.it registries will be on a panel following from Hans. Becky Burr, a partner in the law firm Roma Hale, will be following that panel. There will then be a panel of at least three registrars: Jon Nevett from Network Solutions, Bhavin Turakhia from DirectI, and Tim Ruiz from GoDaddy. And then after that panel we will be joined by Bernie Turcotte, the CEO of CIRA, .ca, and Margarita Valdes from the .cl ccTLD and also the president of Latin American and Caribbean ccTLD organizations.
We may also have participation today from David Maher from the PIR registry, the operators of .org.
And we will then have a break, and at 3:00 Pacific time we will be joined by Chris Disspain, the CEO of auDA, .au, and also chair of ICANN ccNSO organization.
We'll also potentially have Naomasa-San who is the vice president of Japan Network Information Center. And I know Naomasa-San has some time constraints but I believe he is joining us at that same time.
We will then have but was yet unconfirmed when this record was made, but we're expecting to have then a panel involving Danny Younger, a representative of the ISP constituency, and also Milton Mueller sometime.
That's a summarization of the agenda as it stands.
>>MARILYN CADE: Paul, it's Marilyn. I am sorry to interrupt, but I am here to report our audio stream is not working. I have been receiving -- So that's one report.
The second is who should I talk to? The ISP constituency representative has contacted to me to ask who he should speak to about trying to get into the end of the morning session.
>>THERESA SWINEHART: Marilyn, I have been in contact with Mark [McFadden] and he is to ring back and let me know which --
>>MARILYN CADE: Fine.
>>THERESA SWINEHART: And we will take care of the audio stream.
>>MARILYN CADE: Thank you. Sorry to interrupt.
>>PAUL TWOMEY: Thanks for that, Marilyn.
Okay. Having done quite a lot of introduction, Erika, I wonder whether -- considering you have a time constraint, whether we could welcome you to address the members of the committee, and then talk to some of those questions, and be available for any questions yourself.
>>ERIKA MANN: Yes, Certainly I can do this. My time constraint, around 8:00, 8:10, so I will keep my remarks quite short.
First of all, my name is Erika Mann; I am from Germany, elected member to the European Parliament and working on IT issues since the very beginning.
>>HANS CORELL: I am afraid you are fading away.
>>ERIKA MANN: I am fading away? Is it getting better now? Is it better now?
>>HANS CORELL: Only bits and pieces.
>>ERIKA MANN: Only bits and pieces? I'm sorry. There is nothing I can do from my side.
>>PAUL TWOMEY: Erika, I can hear you clearly, so perhaps you can just continue.
>>ERIKA MANN: Okay. I will continue.
So what I would -- I have been looking into the various questions and some of the answers.
I think what the real task is for the future are probably three folded. Certainly there are many more around but I will think there are three folded.
The one is how can one make sure that ICANN is, on one side, a single entity based in California, but on the other side take on its international task as well.
This is probably the greatest challenge because there are many, of course, other models to think about, either to internationalize the system or to find a way of making sure that international concerns are taken into account the way the structure functions and the way the decision-making process functions.
Now, I prefer, but that's a very personal opinion, it doesn't reflect an official EU or an official European Parliament's position. I think it is probably much easier to take the international responsibility and make it--
>>ERIKA MANN: That's what I think one should do, because there are many reasons for my argument.
First of all, I think even, you know, building a new international structure will not solve the problem and the difficulties they had. Because, I mean, there are many other experience. I mean, I am very much involved with the WTO, and I know, you know, it will not make the decision-making process much easier, and it will even then not take into account all the concerns some countries do have with the structure the way it exists in the moment. Specifically, the developing countries.
So I would argue the other way around. I would argue wouldn't it be possible to make sure that all those concerns, you know, either coming from developing country, coming from single communities or coming from other sides which do have a concern about the way ICANN functions in the moment as an entity, legal entity from based in California, with its connection to the Department of Commerce, how one can turn this in a -- in a structure that those international concerns are taken into consideration, and so that it's not outsourcing to a certain degree to an international level, but it's the other way, taking those concerns into consideration.
My second argument would be around about how can one build a greater trust so that the climate of doubt which is in the moment surrounding ICANN and the existing -- the structure the way it exists can be -- can be turned really into a climate of trust and a climate of responsibility and a climate of reliability.
And I think probably this is related to my first argument to a certain degree. But of course it is related to many other arguments as well.
So if there is the right balance, what kind of reform is needed in the future? Are we looking more for radical reform? Are we looking more for more gradual evolution?
How can the various stakeholders be part of the process, in a transparent way, in an open way, but, on the other side, not losing the control which one wants to have, which one reaches through a single entity? And that's why I personally think the single entity is so relevant.
How to make sure that transparency -- it's a given within all the contracts ICANN will sign. The way ICANN includes stakeholders or the voting system. So there are so many ways of looking into it to rebuild the structure of trust.
And with this then, I think even the item looking back to the question, you know, how -- taking the public concern and government concern into consideration about how much is ICANN actually based on an international model, I think this then would be -- would be greater built into the structure of building trust as well. And but it makes much more reasonable and easier for other people and for other governments to understand the way ICANN functions.
And my third argument around the question of security and stability. And I think looking into the questions and looking back to the history, I would argue that I think that this is probably the greatest challenge in the future, to ensure stability and to ensure security at the very same time. The interest is transforming constantly, and it's transforming in so many ways, and it's so much related to our growth, it's so much related to our economy, it is so much related to our society needs.
It is much more than a technical tool. It's part of our daily lives in a very sophisticated way. And it's part of the way governments function to a certain degree as well, and definitely how a company built -- build their system in the future.
So I think this is the greatest challenge and the responsibility that lies with ICANN, of course not ICANN alone. There are many other processes involved in this process in ensuring stability and ensuring security. I personally think it's the greatest challenge. And this should be much more in the forefront.
And from there again, I think some of the other concerns which are touched either by the question how international should ICANN be, do we need other legal entities or how can trust rebuild in a fundamental way, I think this -- all the three areas taken into consideration I think then would probably help to rebuild -- to rebuild the trust we need.
Now, there is-- Related to this, of course, to the last point of security and stability and to the first one on how ICANN can become or should become more international, of course the question coming up from many countries, specifically developing countries, how can they ensure the sovereignty, how can they ensure that their concerns are taken into consideration?
And I think I am happy about the business process because this clearly is something -- this can continue in the future to make sure that it's a parallel process where all those concerns are taken into consideration, seriously taken into consideration, and always feed it back into the structure which exists in the moment.
Now, I would argue, finally, that probably we need a longer transformation process, because I do have the feeling that we don't -- we haven't found the right answers yet. And I would argue that a longer transformation process is needed, probably another half an hour.
I wouldn't go for a very long period, again, because I think the majority of the communities I think know what they want.
It's just finding common understanding and a consensus.
And then from there I think we can build on the structure which exists, making it not so complicated. Rebuilding the trust, ensuring the security and the stability we need, taking along the stakeholders. And on the other side, preserving what we have in the moment.
Is this fine for you?
>>PAUL TWOMEY: That's fine. That's very good. Thank you for that. Do you still have time to take questions?
>>ERIKA MANN: Of course I have time.
>>PAUL TWOMEY: Are there members of the committee who would like to ask questions?
>>MARILYN CADE: Paul, it's Marilyn. I would like to ask a question.
>>PAUL TWOMEY: Sure.
>>MARILYN CADE: Would you like to take a queue or should I go ahead?
>>PAUL TWOMEY: Please go ahead.
>>MARILYN CADE: Erika, thank you so much for that. I did have a question. Perhaps I may have missed it, but you mentioned the transition period. Did you have a time frame in mind when you mentioned that?
>>ERIKA MANN: My feeling is -- I'm not certain my answer is perfect, but my feeling is probably another half a year.
I don't -- I wouldn't go much longer than half a year.
>>MARILYN CADE: Thank you. I heard you give an answer but I didn't quite catch it. Thank you.
>>PAUL TWOMEY: Are there other members of the committee that have questions?
Perhaps, Erika, I would have one.
You raise the issue of building greater trust, and one of the questions that
-- I have sort of an observation and then a question. I think one of the things we will hear from other people saying today and which I think we have already heard in our other meetings in Marrakech of the difference between transparency in the sense of the posting of materials available and accessibility in communication. I think that certainly has been a challenge of ensuring that all stakeholders are not only knowing things posted and available and transparent in that sense but that they also have understanding and there's communication about what is actually occurring.
But I've got a further question. Perhaps you have an observation from the Brussels perspective. The domain name space, the DNS space is now a space of much more sophisticated marketplaces with much more competitive forces at play.
And those forces tend to generate -- they naturally tend to generate pressures and winners and losers, if you want to put it that way, and pressures backwards and forwards. Do you have any observations of where you have seen good steps to create trust and transparency in environments where it is still incredibly competitive and forceful?
>>ERIKA MANN: That's a really fundamental question. I agree with you, looking into the trust issue, I mean, that's -- on one side you want to have accessibility to the various documents and to the procedures. And you want to give the various communities the understanding that they can follow the issue.
But on the other side, there is a marketplace out there and there is competition. And competition -- not competition, by the way, coming from business communities alone or from other stakeholders, but from governments as well-- that feel excluded and cannot, because of various reasons, either because they are stepping very late into the process of understanding the Internet and Internet-related issues or because they have a different answer to it. And that's one of the reasons, by the way, why I think it is important to keep the single structure.
No, I think, you know, as long as in each area, you know, on rebuilding trust one clarifies the process and talks to all the various stakeholder, makes it transparent, to a certain degree those kind of concerns will -- you know, will be -- I wouldn't say will go away, but you know they themselves, the various constitutions, they feel better embedded in the process and better embroiled and so they will not feel so much confronted with the development they have to follow, but it's more part of a partnership process and intellectual partnership process. And I think that this is what many governments and many business communities are looking for.
I cannot imagine, you know, that the competition will go away and the battle about certain things, but it will become more sophisticated and it will help to bring all the partners together instead of dividing them.
And I think this is relevant what we want to have in the Internet. You don't want to have too many divisions and too many, you know, competitions; unnecessary competition, I would say.
No one else? Everyone else is happy.
>>PAUL TWOMEY: Peter or Janis, do you have any questions?
Peter, can I just make sure you are online?
>>PETER DENGATE THRUSH: Yes, I am here.
>>PAUL TWOMEY: And Janis?
>>MARILYN CADE: Paul, it's Marilyn. I do have another question if I might.
>>PAUL TWOMEY: Sure. Please proceed.
>>MARILYN CADE: Erika, we had thrown out some questions, but we had also made it clear that we were very interested in any other issues that you might raise. And I think you have done an excellent job of giving us further input.
At this time, you raised something that I would like to ask you about that I think is something that we all struggle with, and that is given the importance of the Internet, but also and the importance of continuing its reach and deepening its reach, not just, you know, access in developing countries but deepening the way that all interested stakeholders with participate, but also keeping in mind that ICANN has a narrow technical set of activities, you have mentioned what I might -- when you refer to unnecessary competition, I guess I read that as perhaps support for cooperation and coordination across different bodies.
Would that be --
>>ERIKA MANN: Not competition with ICANN.
>>MARILYN CADE: Yes.
>>ERIKA MANN: I mean I want to have ICANN the way it -- I mean, there's always change necessary, but I think ICANN is fundamental for the continuation of the global Internet system. And I don't want to see -- I don't want to see a fundamental change there.
>>MARILYN CADE: And so could I then interpret that you would support the activities where ICANN cooperates, collaborates with others bodies, each sort of maintaining their core competencies but perhaps enhancing their cooperation?
>>ERIKA MANN: Yes. You clearly need greater cooperation, greater partnership, and I think education as well. Because, I mean, it is such a sophisticated --
>>MARILYN CADE: Yes.
>>ERIKA MANN: -- and complex area we are talking about.
>>MARILYN CADE: Right.
>>ERIKA MANN: And of course there is concern, rightly, I think, that technical issues are always related to political and, you know, to greater questions which is true.
So one has to take those kinds of concerns into consideration as well, and to build a real partnership in making sure that the various communities and the various governments are being part of a process and feel -- and this is much more relevant, feel being part of a process and not excluded.
And this, I think is the relevant title for ICANN for the future. And certain, of course, I mean, the transparency rules, the accessibility, it's all part of the process. But I think it's much more sophisticated and goes much more beyond giving information, making information available.
It is really a system that is built on trust which needs to be built. And this is not relevant for, you know, the technical communities or for the various stakeholders or for government alone, but it's relevant for the greater public to feel that the structure from ICANN is related to the way of how they see the Internet wants to be -- should be built on.
>>PAUL TWOMEY: I think the work that has been going on between the GAC and the ICANN board just on first steps around coordination of communication on issues that are emerging issues which have public policy consequences is an important part of that.
And the first step, I think, in doing that is the processes that you talk about is just a common understanding around time frames.
>>ERIKA MANN: Yes.
>>PAUL TWOMEY: And it's only a first step, but it's an important one because it links into sort of the two cultures, if you like.
But I think you are right, there is a need to constantly keep reviewing those processes.
I think one of the things that has come up at least in some of the discussions among some of the members of the committee is that the present bylaw provisions of ICANN which call for review of organizations and structures within ICANN on a regular basis is actually a very valuable thing. Because it does actually allow the constant amendment of Supporting Organizations, committees, other structures to ensure that they are remaining relevant to that part of the Internet which had emerged in the time between one and the other, between when it was established and when it was last reviewed.
And I think your point about the -- that the Internet not only is constantly changing and broadening but also deepening is an important point and one which I think the committee is very conscious of the need to make certain that even if there are moves towards, you mentioned some of these issues, input to the internationalization, but there is also need to ensure that that institutional flexibility remains such that it remains focused on the relevant constituencies who are participating in ICANN in the DNS in particular at that time.
>>ERIKA MANN: Yes, absolutely. I think that's the key.
But, I mean, it is relevant to look for the right balance and to take all those concerns into consideration, because I mean the question how do you internationalize? The Internet is international, but there is the feeling in some of the communities that, you know, the structure of the Internet should be followed by truly international body or it should relate to an already existing international body.
Now, I think that it would be good to argue the other way around as well and to argue that ICANN and the way ICANN perceives its work; it can be turned into an international structure.
Now, I know it is complicated to argue this case, but I'm -- I would, from my point of view, would think this is much more the right answer for the future instead of creating or relating the work ICANN is doing into existing or newly built international structures.
Of course you cannot then avoid the question, you know, the relationship to the Department of Commerce, but I think evaluating the case again and again and again, I'm sure the right answer will come in the future.
And instead of, you know, looking for the right answer in an artificial way, I think it is better to see the answer coming through an evolution instead of, you know, making the case now.
>>PAUL TWOMEY: I think even in some of the discussions amongst some of the committee members, because the point you are making about internationalization has been one that has been a consistent message we have heard, and we have seen not only in the committee itself received but, importantly, I think we are also seeing a lot in the feedback that the Department of Commerce has issued into its consultation process.
>>ERIKA MANN: Yes.
>>PAUL TWOMEY: I think there is quite a distinction or there is certainly a distinction, and eventually Hans will be talking towards this after you, between not-for-profit entities or similar things issuing international agendas, and then potentially international private organizations, which are distinguishable from national public organizations.
That is tended to be bounded by treaty. I won't talk to it further, but I think your points of that there are grades of distinction here is probably an important one.
>>ERIKA MANN: Yes, certainly.
>>JANIS KARKLINS: Paul?
>>PAUL TWOMEY: Yes, Janis.
>>JANIS KARKLINS: I tried to follow your instructions and press the #6 and then I couldn't get back online.
>>PAUL TWOMEY: We're glad you made it back again.
>>JANIS KARKLINS: I wanted to make a comment on what Erika just said.
From my experience and what I heard, first of all, I think that many governments are acting not based on fact but based on perception.
And it is indeed a long-term task to fight perception. Perception that U.S. government can do something bad for Internet or access to Internet, one or another country in exceptional circumstances.
So this is one thing.
Another thing what I have observed is that within the ICANN GAC framework, sometimes governments don't feel comfortable to be advisors to a private company. And that again is a psychological discomfort. And from this perspective, we have to think how to make this system different, to comfort governments to feel more part of the process, including decision-making process.
>>ERIKA MANN: Absolutely right.
>>PAUL TWOMEY: Well, keeping to the agenda, I would like to say thank you to Erika for her contribution. Thank you for your time. We appreciate it very much.
>>ERIKA MANN: Thank you. Enjoy the rest of the debate. Bye.
>>PAUL TWOMEY: I wonder if we may now welcome Hans Corell. Hans is the former
Under-Secretary-General for Legal Affairs and a former Legal Counsel of the United Nations and has a long history of seeing to public service for His Majesty's government in Sweden.
The committee -- Some members of the committee when initially forming and discussing some of these issues that were emerging in discussions which Erika has already raised in her presentation was looking for someone who could give some general advice to the committee, or at least that we could first consult with, who had some understanding of how international entities actually were formed. This is for background purposes. And the committee found Hans
(inaudible) putting it all in context with Hans and made some initial consultations with him about some general background on international entities.
But we asked Hans to speak to these particular consultations to give some further background and share further with the community some of his knowledge of international organizational issues, particularly as it relates to the first few questions I think that are being asked by the committee.
And I thought we might welcome Hans to speak and give us some of that background, and then we'll ask some questions.
>>HANS CORELL: Thank you very much, Paul.
I'm sorry that I missed part of Erika Mann's presentation, but I was given a better line so I heard the last part of it, which of course is very important because these are policy matters and this is what comes first. The policy has to be discussed and decided upon and then you can always find the legal solutions to the policy decision taken.
You will recall that when we had our first contacts, I told you about my initial reaction when I learned about the Internet some years ago and how it functioned. I and my colleagues in the U.N. system were quite taken aback that governments had not taken the initiative to regularize this in the way that they did with other major communication systems which were invented in the past. Like post, telegraph, telephone, all these kind of things.
We raised this matter, actually, with the World Intellectual Property Organization. But then we understood that the issue is perhaps more complex with the Internet than with the other communication systems. It's highly technical, and there could be also other solutions than having governments completing a treaty on how to govern the Internet. And what I heard in the discussion from Erika Mann that this has to evolve and one has to find solutions as one goes along is probably a wise thing to do.
Because if you consider making a treaty, you tend to solidify things and it's very difficult to change them.
But be this as it may, this is a policy matter. So what I was asked to do was actually to provide some material to assist ICANN in deciding what status the corporation should aim for as a private international entity in its own country, irrespective of where this country would be.
And you also asked me to look at in what manner intergovernmental organizations, with privileges and immunities protect the integrity of the organization.
So I did that. I went through a number of conventions, including the ones that govern the United Nations to demonstrate how the U.N. is protected against, for example, lawsuits, against attachment of assets and so forth and how you protect the integrity of the decision-making process in an entity.
And then I studied the legislation in a number of countries. In particular, I looked at the legislation in Switzerland where the United Nations has an office. I looked at the legislation in Austria, in France, in the Netherlands because of earlier contacts there. And also I looked obviously at the legislation in the United States.
You also asked me to look at some other entities, and in particular I looked at entities that could, in a sense, be said to resemble ICANN in the sense that they are not public legal personalities under public international law but rather private entities with an international standing.
And here I looked in particular at the Red Cross and Red Crescent movement and the Olympic Committee. But also, on some other entities.
And to make a long story short, there is, of course, a regime for intergovernmental organizations, and that goes without saying. But if this is not the solution that is contemplated here, then the question would be how does one internationalize ICANN?
And judging from these other entities that I have looked into, this is an option, this is a possibility. Because it goes without saying that if the legal entity is not an entity under public international law, that legal entity has to abide by the laws where it is incorporated or where it is registered. And in the case of ICANN, of course, it's obviously the laws of the United States. Or, rather, the state law of the State of California and maybe also, to a certain extent, federal laws of the United States.
But there are possibilities of, shall we say, creating, even on those premises, an internationalized entity that could be granted some facilities that would guarantee the standing of this entity in the territory of the state which is the host state.
And here, it was specifically of interest, I think, to ICANN that I looked at some entities that have been incorporated in the United States and that have been given some internationalized capacity.
And there is actually a possibility under U.S. law to grant to private entities facilities provided that this is in the interest of the state.
I looked at some executive orders issued by the President of the United States, and there were three entities that were of particular interest here.
One is the International Fertilizer Development Center, the IFDC, and the other is the International Food Policy Research Institute, which is the IFPRI, and then finally the Inter-American Statistical Institute, the IASI. Looking to these entities, it showed, in particular, in the case of the IFDC, that they had started off as a private enterprise as it were, private entity, but had been given international status within the territory of the United States.
And these entities now have offices all over the world, and have some facilities of the kind that ICANN would probably benefit from in case it would be internationalized.
Now, I'm very careful to stress that it's not my task to, shall we say, discuss or participate in a policy discussion. I don't know enough about ICANN to do that. And basically, it's for ICANN's board of governors to do this.
So what I can do is to provide information that might assist ICANN in finding the right path on the way ahead.
And then I have some material, and I hope, Paul, that you got all this material. I think it's important that every avenue is examined so that you can find the appropriate format for your activities. And in particular, that you identify the kind of protection, if I may use that word, or perhaps facilities that you would need the host state to extend to you in order for you to be able to carry out the duties with the integrity that must be granted to an entity like ICANN.
Obviously, there is always the option at the end of the day that governments would get involved more directly in this process and maybe adopt the same practice they have applied in the past, i.e. treaty making. But on the other hand, if you can prove that the system works in a very efficient manner and that ICANN is in a position to administer this worldwide and highly complex technical system, well, then, what's the point of changing that order?
But I think that, as a point of departure, you should look at how you could, shall we say, strengthen ICANN's position as a private entity by granting it some facilities from the host country.
It goes without saying that you operate all over the world, so this means that the same kind of facilities would have to be granted by the states where you are active. And in particular, if for security reasons you establish hubs from where you can continue working in case something would happen to your main hub in California. This is the same kind of thinking we had in the United Nations that we have to be able to operate from different places in the world if something happens, physically, for example, to our headquarters.
Paul, I think this is sort of a general outline of the material that I have presented to you. But since you are familiar with at least part of it, you may have questions that you would like me to answer specifically.
>>PAUL TWOMEY: Well, thank you, Hans. I probably do. I'm certain other members of the committee will as well.
Just to set some priority on our previous conversations, one of the things some members of the committee have reflected in their earlier discussions has been on discussions that have taken places on the fringes of ICANN meetings for some years. I know Peter and I have talked about such discussions that have taken place in restaurants and coffee shops at the fringes of ICANN meetings over some period of time where people have asked the question about legal personality and different types of legal personality.
And with your expertise in this area, it's been valuable to have that to turn to someone and say, "Can you give us some sense of what's the spectrum."
And I think what we would also like to ask you, I'll ask you personally, is to -- if you can provide us with an educational document or a document which outlines these -- these models and these different ways in which different international entities are expressed. You mentioned about three particularly in the United States jurisdiction. You may want to talk about that there is also the Swiss Federation and also the Netherlands has seen their policies directed towards those sorts of, if you like, international private organization facilities. Is that correct?
>>HANS CORELL: Yes, I forgot to mention, I also looked briefly at the legislation of the United Kingdom. Yes, I can certainly provide you with a document, as you said yourself, educational.
But these would be facts mainly that I have collected in order to provide ICANN with material on which it could base its policy discussions.
As I said, the policy decision is extremely important. Unless -- for a lawyer, at least -- unless you have a clear indication where the organization wants to go and how it wants to organize itself, then it's more difficult to give legal advice, also for your internal legal advisers, of how exactly you should draw up the necessary legal documentation.
Also, normally if you internationalize, as it were, then you should have some agreement with the host country, the country where you would have your seat. An agreement setting down the way that this internationalized entity should be treated by the host country.
And I'm sure that for any host country, this would be an extremely interesting entity to have within its borders. So therefore, I expect there would be an openness on the part of the host country to discuss solutions with the interest toward actually making it possible for ICANN to demonstrate that you have an independent international structure as far as you can go with the proviso that you must be considered established under the legislation of any one national state.
>>PETER DENGATE THRUSH: Peter here.
Hans, first of all, thank you for the clarity of the presentation.
I wonder if -- The way Erika characterized the problem, and that was supported by Janis's description of it as well, was in two parts. The first was the very part of being -- of ICANN's being a U.S. corporation raised some problems. And the second one was the relationship, then, with the Department of Commerce.
Obviously the sort of discussion -- the information you are giving us would be about changing the first one, the nature of the legal structure.
Is there a relationship, though, that changing the legal structure would have with the second problem? How-- How do you see changing the structure to one of those international-type organizations that you mentioned? Would that itself, in your view, lead to a change in the relationship, then, with the U.S. government or would it help or change the relationship in which that organization would exist.
>>HANS CORELL: That's a good question, and I have seen the Memorandum of Understanding and the amendment. But as far as I am concerned, as long as you operate in any one country, you have to, shall we say, realize that ultimately you are subject to the legislation of that country, to the jurisdiction of that country.
The country can extend facilities, like immunities and privileges to a certain extent also to private entities. And that is a matter of negotiations between the entity and the government of that country.
To what extent that would influence the relationship between ICANN and the Department of Commerce really depends on what you want to achieve through your policy decision.
But I think that having listened to at least part of what Erika said, that the main aim of the whole exercise should be to strengthen the authority and the ability of ICANN as an entity that actually manages the whole worldwide system. And there it goes without saying that the more you can demonstrate that you could act independently, the closer you come to that goal.
>>PETER DENGATE THRUSH: Mm-hmm, thank you.
>>PAUL TWOMEY: Do other members of the panel have questions?
>>MARILYN CADE: Paul, it's Marilyn. I don't have a question but I would just extend my thanks as well and say that I will look forward to reviewing the document that you and Ambassador Corell and discussing and perhaps I may have questions at that time.
>>JANIS KARKLINS: Paul, may I -- Janis here.
I just wanted to test with Mr.Corell my theory which I developed during the WSIS process.
And first of all, I should start my thanking him for a very interesting briefly.
What I found interesting was that in '98 when U.S. government decided to sort of engage in privatization of the system, and since then the system-- Internet has been developed mostly under and operated under international private law based on many private contracts between ICANN and the different operators on the Internet scene. And now when theWSIS structure, the whole discussion, including about Internet Governance, was based not on that law but on the international private law, the system on law on which diplomats have been trained and intergovernmental relations have been managed.
And it seems to me that there is very little interaction, at least known interaction, between these two systems of law. And my feeling was that governments didn't feel comfortable to engage with the private company because they said, no, we know how to operate between governments or among governments, but a private company? No.
We-- Governments dictated or tried to dictate its own rule.
So could you maybe elaborate a little bit on existing examples of interaction of international public and international private law systems.
>>HANS CORELL: Again, it is very difficult to have a general outline here.
I recognize certainly the problem. And in particular, when you come into the area where an activity would resemble the exercise of public authority, like giving licenses and giving permissions and so on. In the case of ICANN, it is granting the top-level domain names and all the things that you decide upon. That could, at the international level, be seen as some kind of exercise of authority.
Normally, that is done by a government agency. But there are also situations where governments actually hand over to private entities to exercise these kinds of functions.
In my own country, for example, this can be done provided that this is done under the law. A statue law adopted by parliament that lays down that you can do this.
As I said, it is really a policy issue. But if governments will one day decide that they would like to engage more deeply in this, they can always do so.
And if we look at the Tunis document, of course the Tunis Agenda, you can see language to this effect.
At the same time, if the governments think that something operates in a functional manner and that it might be more suitable to organize it in the way that it's done by a private entity, well, then they can just stay their hand and leave it as it is.
I think that the future will show how all this will operate. And I noted in particular what Erika Mann said about following the evolution here to see how it develops.
What we have to do, and in answer to your question, is to actually find out how entities that could be seen as similar to ICANN, how they interact with governments.
And the advice here that I will give is that the people who are familiar, and I mean really familiar with the way ICANN operates, that they might wish to get in touch with colleagues in such internationalized organizations to see how they interact with government. What are the problems? Because only people who have intimate knowledge about the functioning of organizations of this kind can actually explain how it works.
And I, for one, I have been a government official and I have worked in the U.N. as the Legal Counsel for ten years. I have experience from that field, but I do not have experience from working within a private entity interacting with governments.
So I think there is a learning process here, and that is the advice I would give.
>>JANIS KARKLINS: Thank you.
>>PAUL TWOMEY: Are there other questions from members of the committee?
Hans, may I just say, then, thank you very much for your -- for your presentation. We will look forward to receiving and posting your educational piece on the various models that you have identified, both under the U.S. jurisdiction, but also under -- potentially under Swiss and also your analysis of Dutch and potentially UK legal environments, as just examples for members that are not necessarily familiar with this body of jurisprudence to be able to have some understanding. I think one of the key parts of the message that you indicated I think which is interesting is that there is possibility for internationalization within the actions of a particular jurisdiction. And that we also look at the point you are saying which is that these are really policy questions and, to a degree, questions of political will. But they are not necessarily all legal questions and we certainly do not consider your participation in this as anything as any form of advocacy but rather as an expert that is able to give us some expert observations and information.
Political will or rule?
>>HANS CORELL: Thank you very much, Paul, for making that point because I do not want to be seen as an advocate for any particular solution; rather, trying to assist ICANN in finding material that can assist you in the policy decision that eventually, then, when the policy is decided upon, it will have to be translated in legal terms.
>>PAUL TWOMEY: Right.
Well, thank you very much for that, and we look forward to receiving that volume of material.
The next people on the panel, in my understanding, and I will ask for confirmation from either Theresa or Marc, is Roelof Meijer and Stefano Trumpy. IS that correct?
>>THERESA SWINEHART: Yes, yes. They are both on.
>>PAUL TWOMEY: May I say welcome to Roelof, welcome Stefano.
>>STEFANO TRUMPY: Hello, I am here.
>>ROELOF MEIJER: Good morning. Hello, Paul. This the Roelof. Hello to the other committee members as well.
>>PAUL TWOMEY: Thank you for coming in this afternoon.
>>ROELOF MEIJER: No problem.
>>PAUL TWOMEY: Peter and I are both at the moment sharing very early Saturday mornings as we do this exercise.
Roelof, I suggest that -- I don't know whether you and Stefano has spoken but perhaps each of you could make a presentation, and perhaps you could start first, and then we'll ask questions of both of you at the end.
So if you could start with your presentation and then we'll ask questions of both.
Roelof, why don't you go first.
>>ROELOF MEIJER: Can you hear me?
>>PAUL TWOMEY: Yes.
>>ROELOF MEIJER: Okay.
As you are probably aware, SIDN has already made a submission to the NTIA. So what I did with respect to the eight questions that were post in the document that I received, so I will just treat them in their own sequence, if that's okay with you.
>>PAUL TWOMEY: Yes, certainly.
>>ROELOF MEIJER: Yeah? Okay.
Well, the first question is about the main challenges that are there and that have to be coped with to ensure continue stable and secure operations of -- well, the domain name and addressing system.
I make a distinction in two fields, the technical challenges and the political challenges.
As I consider ICANN's role mainly to be technical, I will start with the technical challenges. And we have seen quite a few have been addressed in the Tunis exercise, in the WSIS exercise as well.
First, the future of the Internet as a technical network. IPv6, the security system and the legal content, I think those are technical challenges that faces, and some of them are dealt with properly, some of them are dealt with outside of ICANN, like DNSsec and the root that is clearly an ICANN matter. And I think it's important that we keep up to speed with those issues. And I think also, like was stated in the IGF forum, that we need a more concerted international approach on that.
On the political issues, many of them are dealing with the governance of the Internet. SIDN is of the opinion that the day-to-day management of the Internet should be left to technical institutions, and technical institutions that operate in the private sector.
I feel also that the present unilateral oversight of ICANN should in time be replaced by a more international body, which has a very light oversight over ICANN. I am not referring to the U.N. I don't think it will be a good solution. It will probably introduce too much bureaucracy and slow down the decision-making too much. But I think that the present situation whereby there is oversight by only one nation is reaching the end of its time, and it's a subject that has to be dealt with because it's too much an issue for too many countries.
I do feel, however, that replacing the present model of oversight of ICANN should only be done when the new model is clear to everyone and is in place. That is not the case yet, so I think that -- I feel that we should postpone a decision to change the present oversight until we have found a proper new model.
There's one other issue on the political front which I think came up quite a lot over the last few years and that's bridging the digital divide. I think there the role of ICANN and the possibilities of ICANN to solve that problem are fairly limited. Of course, introducing multilingualism in the Internet environment, that is something that also ICANN has to deal with. But the present discussion on fairly intensive outreach programs for ICANN, I am not really in favor of that. I am a supporter of ICANN sticking -- mainly sticking to its technical role.
I think there are other organizations that are better placed, better equipped, and better experienced in solving let's say the digital divide problem.
Then the second question about if there are examples of how other global organizations have met similar challenges, I really doubt that there are useful examples. I have heard quite a few also during this conference already; a few examples have been put forward. But I think they all lack similarity with the ICANN or the Internet situation in that the stakes are not as high. They are not as global and, at the meantime, so national as the stakes are when it comes to the Internet.
So I don't think that they are really examples that will give us the solution for ICANN's future. And maybe we should all decide that we will make ICANN the example for the future. Because I think if you really start comparing them, somebody will come up with the conclusion that almost all situations where the stakes are so high and so global that it's the U.N. in one way or another that is running the show. And I don't think that is a conclusion that we want to draw.
Is the organization's ability to scale internationally affected by its legal personality being based in a specific jurisdiction? Yes, unavoidably so, and I think it might hinder progress sometimes but I don't think it's an obstruction. And I don't see a solution anyway. But I don't think it -- in my opinion and to my experience so far, I don't think it's really a big problem.
On the question on how ICANN should respond to relevant issues coming from the WSIS discussion, I think that -- I feel that ICANN should focus on WSIS output that is relevant to its technical coordination mission. So it should really limit actions and responses to the WSIS process as far as they are linked to its technical mission.
Of course, it should also support an issue like enhanced cooperation, cooperation on a broader scale. It should as such operate complementary to the IETF but also complementary to all other kinds of other technical institutions that are dealing with the Internet.
So I think ICANN's role is fairly distinct and it's also fairly limited with regard to the WSIS discussion. Of course it should participate and operate within its own mission.
How should ICANN further announce cooperation of all ICANN stakeholders? I think ICANN or my experience with ICANN already provides many platforms for discussion and cooperation between stakeholders. Some of them are not yet up to their, let's say, maximum use. I think the ccNSO is an example. Although the number has increased recently -- congratulations, Paul, by the way, for that -- I think there is still quite a bit of room to improve and stimulate participation by the different stakeholders. And I think also it is necessary to stimulate adequate expertise levels of those who are participating.
And on the other side, I think that ICANN really should act on the advice it gets. So give the different stakeholder organizations adequate influence. But of course then I come back to my previous point, it makes it very necessary that those organizations have, within their roles, adequate expertise. Otherwise, it will be difficult or it may even be dangerous for ICANN to act on the given advice.
And I think that's the same for the sixth question which refers to the GAC. I think it's very important that the GAC properly organizes itself so it is able to act more as representing one particular group of stakeholders, one particular very important group of stakeholders, but also it is very necessary -- if they want to reach that goal, it is very necessary that they improve the level of expertise among their roles, in their roles.
What can be done to assist in the evolution of a more widely informed participation from all regions, including governmental representatives? Well, I think part of that I answered in the question I previously answered.
I think it's important that ICANN makes clear where knowledge on Internet issues can be obtained. And once again, it just makes clear that relevant expertise is a necessity if one wants to influence the process.
If this question also refers to ICANN's outreach program, then as I said before, I feel that ICANN should really limit activities in the direction at least for the time being, more issues that have to be dealt with at the moment that are more -- that are closer to ICANN's original mission.
Are there activities or steps that will build on existing processes to continue to enhance global accessibility to the transparency of ICANN's processes? One of my predecessors in this conference already stated that not seldomly a certain level of trust toward ICANN is lacking. I think it will always be the case to a limited extent. It has to do with having a unique position and people or organizations not being able to choose.
I think most registries experience the same. Although they are not really monopolies, they are often considered being that. And then perhaps lacking why people get frustrated with not having a choice and complain, sometimes rightly so and sometimes not rightly so.
But I think there is room for improvement on the openness and transparency on how ICANN is run and how decisions are made and how policy is created. Since the one and a half year that I am here, I have seen improvements already, and I think ICANN puts a lot of effort in this.
We just need some more results, and results will come with time and results will come with more efforts.
I think it's very important that ICANN remains or becomes, but I should say remains, I think, lean and mean in the meaning that it remains effective and efficient. And that it acts adequately and speedily so that it keeps in sync with the very high tempo the developments in the industry are following.
And I think finally that it should further improve stakeholders' participation, again both in quantity but also in quality. And as an example, I have already mentioned the ccNSO.
>>PAUL TWOMEY: Thank you, Roelof.
>>ROELOF MEIJER: I think I should give some time to my colleague from Italy.
>>STEFANO TRUMPY: Yes.
>>PAUL TWOMEY: Stefano.
>>STEFANO TRUMPY: Okay. Let me say briefly, first of all, thatisoc.it made the comment to the NTIA question, and you may read that. And this contribution that is coming from me, Vittorio Bertola and (saying name) and written is prepared by the group of us that are involved in the governmental group discussing Internet Governance.
So I want to say simply this, that coming to the challenges, we mentioned mainly the technical ones, because I would think that ICANN should speak to its raising our role, and we should try to elaborate the definition of the public policy issues, but try to avoid to see in public policy too many technical details. And only look at the very general questions.
So the challenges are to speak to the standardization process made by IETF to keep the root unique, the root of the Internet, and to keep an eye on the technical evolutions and the research sector that is providing, maybe in the long range, solutions that will change the centrality of the DNS as it is right now. And then of course having a look to have a liability, redundancy and scalability of DNS. I think the number of users and computers and equipment connected is growing very, very dramatically.
So we didn't say so much about the question two concerning the other organizations that may see similar changes to ICANN. Our predecessor from U.N. was much more prepared and gave some very good ideas.
In any case, we think that ICANN could reach some more -- some more clearly defined international aspects because it will be a way to rid -- to get rid of many of the political questions and issues repeatedly(inaudible) by other interventions.
And it is important the question concerning the ICANN role that is the issues that have come from WSIS. In my opinion, the -- ICANN should speak to the original role to the narrow mandate. But this problem is also connected to the funding model of ICANN. Because we know that ICANN basically gets funds from gTLDs mainly, and only in -- the contribution from CCs and IP registries is much less relevant.
And it is true that there is an expectation on ICANN to do more and to expand in areas like multilingualism, like promoting IPv6 and other markets not particularly connected to the DNS.
ICANN could do something, but the funding model will have to be reviewed, because only if there are other funding sources and other stakeholders interested in this original task could be enlarged. So in these TLDs, better not to do that in my opinion.
And concerning the stakeholders, it was mentioned that there is a good improvement for what concerned the CCs and the joining the ccNSO and also signing the extent of letters or accountability agreements. But this is something that have to be expanded to a majority of ccTLDs. And I'm glad to verify that there is -- that we have improvement of, not just now, but in the past it has been maybe too slow for many reasons.
Also, the problem of having more consumer representation of the -- we call it at-large. I name this the registrants, those that are registering names in the Internet.
And this aspect is still not clear, and there was a change made, if we compare to the initial white book, I think that something should be moved to have more representation from the users.
And concerning the GAC, of course I know something about that as the vice chair of the GAC.
And my impression is that also the joint group activity between the GAC and the board is doing an excellent work. And there is a nucleus of the enhanced cooperation, and we should be able to be as much effective as possible in order to prove that the enhanced cooperation may be realized from inside -- from inside ICANN itself. So this is a really important point.
And so the last question is also really important, what ICANN can do to enhance global accessibility and transparency. ICANN could do very much, but the problem is that making regional meetings, translating into many languages, and making this campaign of training and sensitization will cost a lot of resources and then this will be connected, of course, with funds available.
So in my opinion, ICANN should do the best in order to gain more credibility, more legitimacy, and then the rest will come. So it is a chicken-and-egg problem.
So basically this is my evaluation and my input to the eight questions.
>>PAUL TWOMEY: Thank you, Roelof, and thank you Stefano. That was very useful.
I want to start myself with an observation and then turn to other members of the committee.
I just want to make an observation on one of the points that Stefano made about funding and about certain activities. And let's just make this observation, that it's nice to hear someone who does (inaudible) into funding issues because your observation has been quite right about the expense of certain things.
But I think also the other thing that is interesting is, as we talk about the growth of the Internet, there's sometimes a tendency to think of that growth as being purely geographic rather than necessarily deep as well. And I think I have been well on record as someone being very supportive of ensuring that we can engage -- that ICANN engage with the full geographic community.
I think there's also recognition that one of the simple realities of the present international economic structures is that some countries are increasingly reliant on the Internet for great depth of their economy more than others. And if you are only going to look at the e-commerce figures to see,for instance, how much North America is using the Internet for e-commerce versus any other parts of the world.
So I think the point we need to consider, it doesn't necessarily vitiate against the geographic point, but it does actually add a layer of complexity to the question of where are the pressures going to come from for ensuring good service in the DNS across the whole of the Internet. I think those pressures aren't just going to come from geographic pressures, one country after the other, if you like, but they are also going to come from increasing parts of different economies that are increasingly being penetrated by e-commerce and Internet usage.
Are there any other questions?
>>HANS CORELL: Paul, this is Hans Corell. I am still here. Before I am leaving, just one point of clarification, I am listening to these very interesting observations. But it is my conclusion that there is no other organization that exists that is similar to ICANN. Certainly I am not suggesting that. By by pointing to certain examples, I am simply drawing your attention to entities that are not subjects under public international law but that are internationalized - private law institutions that have gained high credibility at the international level.
And it should be interesting for ICANN to look at them, how they are organized. Is there something we can learn from that? Not really relating to your work but relating to your organization and how you interact with the world community and particular governments. That's my only purpose in drawing your attention to those examples.
>>PAUL TWOMEY: Thank you for that.
>>MARILYN CADE: Paul, it's Marilyn. May I ask a question?
>>PAUL TWOMEY: Sure.
>>MARILYN CADE: It kind of goes back both to the comment that Ambassador Corell just made but also a comment that Janis Karklins made just a few minutes ago. And I would like to address it to both of our speakers, both Hans and also Stefano.
Hans, I found your discussion about the idea that we should think of ICANN as
-- continue to think of ICANN, I guess I would interpret from your statement, as a new model and examine how to perhaps make those governments and parties who are not comfortable with the new model, how to make them more comfortable with it as opposed to trying to change the model that we originally founded ICANN on.
I attended as many of the WSIS meetings as industry was allowed to attend. And thanks to Ambassador Karklins, I was in many of them, due to the evolution of the rules of how the private sector could participate.
I did observe over the two and a half years a lot of growth and change in how comfortable some governments became with private sector involvement.
We have so much more work to do in that area, it's quite clear to me. And I think Ambassador Karklins referenced that earlier.
Could you just say something more, both of you, about ideas for enhancing that level of comfort on the part of governments who do yet feel comfortable with the private sector leadership and technical leadership model. Are there any other comments or suggestions you might offer?
>>STEFANO TRUMPY: Stefano answering. First of all, the idea of changing the legal status of ICANN and forming it into an international recognized institution, then this will make many governments that are not -- that do not agree with the present status, many of their objections will be released.
Second point, we still have to discuss in the GAC and in the governments that are represented the fact that governments' advice should not be binding and should not be stressed in such a way to block the activity of the board and so on.
So there is a real necessity of continuing-- let's call it, education continues towards all the governments that enter into direct relation with ICANN.
And I'm rather confident that this that we call enhanced cooperation from internal of ICANN can be reached, but we need a continuous effort with these two considerations are made.
>> Maybe I can also react. Yeah, I agree with the notion that instead of changing the model, most of the attention should be focused on creating more comfort for the model internationally. But I think one of the ways to do that is by taking their -- the remarks that some governments have, or the reservations that the governments have on the present model, taking them very serious and trying to adjust the present model to adopt it, to address those reservations.
And I think there is clearly room for improvement, and I think that room should be used.
>>MARILYN CADE: (Inaudible) room for improvement you I think had referenced transparency and openness. Did you have specific ideas as to how we may continue to improve?
>> Well, I think it's transparency, it's openness, but it's also acting on the advice received, for instance, by the GAC. Making sure that -- or stimulating that they have the necessary expertise level. And that's valid, I think, for more Supporting Organizations and advisory committees.
But I think -- well, we all know that one of the issues is the present unilateral oversight of ICANN. And I don't think -- while I don't think that that issue should be solved now or tackled now, it will have to be tackled because there are too many countries that see that as a problem. And it makes it unavoidable -- unavoidable to come up with a solution. And I think it would also improve the present situation if eventually we -- or eventually sounds very far away -- if we in the near future come up with a model that guarantees more international or multi-national light oversight of ICANN.
>>STEFANO TRUMPY: Can I add something here? Stefano speaking.
>>PAUL TWOMEY: Yes, Stefano.
>>STEFANO TRUMPY: Yeah, but the real problem is not the stop the single government oversight with a multitude of government oversight. The real problem is to progress and to convince a single government to release, to be more -- to -- don't to express an oversight function and make a step back, let's say. And then the GAC could evolve to continue providing advices, but staying in the backstage, let's say, and trying to guide on policy matters not on the page which ICANN should avoid to do in order not to enter into conflict with international treaties or national laws. So there is the real point that I see.
Some worries from the government side that the present oversight of ICANN by Department of Commerce should be -- should become multilateral oversight. This is not what we think, but rather that the U.S. government should make a significant step back, keeping only the very straight functions that are necessary to assure continued stability of the DNS.
>> Mr.Chairman, can I briefly react to that?
>>PAUL TWOMEY: Certainly.
>> Well, I was not suggesting that we replace the oversight by one government by the oversight of a multitude of governments, although that is one -- one way to do it. I don't think it would be a very successful one. I see more in the model whereby the present oversight by one government is replaced by oversight -- light oversight by a group of persons or an organization or whatever model that we come up. I don't have the solution, by the way. I haven't found it. Yes, I would have told you if I had it.
An organization or a group of people that has international support. You don't have to be a government or you don't have to be a group of governments or you don't have to be all governments to have international support.
I think we have to-- And that's why I -- although I agree we should definitely look at other organizations that operate internationally to see if we can learn from that, I think we should prepare ourselves to create something unique for the time being, which is not organized in the way in which the U.N. is organized and which is not organized in the way in which private organizations are organized as far as supervision of their operation is concerned but which is something new but supported by let's say the majority of the world's countries.
>>JANIS KARKLINS: May I ask a question?
>>PAUL TWOMEY: Janis.
>>JANIS KARKLINS: During the presentation you spoke about internationalization and said that that would be a solution which would take off the stress from the government perception of the existing situation.
My question is, do we need to discuss what this next model could be? And if the answer is affirmative, then where would be the right forum for governments to discuss this next international model, whether that would be within GAC or whether that would be within United Nations or one of United Nations' organization? How do you see the intergovernmental consultation process on -- to confirm that all governments would feel comfortable with the internationalization of ICANN?
>>STEFANO TRUMPY: This is Stefano. It would be very important to see the evolution of the direction of the MOU and what would be next. In my opinion, the GAC has the possibility to exercise this light -- light oversight and to evolve from the present situation without the need of thinking to create an external body representing the government.
But this is something that we have to play from inside and only if the GAC will move into a situation that is convincing also the governments that do not agree with the present situation, then this could be successful, not changing significantly the present situation. This is my opinion.
>>JANIS KARKLINS: Sorry, Stefano. Thank you for that. I was not asking about oversight function. I am far from thinking the GAC would be in a position to do any oversight.
My question was concerning internationalization. So there was an affirmation that internationalization of ICANN would comfort many governments. And I believe that that is the case. But my question was whether governments should discuss modalities of this internationalization? And for instance, one problem may be with ICANN as an international organization acting under U.S. federal law. Maybe 60% of governments would prefer to see ICANN act under Swiss law or law of any other country.
So that's the essence of the question.
Do we need to discuss? And if yes, then where would be the right forum, whether that would be GAC or whether that would be any other organization.
>> I think if I might try to give my answer to this question. Since it's not solely a government issue but a new model should be supported by all stakeholders, I think that the main arena for that discussion is the ICANN arena. And of course I mean if U.N. countries would like to discuss the issue within the U.N., that is something that will happen anyway, but I think that it is a multistakeholder discussion so it should be discussed within the boundaries of the ICANN organization and the Supporting Organizations.
So my answer is the governments should discuss it in the GAC, and it should not be an isolated government discussion and an isolated ccTLD registry discussion, but it should be a joint discussion of the different stakeholders.
>>MARILYN CADE: Can I ask a follow-up question, maybe? It's Marilyn.
When we-- So in --
>>PETER DENGATE THRUSH: Marilyn, it's Peter here. I can't hear you. Are you using a speakerphone or something?
>>MARILYN CADE: No, I'm not. Is that better?
>>PETER DENGATE THRUSH: Much better, thank you.
>>MARILYN CADE: Roelof, in the model that you just described or the suggestion you just made, the discussion would take place broadly within the set of ICANN stakeholders, both within the Supporting Organizations, the advisory committees, the GAC. And if we follow our existing model of consultation at ICANN, that would be open to even parties who aren't involved in ICANN now through a public comment process. Is that what you were thinking of?
>>ROELOF MEIJER: Yes, it is. I haven't worked out the details because it was the first time the question was asked to me, but yeah, I think so. And the danger there is that this whole discussion might take years, and that it would be even -- it would be even slower than trying to come up with a new model in the U.N.
So that is definitely a challenge.
>>PAUL TWOMEY: Perhaps I might just finish these questions from the particular panel now. It is a very interesting presentation, but we do have other people waiting. I would just make an observation on this last issue that just emerged about potential choice of jurisdiction that applies. This is an active operational question that emerges in all registry discussions, including accountability frameworks with CCs already, and the answer tends to be different according to the circumstances of the parties. And I think it tends to effect a little bit-- Janis, you asked the question before of Hans about interaction of international private law and international public law.
I think the decision that, say, Roelof and ICANN might make about what might apply in the accountability framework between .nl and ICANN is a (inaudible) contract of international private law where the two parties themselves try to figure out what is best for them.
Now, I am sort of drawing a line about consultations (inaudible) before, but I suppose this sort of question is something that practically comes up in the negotiation of contracts. On the accountability framework there is specifically an example where there has been some (inaudible) by different parties and different CCs at different times.
Why don't we say thanks very much for Roelof and to Stefano, and I'm sure both gentlemen will be happy to take follow-up questions from the committee. I know there are probably other issues that have emerged during the discussion.
>> Thank you very much.
>>ROELOF MEIJER: Okay. Good luck with the consultation.
>>PAUL TWOMEY: Thank you very much.
In terms of the agenda, why don't we now turn to Becky Burr. Becky has her own issues with ICANN and pre-ICANN. Becky is a partner with the law firm of Roma Hale. And then after Becky, and relative to study in the consultation is Paul Levins who has only just recently joined ICANN as the executive officer and vice president of corporate affairs, but who has some views he wishes to share as a new almost outsider about some of the transparency, accessibility, communication issues that have been raised by some members. He has his own perspective as well.
So why don't we start first with Becky.
Becky, are you online?
>>BECKY BURR: I am online. Can you all hear me?
>>PAUL TWOMEY: I can.
>>BECKY BURR: Okay.
Thanks for inviting me to participate in this. I think it was sort of instigated by the fact that Marilyn Cade and I put together comments that we submitted to NTIA in an attempt to provide a sort of practical and constructive task forward in response to their Notice of Inquiry, I think. We may have been motivated from a variety of reasons and perhaps not all of the same reasons, but I was certainly, given my long history with ICANN, very anxious to see that something, you know -- something that is forward-moving and constructive comes out of this Notice of Inquiry.
It was-- The paper is quite narrowly focused, and it is really intended to suggest a way forward to remove what I think is a kind of a festering sore in the ICANN world. And it's not a festering sore at ICANN but a festering sore that colors how ICANN is viewed and that is certainly distracting for ICANN, which is -- and I would be quite blunt, the failure of the U.S. government to complete the transition to private sector governance. That was an essential part of the bargain when many of us sat around the table in 1997 and 1998 and decided how to figure out how to move forward with effective domain name management in a way that was both private sector led, nimble, fleet, and not governmentally directed. So that was really the purpose of it.
I think there are four points, and I'll just go through those briefly.
Let me say that the other part of the sort of pragmatic and constructive approach is to find something that can actually be done quickly. You know, the international not-for-profit organizations like the Fertilizer Development Center are very interesting models, and I think I agree with Stefano that they are not particularly -- not necessarily exactly on point, although I take the point that it is just an example of an organization that is well respected.
But in the history of that organization, it took many, many years and a presidential directive to have that international status sped up. And so whatever-- Whether this is a long-term solution or not, it is intended to be something that can happen quickly.
So the first point is to sort of acknowledge and accept that there is a desire on the part of governments, and frankly I think we see a desire on the part of some of the commenter's on the Notice of Inquiry, to maintain, at least for the time being, some residual government authority with respect to the root.
But I think that the first step that needs to be taken is to articulate what the nature and purpose of any kind of residual governmental authority over the root is. And that would be simply to stand up and say the purpose of any residual authority over the root by governments is to act in an emergency to preserve the stability and security of the Internet or the DNS. Nothing else. It's a very contained and easily articulated.
The next point, the next step then would be for the U.S. government to take immediate steps to -- and I am going to use the word internationalize, but I'm talking about internationalizing that limited residual governmental authority over the root, which is really an emergency (inaudible) power as we have identified it.
Now, our paper proposes as a -- what we would call a straw man, an intergovernmental working group. It is — no wait - what, the what the model we used was to go back to those governments that had been most involved in the original intergovernmental negotiations related to DNS management and to fill in with governments from all of the ICANN regions.
Paul, I think -- I hope you noticed there were four in the Asia-Pacific region. This was definitely done with a purpose.
But it's simply a model, and from my perspective, it doesn't particularly matter how the group is constructed so long as it understand its role is to, you know, act as a collective multi-governmental back stop with respect to security and stability.
And then for the U.S. government essentially to do what it has the authority to do right now, which is to tellVeriSign to do what ICANN tells it to do, unless it tells it not to, to ensure that all of the reports that ICANN slash IANA provide with respect to modification of the authoritative root, that it is distributed to all of the members of the working group and to permit a member -- any member of the working group to object to any proposed change within a fixed time, and I would say a small fixed time, on the limited grounds that the change threatens the stability or security of the Internet. And sort of move forward on the basis of what the group decides.
I think it needs to be a fairly small and fairly senior group so that it can be nimble, but as I said, how you constitute it strikes me as not -- not the most critical issue in the world so long as the leadership is there. And that is our third point, to have the U.S. government lead by example and be the first one to stand up and say there's a limited role for government with respect to this residual authority over the root.
And then finally, as the fourth point in our paper, we have suggested that the issue that we're hearing in some of the NOI comments and in the sort of commenting in general related to transparency and accountability with respect to ICANN I think really is fundamentally a legitimacy issue. And in terms of, sort of when everybody is going to feel good about the transition to private sector governance is the moment when the community, the decision-makers, really does feel like it knows what's going on and it has real mechanisms to ensure that ICANN acts transparently and accountably.
So we have as part of this a proposal that there -- that there be a review of effectiveness of the accountability and transparency mechanisms.
And I think it may seem something of an after thought to tack on that piece to the very focused efforts to internationalize limited residual governmental authority over the root, but I think that the two things kind of go hand in hand.
So that's what the proposal amounts to. It was designed, and some of my friends would accuse me of being an un- -- unreformed incrementalist, but it was designed to avoid a lot of questions that would be raised by more complicated internationalization of ICANN related to transfer of government property, which was -- is a sort of thorny issue that hangs out there and may, you know, eventually dissipate, but what we tried to do is come up with something that sort of walks around the potentially dicey legal issues related to a more complex internationalization process.
And finally, it really is designed to be consistent, and in fact to be sort of a "let's go back to the white paper" principle, primarily in the sense of, you know, articulating a governmental role that is limited, contained, and clear with respect to ICANN.
So the paper is short. It's only two pages, but I am happy to take any questions on it.
>>PAUL TWOMEY: Thanks, Becky, for putting that forward and explaining it.
Perhaps I could ask an operational question, I suppose.
You took that the clarification of the role of the United States government when it comes to (inaudible) authorization and then you talk about potentially some grouping of governments playing some role.
The present IANA statistics shows that on average, a country code asks for an amendment to its -- anything to do with its own sovereignty once every 2.8 years. Now, there are some country codes that are much more common than and other ones that are much less common. But on average, it's once every 2.8 years, the consequence of which is that in practical terms, every time a country code interacts with the IANA staff, there is an education process often taking place of just educating the particular staff person about what is involved in making such a request. And that's simply just a question of they do it once every 2.8 years and they have staff turnovers so that the person who did it last time is not here this time and that sort of thing.
I suppose in any -- two questions emerge to put to your model. One is how would you move to such a model without inherently politicizing in a different way from the way you put it, from how you perceived it, but how would you implement such a limited council, a limited grouping of governments in a way that doesn't politicize that function. And secondly, how would you do it in a way that ensures you really do have expertise? The present function does actually result in true expertise about what's involved because there is a limited number of people who actually do it all the time.
So those are the two questions I have.
>>BECKY BURR: Okay. I think that the critical piece here is the clear understanding about what the working group's scope of authority is.
And if scope of authority is clearly understood to be does a particular proposed change constitute a threat to the technical stability and security of the Internet, that's the question that's on the table.
Now, I happen to have sort of particular -- a sort of particularly strongly held view on this, because as you know, for some time, I was the person who made the call to VeriSign to say make a change to the root.
My view on that was that if the United States government ever tried to use that authority as any kind of a political -- in any political way, that the system would completely fall apart.
So I was, you know, rather dogmatic, I think some of my friends in the European Commission will say, about a change to adding.EU to the root, and that my view was if it's on the ISO list, it goes in; if it's not, it does not. And so I think that the way to make that process not political is to say the role of this working group is very limited.
Now, under those circumstances, I would imagine that virtually none of the changes that ICANN recommends or IANA recommends to the root constitute even a remote threat to the stability or security of the Internet.
And so I think that this works -- the model works only if the residual authority of government understood in a clearly limited fashion.
Now, I mean, I just can't -- you know, unless you were going to add, I don't know, 500 new IDN TLDs, you know, tomorrow, there's very little that constitutes a threat to the stability or security of the Internet.
So at some levels, it's not a particularly powerful residual governmental authority, but it does remove this -- you know, the unhappiness about the unilateral control over the root that the U.S. government is retaining.
>>PAUL TWOMEY: Okay. Are there other questions from members of the committee?
>>PETER DENGATE THRUSH: Yes, Peter here.
>>PAUL TWOMEY: Peter, then Janis.
>>PETER DENGATE THRUSH: Thank you. Becky, I found your approach very helpful in focusing on what the authority is and what it might be. And we've heard a lot about light-handed oversight or other models. And I think it's important to work out what is this oversight of and for, and I appreciate your approach to that.
One of the other elements that's currently being exercised in relation to that is in the referral back to the U.S. Department of Commerce of the .com agreement. Do you see any continuing role in relation to gTLD sort of commercial or anti-trust or other issues that need to be dealt with before we get to the situation which is as clean and bare as you propose?
>>BECKY BURR: Well, let me first say that this is intended to be a very narrow -- this is intended to focus on the root.
So at one level, one could put the VeriSign agreement into an entirely separate bucket, which is that, you know, there is a three-way agreement there that has its own source of authority that's completely separate from the root issue.
So let me just say, that seems to me to be one -- one way of saying you can still -- whether you think that that problem needs to be solved before or after, you can still have that -- you know, that three-way agreement is not necessarily eliminated by this approach.
And then my response on this one, let me say that this response is my response and I certainly -- because it is outside the scope of the paper, I am not speaking for my co-author necessarily. I think that there are a lot of other issues. And I have said a number of times and said at least in hearings that the issue with respect to things like, you know, VeriSign's position is is it in a position, given its dominance in the market, does it have the ability to abuse that market position? And if so, are there effective checks on that, whether they are governmental checks or some other kind of checks. Those are questions that need to be explored. Clearly they need to be effective checks.
My personal view is that you probably need a sovereign and not an ICANN to be the competition enforcement authority. But that really does not get to the
-- to the issue with respect to the authority over the root.
It seems to be clear --
>>PETER DENGATE THRUSH: Yes.
>>BECKY BURR: -- this authority over the root -- I often say this is my fault, but I will say in particular this really is in some ways my fault because when we got to 1998 and discovered that no government had any authority over the root that we could rely on, and VeriSign was threatening to split the root, we, you know, demanded a trade for -- you know, an extension of the MOU at that time or of the cooperative agreement at that time, that they simply say they would never change the root without being directed to by the U.S. government or by somebody the U.S. government put in place.
So although it was quite necessary at the time in order to ensure the transition, it is an authority that is simply a product of contract.
>>PETER DENGATE THRUSH: So I think-- I find that helpful. Thank you.
>>PAUL TWOMEY: Janis, have you got a question?
>>JANIS KARKLINS: Yes. In fact, it's rather a comment than a question.
I found this model interesting and when someone in the U.N. says
"interesting," then very frequently that means unhelpful or bad.
[ Laughter ]
>>BECKY BURR: Thank you for the translation.
>>JANIS KARKLINS: Not in that meaning. But I found one, let's say, weakness, if I may say. And this is the subjectivity of approach, meaning you say
"light oversight." "Light" is a very objective term. One may consider a thing being light, another may consider a thing being sufficiently heavy.
So therefore, it will be very difficult to draw the line between light oversight and heavy oversight. And I can argue in all directions on that issue.
And secondly, there will be very difficult to define the group of governments which would exercise this light oversight because, first and foremost, that will contradict one agreement government reached in WSIS that there shouldn't be any involvement of other governments in the issue of ccTLDs of other countries. And if one request for the change will contain -- or will be asked -- will relate to change of ccTLD, then this principle will be immediately violated.
So how did -- what-- How do you see this could be a result, or how you would comment these concerns?
>>BECKY BURR: Okay. First of all, I think you are absolutely correct that anything like "light oversight" is a subjective term, and we affirmatively avoided characterizing the residual authority of governments in that fashion whatsoever. It is intended to be a very, very clear and very limited authority. Which is to say if a proposed change threatens the technical security and stability of the root, the governments are empowered to step in to prevent that.
But that's not oversight, light or heavy. It is a technical security and stability issue.
And as I said before, I would expect that ICANN would have to do something close to unimaginable to actually meet that standard.
So I completely agree with you, what the rule in which somebody intervenes when a government intervenes would have to be very, very clearly and directly and firmly spelled out and contained.
That, I think, essentially answers the second question, which is that it is even more inconceivable to me that the transfer of a, you know, delegation from -- of a ccTLD from one operator to another could ever constitute a stability or security threat unless the operator was doing something crazy.
Now, I mean, I'm very conscious of how difficult the ccTLD delegation issue must be for ICANN as well, and not just other governments.
So I would imagine that no other government wants to be involved in the call of, you know, is this a good operator or a bad operator, but the only question on the table with respect to ccTLDs would be is there a technical stability threat involved in it.
So it's critical in order to address both sorts of questions that you put on the table to go back to the way in which this role is limited. And one of the ways in which I came up with this — Mel [Goudie?] and I came up with this articulation is just out of a conversation I had with Ambassador Gross months ago in which I sort of said, "Why don't you just stand up and say the U.S. government will not intervene unless that intervention is necessary to preserve the security and stability of the Internet and the DNS?" And he said, "Oh, we said that a hundred times."
The truth is, I don't think the U.S. government has said that very clearly. And I think in some ways, this should not be a very big step for them to take.
Now, with respect to the makeup of the panel, as I said, I really am quite indifferent so long as the -- the limited role is respected. It could be, you know, the GAC elects people, and it could be the GAC governments by region get together and designate governments on a rotating basis to serve in the working group. I had proposed that some time ago and got some push-back from members of the GAC.
But I think that the protection here is in the -- it's not the makeup of the working group. It is the sort of religious adherence to the limited role and the limited scope of authority for the working group.
>>PAUL TWOMEY: Can I just add a question to that, Becky? When in any practical sense would the working group be informed of an action?
>>BECKY BURR: I think when ICANN/IANA submits a recommendation to make a change in the root, which has to go to the commerce department so the commerce department can direct VeriSign to do it, what I would propose is that the recommendation or the direction be issued directly from IANA to VeriSign, and every member of the working group be copied on it. And VeriSign's operating directions would be basically that recommendation is implemented 14 days from the day it's received unless, you know, the working group has registered there's been a protest filed. And then you'd have to have some time frame for how quickly the working group would convene to determine whether the--
>>PAUL TWOMEY: You said how many days? You said 14?
>>BECKY BURR: I said 14.
>>PAUL TWOMEY: But my question goes to the fact that considering the time frames for these sort of changes now are measured in single days and there's some pressures from some CCs that these activities should take place measured in minutes and hours, how would this work? Please change my secondary server now automatically as I ask for it. And some of the input we have received which talks about automation is directed towards I want my secondary server — changed now — please do that.
>>BECKY BURR: That's a very easy problem to solve which is to say that there are whole categories of things for which the U.S. government ought to say right now to VeriSign, "Do whatever ICANN tells to you do."
That same-- In that case, you know, somebody might be copied, but there are whole categories of changes along those lines that do not -- you know, that could not possibly create a risk of the kind within scope that ought to be just taken off the table for the working group.
And it's all the same-- It's all the underlying problem of -- and it's not all underlying problems, but it does solve the, you know, what is the U.S. government doing with this unilateral authority?
So I think probably, you know, all of the -- all of-- When we, you know, put into Amendment 11 the commitment on VeriSign's part that it would not change the root without the direction -- except at the direction of the U.S. government, the language that is in that contract specifically says, and we reserve the right to tell you to do whatever somebody else -- you know, whatever NewCo says.
So in 1998 we were contemplating a situation where simply the direction would be simply, you know, any change of -- you know, any change that ICANN directs should be implemented.
So you can go as far down the line on that one as you need.
And if I could just sort of get back to the emotional impetus behind this proposal. It really was to relieve pressure on the -- what I think is a serious source of unhappiness among governments that creates a lot of external noise and distraction for ICANN.
Now, the way we're serving it up here, it's not -- you know, it's not -- it's a fairly limited change that could be implemented reasonably quickly and remove that source of unhappiness which I think undermines ICANN on a day-to-day basis.
You may have, you know, more elaborate outcomes down the line or changes, but this is something that could be implemented quickly, without creating legal issues or the need for presidential directives or the need for, you know, treaty-based anything, and would improve the sort of -- improve the environment.
But it's not offered as a -- you know, it's not offered as the -- you know, as some stroke of -- that creates a monumental change in anything.
>>PAUL TWOMEY: Well, we might say thank you at this stage. We are running some time behind on the schedule, and we have two and a half panels to go.
But obviously this is a very interesting proposal, and again I assume that you will be available for members of the committee if they wish to do follow-up questions.
>>BECKY BURR: Absolutely.
>>PAUL TWOMEY: Thank you very much for participating.
>>BECKY BURR: Okay.
>>PAUL TWOMEY: I wonder if we can now move just briefly to Paul Levins.
Paul, are you online?
>>PAUL LEVINS: Yes, I am. Can you hear me?
>>PAUL TWOMEY: I wonder -- Paul Levins is the -- very recently, I think as of
-- he attended Marrakech, but he has literally moved to the LosAngeles office yesterday, the very newly appointed head of corporate affairs and executive officer of ICANN. Who I think comes with some specific outsider views particularly around the communications and transparency, accessibility questions that many people have raised so far in this process.
So we thought it would be useful for him to give some initial perspectives on what does an outsider feel like, and then we will move to a panel which includes Jon Nevett, Bhavin and Tim Ruiz.
>>PAUL LEVINS: Thank you very much, Paul. Actually, I'm grateful for the committee time. As Paul mentioned, unlike others I am brand-new to the organization. I am conscious that I haven't provided you with any sort of written submission. As Paul said, I literally moved my family to L.A. yesterday. But I am particularly keen to provide you with some comments on a recurrent theme that I think I have heard certainly since I started and has been maintained over the course of this call, at least the components of this call that I heard, and that is somehow the organization is clothed in some sort of secrecy or isn't transparent enough.
That's obviously -- the reason this is occurring is because it's an extremely important element in the organizational model strengthening, especially in the context of the evolution and growth of the Internet which, as I understand it, is the basic question that the committee has asked of itself in deliberations.
As I said, I think it's fundamental because as the Internet evolves, it challenges what we know of the organizational dynamics of communications and consultation. So what I meant by that is in some respect the technologies got ahead of the cultural and rule-based organization of regular organizational model.
If I can just elaborate a little bit on that, we'd all agree that the Internet has changed and is changing the way we communicate and what we expect from each other at such a pace that our more established regimes haven't had time to catch up in some regard, thereby applied old the expectations and rules. I think that's the especially the case with the law. We have become used to speed and informality through the Internet. We have become used to wider, freer, and simpler communications.
That level of informality is often conversational and not meant to be held against, especially in a legal setting.
Yet the reality is that we are and will be, into the future.
So I think in that context the answer is not to go back to the future and to demand that the organization somehow get smaller or remain the same. It has to grow and accommodate its environment that it finds itself in.
You also have to understand the comments I am making in the context of the growth of the organization that is ICANN. It started as a small operation that's now responsible for a global task and what always has been a global task but one that has grown beyond what was comprehended as a possibility even in as little as a matter of a few years ago.
My comments also go to the committee's acceptance that there are a number of administrative challenges that the ICANN faces as it grows to serve that global community.
One of the great strengths of the ICANN model is its consultive power. You all know that. You know it as an inherent strength of the model. But implementing that model is an administrative challenge that has I think some unique complexities. We do know it's successful. It is a successful model by virtue that we are having this debate.
I mean, here we are laying bare our thoughts on what is right and wrong about the organization and the model for all the world to hear. But we also know that the organization is challenged by virtue of the "could do better" critiques that occur along with the significant wins the organization has had.
As I said I am new to the organization and to the debates that it has had but as someone whose career is based on more than 25 years experience in communications, policy administration and politics, I have got the job of being the critic and the repairman at the same time, at least in the communications area.
So I want to point out what I see as problematic and I'll be fairly blunt in that regard.
What do I see as a new person coming into the organization? I see a set of confused or missing messages. It's an extremely difficult organization to access unless you are an ICANN insider.
It's as I think as you have acknowledged and as I said early on, one of the great participatory models, but instead it seems mysterious and rule bound and legalistic.
The Web site thing is certainly inaccessible. It's very text bound. It doesn't answer or accommodate easy inquiries. And the other general point I'd make about the organization's communication with its community, I think over time somehow posting has been considered dialogue. As long as it's on the Web site somewhere, that's sufficient towards engagement with the community, and clearly that's not the case.
I also want to address this point in more detail on the issue of transparency. I do think that the -- I think I understand the critique that's been implied here but I do think the word transparency is being misapplied. It is, from my perspective, anyway, a very transparent organization. There's lots of information. It's just not very accessible.
Insurance policies printed up (inaudible) software agreements are all very transparent. You couldn't argue that those things aren't transparent. It's just they aren't very easily understandable or accessible.
So I don't think it's that ICANN is hiding information. There's plenty there. It's just not very accessible.
Now I've got some ideas about how I want to change that and we will be implementing those, but I'm aware that people say, hang on, it's not just about the level or quality of the information that is applied through, say, our Web site. It's also what happens during the course of the debates. And I'd like to make a comment, new as I am, in relation to that as well.
I have heard about the -- I have heard of the debates around some of the TLD contracts, for example. And from what I can tell, I think the lessons here are less about transparency and more about the corporation having to guard against potential and actual litigation. We're in a litigious environment increasingly and being based as a corporation in California law, I think the board would have been naive to do more than it did in terms of information sharing on the public record in the place of some of the TLD debates. I know some of the community might have expected more of the organization in those circumstances, but frankly, I think the critique is not so much about transparency but more that the organization being hamstrung by its legal identity. And also, to a certain extent as I mentioned earlier, it's accessibility, information's accessibility.
But being committed to ensuring that information is communicated and discussed, not just posted, is certainly an area where improvements have to be made, and could have been made historically, I think.
So I do think it is a significant challenge to the organization to make it more accessible. But as I say, from my perspective, I think under its current legal identity, it probably, in terms of transparency, is difficult to see it becoming more transparent. But I did want to leave you with the view that I think the accessibility of information on -- that ICANN has achieved historically and certainly has to be improved into the future.
That's where I will end my comments, I think, Paul.
>>PAUL TWOMEY: Thank you, Paul. I want to just quickly ask a question about
-- you talk about accessibility, but can you give some practical ways in which you think that could be improved? Give a sense of what you are meaning by the difference between transparency and accessibility of information and dialogue.
>>PAUL LEVINS: On the accessibility, I made the point that I think posting isn't dialogue. The community, especially after the experience I had in Marrakech, is very keen on there being a process of dialogue which sees their views represented.
Now, often what I think has happened is that somehow there's been just a posting of a view rather than an actual robust discussion. And I'd be very keen to see a robust discussion taking place through the Web site.
I'm interested in establishing an ICANN blog that is to be moderated. It would not be a propaganda site. All views would be welcome.
I do think we need to improve the Web site dramatically. The Web site itself is, I think, for an organization of this character, almost the reverse of what you want. It doesn't have any -- a great deal of flexibility. As I said, it's not accessible. You can't find information. And it doesn't provide the right lens for different audiences, if I can put it that way. You know, for different groups who need different ways of accessing information that people need to get a hold of.
We can make much greater use of things like electronic newsletters to actually push information rather than to have to have people somehow mine it out of the Web site or out of the organization itself. We need to address this issue of responsiveness that I keep hearing about as well, and that will go part of the way to doing that, but certainly not all the way.
And so in that regard, the communications task isn't just about press relations, media relations and, you know, public relations. I think it's also about management of inquiries that come into ICANN itself so that those are dealt with in an efficient and quick way.
>>PAUL TWOMEY: Thank you. Are there other questions from members of the committee?
>>MARILYN CADE: Yes, Paul, I do have a question. It's Marilyn.
Paul, welcome to North America.
>>PAUL LEVINS: Thank you.
>>MARILYN CADE: We will try not to convert you too quickly, however.
I welcome your comments. I will just say that in the early days of ICANN, we had experience with some mechanisms that did seem to work fairly well when we-- in the early days of operating the general assembly and also in the working groups that were established.
So it will be very welcome to hear more from you about ideas to support online consultation but avoid a problem that later, I think, began to bog us down, and that was interested parties falling away from active participation through posting on the public forums and participating in the interactive sessions because they -- we have had some early -- what would I call them? -- online hygiene problems might be a way to describe them.
But there are new tools, and I'd really welcome to hear more as this committee advances about your idea of how to ensure or offer other mechanisms for participation online.
>>PAUL LEVINS: Sure, Marilyn. Could I just respond to that briefly, Paul?
>>PAUL TWOMEY: Sure.
>>PAUL LEVINS: By "online hygiene," do you mean -- was it the simple thing of the language being used or were you talking about the areas that I was alluding to when I was talking earlier about, you know, the possibly of litigation, people feeling afraid to say certain things, or in fact saying things which got them into trouble?
Can you just elaborate on that for me?
>>MARILYN CADE: Oh, I think in the very early days, we were -- and some people on this phone will remember it, in the very early days we were all learning how to communicate, interact with each other in different settings. And we had the online behavior that might have been the -- in some of the early ICANN meetings, people either applauded or hissed when they agreed or disagreed with what a speaker said. We had some of that behavior online as well. And so many interested parties just stopped participating online.
They then also decided, I think behaviorally, that no one important was listening to their participation online.
>>PAUL LEVINS: I understand. We certainly don't want to push ourselves back to that sort of era where people, you know, in a thrust toward participation and greater participation, you somehow encourage the situation where you somehow have got that sort of behavior.
>>MARILYN CADE: I will just say another thing that we lack, and I think you began to address it, is many people who are not ICANN insiders lack a layman's understanding of some of the issues that we're debating.
>>PAUL LEVINS: Yes.
>>MARILYN CADE: So in order to support a non-ICANN insider's participation, they are going to need what I might call the layman's guide to what IDNs mean or the layman's guide to the issues related to introduction of further new gTLDs so they will be able to feel that they can participate meaningfully in an online forum that's provided to them.
>>PAUL LEVINS: Yeah, I couldn't agree more, and I am conscious of the time so I curtailed some of my comments earlier, but I am very keen and have already started discussions with the "for Dummies" series. So I think we need a booklet which is a "DNS for Dummies." We need much greater use of visual techniques for people to understand what ICANN does and how the DNS works, and, you know, (inaudible) participation if that's, in fact, what they want.
So I couldn't agree more with you, Marilyn, in that regard.
But I am -- I would caution against -- I don't think you were suggesting this, but I would caution against a sort of a, you know, Luddite sort of smashing of what we've got now to get back to where we were. And I don't think you were saying that.
>>MARILYN CADE: Not at all. I was just saying we did learn some lessons, but there are newer tools available.
>>PAUL LEVINS: Yes, I agree.
>>PAUL TWOMEY: Thank you, Paul. We might continue now because of timing, to the next panel.
I will just remind those listening to the audio streaming of this consultation that we are seeking to run a global town hall environment and that questions can be put through both to the committee and also to some of the people who are participating on the e-mail address that's available on the site. I might just quickly ask Marc to remind us of that e-mail address.
>>THERESA SWINEHART: Paul, it's firstname.lastname@example.org.
>>PAUL TWOMEY: email@example.com. And Theresa and Marc have done personality swaps.
>>THERESA SWINEHART: My apologies.
>>PAUL TWOMEY: We have to date received no questions or comments at that e-mail address so we are looking forward to receiving some.
We are now moving to the second-to-last panel of the morning session, at least morning California, and that's a panel represented by three registrars. Jon Nevett who is the vice president of policy and ethics with Network Solutions and is also the chair of the registrar constituency at the moment. Bhavin Turakhia, who is the chairman of Directi and LogicBoxes, CEO and chairman. And Tim Ruiz who is the vice president of domain services for Go Daddy. I understand they are all available and online at the moment.
>>JON NEVETT: Yes, this is Jon. I am here.
>>BHAVIN TURAKHIA: This is Bhavin. I am here.
>>PAUL TWOMEY: Could I just ask you, I have been reminded people should state their names when they are speaking. This will make it easier not only for the audio streaming but also we are going to be transcribing the audio streaming with our scribes, who are not available today but the scribes who normally attend ICANN meetings. They will be transcribing this in the next day or two, so if you can just say your name before you speak, that will be very valuable, especially when there's three panelists.
I wonder if I can ask people to speak in the order I just said. Perhaps we can ask Jon and then Bhavin and then Tim to speak, and we will leave questions until the end.
>>JON NEVETT: Sure. This is Jon Nevett again from Network Solutions.
What I'll do today is talk about some of the recommendations that we have made in our public comments to the Department of Commerce related to the -- in response to their NOI request. And I'd like to thank Paul and the committee for taking the time to hear our views and thank Paul Levins for talking about some of the plans that he has to improve the accessibility, transparency, responsiveness, whatever word you want to use. But from a Network Solutions perspective, we are supportive of the U.S. principles that were articulated during the WSIS process. And while we think we are on the road to privatization, we think we still need some more fine tuning before ICANN is ready for full privatization. And some of the recommendations that we'll talk about -- that I'll talk about this morning, L.A. time, will relate to some of the aspects that we think need to occur before full privatization is a reality, or should be before it is a reality.
As far as bottom-up representation, participation and transparency, we would recommend that ICANN comply with certain basic decision-making procedures, including public deliberations, the disclosure of staff advice to the ICANN board, and timely publication of minutes of board meetings.
In addition, ICANN's decisions should include an analytical component which explains how comments were factored into a decision. And I should note that this is a routine practice in the United States. Federal agencies, which typically evaluate comments received as a result of an NPRM, or a Notice of Proposed Rulemaking, and incorporate the evaluation of those comments into the final decision document.
I understand Paul Levins said it would have been naive, I think he used the example in some of the recent approvals -- ICANN approvals of recent registry agreements, but the U.S. government does it every day and does it all the time when faced with litigation as well. And that's an important factor and should be important to ICANN as well as far as that kind of transparency.
All material contracts should be published for comment before approval by the ICANN board. This didn't occur with.net, and it should in the future. And I should note also that it has to date since the.net experience. But we suggest that that be formalized as a bylaw amendment, and we have had that pending for ten months now.
ICANN should not use contracts, including renewals of registry agreements, to effectuate policy changes that would circumvent ongoing review by the GNSO which is tasked to promote development of ICANN policy.
ICANN should avoid black holes. For example, letters that are sent to ICANN should be acknowledged, replied, and posted on the Web site when appropriate in a timely fashion.
As far as accountability and oversight, there needs to be an equivalent to a vote of a shareholder -- of shareholders of a public company to provide oversight over the board.
There's got to be a formal user-friendly process to challenge board decisions. Not just what we have today which is reconsideration on some procedural grounds. Again, a recommendation to the board for the independent review process. Again, a recommendation to the board.
As far as budgetary oversight, and you may -- Paul may be surprised to hear a registrar articulating the following -- there needs to be more oversight not less oversight on the budget process. And more oversight should include other members of the Internet community, not just registrars.
For example, the Budget Advisory Group should be reconstituted into an organization with some authority, and it should be comprised of multi-stakeholders.
The trend should be going to more oversight over the budget, and this is especially true when you have seen a 300% growth in the ICANN budget over the last three years, not less. And if you look at the .com proposed agreement, we are trending toward less budgetary oversight, not more.
As far as security and stability, ICANN's ability to foster the checks and balances of a competitive marketplace, including in the operation of registries, is an integral component to ensure security and stability for the operation of the DNS. Deregulation in the United States and elsewhere in the world has been driven by the recognition that competition in the private sector increases rather than decreases incentives to invest in new technology and infrastructure, including in security improvements and that greater stability is just one of the benefits of competition.
I'm tying those two together -- the two theories together, competition and security and stability.
I found it quite telling that the word "competition" did not appear once in any of the questions from this committee, and obviously it's a core value of ICANN under the MOU and the ICANN bylaws. So I don't want to lose that important issue.
Another way to improve security and stability is to take a more active role in compliance efforts. There's currently a failure of ICANN to enforce existing requirements with contracting parties. And it includes registrars and registries.
Currently, there's a disincentive for a number of parties to comply with requirements, contractual requirements and policy requirements, because ICANN has not shown any inclination to force compliance with such requirements. As far as compliance with registry operator agreements, the current trend towards weakening ICANN's ability to terminate registry agreements and weaken ICANN's ability to have a competitive bid process upon the expiration of registry agreements leads to a lack of leverage over registry operators and, therefore, a contractual inability to take action against bad-actor registry operators. Thankfully, we have not seen that to date, but ICANN as a corporation, ICANN as a community needs to be protected against the inevitability of a bad-actor registry operator, especially as we look at accrediting new registries.
And the last point on competition is that any changes to registry agreements
-- and I think someone mentioned this earlier, any change to registry agreements or any changes that have competitive implications should be reviewed by an outside agency, either government agency or some panel set up of experts, to make sure that competition values are maintained.
That's all I have right now. Thank you. Thanks, Jon. Bhavin.
>>BHAVIN TURAKHIA: Bhavin here. I might join in probably Tim. I don't really have a list of items I want to talk about specific to each of these areas.
I think I will resonate what I have gone through Tim's, I think Go Daddy's mission to the similar topic. I just had to hear what Jon had to say, and I think I will resonate and agree with several of those points myself.
So I don't have too much new to add. I have just been jotting down some tiny points with respect to these questions. So I'll go through those anyway.
So looking at the list of questions, in fact I think I'll resonate with what Jon said or shared, there is absence of competition as one of the key factors and one of the key objectives articulated in the MOU. And from that perspective I think there are areas of improvement that need to happen. Some stuff that Jon spoke about, I think I will agree with almost all of that.
I think one area that had been seriously lagging behind is the introduction of new gTLDs which has partly to do with this competition aspect, but not entirely because we have had multiple discussions in the past as to how certain registries (inaudible) legacy will continue to have advantages, will continue to be treated differently in the minds of registrars and registrants worldwide.
And so it might not -- it will not entirely sort of create new competition in that sense, but that's one area that I believe things need to move faster.
I think one -- a very important aspect in competition, one of the things that Jon mentioned was external review.
I think -- I think there's not enough internal review, and by "internal" I mean internal to the process that ICANN is supposed to adopt in terms of the bottoms-up consensus process.
I think if sufficient input was taken from the existing community -- GNSO, the various Supporting Organizations, the constituencies that exist, etcetera
-- and that feedback or input was truly acted upon and acted upon in a fashion that it should have -- should have been in instances in the past and should be going forward in the future, I think that, to my mind, would be -- would be better than the job that's being done right now.
I mean, an external agency is definitely something that's an add-on to the process, but I think the existing process in itself has not been carried out to the extent it should be.
And I think that has -- I mean, issues such as competition, a lot of the-- many of the decisions you have taken have long-term impacts on various aspects. One of the important ones that, once again, Jon mentioned is security and stability. And I rightly agree with him that a fair competitive process will result in better service, such better process will result-- well, there are certain gotchas and certain aspects that may not necessarily gel with this team but will result in better security and stability in that sense.
And I think that one of the-- What I was trying to say was one of the key factors as an input to that was that the current bottoms-up consensus process should be -- should work as advertised. I think there's a significant propaganda about how there's a bottoms-up consensus process, but I don't think the actual truth is exactly to (inaudible) to that propaganda.
So that would be one of the points that I would want to talk about.
Within the same thread, I would resonate that there should not be unilateral contract negotiations, and that goes more towards the bottoms-up consensus philosophy. There should not be unilateral
policy decisions, especially ones that have impacts on existing stakeholders and ones that have long-term impact on the community and industry as a whole.
Those were some of my broad comments in the first set of questions.
Let me see if I have a couple more.
Well, there's a few micro-level points that I just jotted down. For instance, the question with regards to administrative challenges that ICANN faces in the bottoms-up participation coordination process. And I think I would extend that statement to the -- the second question, I would extend that statement to include the various constituencies. I think all of the constituencies also face significant administrative challenges in terms of actually participating in this bottoms-up consensus process. I can speak from my experience; I guess Jon did from his and so could Tim. From my experiences, in terms of chairing the registrars constituency, I think a lot of the -- many of these constituencies; many of these participants in this whole ICANN process have a more than full time occupation over and above participation in this process. More often than not, that results in, I can say from my experience, situations, circumstances where we would like to participate in a way greater than what we might be able to. This applies to participation as well as administrative burdens, so on and so forth.
While I don't have specific suggestions, certain areas that should be looked at, for instance, is administrative assistance from ICANN, whether it comes in terms of staff or whether it comes in terms of, I don't know, software support or Web site support, for instance. There could be various different tasks that are currently administrative in nature that do not allow constituencies to effectively collaborate and communicate within themselves. I can say for sure today there's -- there must be very few registrars in the registrars constituency that are even aware of this process that's going on right now simply because there's lack of communication, because of administrative burdens and challenges.
So I think if while it's -- I think the constituencies are taking proactive steps towards improving that. I think ICANN needs to show more initiative from their side in terms of implementing processes that will help constituencies effectively set up -- I don't know, it can be setting up forums and Wikis and blogs that are maintained technically and managed by ICANN in some fashion or another but be provided to these various groups and constituencies to utilize, to be able to collaborate amongst themselves, etcetera, etcetera.
So when you talk about administrative challenges ICANN faces, I think there are significantly more challenges that these constituencies face which might trickle down to lesser participation in this whole sort of bottoms-up participation model. So there's one more point I wanted to note.
One more question with regards to how ICANN should further enhance cooperation of stakeholders on various issues, Internet Governance issues, etcetera.
One of the things I have seen that has helped in the past, and I don't know if this necessarily would apply to a specific question, but apart from just the general ICANN meetings that take place on a quarterly basis, certain focus to regional meetings that consist of specific focus groups, specific groups, stakeholders, because I know there have been one or two regional registrar meetings, and I know that the thought processes and the ideas and the exchange during those meetings, there is a stark difference in that and the conventional ICANN meeting where there's a set agenda, a lot of issues to discuss, a lot of cross-constituency stuff to be done, a lot of administrative aspects to be covered.
So I think if there's more of these sort of separate regional focused gatherings, keeping logistics and budget aside right now and just throwing in items on the wish list, but if there were more of these sort of meetings I think they could be more productive in terms of getting people to exchange ideas and getting more people involved in the process.
So I believe these regional meetings typically get more types of people who have generally not attended any of these sort of global ICANN meet but they can make it to a regional meet because it's just more accessible to them in terms of time commitments or expenses or so on and so forth.
The next question, what can be done to assist in the evolution for more widely informed participation. I think I covered this, and I think I had the privilege to join in five to ten minutes early or maybe the meeting started five or ten minutes late, but Paul you were talking about something similar in terms of setting up an ICANN blog. And I think there's a lot of networking and communication tools that exist that have taken shape that have grown in terms of popularity over the last couple of years in terms of Wiki forums, blogs and social networks and tools and so on and so forth. I know there has been talk of registrar newsletter for quite some time and that has not yet taken shape.
And so all of this goes down to, I mean, if we want true bottoms-up consensus processes and bottoms-up participation, we first need to make sure that everyone is well informed. And that's been lacking since, I think, a long time. It is a large number of participants out there who don't even get the opportunity to voice in because they don't know what's going on to be able to put in their voice about any of these issues.
That's it essentially. I don't know if there is, but there can essentially be a separate department or a separate set of people or staff within ICANN that could focus on communication. And current communication is pretty much putting up announcements on the Web site, the ICANN Web site. There's a large amount of noise in terms of so many issues that are simultaneously being discussed by people, participants in various different groups and communities and constituencies. I know I myself am challenged in terms of keeping track of everything that's going on.
If there was some sort of succinct, summarized digest or way or manner or newsletter that focused on areas that I believe would be of concern to me or that would be of concern to my group or representatives within the registrar constituency, that would be a far greater help than having us travel through various different Web sites and figure out stuff that's relevant to us.
So I think if maybe there's a separate set of people that's just the path to find this information, making sure it's proactively announced and sent out to specific groups, I think that would help in terms of getting increased number of people that participate in the process.
And so I'm not talking about my core-level issues. I think Jon's done a fairly good job of tackling that and describing various aspects out there. I think some of these issues in terms of getting people to participate, getting more information out to people and taking the initiative in that direction as well as making sure that the bottoms-up process really lives up to the level as it's touted in terms of being there, I think those two should resolve a lot of these areas, or at least move towards resolving some of these areas that Jon and others have described.
And I think that's pretty much all I have in terms of my random points. Thanks, everybody.
>>PAUL TWOMEY: Thanks, Bhavin. I think some of those issues you have raised do converse with the presentation taking place just before you joined. So I think that links very well.
>>TIM RUIZ: Thanks, Paul. Again, Tim Ruiz with Go Daddy. And my comments will also be based on the comments that we submitted to the NTIA in response to their Notice of Inquiry about the MOU.
And in general, or in summary, I guess, we had recommended that it's too early, we feel, at this point to consider fully transitioning the management of the DNS to the private sector to complete that transition with ICANN.
And it will be a little bit repetitive, I guess, some of the things that Jon and Bhavin brought up but I will touch on them anyway.
Probably the first thing that we would recommend or that we're concerned with is the accountability and review processes that are currently in place.
The reconsideration process, you know, that's basically the board reviewing itself. And we have some concerns about whether that has been successful and whether it's too restrictive in the requirements under which someone can file for a reconsideration and under which that would actually be considered by the committee selected. And the independent review, to our knowledge, to date has never been tried. So it's sort of an untested process out there that no one knows how well it will work or if it will work.
So we recommended that some further consideration for that needs to be given. In fact, we suggest an actual independent review of the accountability mechanisms. That may not be able to take place immediately because of the untested nature of the independent review process in the bylaws but we feel that needs to take place prior to fully transitioning the DNS management to the private sector.
Another concern we would have is with introduction of new gTLDs. We've seen a couple of different batches of TLDs introduced over the last few years, but no set process yet is in place to do that in a predictable and straightforward and transparent manner as required by the MOU at this point.
That process is currently being considered within the GNSO, but it will be sometime, I'm sure, into early next year at the soonest before that process is actually implemented and we can begin to see how it may work.
I think there's going to be a lot of questions with that that will -- a lot of review that will need to be done as that process moves forward. Are we really introducing competition into the gTLD space? Something that doesn't currently exist today.
Have we been able to successfully deal with the intellectual property issues that the introduction of new gTLDs raise. And the fairness of the allocation of those names during land-rush processes. The.EU situation that recently arose is an example of the kinds of things we need to look out for.
So a lot of questions yet that need to be answered in regards to a process that doesn't exist.
So again, we feel that until that can take place, it's too early for a complete transition.
We also feel that more time needs to be given to how the GAC and the ALAC contribute to the ICANN process. There's been a lot of progress made in that regard. I think in Marrakech, some good steps forward, I guess, were made with the GAC in their statement that they were going to commit to being more open and transparent. We have already seen some evidence of that.
A review is going to be undertaken as to how the contribution of the GAC can be done in a more timely and effective manner. And I think those are good things, and hopefully that will continue to move forward. But again, only time is going to tell if that works and how well that will work. But certainly, a series of improvements have been made in the GAC contribution
Similarly with the At-Large Advisory Committee. Even within that committee there's some concerns about whether it's truly representative of the at-large group. They are currently undertaking some work to try to provide mechanisms for more full participation of individual users. Again, that needs time, too, to take place. And I think we need time to see if ICANN can actually provide means for mechanisms for that participation and a successful outreach.
In regards to IANA, I think there's still concerns and issues regarding effective processing of root management requests. Again, some steps have been taken positively in the right direction. For instance, licensing of an ASCII IANA system. I think that's encouraging, but yet to be implemented and to see how well that's going to solve some of the issues that we have seen.
So there's more work that needs to be done there, we believe, before transition can be made completely.
And finally, we still have some concerns over just governance threats itself. I guess the WSIS process was something we were all concerned about and how it would affect ICANN and what kind of influence it would have on ICANN. The outcome of that was somewhat positive, but now we have had the Internet Governance Forum and I think we have yet to see just how information has been exchanged between this forum and ICANN, how well they are going to collaborate together, what kind of influence they will have or may attempt to have on ICANN and its policy processes.
And so again, that's just getting started. In fact, the first IGF meeting doesn't even take place until October in Greece.
So that's something that needs to continue to be watched and see how that evolves and what kind of effect that will have on ICANN and its processes.
So those are the comments. Again, we feel that those are the things that need to be addressed further before full transition to the private sector could be made. And I appreciate the opportunity for you to listen to my input. Thanks.
>>PAUL TWOMEY: Thanks, Tim. That's very good.
If I may follow-up with one question and then I will turn it over to the members of the committee.
This is addressed particularly to Jon. You talked about budget processes and the multi-stakeholder input to the budget processes. Jon, ICANN's strategic planning processes have now changed significantly over the last two years. The first half of the year, consultation process now takes place in four languages, allowing the ICANN strategic planning process. And the operational planning process takes place similarly. Consultation at least is in four languages but the documentation is written up in English, budget planning, that was actually shared with each constituency this year and asked for feedback to help move that towards the budget.
Am I right in assuming that you are not looking for that process to change or to be diminished?
>>JON NEVETT: No. It's the budget itself, the actual numbers, the dollar amounts, that currently, as you know, in our view, at least my view, the only oversight over part of that budget outside of the board and the finance committee is just the registrars' vote on the fees that we pay to ICANN as part of that budget. And then there's various mechanisms on what happens if that support isn't garnered. Obviously, we haven't had to reach that level because the registrars have always voted for the budget. But some kind of multi-stakeholder approach I think is appropriate as far as budgetary oversight goes. I don't think it should only be with the registrars.
And as ICANN moves to more of a contract fee base with registries, that percentage of registrar support goes down, you know, the Budget Advisory Group role is something like that, or a reformatted budget group, I think makes some sense.
The fact that the current Budget Advisory Group hasn't met in over a year shows something about the budget process that needs some improvement.
>>PAUL TWOMEY: Okay. That's good. Thanks for clarifying that.
Questions from other members of the committee.
>>MARILYN CADE: Yeah, Paul, it's Marilyn.
I have a question for all three of you. And I -- or for any of you, perhaps.
One of the comments, one of the suggestions was ways that ICANN might provide
-- I might call it administrative or structural support to the constituencies in sort of the administrative areas which would then put the constituencies, all of the constituencies and I guess the ALAC in a position of focusing on content and process of outreach more than on just administrative structure.
Did I understand that correctly?
>>BHAVIN TURAKHIA: Marilyn, that was my comment. This is Bhavin here. The comment was coming more from the perspective I think a lot of constituencies, I know when I am talking about this, I am talking from personal experience, would like to do more than they are. They would like to collaborate more than they are collaborating, they would like to communicate more than they are communicating.
And a lot of these items on the wish list involve administrative and operational tasks which generally don't get done because most of the people who are in the executive committees and who are contributing to a lot of their times to work in these constituencies don't have as much time to be involved in some of these administrative and operational task.
So the idea was just some sort of -- I-- And this is -- first off I want to clarify this is an offhand, off the top of my head kind of suggestion.
I also believe it would have certain associated concerns because if you had ICANN staff assisting in some of these aspects, there would probably be confidentiality issues, there would be discussions that institutions would like to carry out within themselves without sort of ICANN presence, or external presence for that matter.
So there will probably be hurdles. This was an top-of-the-head discussion to try to increase the level of communication and collaboration of these constituencies by reducing some of these administrative challenges and burdens that we have currently.
And sort of to try to give ICANN a sense of how they can do that without meeting specific disadvantages.
>>MARILYN CADE: Let me ask a more specific question to all of you, then.
The committee, it was -- Paul mentioned this before, it's in our documentation. August the 15th is our final date for further submissions and comments, but one of the things that you mentioned was possibly many people in the constituencies are not fully aware that this consultation is open.
So would one example of a suggestion perhaps be that in this kind of initiation, that in the future we might do a pushed communication actively out to the constituencies to try to create awareness? Is that just an example of what you are thinking about?
>>BHAVIN TURAKHIA: I could take the same example and call it a specific idea. For example, many times there is stuff that might need to be announced to the constituency, and in my position earlier and Jon's position currently, you might not just take out the time to draft out an e-mail that we send out to the constituency. It could be as simple as ICANN sending out an e-mail to the current chair and saying, "Please forward this to the constituency after whatever modification you might want to make." And that would definitely get done because that would be like ten seconds spent browsing the e-mail and seeing if there are any changes that need to be made or if this needs to be announced at all or not, so on and so forth, and shoot it out.
So just taking your current example. There are many such items and things we could think about if you had a brainstorm. But if I were to look at what you said just now, it could be as simple as that.
>>PETER DENGATE THRUSH: Paul, I have some questions when there's a moment.
>>PAUL TWOMEY: Please. Why don't you go ahead, Peter, and I will just ask people to keep their answers -- questions and answers brief as they can for the time being. We are behind schedule and we have another panel to come.
>>PETER DENGATE THRUSH: I guess I want to make four comments, really a bit self-indulgently as a board member, on housekeeping matters. Some of these aren't on as high a level as the ones we have been talking about, but I think there is some underlying tension.
The first one, as a former member of the IRAC, the IRAC that set up the very first independent review, I agree that needs looking at. But the original high-minded principles of the IRAC does seem to have been carried forward into the current bylaws, and there are very narrow grounds for review which don't meet the needs, I think, of the community.
I'm interested in developing that.
The second point really is you touched on, Paul, and that is the question about the budget and the suggestion that the Budget Advisory Committee, Budget Advisory Group needs some kind of authority. You can supersede that by changing the focus of the preparation of the budget. The budget is a consequence of too much detail processes in which there is entire community involvement and much more opportunity for scrutiny than was ever available to the BAG, and that is the development of a strategic plan with wide community consultation and then the implementation in the next stage to turn it into an operational plan from which the budget is now very much a consequence.
So I hope Jon wasn't suggesting that we -- and I think he clarified that he is not-- that we go back and change the budget process. The time for the effective supervision of the budget is in the preparation of the strategic plan and the operational plan from which the budget is a consequence.
The next thing is the suggestion that presumptive renewal in relation to the
.com was a bad thing. I would be interested to see the community reaction as that principle is extended into the new contracts that are posted recently for public comment. If it was a bad thing for .com, is it going to be a bad thing for other constituencies for which it has been extended.
Secondly, lastly, I think there is a problem that's reflected in the suggestion for structural-- sort of for support of the constituencies. It always seemed to me that there was an antagonism in the way the structure was created between the board and staff and the constituents. And it's reflected and we often commented on this in the semantic use of the ICANN. Constituencies come together and talk about ICANN as if it was something other than the constituency itself. And intend it to mean the board and the staff when ICANN is in fact the GNSO and it is the constituencies of the GNSO and ccNSO, etcetera.
We have to get away from that in any development of the structural improvements so that the constituent arms and legs and organs of the things are all equally supported. And if it's as simple as doing things as Bhavin suggested which is forwarding e-mails. We all know how much easier it is to edit something than it is to sit down and create it. I would hope we could do a lot more than that, but at least we could start with that.
So that's just some quick reactions, more as a board member to internal matters than high-level restructuring.
>>JON NEVETT: Peter, it's Jon Nevett. If I could comment on those, and I will take them backwards.
I fully agree with you that the constituencies are part of ICANN. We are recognized in the ICANN bylaws. And the sooner we move away from the us versus them mentality, the better we all will be off. So we're fully supportive of that. And if it's a question of administrative support or anything else, that we should be moving more towards that model.
I think the automatic renewal provisions in the registry agreements will be a concern for a number of folks in the community.
As far as the budget goes, the strategic kind of operational plan, you're right, has obviously a big impact on the budget and that's more on the expense side, less so on the revenue side and how revenues are achieved. And as far as the independent review, it sounds like we're all in agreement that that could use some reform.
>>TIM RUIZ: This is Tim with Go Daddy.
>>PAUL TWOMEY: Go ahead, Tim.
>>TIM RUIZ: Just a couple of quick comments on Peter's comments.
I think part of the -- this -- I'll call it us versus them thing, part of it is whether right or not, there's a perception on some of our parts that the staff and the board don't necessarily view ICANN in the way Peter described it.
So I was encouraged to hear it described that way and hopefully that's an attitude we can see more of or more evidence of within the staff and the board.
As far as the presumptive renewal, I think yes, we're concerned with that. Not-- Not concerned with the presumptive renewal. With the broadness of it, and the limited ability for ICANN to end those contracts, if they should find it necessary. And I think, without going into details, there's various concerns I think that ICANN should have that could arise within the registries that I don't think are being thought about within those presumptive renewal clauses.
>>PAUL TWOMEY: Thanks. I think the question of recourse is certainly one that has arisen, and I agree with what Peter had said as well. And just to finish this session, I have received an e-mail question, it was more a comment, but I think it has been addressed in this last panel discussion. It's from Edward Hasbrouck. And I can read his e-mail.
I have been listening to the Webcast and all of the discussion about government oversight thus far today has been about oversight of the substance of ICANN's decision of the MOU which had expired be replaced. What, if any, governmental oversight of ICANN procedures do you process -- do you possess? Not process, sorry.
There had been at least as many comments and criticisms related to ICANN's procedures as to the substance of ICANN's decisions particularly in the areas of lack of transparency and lack of oversight. For example, there have been many complaints about closed meetings, documents and records that have not been made public, and failure to implement any mechanism for independent review of ICANN decisions. In the absence of the MOU which provides at least interior oversight by the government of the U.S.A. what, if any, recourse would people have who have complaints regarding lack of procedural due process or lack of adherence by ICANN to its rules, bylaws and commitments? I urge the President's Strategy Committee to ask anyone advocating an end to,or an alternative to,the MOU to address this question.
Thus far, the discussion today has not addressed these issues as raised in my comments to the President's Strategy Committee at: — and this is where he's put his public comments in
I think we can say this has now been raised and discussed in the panel
(inaudible) and the committee is actually looking at that quite seriously.
>>PAUL TWOMEY: Sorry; is that a comment?
>>BHAVIN TURAKHIA: I'm sorry, I have a couple of comments from (inaudible) if you can complete.
>>PAUL TWOMEY: Is that Bhavin?
>>BHAVIN TURAKHIA: This is Bhavin. I thought you had completed. I'm sorry.
>>PAUL TWOMEY: I was. I was going to try to move on to the next panel, Bhavin.
>>BHAVIN TURAKHIA: Just two quick comments on what Peter said.
I'm curious about Peter's comment about the whole budget process and I'm glad there's a more -- there's a, as you put it, there's constructive consultancy where you have a broader audience in terms of input towards the strategic plan, operational plan, et cetera.
I believe that that also has created the situation where, and I don't know if it is totally true, but created a situation where a number of people actually feel that now the process is so long, drawn-out and complicated that their ability to contribute towards that process is diminished because the amount of time they have to contribute is still the same or lesser. And therefore, I wonder if this whole strategic plan, operational plan, budget plan process has resulted in lesser sort of contribution from the community rather than more in terms of the budget oversight processes and your quick observation about that.
Second thing that I wanted to point out is about this presumptive renewal. My concern about presumptive renewal but about common issues like this one, when a new agreement is posted or new concept is posted, many times lack of comments or silence is treated as candid approval from the community, which is actually not the case. We are so overburdened with stuff we need to approve or look at that many times it is not possible for us to say yes or no to everything that comes by. And this goes back to what I was talking about earlier. I haven't really seen too much initiative from ICANN to proactively seek feedback from every constituency when there is absence of feedback. I haven't seen emails come to us as the registrar constituency or other constituencies saying we did not get enough feedback to know whether you are for this or against this or what are your views on this. And this is the time frame within which you can probably comment.
It's something we haven't really seen reminders or processes to solicit feedback, and that I think is something that needs to change. That's just it.
>>PAUL TWOMEY: That's very good.
>>PETER DENGATE THRUSH: Can I respond to this? Peter again.
The first point is that the board, I can tell you, is very conscious that simply posting something and waiting is not engaging in dialogue. And at the last meeting in relation to presumptive renewal and the new contract, we have asked the chairman-- the president to make sure that the presentation that came to the board which was by the general counsel on distinguishing ethics of the contracts, that that has got to be made available to the community.
So let me just assure you we understand that and the difficulty of keeping up with those kinds of things. As far as the budget is concerned, I have to laugh because we created a process that gives so much more input, and now the complaint is, it takes too much time. You have to have one thing or the other. You either have opportunities for input and take them or you have to look at the consequences for no opportunity for input. But you can't --
>>BHAVIN TURAKHIA: I'm sorry, Peter. I completely agree with what you are saying. I am not criticizing the process, and I believe that the opportunity for more input is always good. But I think associated with that, then maybe some process of soliciting input needs to become more aggressive, for instance, or something else needs to change so as to inform people that now there's more opportunity for input and that at the stage of that in the process, to get sufficient feedback from people. So that's probably what I was more driving to say.
>>PAUL TWOMEY: Okay. Thanks for that.
Let's move on now. We've got a panel now of two people from country code arena. Bernie Turcotte, the CEO of CIRA, the operator of.ca, and Margarita Valdes, who is with the registryof .cl and who is also the president of the Latin American and Caribbean ccTLDs organization.
So welcome, Bernie and Margarita. So welcome Bernie and Margarita.
>>MARGARITA VALDES: Thank you. Hello.
>> Hello Margarita.
>>PAUL TWOMEY: Bernie? Is Bernie there?
>>BERNARD TURCOTTE: Bernie's here.
>>PAUL TWOMEY: All right. I wonder if I can ask each of you to speak, perhaps Bernie and then Margarita, and then we'll have quick questions.
Perhaps we could-- yes, we'll-- timing is an issue for us. But please make your presentations as fully as you think.
>>BERNARD TURCOTTE: All right.
Margarita, do you want to go first? Ladies first?
>>MARGARITA VALDES: Not this time.
>>BERNARD TURCOTTE: Okay. Fair enough.
I'll-- I'm sure you've, as the committee, managed to hear all kinds of things today. So I'll try to keep it at a high level and strategic.
My first observation is that long-term, governments will have a stronger hand in controlling the Net. Many are, however, conscious that the Net and the advantages it brings to the world is a new feature which they don't understand and don't want to smother while trying to take care of it.
The current phase of the Internet governance, which includes ICANN, is a transition phase, where many governments are watching with great interest and assisting in many diverse and invisible ways, often preventing more radical elements from simply imposing the ITU or ITU-like scheme on all of it.
It should be recognized that until ICANN has a clear and effective strategy for how it can deal with all nation states, it needs some sort of formal government oversight to ensure it a degree of freedom that it could find hard to find otherwise.
The objectives of ICANN should not be to shed government oversight, but, rather, to formally define how it can incorporate governments in its structure in a manner that is functional and effective.
It should probably be a primary strategic objective for ICANN to consider some serious, outside-the-box thinking, while recognizing that there may not be a perfect solution at this time. This will be considerably more difficult while ICANN is a California incorporated company with its head office in the U.S.A. It is feasible to think about moving ICANN. Many will probably be ready to help if asked to do so.
Effectively, ICANN is firstly in the trust business. And I've never had this discussion with anyone. For ICANN to do its job, it has to be trusted by a majority of its stakeholders. Pillars of the trust business are accountability, transparency, rules, and public perception.
The first three items are the basis of the CIRA letters to ICANN and are well enough covered there.
Public perception is the measure of how effectively one deals with these three items. Public perception is hard to generate but fairly easy to measure. And I would encourage ICANN to do so seriously, used as a yardstick against which to measure how truly successful it is in working in the bottom-up constituency approach. It's not necessarily about winning, but doing the right thing.
And those are my words of wisdom for you right now.
>>PAUL TWOMEY: Thank you, Bernie. I think you get the award for the shortest presentation so far today. Very pithy.
>>MARGARITA VALDES: Well, this job is not so hard, because I support everything that Bernie said in this minute. And we have more or less the-- the conversation that you had this morning.
But the thing-- I completely agree that ICANN's business is trust, confidence, transparency. And many ideas that we have about these questions that you give us is how to improve the trust, the confidence from the community in the organization.
Maybe one way that you could be more stronger or improve your organization is how to formalize the relationships thatthey are in existence right now with all the actors in this business, long and huge business: I.P. address, DNS, domain names, legal things, intellect property things, or whatever.
Other thing is that-- is the fact that the-- that the legal issues of ICANN in relationship-- in relation with U.S. jurisdiction and U.S. government is an issue, and it's a very important issue. And there's a noise that doesn't help to have a very good understanding of what kind of develop or what kind of play-- what kind of role, sorry, what kind of role ICANN has to play in this matter.
And more-- I think-- My feeling is that many of the governments from Latin America, for example, are a little concerned about how-- what kind of control or which percent of control U.S. government has in this business, behind ICANN or something like that.
Other thing is that our feeling is that communication is very helpful to improve the relationship with the governments, with the community, with the civil society. So we need to improve this.
We need to, for example, improve that you are doing very well right now, is how to go and show your-- your statement to other communities that they are not English speakers, for example. It is a concern that I am hearing in various meetings since a time ago.
And my colleagues said that one thing is very important in this process is, ICANN has to ask itself what you should not do in this-- in this strategic process. And maybe we could go in the direction to have something like nongovernmental organization, international-- like an international organization, but nongovernmental. Maybe that forum could be more helpful to-- help us to really have a strong organization with respect from the community, with respect from the governments.
And we need to improve the participation of the governments in the GAC in order to have a very good GAC and improve their participation, their-- how they approach these matters carefully and close, very close, not in the-- from ignorance.
And something we need to improve is that transparency has to mean in the sense that the understanding of the organization, the understanding that the way that it works will help us a lot, that the-- all the community, the Internet community, could trust and be confident of this organization is the correct way to lead the process and lead the Internet as a whole.
>>PAUL TWOMEY: Thank you, Margarita. Are you finished?
>>MARGARITA VALDES: Yes.
>>PAUL TWOMEY: Okay. Thank you for that.
I wonder if there are any questions from my colleague.
>>MARILYN CADE: Paul, it's Marilyn. I do have a question.
>>PAUL TWOMEY: Mm-hmm.
>>MARILYN CADE: Margarita,-- and thank you to you and Bernie for taking the time to join us and for your continued leadership in support of ICANN within your communities.
I do have a question about part of your closing statement, where you made a comment about leading the Internet as a whole.
ICANN has a narrow technical mission and a mission that is-- it's actually a very huge mission in and of itself.
Could you just elaborate on what you meant about leading the Internet with the present mission of ICANN in mind.
>>MARGARITA VALDES: Okay. Marilyn, when I-- when I think "lead," I'm thinking thatin -- well, in our case, for example, ICANN is seen in Chile like the expert in these matters, how to deal with this, how to do it, how is the architecture, how it works.
And I think-- I think that there is something you have to-- we need to keep in mind. If we said that ICANN has a narrow role, I'm not quite sure if this narrow role is matter of words or matter of fact.
Because maybe in the paper it's narrow. But in the facts, it's very big. And we-- and when we think about how to do this narrow, probably we need to in fact do it in a wide way.
I feel that there is no coincidence between one thing and another thing.
>>MARILYN CADE: Thanks, Margarita.
>>PAUL TWOMEY: Yes, thank you, Margarita.
Marilyn, I can actually say in terms of the answer to that question, I actually don't see that as inconsistencies there. I think the comment about expertise, I think, is a very interesting one and is one which I don't think is surprising in the environment. I think you can probably relate to the question about-- the point I made earlier about growth in the DNS and growth in the Internet generally being both sort of horizontal and vertical. And in some parts of the world, that vertical growth and therefore the level of skill sets and the understanding what to do is much deeper than in other parts.
And I can understand the comment without this really being really inconsistent with the question you were asking.
Are there other questions for other members of the panel?
Well, can I say thank you to Bernie and Margarita. They obviously were themes that they raised which have been raised by other members of the panels you've heard so far today. I'm sorry there's some inconsistency there in questions that have already been asked earlier. So, please, thank you very much for that.
Our last presentation this morning California time is Mark McFadden from the ISP community.
Mark, are you online?
>>MARK McFADDEN: I am, Paul. Thank you.
>>PAUL TWOMEY: Just before you start, may I just point out that I failed at the beginning of our consultation to pass on some apologies. As you'd appreciate, with the range of people who are on the committee and-- both geographically and their various commitments, it's very difficult to get people to be online or on one space at any one time. So I need to pass on apologies for Vint Cerf, who is actually in board meetings today, and ask for his apologies to be passed on.
Similarly, Carl Bildt, Thomas Niles, Adama Samassekou have all got conflicting commitments at the moment and have not been able to make it.
Art Coviello, similarly, from RSA, had another commitment. And that's why the audio streaming is so important.
And we will be posting transcripts of all this material we're receiving in the next several days. We are hoping to use our traditional scribes for that purpose. They also are not available today, but seeing they're so familiar with the vocabulary of ICANN, it's important to use them. And they will be helping us the next several days. And that transcript will be posted. That'll be very important input, of course, to the community's thinking.
So, Mark, may I ask you, please, to speak.
>>MARK McFADDEN: Paul, thank you. And I promise to be brief. I won't be nearly as brief as Bernie, but I'll use that as my goal.
My name's Mark McFadden. I'm with the ISP constituency. One of the things today that you've heard over and over again is that people have been sort of reacting to the committee's questions.
One of the things that you've seen is that policy and legal issues have dominated the discussions.
One of the things that the ISP community can clearly do is talk about a couple of challenges that haven't been mentioned yet during your deliberations. And that's some of the challenges that face us in both addressing and in the DNS. And I'd like to take just a couple moments to review those with you, because I think that these kinds of questions are going to dominate the technical landscape that ICANN finds itself in in the coming year.
One of the things that you almost never hear about but that is part of the work of our organization is that the landscape for address on the public Internet is going to change radically in the next six or seven years. The address space that we currently use is going to be exhausted, and the IPv4 address space will be exhausted, depending on whose numbers you believe, in the early part of the next decade. That'll mean that there will be either a gradual or sudden transition to move to another kind of addressing, IPv6. And how that transition takes place doesn't just affect the IANA, but it also affects many of the constituencies inside of ICANN.
And ICANN, while it won't play a role in standardization-- the IETF very naturally has that role-- and it won't play a role in terms of operation-- ISPs have that role and always have-- ICANN still plays an important role both at the IANA level and also at the policy level. You can expect that policy issues will come up as a result of those addressing challenges that relate to the exhaustion of the IPv4 address space.
Today as part of your deliberations, you've heard so much about the DNS. But you haven't talked and you haven't heard too much about technical issues facing the DNS. Clearly, DNSsec and security continues to be a major issue facing the DNS. It faces not just ISPs, but it faces the folks who serve ISPs. It faces the IANA as well. There are policy issues related to that, but very, very difficult technical ones in addition to those policy issues. That will definitely affect the kinds of things that are brought before ICANN in the coming years.
The stability of the DNS is something that we haven't heard much about. The stability, its resilience to attack, the ability to take advantage of the DNS in situations that are unusual-- all of those issues are things that, because of the way that the Internet is changing, and to use Paul's words, both vertically and horizontally, the stability of the DNS is going to be sorely tested in the coming years. We're seeing more and more private organizations moving to private DNS to serve their own internal needs. And if people use new tools on the Internet, like Voice over IP and video conferencing, we'll see the DNS being used for new things that it's never been used for in the past. That's going to have some dramatic consequences both on a technical-- from a technical point of view, and also from the point of view of policy issues.
I'd be remiss if I didn't mention IDNs and international mail addressing. These are things that are-- work is going on now. We've seen how difficult it is, both on the technical side and on the policy side, to come to grips with those kinds of issues. Those will also be technical issues facing the DNS in the coming years.
Finally, I'll tell the committee-- and this is a bit of a heads-up and a warning-- is that the DNS is slowly becoming a dumping ground for the Internet, that people who have protocol designers and application designers are using the DNS for things that the people who invented the DNS would have never, ever thought of. And that's having some profound implications on the technical operation of the DNS in terms of how clients and servers communicate on the DNS and what things are passed between them.
I wanted the committee to be sure as it did its deliberations and thought about its first questions-- there's-- the first question that's on the list on the Web site is, what kinds of challenges face ICANN for the stability of the DNS and addressing-- that you had some technical issues to think about as well, in addition to the policy and legal ones.
The ISP community also developed a response to the NTIA MOU. I'm not going to go over that now. There's no need to take your time. That's available for you to read, and so there's no need for me to actually go over ground that you can cover in a different way.
But in hearing the discussions, I think-- let me make a few final points on both legal and policy issues. Clearly, the ISP community thinks that the right approach in the future is evolution and not revolution, that I think-- and I'm speaking here for the ISP community that met in Marrakech and thought about these issues. Very, very often, critics of ICANN fail to take into account the things that have been a success. When we examined the MOU, there was a clear pattern of success that ICANN has. While the ISP community agrees with many other people who call for better-- a better job of accountability and transparency-- and I think, speaking for myself personally here, I think we better have a discussion on what everyone thinks those words mean-- I think too often, people point at individual failures without seeing the general picture. And so when I hear people saying that government is going to get more and more involved in the technical administration of the Internet, I can tell you that the ISP community hopes that is not so, that every stakeholder on the Internet has a mechanism to get involved in the technical coordination, and ICANN's organization already, I think and the ISP community believes, provides that.
One of the things-- and I have heard the discussion-- and I have had the pleasure of listening in for the entire discussion of today's conference call. One of the things that I need to remind the committee as it thinks about how it organizes ICANN to do the work of the future is to remember that most of ICANN's work is being done by volunteers. Not a single commentator has mentioned that today. But when we talk about the tensions that exist between the board, staff, supporting organizations, one of the things that we forget, to our peril, I believe, is that a lot of the work that goes on in ICANN is done by volunteers. And when I hear from people saying, "We need more active, engaged involvement in ICANN," I heartily agree. But I step to the plate and also remind those people that you're asking of volunteers quite a bit. There are people-- When I think of the amount of time that a board member gives to the organization, I shudder to imagine how much that is. And as the secretariat of a constituency, I know how much work I-- or how many hours a week I provide.
I think it behooves the committee to think about the role of volunteers in a function like what we have.
Let me say a few final comments, and then I'll make myself available for questions.
One of the things that hasn't been said today is how ICANN should grow and how ICANN should grow to meet the increased needs that are being placed on it, the increased requirements being placed on it.
And I think that the original authors of the MOU and even the people who amended the MOU had no vision of how complex the job was going to be. If Becky were still on the phone, I'd almost be tempted to ask her. Because I think the work, the sheer number of tasks that face ICANN, are far beyond what people imagined in the late 1990s. I was there for the forums on the white paper, and I know that no one could have foreseen the complexity of issues and the amount of time that it took to actually bring some success and some closer to some of those issues.
That much said, I think we-- and my advice to the committee-- and I think the ISP community would agree with this-- is that we shouldn't emphasize the growth of ICANN to meet those needs, but we should emphasize the growth in partnerships that ICANN has with other organizations to meet those needs.
I think, in fact, one of the real metrics of success for ICANN in the near future is how it will leverage partnerships that it has with other organizations to meet its own internal agenda and needs. And those could be a variety of organizations, from operational organizations, to standards organizations, to policy organizations.
In terms of saying just one short word about governmental roles in the-- what I believe is a very, very limited private activity, I think there's a real conflict that the committee hasn't heard about yet today, and that is the conflict between the pace at which international consultation takes place and the pace at which technological and policy issues take place.
The pace at which an organization like the GAC or the organizations that have been posited to take a new role in prominence here-- the pace at which they do work is, by its very nature, slow. And yet our policy requirements and our operational requirements don't really suit themselves to that kind of slow, deliberate, cross-jurisdictional consultation process.
And so I advise the committee to think very carefully not just about the volunteer organization that's sitting here, but also about the real conflict that exists between the pace at which public consultation takes place and the pace at which ICANN needs to do its business.
I'd like to invite the committee once again to refer itself to the paper that we submitted. And rather than take up any of your time, although I know I was not as short as Bernie, I'd be pleased to take any questions.
>>PAUL TWOMEY: That was excellent. Thanks very much for that.
We-- there are at various times-- one of the questions I've got is, there are at various times consultation processes around things related to I.P. addressing. I notice that-- I note that there's one presently out concerning the process around IPv6.
Do you have any perspective about the efficacy or efficiency of those processes? You make a strong point that I.P. addressing is an area of great importance, future flux.
Do you have any perspectives about the amount of attention, discussion, consultation, the role?
>>MARK McFADDEN: Yes. I'd be happy to say a few things about that.
And, first of all, in interests of full disclosure, I was, in a previous life, chair of the Address Council under the old organization for the Address Supporting Organization.
I think that when we talk about transparent, bottom-up processes, the process that exists in the addressing community has failed to meet that high standard that we set for ourselves inside of ICANN.
We see now an organization, the Number Resource Organization-- I'm going to be very careful here, saying that I'm speaking for myself and not for the entire ISP community.
We see in the Number Resource Organization an organization that does not consult with its individual constituents as it draws up responsive consultation processes.
And I warn the committee that addressing is going to become a-- at the end of the decade, an extremely important part of our lives, because there's going to be a major change. Addressing with IPv4, as it has been for more than a decade, people took it for granted. In fact, for many people on the committee, I would easily imagine-- and I wouldn't blame them-- that they don't know how they get their I.P. addresses when they walk into a wireless network. Somehow, they turn on the computer, they connect to the network, and suddenly it works.
The fact that that's going to change in the future has-- brings up this point, Paul, and that is that they're going-- it's going to be more important, and policy issues are going to be brought to the fore.
The existing mechanism for having bottom-up conversations and consultations on addressing issues are, frankly, not as open or participative as the work that we-- the processes that we've worked on so hard in the GNSO, the ccNSO, and the other task forces and committees that work on the domain name space.
>>PAUL TWOMEY: Okay.
Are there other questions from members of the committee?
>>PETER DENGATE THRUSH: Yes. Peter here. I guess I am concerned that-- and thank you, Mark, for bringing the technical focus that you've brought.
Do you have any suggestions as to how to mend any of the structures that we've currently got for dealing with technical issues?
>>MARK McFADDEN: Well, I think-- Good to hear your voice, Peter.
I think that you have in the bylaws an extremely powerful function, and that is something that Paul mentioned in the call. You have a mechanism in the bylaws that allows you routine reexamination of the progress that supporting organizations contribute to the work of the supporting organizations.
We know that the GNSO review is currently in process.
And I think that that's a clear mechanism that you can use to evaluate how well the addressing community is doing within ICANN. The addressing community is an interesting animal in that it has, in a way, a different place to do its business. The regional registries do a lot of the technical business. But one of the things I'm trying to tell the committee, Peter, is that there are going to be policy issues that are an outgrowth of the addressing changes that we'll see in the next three to five years and that there aren't good places to do that. The regional registries are not a good place to do that. And the mechanism that we have in place in our bylaws to mend the problems that we've got are the review processes that are built in.
>>PETER DENGATE THRUSH: Mm-hmm. Thank you.
>>MARK McFADDEN: Paul, I think they want a break.
>>PAUL TWOMEY: Yes, I think that's probably true. Well, I-- I have to tell you, I'm hoping to get a couple of hours' sleep before we start the next one.
May I just say, thank you very much for that.
And I think we all know or did know you, that at times there you were talking on a personal, personal basis.
The-- We are now going to break this consultation process and reconvene-- Theresa you can help me time-wisehere -- 3:00 p.m; is that right?
>>THERESA SWINEHART: Yes, 3:00 p.m. Pacific time. We have posted on the Web site the update to the agenda.
>>PAUL TWOMEY: 3:00 p.m.-- if I can clarify that, 3:00 p.m. U.S. Pacific time.
>>THERESA SWINEHART: Yes, I'm sorry, yes.
>>PAUL TWOMEY: Sorry, I couldn't resist that.
>>THERESA SWINEHART: That's okay.
>>PAUL TWOMEY: And we've posted the agenda for this afternoon on the Web site.
>>THERESA SWINEHART: Yes, we have. It will begin at 3:00 p.m. U.S. Pacific with Chris Disspain; and Mr.Maruyama, from the JP, .JP ccTLD registry; then Danny Younger, regular participant in the ICANN community and former chair of the GNSO general assembly process; David Maher, senior president of law and policy at the Public Internet Registry for dot org; and then Milton Mueller, from Syracuse University, will be the concluding one.
>>PETER DENGATE THRUSH: Theresa, in how many hours will it be 3:00 p.m. in your part of the world?
>>THERESA SWINEHART: How many hours for those sessions, you mean?
>>PAUL TWOMEY: Two and a half hours.
>>PETER DENGATE THRUSH: How many hours will it be--
>>THERESA SWINEHART: We anticipate it to go for about an hour and a half or two hours.
>>PETER DENGATE THRUSH: No, I'm asking between the time of now and the start of the meeting, not the duration.
>>THERESA SWINEHART: Oh, I'm sorry. Three and a half hours.
>>PETER DENGATE THRUSH: Three and a half hours.
>>THERESA SWINEHART: Yes.
>>PETER DENGATE THRUSH: Okay. I have to cry off, then. I've got to be at a family meeting for most of the rest of the day.
Can I ask that you call me on the mobile. And if I can take the call, I will.
>>THERESA SWINEHART: We'd be happy to do that, Peter.
>>PETER DENGATE THRUSH: Okay. Thank you, then.
>>PAUL TWOMEY: Well, can I just close the session, thank Erika Mann, Hans Corell, Roelof Meijer, Stefano Trumpy, Becky Burr, Paul Levins, Jon Nevett, Bhavin Turakhia, Tim Ruiz, Bernie Turcotte, Margarita Valdes, and Mark McFadden, and Edward Hasbrouck for their contributions today. And we look forward to having other people join us again this afternoon. Thank you.
>>PETER DENGATE THRUSH: Thank you all.
(Resuming at approximately 3:00 p.m. PDT.)
>>PAUL TWOMEY: This is just to inform you of people who-- ultimately who may join. Peter Dengate. And Janis Karklins has given us his apologies.
We are having these sessions recorded. They're being audio streamed.
Questions can be taken from the community at an E-mail address for inquiries. It's available at the ICANN Web site. A link to that is available on the ICANN Web site.
And these sessions will be transcribed by the traditional ICANN scribes over the next several days. And those transcriptions will be available both online, but also to the full membership of the committee.
Getting this diverse group of people together for any particular day or session today that also suits the people giving presentations is a challenge. But those who are not here have already put in their apologies and are looking forward to getting the transcripts and will be considering the materials.
So that's just the introduction, if you like.
We now have two members of the country code community with us now, in particular, Chris Disspain, who is the CEO of auDA, the operator of the .au country code top-level domain. And Chris is also the chair of ICANN's Country Code Name Supporting Organization.
>>NAOMASA MARUYAMA: I have one correction for that. Sorry. Because JPNIC is the former .JP registry, not the registry-- not a registry anymore.
>>PAUL TWOMEY: Oh, okay.
JPNIC is the former registry.
Chris, can I ask you to speak and then go through your material, or your presentation, we'll hear from Maruyama-San, and then we'll take questions to both, if we can.
>>CHRIS DISSPAIN: Yes, Paul. I'll be brief. I've got just three points I really wanted to make in general terms, and then time for questions if people want to ask them.
My first point is perhaps the most important one from my point of view, and that is regarding jurisdiction.
There's a question in the notes that you published about, is the organization's ability to scale internationally affected by its legal personality being based in a specific jurisdiction. And I think the answer to that question is yes. And, in fact, I think the answer to that question is, yes, and it's very specifically a specific jurisdiction.
The problems-- The main issue, I think, with being based in the U.S. is that being in the U.S. raises major concerns on both sides of the fence in respect to legal issues or legal liabilities, because being that you're based-- you're vulnerable to the U.S. court process. And there are two points that arise because of that, I think.
First is that in the U.S. legal culture, litigation is used as a tool of doing business. And I think you're seeing that or you have been seeing that over the last couple of years with actions being started almost sort of at the drop of a hat.
The second side to the coin is that for the non--- or for some non-U.S. people, in many cases, they're simply scared of doing anything that could bring them into the purview of the U.S. legal system. And that has specific reference to the CCs because of accountability frameworks.
You can dress up an accountability framework as much as you like with clauses about arbitration and so on, but some domains believe that I am establishing a relationship with a company that is in the U.S. And the perception, at least, even if it isn't the reality, the perception is that U.S. courts will take jurisdiction over all my thinking, if they can.
The results of that are that, from the CC side, there's a significant level of concern and wariness about any form of formal document between ICANN and a CC manager.
You'll note that none of this is-- none of this is about the big, bad wolf or the moral principles of being the U.S. and all that sort of stuff. It's actually much more specific and genuine concerns around issues that are real to people.
The other side of that-- Sorry. So the CCs have that problem.
On the other side of the coin, in my opinion-- and this is just my opinion-- you are constantly-- you, ICANN, are constantly looking over your shoulder. I think your-- the culture of the organization is driven by a fear of litigation. And I think that a significant part of that happens because of the jurisdiction. I'm not-- If you were in a different jurisdiction or the organization was cast in a different format so that it wasn't a corporation, subject to corporation law, then I think things might be slightly different.
And it takes a very small, but, nonetheless, (inaudible) initiative has caused concern in the community.
The publication of board minutes, I know, is slowed down because of the fear that-- well, because of the need to check every word and every line to ensure that nothing is said in there that could cause a problem.
My final point on this would be that if I had to choose-- if I had to choose one thing that was most important above all others in the ICANN organization, it would be IANA. And the bottom line is that even if nothing else changes, then there's got to be a way of corralling IANA so that it cannot be attacked and it can just get on with its job.
That's my point about-- my point about liability.
Secondly, I've just got some comments about IANA specifically. There is huge amount of progress that's been made in management of IANA over the last 18 months, and certainly from the CC community, everyone's very happy about that.
I think the time has come now to look at allowing IANA to-- not to just sit there and manage the database. I think the ongoing stability and integrity of the DNS will be served if IANA is allowed to become more of a-- I'm not sure what the right expression is, but more of a-- not just a doer, but a thinker, perhaps, and a leader in the technical community.
I think some people have the view that IANA's job is simply to just sit there and push one-- push buttons so that the database works properly. And that's absolutely true, that is what they're supposed to do. But I also think that they could be doing other things and becoming a leader in the technical community, given that I believe that it has now got to a point where the day-to-day management of it appears to be working properly.
And my third point-- And I'm trying to be very specific on these points, because I think general waffle isn't necessarily helpful that much.
My third point is just to express a concern. AuDA is involved with a group here in Australia trying to deal with the transition from IPv4 addresses to IPv6 addresses. I'm concerned about the current proposal that-- I'm not entirely sure how this works, but it appears that what's happened is that the regional Internet organizations have sent a proposal to ICANN about the way that IPv6 addresses should be allocated to them. And I just wanted to flag that we'll be putting in some-- putting in some comments on that, because I have some concerns about the way that that's being handled.
And, finally, the WSIS situation. I'm on the Secretary General's Advisory Group for the Internet Governance Forum. And we had a two-day meeting in Geneva a couple months ago. We have another one coming up in early September.
It was a challenge to ensure that the topic of critical Internet infrastructure, or ICANN, effectively, was not pushed onto the formal agenda of the IGF. It hasn't been, and it won't be. But I think it's critical that ICANN takes the opportunity at events like the IGF to run an education-based workshop, if you like, the theme of which is simply, how do I participate in critical infrastructure governance, how do I participate in ICANN as a government, as an individual, as a-- as a business. And I think that that's something that is worth-- there should be some kind of almost standard workshop that ICANN can roll out at events like that that show how open and how transparent the process is and how people can participate.
And at that point, I'll stop and Maruyama can take over.
>>PAUL TWOMEY: Thank you. Thank you, Chris.
Ask Maruyama if he's got some comments as well.
>>NAOMASA MARUYAMA: My turn?
>>PAUL TWOMEY: Yes, please.
>>NAOMASA MARUYAMA: So, quite frankly, I don't like this kind of the president's committee. It's not-- it's just not like the bottom-up process.
But when I received an E-mail from you, Paul, I read the questions on the Web site. And the question two struck my heart. And that is the reason I accepted this opportunity.
The question two is the-- I'll read again. A member of the-- No. Yes.
"Members of the committee accept that there are a number of administrative challenges that ICANN faces, as it is a unique model of bottom-up participation and coordination of policy decision-making."
That is the phrase I really impressed.
And, actually, I think this a very important point we have to think about.
So the bottom-up process is very important. But it has both good side and bad side. And I think that it was the method used by the technical people in old days in the Internet. And I think it does not work in its genuine form in our current situation. But it has, anyway, good side, so that we have to use and improve this method and use that. That is my thinking.
And PDP process defined in the articles of the association, I think, is a very good improvement and-- very good improvement and challenge to use the philosophy of the bottom-up process.
And we have to make effort to use this PDP process, and we have to succeed in that, or else when we fail in making good decisions using by the PDP process, then ICANN will lose its meaning of existence. That is my view. So that this is very important, and we have to make lots of effort to this process to succeed. That's my view.
So this is one point I have to emphasize in this consultation.
And to speak of the other questions-- There's eight questions. So that the--
Oh, I have to add, the question two has the other part. But I think there's no similar organization and no other similar experience, so that this is really our challenge, our challenge to make good decision-making using this PDP process.
To speak of other questions, there's eight questions, so I have to focus on two or three. Probably question one is also important, I think. And for the question one, I think the-- my total answer is transparency, to keep and increase transparency. That is a very important thing.
The reason for that is, like all other communities, the Internet community has good guys and bad guys both. And I think that the only force which we can fight against malicious activities by bad guys is, I believe, good-will efforts by voluntary people. And to enable those voluntary people to make effort for those good-will work, transparency is necessary. That is the reason I give emphasis on the transparency.
That is the answer for the question one.
For other questions, I think also it's important to answer for question seven, that is, the-- mentioning about the global participation, I think. So sometimes the translation of the documents for the various languages are important. But it's very costly, and I don't think it's realistic. And I think the real-time captioning is a good thing. And I think this is the one thing ICANN can be proud of, I think.
And other thing, this is very easy, but very good thing, I think, is the-- speak very slowly and it's easier to understand English. That is very important thing, and it does not need cost. And everyone, every participant, can contribute to this with the bottom-up manner. And I think it's very important to encourage the people to use very easy and understandable English. That is a very important thing. And how about the making-- for example, creating the easy-to-understand English word or something like that. That is a very good thing, I think.
And also, my last point is the-- in question eight, the-- about the-- asking about the process to enhance the global accessibility and input to the decision-making process. I think, as I already mentioned, the PDP process is a very important decision-making process. And ICANN has to support this PDP process. And the community has to make good decision-making in a timely manner. And that is a, I think, very important thing.
And that's all. Thank you.
>>PAUL TWOMEY: Thank you for that. Appreciate that.
And I hope that the comments that you made about the President's Strategic Committee process, I hope you'll recognize its commitment to try and be a forcing mechanism to get community feedback and consultation on some of these questions which basically just want us to be able to offer some advice to the board and the community more generally on, but in each of those cases, obviously, trying to-- driving around broad consultation.
I wonder if I can come to Chris's presentation first.
There's a certain irony, Chris, as you were speaking, I quite literally received an E-mail from a party that has been in litigation with us saying that they were now moving to move out of litigation with us. That was interesting--
>>CHRIS DISSPAIN: Well, that's okay, then.
>>PAUL TWOMEY: I was going to say, the short term, you seem to have the right impact, anyway.
But it almost sort of confirmed the very thing you were saying. While you were talking here, I was receiving communications about litigation.
You mentioned there aboutthe IANA and you talked about needing to corral it from attack. That word, did you mean by that considering legal--
>>CHRIS DISSPAIN: Yes, I was talking legal. Yes, I meant in the legal sense. I didn't mean other sorts of technical attacks. Just from the legal point of view, yes.
I suppose what I'm saying is, it's a halfway house. If you can't find a method of recasting ICANN or shifting jurisdictions, then, at the very least, I think that effort should be made to do something with IANA.
>>PAUL TWOMEY: All right.
>>CHRIS DISSPAIN: I mean, that's not an ideal scenario. The ideal scenario is that-- And I don't have an answer. If I had an answer, I wouldsay what it is. But the ideal scenario is finding some way of turning ICANN into something else that is corralled itself from the fear of litigation.
I mean, you know, I don't know that there's another sort of thing. I'm sure there is. I just don't know it. I mean, the Red Cross springs to mind, but then you don't want to be in charge of all of those Jeeps.
>>PAUL TWOMEY: No.
>>CHRIS DISSPAIN: But, I mean, the Red Cross itself is an organization that, as far as I'm aware, is effectively quite private and is-- can't be sued.
I'm not suggesting that the Red Cross and ICANN's work are in any way similar.
But I'm sure there must be other examples that I don't know about.
>>PAUL TWOMEY: No, it's interesting you should raise that, because it has-- this morning California time, other members who were participating in the consultations raised an example. Indeed, we expect to receive some educational materials outlining some of those sorts of entities and how they operate from Ambassador Hans Corell, who used to be the legal counsel for the U.N.
>>CHRIS DISSPAIN: Oh, excellent.
>>PAUL TWOMEY: I think I should also note, speaking on what you had said, that at least in the gTLD contracts, the new ones that have been negotiated, that there was-- that disputes over those contracts are, under the terms of the contracts, moved to international arbitration utilizing the International Chamber of Commerce arbitration processes out of Paris.
>>CHRIS DISSPAIN: Yes.
>>PAUL TWOMEY: I'm assuming from what you're saying that you're not talking about or arguing that ICANN should not have established arbitration processes.
>>CHRIS DISSPAIN: No, absolutely not. There has to be a final process. I just don't think that the process-- I think it's currently arbitrary and it's currently usable by people in-- as I said, as a tool, as a tool for trying to get their own way in business rather than for genuinely solving disputes.
And a genuine dispute resolution process is fine. Just issuing writs, left, right, and center is not. And that action-- let me say that that action by-- or those actions by people has a detrimental effect on the rest of the community in many ways. And from a perception point of view, it simply stokes the fire with the ccTLDs who say, "Told you. You can't possibly get involved with this company, because look what's happening."
>>PAUL TWOMEY: Yep.
Are there any questions, other questions from members of the committee?
>>MARILYN CADE: Paul, it's Marilyn. I would like to ask questions of both of our speakers, but let me let you take a queue. I'm mindful of the fact that Peter said he was going to get off early. So let me be behind any questions that he might wish to ask.
>>CHRIS DISSPAIN: Probably needs time to get his phone off mute.
>>MARILYN CADE: I have a question for Chris and a question for Maruyama as well.
Chris, I was intrigued by your suggestion, which parallels, whether you are aware of it or not, a suggestion that I had made in different settings, with the idea that there should be sort of a standard informational briefing that could be provided in a number of settings where we could help to educate people who perhaps are not fully involved in ICANN.
And I think your suggestion about doing something at the IGF is a brilliant idea. I am aware that there is actually a process in order to get accepted as a workshop at the IGF.
>>CHRIS DISSPAIN: Yes.
>>MARILYN CADE: And so let me, perhaps out of order, lend my support to the view that you've expressed, and I think it has significant merit, that we have an informational event at the IGF.
>>CHRIS DISSPAIN: Yeah.
>>MARILYN CADE: And maybe even more than one, given the way the process is going to work there. And perhaps that can just be taken up outside of this group as well as within this group.
>>CHRIS DISSPAIN: I think it's already-- it is actually already happening, Marilyn, in the sense that-- I don't know if a formal suggestion has actually been-- or using their process, whatever that is, which I can't remember off the top of my head. But we certainly intended that there will be a combined-- a combined effort at the IGF between ICANN, the ccNSO, the RIRs, and ISOC, I think, to run an educational workshop.
>>MARILYN CADE: Well, I had heard there was a proposal. But I'm-- I was asking about the process of ensuring that it was accepted in the--
>>CHRIS DISSPAIN: Yeah, well, I guess it just has to go through-- My understanding is that when we gatherin -- when the advisory group gathers in Geneva in a couple of weeks, well, a month's time or thereabouts, there will be a workshop-- some kind of workshop-approving mechanism in place.
But the fundamental principle, as I understand it, is that no one gets turned away unless you want to run a workshop that's so off topic that it's totally ludicrous.
So I would be very surprised if it doesn't happen.
>>MARILYN CADE: Fabulous.
>>CHRIS DISSPAIN: It's more about taking it internally, and get something that can be sort of -- There should be an ICANN bouncy castle that can go from town to town with-- and just give this presentation effectively. Not literally, I hasten to add. Although the idea of an ICANN bouncy castle does actually appeal.
>>MARILYN CADE: I guess I will also look forward to seeing your comments on the allocation of IPv6. And I understand that was an informational piece. But I'll look forward to seeing that.
>>CHRIS DISSPAIN: Yeah, thanks.
>>MARILYN CADE: If I might ask Maruyama, thank you so much for participating, both you and Chris, and taking the time to do this.
I happen to be a big believer in the idea that ICANN is a unique model. And I appreciate your comments in particular, as someone who was involved even before ICANN was called "ICANN," as I recall, as those of us from industry were trying to reach across national borders and regions to communicate with each other. And your continued involvement is very important.
I would-- I would just sort of perhaps ask you-- I think your comments about the importance of transparency are particularly interesting to me. And I would ask you, if you have specific guidance or ideas for us, even if it's not today, if you could perhaps communicate more with the committee about the ideas that you have about transparency.
>>NAOMASA MARUYAMA: Well, it's a-- I-- yes, I said that transparency is very important and that the attempt -- I think the-- so far, the Internet's evolved with enough transparency. And the only-- my-- only concern for me is that the-- it will decrease or not.
So I have, actually, no idea to increase the transparency, but that my concern is not to decrease the--
>>MARILYN CADE: Ah. Okay.
>>NAOMASA MARUYAMA: In some cases, there's a lot of transparency. Some people, too much-- I think there is too much emphasis about the privacy. I think that is the opposite direction of transparency. That is my concern.
>>MARILYN CADE: Mm.
>>NAOMASA MARUYAMA: So my point is based on the-- what happened so far on the Internet, the-- for example, a DDOS attack or something like that. People tackle with the voluntary effort, but they need it and they actually use lots of information on the Internet so that they could tackle with these
But if the transparency decreases, that will be impossible. That is my concern.
>>MARILYN CADE: Mm. Thank you.
>>PAUL TWOMEY: I have some questions here from Kieren McCarthy that have been E-mailed, and one's directed to Chris.
It says, do you have a solution for ICANN being based in the United States? Should the bylaws be written in international law? Relocated? What is the solution?
>>CHRIS DISSPAIN: No. If I had a-- if I had a solution in a box, I would have said what it is.
I would simply say that I believe that there are in existence in the world organizations the structure of which could be used as a model for internationally jurisdictionalizing ICANN. And I really wouldn't go any further than that with anything specific. I believe it's such-- obviously an issue that needs to be dealt with in some kind of-- in some kind of-- well, having a discussion like this over the telephone isn't going to solve the problem, I suppose, is what I'm saying. And I don't have any real ideas as to what the answer is. I just know that there must be answers.
>>PAUL TWOMEY: Okay.
>>PETER DENGATE THRUSH: Chris, Peter here. Can I just follow that up?
There's a perception that it's such an important issue to the ccTLD community for the reasons that you outlined that even if there weren't another model somewhere in the world, it would be important enough for us to try and build one to overcome the difficulty?
>>CHRIS DISSPAIN: I think that's absolutely true, yes.
As I said, I believe that there is-- I'm sure that there are models out there. But I think if there were-- yes, if there wasn't one, then we should attempt to build one, absolutely.
>>PETER DENGATE THRUSH: Thanks.
>>MARILYN CADE: And, Chris, we've heard it so far-- it's Marilyn-- so far in the comments, we've heard-- just from the online postings and from our conversation, we've heard about the importance of the unique model.
>>CHRIS DISSPAIN: Mm.
>>MARILYN CADE: When-- We've also heard from some speakers that they don't actually think that there's a-- I want to be careful about this-- that there's an absolute prototype, but there may be lessons learned or kind of something like that.
When you say "build one," meaning that you would support the idea that we continue the evolution of this model toward the ability to be (inaudible), including possible takeover by international treaty organizations or encroachment by international--
>>CHRIS DISSPAIN: No, no, no. So let me make it absolutely crystal clear.
What I'm saying is that ICANN needs to solve what I've characterized as its
--- as a jurisdictional issue. There are many ways that that may be solved. One way it may be solved is as you've said, and it may be the best way to solve it, working within the existing structure to find ways of resolving the issue. And that-- maybe that's what Peter meant by "build it."
Another alternative is to recast the organization in the sense that it basically packs up its suitcases and moves from California to somewhere else. That sort of thing.
What I'm not suggesting is that it becomes a-- you abandon the model and move into a-- some kind of governmental organization or something like that. No, I'm not saying that at all.
>>MARILYN CADE: So--
>>CHRIS DISSPAIN: I'm just saying it's an issue that ICANN needs to grapple with. And because it's a unique situation, I don't actually have any straightforward answer for it. I just know that it's an issue.
>>MARILYN CADE: Sure.
Do you-- Would you comment on, if I were to say A, B, C, move to somewhere else, but somewhere else would still have the question, I think, of what is protection against takeover by governments or what is the ability to withstand private rights of action, although that might not exist. You could move, I suppose, to a country that doesn't-- that doesn't have any ability to bring suit against you, although I'm--
>>CHRIS DISSPAIN: No, I'm not suggesting that, either, Marilyn. I don't think that would be-- that would be a solution. But I think one-- Look, you could argue-- okay. Let me try this.
Don't underestimate the perception about the U.S. legal system. If you actually moved-- and this is just an example.
If you took ICANN as it exactly exists right now and moved it somewhere else, I don't know, Australia, U.K., somewhere like that, I'm not suggesting for one moment that that would solve the jurisdictional issue. But it would certainly have a positive effect on the perception side of it. Because the general feeling is that-- is that you can't-- you can't-- you know, other legal jurisdictions are far less profligate with their-- with writs flying around than the U.S. is.
Now, I'm not suggesting that would solve the issue. I'm simplytrying -- I'm trying to illustrate to you that there are two parts to it. There's the genuine problem itself, which is that ICANN should be in a position to be-- to be able to get on without having to worry about litigation every day of the week, and the second issue, which is the perception issue, which could be solved in a different way.
And I'm also not suggesting-- I just want to make this point. I mean, Paul's already said it. But if I'm clear, I'm not suggesting that you shouldn't be able to sue ICANN; I'm not suggesting that you shouldn't be able to make decisions; I'm not suggesting there shouldn't be ways of solving disputes. It's critically important that those exist.
I'm simply saying that to try and run a bottom-up, consensus-based, multi-stakeholder organization in the environment-- which I think is sacrosanct and should be-- that bottom-up, transparent, multi-stakeholder should be set in stone. To try and run that in an environment like California is very, very, very hard. And it affects everything that happens every day.
>>PAUL TWOMEY: Okay. Any-- Are there any other questions for Maruyama or Chris?
Well, we might, then, say thank you very much to both of them. I would particularly like to thank Maruyama, who I know has had to come on early in his Saturday morning, and he's transitioning to taking leave. So I know he's traveling while he's actually talking to us.
So thank you very much.
>>NAOMASA MARUYAMA: Not at all.
>>PAUL TWOMEY: And thank you, Chris.
>>CHRIS DISSPAIN: Thank you.
>>PAUL TWOMEY: We have our next panel-- Well, before we go there, I just need to make an administrative announcement.
First of all, there's a-- I have another question here that's come in from Kieren McCarthy directed to me on the E-mail interaction. But that's something that I think I'll come to in a little while. The-- That's one thing.
Secondly is that we were-- there had been arrangements discussed in our first session for the panel to be addressed by Milton Mueller. And I just need to inform the panel that there has been a-- there has been a mistake or misunderstanding, or miscommunication is the best way to put it, put forward between staff coordinating the timetable and the call and Milton.
It would appear that in discussions between staff and Milton as to the times to join the consultation, one side was talking U.S. Pacific time and the other side was talking European time. And that wasn't-- apparently not clear enough to both, obviously.
So Milton has indicated that the committee should-- could read his comments submitted to the NTIA's NOI consultations. And these are important to look at. And they will be circulated to committee members, and they will be added to the record.
And apologies from-- well, certainly, on my behalf, from the staff to the committee about this timetable error or misunderstanding. And the committee looks forward to his further input.
Let's move on.
>>PETER DENGATE THRUSH: Paul, it's Peter here. Paul, before you go, just thinking back to the way Marilyn re-asked Chris that question, perhaps just to clarify my position on the record, in case there's any confusion.
When I asked Chris about building something, I was responding only to the-- building a legal solution to the kind of jurisdiction issues he was talking about. I wasn't, of course, talking about building a new structure.
I think it's very important that we work very hard to achieve working balances between all sorts of difficult-to-reconcile interests in the ICANN structure, including particularly the respond to the need for bottom-up and stakeholder participation.
So, Marilyn, just in case you were concerned-- I don't think you were-- I wasn't talking about rebuilding their part of ICANN. I was talking about building a legal solution to the immunity and other parts of the issue.
>>MARILYN CADE: Thank you, Peter, for that. It is a constant question on my mind.
>>PAUL TWOMEY: Thank you, Peter.
I think we now have Danny Younger, who has made a submission to the committee via the online notice board.
Danny, are you on the phone call?
>>DANNY YOUNGER: I'm on the phone, yes.
>>PAUL TWOMEY: Welcome.
>>DANNY YOUNGER: Thank you.
>>PAUL TWOMEY: Well, Danny, can we ask you to talk to your-- talk to your ideas and proposals for ten or 15 minutes, and then we'll have some questions.
>>DANNY YOUNGER: Fair enough. Thank you, Paul.
I'd like to begin by thanking the members of the committee for inviting me to speak.
I have submitted a 27-page document to the NTIA, which you should probably also have a look at, as it contains a couple suggestions with respect to possible models.
I'm here today pretty much because I support what ICANN's doing by way of its annual operating plan objectives, one of which is the project to develop a post-MOU model with appropriate input.
That particular project calls for identifying characteristics of the model that satisfy community requirements, requirements of governing bodies. It also asked us to develop and launch consultations, to solicit proposals for a post-MOU model, and to further engage the President's Strategy Committee to discuss inputs and to develop concepts, ultimately, to determine the process for implementation of an identified model.
I'd like to express my thanks in particular to Marilyn Cade and to Becky Burr that have started the committee's thinking along the lines of considerations of models with their proposals.
What I brought to the table is a model that seeks to bring the user community a little bit closer within the ICANN fold. Before I go into the details of the model, I'd like to talk about what I mean by the community.
I'm part of a group that has seen some turbulent times in the ICANN process. At the beginning, we felt that ICANN had held out the promise of half of the board by way of representational opportunity for our board segment. Thereafter, through the ALAC process, we were told that, "No, I'm sorry, half of the board is not an option. We're going to consider the possibility of a third of the board in terms of representational opportunity for the public-interest segment."
That didn't work out, either.
In reality, we are now down to zero by way of representation on the board.
Frankly, I think we've gone overboard. There's a lot of people out there that had wanted to participate in the ICANN process that have become jaded as a result of what has happened internally.
Now, it's not too late to correct those mistakes, and I think it's certainly possible to bring a lot of former responsible and informed contributors back into the process. And I think the way to do it is to recognize what WSIS has taught. That is, that we have a new way of looking at this overall stakeholder community.
WSIS has posited the position that we're really looking now at a set of groups which you can define as a collection of sovereign states on the one hand, the private sector on another, and civil society being the third component in that mix.
Now, when I look at the ICANN organization structurally, I do see that governments are well represented through the Government Advisory Committee. I see that the private sector certainly has its vehicles by way of the supporting organizations. But, candidly, when I look at the civil society element within ICANN, I do not see those folks accorded sufficient stature.
My particular proposal is to coordinate activities in a manner that allows for civil society to have its own supporting organization within the body. This would mean initially that groups such as ICANN's already-accredited at-large structures, perhaps participants from the noncommercial world, could join together in an effort, the same way that the ccTLDs launched an effort a few years ago, and put together their own bodies wherein representative decision-making will hold sway.
I think it's a good approach. The benefits are that you wind up dealing with a particularly civil portion of the civil society group. What you don't have are the problems that we have seen that have forced the closure of institutions such as the GAC public forum, which was closed due to obscenity and other abuse.
We know that in the past, our community has had, I guess, what Marilyn rightfully called earlier "online hygiene issues" and that it becomes necessary to create a program whereby the community can still get input into the ICANN process, but in a manner that is decidedly more subdued, more civil than in the past.
I'm open to taking questions.
>>PAUL TWOMEY: Danny, it's Paul.
>>DANNY YOUNGER: Hello, Paul.
>>PAUL TWOMEY: Thank you for that, and for the proposal, which I think is a timely one.
Can I-- Let me-- I suppose let me be a medium or channel, being as that I have heard over the years about this topic, I'll just ask a question.
There have been criticisms, I have certainly heard criticisms in the past efforts around getting these voices heard within ICANN of that what were supposed to be voices for either the users of the Internet or representatives of the users of the DNS often resulted with representatives who were technical people who were interested in this space as opposed to being users, and that it's been further posited that users or representative users, if the DNS all works, they don't really care. The people who care-- who tended to care are sort of like technical activists, if you like. And when I say
"technical," I mean that quite carefully. I mean people who are actually DNS technical people.
I'm not trying to say this perspective is the right one, wrong one, or otherwise.
But if you have any sort of-- How do you see that sort ofreaction -- in the context of your proposal, how would you react to that?
>>DANNY YOUNGER: I think my reaction would be that I myself am probably a relatively good example of the community. I'm not a technical specialist. The last six years during which I participated in the process, it's been on the policy side of the question. One tries to become as informed as possible. But I've had no formal engineering training. This is not my background. This is not my field.
There are others like us in the same predicament, many of whom are currently members of different civil society organizations with whom I've had contact over the years. That isn't our background.
But what I can say, Paul, is this: Other communities have their own advocates within the ICANN process.
>>PAUL TWOMEY: Mm-hmm.
>>DANNY YOUNGER: There's nothing wrong with that, special interest constituencies should have their ownrepresentatives that can advocate those particular interests.
I'm pointing out that we've got a very large public-interest segment that, within ICANN, anyway, does not have a group of advocates that stand up and fight for what they believe to be the public-interest issues. Yes, we're given the opportunity to send in public comments. But when it comes to a conversation with our peers in bodies like the GNSO, there is nobody there elected or representative of this public-interest segment that can promote some of the ideas that have been put forth. As such, we're not an equal player in the game.
We're simply asking for a seat at the table so that we can participate in the proper fashion.
>>PETER DENGATE THRUSH: Paul, Peter here. I wonder if I could just ask Danny a question.
Danny, it's a question that-- It would help me a lot if I could understand exactly what the interests are that you say are unrepresented.
>>DANNY YOUNGER: Okay.
>>PETER DENGATE THRUSH: And I have this discussion, and we can take it off this line, but when you talk about civil society interests and things, one of the first things that people tend to agree with is that that excludes, for example, most of the ccTLD registrants and most of the users in the ccTLDs, because any issues they have about use in relation to their ccTLD is an entirely domestic matter and would be brought up under the laws of their national countries or with their national ccTLD managers. So they're not included.
And as you go through that kind of slicing, more and more groups seem to fall away. And I'm just-- In the end, what seems to be your core constituency-- and this is what I want you to comment on-- is gTLD registrants, because it seems to me that most other users in the group have their own mechanisms for taking part in policy development.
Have I got that wrong? Or is there some constituency that you represent or are pointing to that in fact doesn't have a method of participating?
>>DANNY YOUNGER: I think the constituency that I'm talking about is those people that want to see an ICANN that responds nimbly to DNS issues.
We're the pragmatists in the bunch. We're the ones that would rather spend our time talking about stage two of the redemption grace period than talking about transparency and accountability mechanisms.
We're the ones that see problems as they're emerging. We've had 16 months' worth of domain name tasting going on, and yet this last Marrakech session was the first time that it ever appeared on ICANN's radar. We think that ICANN can work a lot faster and more efficiently if it has the input of those that are directly affected by the DNS issues that are out there.
Many of us understand that over the years, ICANN has attempted to deal with certain issues, but things being what they are, some things get put to the back burner.
We'd like to see things like the UDRP review continue.
>>PETER DENGATE THRUSH: Danny, can I just interrupt? Because you're defining your response by the issues that you are concerned about.
My question is, who are the people who have these concerns, and why is it that they need a separate representational structure when they can be-- when they-- can they not be dealt with by the existing structure?
Domain name tasting, for example, provides-- there's a whole a lot of people who are actively involved in the ICANN structure talking about that. Who is it that's missing from that debate that we need to take into account in your view?
>>DANNY YOUNGER: In my particular view, I don't think that you've got the public in there at all.
Candidly speaking, you do have a lot of constituencies that have got reasonable comments to make on the topic. But I'm seeing entire swaths of people that have been affected by what's going on, from the small business community, to individuals, that they aren't technical specialists, but they know that there's something wrong going on.
Now, these people need representation. They need advocates, somebody that can say to ICANN, "At the moment, folks, we appreciate what you're doing in all these other areas, but we've got a real problem here. We'd like to punch it up in the priority schedule."
>>MARILYN CADE: Danny.
>>DANNY YOUNGER: Yeah, go ahead, Marilyn.
>>MARILYN CADE: Peter, can I ask an intervening question or do you want to go on? It's very related to what you're asking.
>>PETER DENGATE THRUSH: No, carry on, please.
>>MARILYN CADE: You know, Danny-- and I want to thank you for joining us tonight, but also for the commitment that you had shown to ICANN for a number of years.
Many people perhaps on this call tonight might not know that Danny was very active in the early days of ICANN in the working group and has contributed over a number of years to try to help to educate about the concerns of different sectors.
And I do so much appreciate that, Danny.
But I wanted to carry on for just a minute with the question that Peter's asked, because one of the things that I-- I'm wondering about is, there's a process by which we think that concerns of users--
>>PETER DENGATE THRUSH: Marilyn, sorry. Can I just interrupt? And Paul, I'm sorry, and Danny and everyone, I'm just being called away. So I'm having to leave the call. I will come back when I can.
Good luck with all your deliberations.
>>MARILYN CADE: There's a process by which we think that, gosh, questions, errors, whatever we want to call them, in the system will somehow come into the system-- and let me call ICANN "the system" for just a minute-- and that will feed back into the policy development process and also into the existing structures.
And one of the things-- and I haven't had a chance to talk to you offline about this since you did so much work on the domain name tasting. But one of the things I'm wondering about is, are you perhaps raising a question about whether we have good enough feedback loops into the existing structures? And then the question is, and do we actually have the means to get representation from anyone not represented in the existing structure?
But those are related questions. Because the domain name tasting issue hasn't been brought clearly enough even into the existing community until, as you said, very, very recently.
>>DANNY YOUNGER: Marilyn, are you still there?
>>MARILYN CADE: Yeah.
Should our complaint process have captured this better? Is that a point?
>>DANNY YOUNGER: I'm not sure that the complaint process is the-- the answer to this, Marilyn.
>>MARILYN CADE: No, no, no. I understand that. But I was just asking, is it part of an answer?
>>DANNY YOUNGER: Yes, it is part of the answer, clearly so.
You and I both know that, over the years, we've used a lot of different terms to describe these public-interest segments.
>>MARILYN CADE: Sure.
>>DANNY YOUNGER: We called them at large, we called them registrants, we called them users, we call them this and that. But what we don't call them is to the table. Everybody seems to think that you can work without these elements there.
And I'm pretty much here to say, no, we need people like EDT. We need people like EFF. We need civil society organizations properly doing their jobs so that thoughtful responses to issues can be brought to the table by organizational representatives that have done their homework.
It's a reasonable way forward.
>>MARILYN CADE: Okay.
>>PAUL TWOMEY: Danny,--
>>MARILYN CADE: I buy that. But I'm going to say that so far, EFF and EDT are part of the NCUC.
Are you perhaps talking about--
>>DANNY YOUNGER: I'm just using them as examples, Marilyn.
We also know that we've got another 40-plus ICANN accredited at-large structures.
>>MARILYN CADE: Right, right, right. That was what I wanted to go on to ask you about, yeah.
>>DANNY YOUNGER: And you know that during the WSIS process, there was sufficient interaction between different members of the civil society community. You had the Free and Open Software groups there, amongst others.
There's a place in this world for strong civil society participation. I'm not really seeing that yet at ICANN to the degree that I saw it within the WSIS process.
>>MARILYN CADE: Okay.
>>PAUL TWOMEY: Well, can I just ask a question, there, Danny?
>>DANNY YOUNGER: Sure.
>>PAUL TWOMEY: The at-large process is established to try to establish regional at-large organizations and look at-- and then to consider some form of, I suppose, federation process around those into the ICANN structure.
>>DANNY YOUNGER: Mm-hmm.
>>PAUL TWOMEY: Do you-- do you consider your-- I suppose I'm interested if you consider not so much in whether you might have views about that process and how it's proceeding, but-- because, you know, that is, certainly from my perspective, an incredibly important part of building the-- what you have described as civil society, the civil society representation in ICANN and the voice that--
Have you got views about that process and what you're proposing here?
>>DANNY YOUNGER: Yes, my--
>>PAUL TWOMEY: Are they opposed to each other? Are they different? Are they things that are-- that can be merged together? You know, what's--
>>DANNY YOUNGER: Okay. It is complementary. I think it's very important to note that you just used the word "representation" with regard to those elements.
We're not seeing representation as part of the original proposal for the--
>>PAUL TWOMEY: No.
>>DANNY YOUNGER: -- regional at-large organizations.
There are many that will tell you that without at least a modicum of representation, you are not going to engender participation. And that's been fairly true. I mean, we've gone three and a half years now with very, very limited participation.
I think that a supporting organization that offers a prospect of representation at the board level will galvanize and reenergize in it's community. You'll bring back into the fold those strong voices, those thinkers, those informed participants that have helped you in the past.
Asking you to give it due consideration.
I do worry, however, about the (inaudible) of the committee. We've gone through the process where the at-large study committee had previously made some reasonable recommendations to the board, only to have the board pretty much reject those recommendations. And what troubled me in that particular process, Paul, was that during the entire eight, nine, ten months that the process was ongoing, we really did not hear the point of view of the board itself, the ultimate arbiters.
I'd hate to have you and your committee go through all of this work only to run into a wall at the end. I think it might behoove us as an organization to allow our board members to speak their minds as to what they think might be best in terms of a forward-going model, that is, lobby them. That's food for thought.
>>PAUL TWOMEY: That previous process you were referring to was, what, now, three years ago, was it not? Four?
>>DANNY YOUNGER: Three, three and a half years ago.
>>PAUL TWOMEY: It was before I was president.
>>DANNY YOUNGER: Right.
>>PAUL TWOMEY: Well, thank you very much. And I can appreciate the points you made.
You talked about the role of this committee. A number of people who have spoken to us have talked about comfort or discomfort with these sort of advisory committee processes.
>>DANNY YOUNGER: But, Paul, I do have to say, this was already laid out in the annual operating plan. This was not a surprise to the community. We knew that your strategic committee was going to be looking at models in a post-MOU environment, that you've been thinking about high-level considerations with respect to the current ICANN model for the last four and a half months.
I would have appreciated a summary of your thinking prior to the session having started. I think in four and a half months, you should have been able to get something on paper.
But be that as it may, you know, there's nothing to feel sorry about. You're doing the right thing by engaging the broader community in discussion.
>>PAUL TWOMEY: Well, good.
>>MARILYN CADE: Danny?
>>DANNY YOUNGER: Yes, Marilyn.
>>MARILYN CADE: I'm going to, if I might, come back to you with some questions which I'll share with the committee, because I think the whole question of meaningful, comma, informed participation is something that we're all very interested in. And it sounds like that's your theme as well.
>>DANNY YOUNGER: It is my theme. Actually, I'd like to hearken back to the days of the earlier reform, when the buzzword was "efficiency." I am looking for a more efficient policy process.
I'm looking to get back to what was supposed to be an 85-day PDP process, instead of something that's been extended well beyond a year's time frame. I think that can be done.
>>MARILYN CADE: Hmm. Now, I am going to ask you a direct question, and as perhaps the one member of the committee who lived daily with the PDP process, I guess I am going to ask you a question about-- My own experience has taught me that the policy development process timeline should be determined by the complexity of the topic and the number of people who need to be consulted.
>>DANNY YOUNGER: I would tend to agree.
>>MARILYN CADE: Okay. Because I-- and I'm very interested in this topic, as you can imagine, because it affected my day-to-day job.
So there may be some policy development processes that could meet an 85-day timeline. But there may be others-- and I might pick IDNs as an example --
>>DANNY YOUNGER: Mm-hmm.
>>MARILYN CADE: -- that I just can't see our doing in 85 days.
>>DANNY YOUNGER: Oh, I fully agree with you, Marilyn. I think that what we need to consider is that in the past, we had a process called a working group process--
>>MARILYN CADE: Mm-hmm, mm-hmm.
>>DANNY YOUNGER: -- that had a much broader participation.
When you get more people into the process, you tend to get more ideas. Yes, it does get more boisterous, more noisy. It's, unfortunately, a nasty side effect of the process. But we've had reasonably good luck with working groups at the past. They have ultimately been responsible for the creation of a UDRP, a crowning achievement, one example.
>>MARILYN CADE: Mm-hmm.
>>DANNY YOUNGER: I see the value in taking a complex PDP, such as contractual conditions or the rollout of gTLDs, and breaking it down into smaller subsets that can be handled in perhaps a more efficient manner by having a greater number of people trying to attack the problem.
But I think there are other ways forward. And I think we should keep our eye on efficiency, because we don't want to allow DNS issues to linger, to fester. It's our responsibility to get on top of them.
>>MARILYN CADE: Thanks.
>>PAUL TWOMEY: Okay. Well, Danny, can I just-- there are some questions that have come in from Kieren McCarthy that I just wanted to--
>>DANNY YOUNGER: Oh, by all means. Go ahead. It's been nice talking to the committee. Thank you.
>>PAUL TWOMEY: Thank you very much. We very much appreciate both your proposal and in (inaudible) you've made to me which is very important.
I just want to-- Kieren had two questions for you. And they are: Do you have a solution for preventing a civil society supporting organization being taken over by lobby groups?
And his second question is, have you considered using a Wiki as a consensus-building document?
>>DANNY YOUNGER: Answer to the first question, yes, I'm always concerned by the prospect of capture. However, currently within ICANN, I believe we have close to 90 different civil society groups that have elected to participate. There's a fairly broad mix right across all five regions. So I think the span is broad enough that capture does not become an issue.
I like the idea of a Wiki. I'm pleased to see that the At-Large Advisory Committee is using a Wiki in their efforts. And I look forward to these and other technologies being used going forward.
>>PAUL TWOMEY: Good.
Kieren has a question for me. He says, do you accept that civil society requires its own supporting organization, assuming it functions well?
My only response, first of all, in terms of this committee, we are in consultation mode and are looking and talking and getting feedback from people and are not really at any stage which has reached any conclusions.
But I would say, talking more firmly as president, that certainly the at-large process has in its basic thrust moving towards developing a representation aspect for what Danny has referred to as civil society.
So I'm not going to say do I support that it has a supporting organization. I think that's one step too far for me as an individual to say at the moment. But I think the moving towards the civil society aspects of ICANN being very well represented I think is exactly the aim of the at-large process. I think Danny's contribution contributes further to the thinking around there. And I think this-- there is a general-- I feel there's a general feeling in the ICANN community that that has to be-- that, first of all, that civil society
(inaudible), but also thatthe formal representation of that is-- needs to be further cemented and needs to be-- needs to be brought to fruition. There might be a-- a general reinforcement of the concept.
>>DAVID MAHER: This is David Maher. I joined at 6:00. I don't know whether there's a queue, but I'd like to get in it in response to that issue.
>>PAUL TWOMEY: Well, David, seeing that we're about to ask you to speak as the final panelist, I think it would be quite appropriate that you could ask questions.
>>DAVID MAHER: Well, thank you.
I was struck that you did not mention the noncommercial constituency, which, at least in its inception, was intended to be the voice of civil society, or some-- many segments of it.
>>MARILYN CADE: Oh, actually, David, we did a bit earlier, I think.
>>DAVID MAHER: But I've always felt the noncommercial constituency has never really gotten to its-- the expectation we had many years ago when the concept was first formed, that many of the major organizations which should be involved, whether it's the International Red Cross or the other important civil society groups that have a strong interest in the Internet, have simply, for one reason or another, not taken part.
And I think that's-- if I may continue, if you were going to call on me, I'm here, and I thank you for the invitation, representing one of the registries, one of the generic registries, dot O-R-G, dot org. The-- and I don't want to burden you with all of my thoughts on the questions that were raised. But I do want to say one thing from the perspective of the registries, and speaking only for dot org.
I'm really pleased that the London School of Economics is doing the study of the GNSO, because, speaking from the registry vantage point, I think the GNSO is dysfunctional. The idea, I think, originally, going back ten years, was that the IETF was going to (inaudible) model to try to achieve consensus. And my experience over the ten years in law is that consensus is impossible without some kind of common interest, which is really lacking in the GNSO.
Everyone's interested in the Internet, but there are so many diverse views of-- one of my-- because of my background, I'm interested in trademark law. And the trademark legal interests I think still tend to regard the Internet as a trademark system, which, of course, it is not.
We can never get consensus in the GNSO. We've seen it in the recent vote on the purpose of the WHOIS, where there was-- a vote was taken. But these are things that a policy shouldn't be made by that kind of voting. And this is my-- what I'd like to contribute to this discussion, is that I hope the strategic planning committee will address the-- what I consider the dysfunctionality of the GNSO.
Having said that, I do want to emphasize that I am strongly supportive of ICANN, especially ICANN as an independent organization. I still think that what ICANN is doing in the technical administration is absolutely essential. I am really pleased at the way, for example, the Address Supporting Organization has been formed. And I'm ecstatic at the way the ccTLDs are being brought in through a very flexible, negotiated process.
I think-- I nominate Paul Twomey for some kind of prize for getting dot DE and dot UK to sign a document. That is such a wonderful step forward in the really purely technical side of the Internet. That's where ICANN is doing a fabulous job.
The policy issues, whether it's trademark law or WHOIS or personal privacy protection, which is one of my other great interests, that's where we have difficulties, I think. And I applaud the idea of the at-large group. I think there's some tension between the noncommercial constituency and the at-large structure. And I have no suggestions as to how to cure that.
But having said all that, I'll now turn the floor back over to whoever's next.
>>PAUL TWOMEY: Danny, in reference to the points that David's made, do you want to make any comments on those before we finish?
>>DANNY YOUNGER: I tend to agree with everything David said. And I do recognize the current tension between the ALAC and the NCUC, and I understand the roots of that tension. You've got two groups competing for the same set of players. The noncommercial constituency is looking for noncommercial organizations as members. The At-Large Advisory Committee is looking for the same set of people as members.
There seems to be a duplicative effort. It's not that smart to continue functioning along those lines.
>>PAUL TWOMEY: Okay. Listen, thanks very much for-- for your contribution. I think we appreciate that very much. And if there are follow-up questions, I know you'll be pleased and willing to come back and respond to the committee members.
>>DANNY YOUNGER: Thank you, Paul. I appreciate it.
>>PAUL TWOMEY: Thank you.
Our final panelist this afternoon has actually just spoken to us, David Maher from the PIR registry, the operator of dot org.
David, you've just actually spoken. Do you want to have some time now to make any further comments to the committee?
>>DAVID MAHER: No. I-- I-- PIR, our parent organization, in a sense, is the Internet Society. And the Internet Society recently filed formal comments in the NTIA proceeding which we strongly endorse. And I don't really see a need to duplicate-- There are many broad issues of Internet governance where the very thorny problems of the role of the GAC and so on have to be explored. I think it's best to defer to the Internet Society on that.
And I-- But my-- I thank you very much for the opportunity to give what we might call the worm's eye view of a registry operating in the trenches.
>>MARILYN CADE: David, it's Marilyn. If I might, do you mind posting-- I did read the-- all the-- I read all the postings to the DOC list, some of which are actually about net neutrality, or I should say a number of which are about.
But it may be that not all members of the committee will be able to, you know, kind of go through all of those postings. Do you mind posting the ISOC contribution to the committee? Is that-- Would that be okay?
>>DAVID MAHER: Oh, certainly. It's a matter of-- it's on the public record already.
>>MARILYN CADE: Yes. But just for the ease of the committee.
>>DAVID MAHER: Yeah.
>>MARILYN CADE: And that would put it into our public record.
>>DAVID MAHER: Sure. It's easy to do.
>>MARILYN CADE: Thank you.
>>PAUL TWOMEY: The-- just on that particular question, if you just wait one second.
The-- Just for the record, for the members of the committee, both official representatives of the Internet Society, and also the Internet Architecture Board, have indicated that the timing for this consultation and their own processes for-- for initiating and developing submissions and responses just could not align, and they may actually offer statements later in the time frame for the committees to consider. And I think they both have pointed to their submissions to the NTIA process.
>>MARILYN CADE: Great. Paul, I'm sorry, I got IAB. And who else?
>>PAUL TWOMEY: Both the Internet Society and also the IAB.
>>MARILYN CADE: Oh, good. I just captured that. Thank you.
>>PAUL TWOMEY: David, I wonder if I could ask you just one question, which is, you've talked a little bit about what you have said is dysfunctionality in the GNSO process. And I don't want this committee to be double-guessing, as you've already pointed out, the process that's under way for review of the GNSO.
But I wonder if I could turn that comment inversely and say, do you have-- would you paint a picture for us of what is functionality for the sort of bottom-up policy development process that you see through the supporting organizations. What's the ideal world look like for you?
>>DAVID MAHER: Well, I think the ideal world would be a total restructuring of the way that the business, intellectual property, and noncommercial constituencies take part in policy development processes and to separate out their contributions from the registries and registrars.
Let me expand a little on that.
The registries and the registrars are really the global interests of those two segments of the Internet. Every registry, every generic registry, belongs to the registry constituency. And there's a very broad participation similarly with the registrars across the world. They come together, and they, of course, have debates. But you know that when the registrar constituency takes a position, it reflects their views.
By contrast, the intellectual property community constituency, the business constituency, in my view, are a very small segment of the global intellectual property and business world, as is the noncommercial constituency is clearly a very small entity.
The service providers, I really-- I'm not sure whether they are globally representative or not.
But I think their-- the dysfunctionality (inaudible) GNSO stems from the fact that it tries to do too much. And a classic example is the WHOIS issue.
We're finally beginning to get some progress in one sense on the WHOIS. The GAC, of course, is very unhappy with the particular formulation that we voted on. And that's-- you know, I'm a supporter of formulation one, the one that the GAC objects to. I think they just misunderstand it. And we can address that.
But it shouldn't-- it should not have taken more than three years to arrive at a definition of the purpose of WHOIS. The issue of protection of personal privacy, which is well-recognized by many governments, including the United States, Australia, the European Union, Japan, and so on, the question of how you have a WHOIS function is very much a policy issue more than a technical issue. I'm not an engineer, but I understand that there are now programs and technical technics so that we can have a WHOIS with-- whether you call it layered access or tiered access or any other kind of technical system to achieve goals.
And my bottom side of this, this is a classic example of the way the GNSO has been unable to function efficiently or effectively. It simply is taking far too long to address these policy issues.
And I think that a-- a better structure can be established in which broader participation would be encouraged from civil society, as well as business and intellectual property legal interests, to make their voices heard by the board of directors of ICANN that has to make the ultimate decision.
>>PAUL TWOMEY: David, may I just make an observation, or a clarifying observation. One of the provisions of the bylaws of ICANN is provision for the regular review of supporting organizations and processes, normally, on a basis-- running basis every two years. That was put in place probably to reflect the reality of the changing nature of the Internet and of the DNS
(inaudible) the issues that it serves.
I would assume that you are supportive of that, of the continuation of that sort of a model of ongoing reform?
>>DAVID MAHER: Oh, absolutely, yes.
>>PAUL TWOMEY: The issues that you've raised in particular there I think are issues that are specifically being looked at by the existing review of the GNSO process that is under way.
>>DAVID MAHER: Yeah.
>>PAUL TWOMEY: I suppose the purpose of this committee-- just clarifying that's important, because we've had conversations earlier about if there's any need for amendmental change to the ICANN model. And I think the committee's focus is probably not likely to focus on things that are already under review by other existing review processes that are formally within the model's framework, in other words, things like the GNSO review.
But I just wanted to make certain we had captured your thoughts about functionality, because I think it may be applicability not just in that environment, but also in others, for instance, in a discussion that Danny's just had with us about at-large, slash, civil society and questions people have about-- again, about functionality. So I'm interested to hear your perspective about, you know, what is functionality, what is good performance in policy development processes.
Are there any other questions or any other points you wish to make?
>>DAVID MAHER: No. I think I've-- I made what I wanted to.
>>PAUL TWOMEY: Well, can I say thank you very much for-- for participating. Appreciate your coming in late your evening on a Friday.
I wonder if I can just finish with the last bit of questions I had here from Kieren McCarthy. He addressed three questions to the question list to myself.
He says reviews ICANN, asking the U.S. government to consider transitioning its role to an international body. Two, what do you think of Becky Burr's, slash Marilyn Cade's paper? And, three, what is your response to the NTIA comments, in particular, with broad consensus that the one area that ICANN has failed most at is in the private bottom-up decision-making?
Perhaps, just taking them somewhat out of order, the committee had input verbally and in written form by some 20 or so members of the community in the last several days. And at the NTIA's process, the-- on Wednesday next week, I think there might be an opportunity for myself at least to be able to summarize some of the things that we have heard. I don't think there will be a question of calling on any particular-- at this stage, anyway, calling for any particular agenda or advocating a particular specific around any international role.
So I think, to Kieren's first question, next Wednesday, we'll be summarizing what we've heard in consultation, some of the few points people have made. Clearly, internationalization, in a general sense, has been a very strong theme throughout all of today's two sessions. And that would obviously be part of any summary post statement.
I don't think it would be appropriate for me to make any comment on the Mar ilyn Cade/Becky Burr paper, except to just-- I'm talking personally-- except just to make the point that it goes to one of those issues that is clearly-- the thrust of the paper goes to one of those issues that's clearly been a thorn in the sides of many who have raised issues around the role of the U.S. government vis-a-vis ICANN, that is, the actual operation of the U.S. authorization process within the zone file. And as a consequence, it's one model that has emerged in the discussion. And that that-- that I'd have to say that the particular issue that it's addressing, the particular concern that it's addressing has certainly seemed to be a fairly consistent concern that I have heard in-- a concernoften put very vaguely, but a concern raised by many CCs and other governments over quite some time.
I'm not particularly coming out when I say that in any sort of endorsement of the specifics in the paper.
And then the final thing Kieren has asked, what is the response to the comments, particularly the broad consensus that one area that ICANN has failed most at is the private, bottom-up decision-making.
I'm not exactly certain I do agree with that as a consensus or even as a description of it.
I think what I have seen, and we've certainly heard in the last couple of days-- sessions, is really probably two things, one which both Danny and David have just referred to, which is that in the policy development process, ensuring proper representation of all interest groups and at the same time ensuring efficiency is not always-- doesn't always end up with the same outcome. And that, clearly, this is an ongoing area of challenge for a bottom-up process, which is ensuring the full participation, the right participation, and how do you have that participation take place around
(inaudible) policy issues, which ends up with some sort of efficient outcome. That's, again, a matter of ongoing debate, I think, within ICANN. That's the reason why we do need these regular reviews and processes.
Maruyama-San referred to his personal perspective, I expect, which was that the phrase "bottom-up decision-making" comes from the very early days of the Internet and that now he wondered about its applicability in such a different and much more populated set of stakeholders of the Internet, that he particularly pointed to the benefits of structured policy development processes.
So I think that is a tension. And I think that will-- that tension sits with all the different constituencies and working through on, you know, A, is everybody properly-- how do we keep ensuring that everybody is properly represented? And then, B, how do we ensure that there are processes in place to have both things listened to, but also efficient decision-making. So I think that's an ongoing challenge for ICANN, certainly ICANN defined as the whole community.
The other thing I think which maybe Kieren is referring to has been the question referred to throughout the consultations about transparency.
And I was interested particularly in the perspectives of Paul Levins in the previous session, which I think had some truth, of the distinction between transparency and accessibility and dialogue.
And I think-- I was pleased, but I think other members of the committee were pleased, and I'm pretty certain from, I think, conversations he had in the meeting in Marrakech, certainly members of the board were pleased, with his perspectives about that in terms of transparency defined as is there information available and is information available in some sort of fashion around these issues, ICANN is, you know, in a comparison sense, a very transparent organization. However, posting is not communication and it is not dialogue. And that is really where I think the organization has failed to keep up and has failed, in particular. And I think-- that's where I think we expected to see certainly his tensions-- his group and a lot more tension on-- broadly about having not just new tools, but a focus on, as many people in the consultation sessions the last few days have focused on, push technologies, getting messages out, engaging people in dialogue, having much simpler ways of explaining materials, ensuring people have an understanding so they can respond, being much clearer about what has gone up and why and what are the implications of materials.
A lot of that, I think, is where we need to do much more work. And I think that will very much go to this sort of-- this concern.
I do also note, however, that quite a number of members in the consultations, and particularly Chris Disspain, for example, but I think others during the consultations have pointed out that being in a litigious environment also has put limitations around the thought of degrees of freedom for all matters of dialogue, certainly at official levels. And I think that tension remains and is one that's probably a fairly fundamental one that we really need to think about very carefully.
Those are somewhat long-winded answers to some of Kieren's questions.
>>MARILYN CADE: Paul?
>>PAUL TWOMEY: Yes, Marilyn.
>>MARILYN CADE: I should probably just offer a clarification for the record that the, quote, Cade/Burr-- sorry-- contribution to the Department of Commerce NOI was not made in-- as-- it was made in my private capacity. There was no consultation with the ICANN leadership or community, nor with committee.
It's probably just important that I make that statement. And sorry that I seem to be choking as I do it.
>>PAUL TWOMEY: That's fine.
Marilyn, I think people recognize that, but thank you for clarifying it.
>>MARILYN CADE: I think the people on the committee realize it. But it's always good, given our diverse and public constituency.
>>PAUL TWOMEY: Yes, agree.
Well, can I-- can I just, then, say thank you to you for having been a common member of this consultation across both the sessions today.
Thank the other members of the committee who have been attending and those who have been listening. I know some of the members of the committee have been doing their work, they've been listening to the audio streaming of the two consultation sessions.
I'd like to thank Steve Conte, Marc Friedman, and particularly, I'd like to thank Theresa Swinehart, for helping to coordinate the process for these two days.
I'd like to remind the community that the committee is still taking consultations, still taking input until the 15th of August, and that it will look forward to hearing more from members of the community on some of the topics that have been raised, and that we also appreciate the input received so far to date, and members-- and look forward to being able to ask further questions of people who have participated.
And then, finally, I'd like to thank the people from Verizon who have been involved in setting up the bridges and setting up the recordings and helping with the audio streaming.
So thank you very, very much, everybody.
And I'll bring these consultation sessions now to a close.
>>DAVID MAHER: Thank you.