October 1, 2015
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INTA Makes its Voice Heard on Critical Internet Matters
|This summer saw a flurry of activity for Internet Committee members as a number of hot issues were on the table for comment at the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN’s entire governance structure is under debate, subsequent rounds of the new gTLD program are being considered and the future of data access and the accuracy of the domain name registrant directory known as “Whois” are being mapped by working groups. INTA’s Internet Committee is taking the lead on representing the voice of trademark owners and the consumers that they are entrusted to protect by producing timely and relevant written responses to the numerous call for comments we experienced this summer. The work of the Internet Committee can be broken down into two essential categories: (1) the future of ICANN’s governance structure and (2) access to data for the purposes of enforcement. This article discusses the ICANN governance issues. The access to data issues are covered on the INTA blog.
ICANN Governance at a Crossroads—What it Means for INTA Members
As many INTA members are aware, the last piece of U.S. government oversight over ICANN is slated for transition within the next year or two. The National Telecommunications and Information Administration (NTIA) announced in March 2014 that it would privatize the Internet Assigned Names and Numbers (IANA) function and that ICANN would be trusted with convening the multistakeholder community to devise a plan for the transition. In response to the U.S. government’s announcement, ICANN convened two working groups to tackle key issues: (1) the Cross Community Working Group for the IANA Stewardship (CWG-Stewardship) and (2) the Cross Community Working Group for Improving ICANN’s Accountability (CCWG-Accountability). The CWG-Stewardship produced a proposal from the names community that is integrated with proposals from the numbers and the protocols communities into a full proposal that is the responsibility of the IANA Stewardship Coordination Group (ICG). It is the ICG proposal that will ultimately be presented to the U.S. government. The numbers and protocols communities are the communities that focus on the technical architecture of the Internet. The names community is the community that sets the policies and parameters for how domain names are allocated and entered into the Domain Name System (DNS). It is the naming policies that are of great concern to trademark owners because they can help build a brand or may serve as a means for cybersquatting and counterfeiting.
The key to the CWG-Stewardship proposal is the completion of the CCWG-Accountability proposal. The accountability piece is the lynch pin of the entire transition. ICANN is under a mandate from the community and the U.S. government to improve its accountability mechanisms in order for it to be independent from NTIA oversight. The accountability reforms have been the subject of heated debate and congressional scrutiny. INTA’s immediate past president Mei-lan Stark (Fox Entertainment Group, USA) represented INTA during congressional hearings that were held last May on Stakeholder Perspectives on ICANN: The .sucks Domain and Essential Steps to Guarantee Trust and Accountability in the Internet’s Operations before the House Judiciary Committee, Subcommittee on Courts, Intellectual Property and the Internet.
INTA’s members are concerned about the following:
One of the key issues is how the voice of intellectual property owners will be heard in the future. The most recent accountability proposal envisions a single member model in which the contracted and non-contracted parties of ICANN form a single-member, with powers to recall a single member of the ICANN board, recall the entire ICANN board and have oversight of the strategic plan and budgetary matters. The current voting structure within the names community is presumed for the first stages of the transition. The intellectual property community (which includes trademark and copyright owners) has a very small percentage of the vote on policy matters. It is possible that this weight could change in the future. We need to ensure that our role is enhanced and not diminished under any new reforms.
- ICANN’s ability to enforce its contracts and to maintain open access to and accuracy of domain registrants’ information.
- The reliability and transparency of ICANN’s process and procedures for fairly allocating domain names.
- Proper administration of rights protection mechanisms (RPMs) such as the Trademark Clearinghouse (TMCH) and Sunrise Periods.
- A premature launch of a new round of gTLDs.
The ICANN Board has responded to the CCWG-Accountability proposal with its own proposal—a member enforcement model (MEM) that appears to be more of a dispute resolution mechanism than a governance model. The ICANN Board would submit itself to binding arbitration but would not be subject to community recall. Further community oversight of the budget and strategic plan would be limited.
Both the CCWG-Accountability proposal and the Board Response agreed that independent reviews of Board decisions that are not currently binding on the Board should be binding on the Board.
A meeting to resolve open accountability issues took place on September 25 and 26, 2015. The results of that meeting were not published as of press time. We will report on the outcome in future articles and blog posts.
INTA’s Position on the Stewardship and Accountability Proposals
The ICG’s proposal on the IANA Function Transition and the second draft of the Accountability proposal are voluminous and complex. INTA’s position on the Stewardship proposal is that there is insufficient detail to understand how the IANA functions will be administered in the event that the accountability mechanisms cannot be agreed upon. INTA is also concerned by the current proposal that the IANA operator be a wholly owned subsidiary of ICANN, as it would be too closely linked to ICANN and could compromise the independence of the IANA oversight role. INTA has proposed an alternative, arms-length solution: That the IANA function be subject to a bidding process and that the third party provider agrees not to seek “international organization” status (thereby limiting or eliminating its liability as a contracting party). The contract should be subject to judicial enforcement to ensure accountability. Furthermore, the proposals call for the maintenance of the United States as the jurisdiction of IANA, as the U.S. is the home jurisdiction of ICANN. INTA supports that position to ensure consistency and predictability with contract enforcement.
With regard to accountability, INTA supports the sole member model and the adoption of fundamental bylaws that form the core of ICANN’s missions. The Affirmation of Commitments (AoC) that ICANN currently follows under NTIA oversight would become part of ICANN’s bylaws in addition to ensuring accountability, transparency and the interests of global Internet users. The full text of the AoC may be accessed here.
INTA urges that key accountability mechanisms be adopted before any transition occurs so that the voice of intellectual property owners does not remain marginalized and that the key terms regarding ICANN’s oversight functions of the DNS are clearly defined and do not undermine ICANN’s ability to enforce its agreements.
INTA’s comments may be found in the Testimony and Submissions section of the Internet topic portal on the INTA website. The full text of the reports are available on the ICANN website.
Are You Dublin Bound for ICANN 54? INTA Wants to Know.
INTA members will be out in full force for the ICANN Meeting in Dublin from October 18–22. We will cover important meetings, engage as part of various constituencies and contribute our voices to the debates surrounding the future of ICANN and the new gTLD program. If you will be there, or have questions about attending, please contact Lori Schulman, Senior Director, Internet Policy at email@example.com or @LoriKnowsNet
Although every effort has been made to verify the accuracy of items in the INTA Bulletin, readers are urged to check independently on matters of specific concern or interest.
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