Reclaiming new territory in cyberspace

Out of the traffic circle: ICANN stumbles forward

After years of discussions about the introduction of new top level domains, ICANN has now shown its colors. On 20. June 2011 in Singapore is to begin the creation of new territory in cyberspace. ICANN is obviously willing to take on governments, because at the 40. At the first ICANN meeting in San Francisco, the controversial .xxx domain waved through.

At the halfway point of the youngest ICANN meeting in San Francisco, it looked like the topic of the introduction of new Top Level Domains (new gTLDs) would remain in the endless loop that has been rotating for years. Even after the special Brussels meeting in early March 2011, the ICANN Board and the governments represented on the Governmental Advisory Committee (GAC) were spinning their wheels and it seemed that once again the exit from the traffic circle was missed.

Creation of virtual estates

The subject is indeed not without controversy, and no one disputes the need for a thorough assessment before making irreversible decisions. After all, it is a matter of reclaiming new territory in cyberspace, of creating attractive virtual sites for new virtual locksmiths, factories, warehouses, loudspeakers and communication platforms. Concerns since the mid-1990s that new top-level domains could threaten the security and stability of the Internet, confuse consumers, or upset the entire static of cyberspace have increasingly turned out to be nothing more than a delaying tactic by which special interest groups – from trademark holders to domain name top dogs – have sought to secure their comfortable monopoly position in this billion-dollar market in order to keep the price of what is essentially an unlimited and virtually free virtual resource high by artificially limiting it. Then, when governments discovered that there were "bose" or even "dangerous political words", The fact that My Lai is a name that should not be used in a top-level domain on the Internet created an unholy alliance that increasingly acted as a brake on the next Internet innovation.

ICANN and the GAC had moved closer together after meetings in Nairobi (March 2010), Brussels (June 2010) and Cartagena (December 2010). However, the movement seemed to have turned into a "vicious circle" where the contending parties basically agreed, but got lost in the details and could no longer find their way to each other.

Governments demanded that new TLDs should not conflict with national laws and decisions of independent courts. ICANN accepted the principle, but asked how this would work in detail with 190+ national jurisdictions? For ICANN the proposed objection mechanism, with which also governments could stop new TLDs in justified individual cases, was sufficient. The fact that such an objection procedure would incur costs was again unacceptable for the governments. No mayor of a small rural community will be able to raise the money to secure the place name before an international TLD dispute resolution authority. The idea of an early warning system developed by governments to stop disputed TLDs in their infancy was therefore not a bad idea for the ICANN Board of Directors. ICANN now wanted to know from the governments, how such an institution could be established "Early Warning System" to be designed. This is not the task of governments, ICANN must come up with a cost-neutral proposal for governments, said the GAC. To ICANN: If GASC wants something, let it say how to make it happen.

And so, in San Francisco, the blame game seemed to continue at the expense of the applicants, who have now grown to several hundred and are sitting in the starting holes. Sarcastic comments from the audience accompanied this political armtwisting, which had its whimsical culmination at Music Night in San Francisco’s Union Square, when GAC members formed a chorus during late-night karaoke, and "We are the Champions" sang. The musically performed governmental claim to the right of the last word, however, was overstated that very evening when an even cruder multistakeholder chorus gathered on the stage and sang "We are a family" sang.

Bill Clinton’s Wake Up Call

Obviously, the absurdity of this musical comedy acted like a wake-up call. Slowly, both sides seemed to realize that a failure of the new gTLD program would mean a failure of ICANN and the global multistakeholder governance model. Laughing third parties to such a failure were those governments to whom the whole direction, d.h. participation of the private sector, civil society and the technical community in the development, design and decision-making of global Internet policy, does not suit.

China is showing how the domain name system can be ruled by the state from above. Every domain name applied for must now be submitted in writing (with a passport photo of the applicant) to an authority, which will then decide whether the proposed domain name is also "well" is. The website built on the domain name will then be regularly monitored to see if it is even "good content" Otherwise, as in road traffic, there will be warnings, fines or withdrawal of the license "driver’s license".

In this way, the number of registered domain names under the country code .cn from almost 14 million to around four million (with 500 million Internet users in the country). And the ICANN delegated iDN ccTLD .china with chinese letters can’t get out of the kink. While the Russian .rf domain in Cyrillic has reached nearly one million registrations within a few months, dumps .china in chinese after half a year at a few tens of thousands around.

With this alternative and the advice of former US President Bill Clinton, under whose presidency ICANN was founded in 1998, in mind, the political will to move out of the traffic circle finally broke through on the penultimate day of the ICANN meeting in San Francisco. Clinton, in his speech in the Rough Ballroom of the St-Francis Westin Hotel, had described Internet governance as a process of "Forward Stumble" described. And he had convincingly demonstrated that growth and thus new jobs in the world economy could only be generated by venturing into as yet unexplored territory. Blobe’s shoveling of already tilled land had only a limited growth potential and was not sufficient to meet the demands of the future.

Clinton said he did not want to get involved in the TLD dispute, but his bird’s eye view obviously had an effect. After a turbulent week, ICANN’s Board of Directors finally decided unanimously to take the risk of reclamation in cyberspace and to start the process – after careful consideration of all last-minute objections from the governments – on 20 December 2009. The next ICANN meeting in Singapore in June 2011. This is not a confrontational course against the governments, but a bold step forward is now needed.

The good thing about the lengthy debate with governments, ICANN said, was that both sides had learned a lot in this intense and controversial dialogue and that mutual understanding had grown considerably. Now we have to wait for the individual cases that produce new controversies and then, case by case, look for individual solutions on the basis of trustful cooperation.

The cow is not off the ice yet, but after the San Francisco meeting it is quite unlikely that the announced TLD party on the Singapore River will have to be cancelled and that the Lowen City will not see the start of its ascent.

The next hour of truth

One should not expect, however, that cyberspace is only rapidly growing larger. This will be a complicated and for many applicants also costly way. One gropes one’s way forward and the devil is in the details, as is well known. And every devil has a lawyer. ICANN would therefore be well advised to give priority in a first round to applicants who, according to normal common sense, are not the source of controversy. So rather first .berlin, .paris and .africa as .corsica, or .tibet, dear .store and .sport as .jihad or .paedophile

ICANN, however, will not be able to fully comprehend the controversy into which it will be dragged. The unfortunate case with the .xxx domain is a cruel negative example. If ICANN had said a well-reasoned formal no from the start, it would have saved itself agonizing discussions and millions in litigation costs. After all the proceedings and objections, the ICANN board had no other option but to give the name of the invader to Bush .xxx agree.

ICANN could not and would not comment on ies of content. Others are responsible for that. But turning a blind eye to reality is ultimately nothing more than a publicity-seeking hypocrisy, said new ICANN Director Bertrand de la Chappelle – and he is obviously not wrong when he argues that .xxx would come back under the new gTLD program and ICANN could not then include the applicant ICM Registry in the rather strict oversight mechanism now envisioned.

But ICANN director George Sodowsky is also right when he says that the TLD .xxx is an invitation to further expand government censorship and filtering system. Of course, it is much easier for a government to block an entire top level domain than to go after thousands of secondary level domains (SLDs) scattered among all possible TLDs. It was no chill pill, but at least comforting that ICANN Director Suzanne Wolff of the Root Server System Advisory Committee (RSSAC) clarified that filtering a TLD or an SLD has no negative impact on the stability, security and functioning of the Internet as a whole, and that any filtering system, whether at an SLD or a TLD, can be equally bypassed.

The world is what it is, and if you don’t take risks, you don’t get ahead, argues Erika Mann, ICANN Director since 2010 after 15 years in the European Parliament. It also voted in favor of the resolution, which was adopted with nine votes in favor, three against and three abstentions.

With this decision, another moment of truth is now approaching. The U.S. government was one of the GAC members that had expressed considerable reservations against .xxx had voiced. An interesting constellation is now building up. According to the current procedure, the Zone File for the gTLD .xxx, once the negotiations between ICANN and ICM Registry are completed, will end up on the table of the National Telecommunication and Information Administration (NTIA), a division of the U.S. Department of Commerce (DoC). The DoC is responsible for authorizing the publication of TLD root zone flags in the Hidden Root Server managed by Verisign. So the US government has the possibility to prevent the registration of .xxx in the root.

However, there is not a single case in the 30-year history of the Domain Name System (DNS) where the U.S. government has abused this function, defined as technical, as a political tool. On the contrary, it has always defended its special role, which has been criticized by many governments, by saying that it is the "neutral interest guardians" of the global "Internet Community" and that no country should fear that the zone file of a country domain (ccTLD) could be removed from the root for political reasons.

Was now in the case of .xxx the US government would make use of the theoretical possibility of using an instrument of torture and would not forward the root zone file to Verisign’s hidden server, it would accuse itself of lying. The U.S. government would lose its credibility as the neutral steward of the community’s interests, and the laughter in Beijing would be rude. There they pointed the finger at ICANN and explained to the whole world that the Internet is under US control and therefore an alternative Internet under UN control is needed. Because at the UN World Summit on the Information Society (WSIS) in 2005 it was agreed that no government should have special rights.

The whole case gains additional delicacy because the so-called IANA contract between the US government and ICANN expires in October this year and has to be renewed. The U.S. government has just published a call for proposals on how the IANA contract could be further developed. There comes the .xxx case as a litmus test for the resilience of the existing system just in time. So it remains exciting in the minefield of Internet governance.

Wolfgang Kleinwachter is Professor of Internet Policy and Law at Aarhus University and Adviser to the Chair of ICANN’s Nominating Committee (NomCom)

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