The “New ICANN of 2015” – What will it look like?

December 10, 2014

By Clark W. Lackert, Reed Smith LLP

The ICANN 51 meeting just concluded in Los Angeles displayed many of the growing fissures in ICANN. As “IANA Transition” (“IANA” stands for the Internet Assigned Numbers Authority) looms in 2015, there is wide disagreement about how the “New ICANN” will look, or if it will be ICANN guiding former IANA technical functions at all. Right now the Department of Commerce oversees these technical functions through a contract with ICANN. How the domain name technical functions are transferred is a critical issue for brand owners, advertisers, and consumers since if the transition is not done properly, the safety of the domain name system itself will be threatened. While new gTLD strings continue to be delegated (approximately 430 thus far), a transition of control over the (IANA) is underway.  The ICANN “Cross Community Working Group (CWG) on Naming Related Functions Draft Transition Proposal” issued its first report on December 1, 2014. The CWG essentially offered two options: (1) a small, external multistakeholder group to operate and supervise this function, or (2) increased internal ICANN safeguards. Whether either option is viable remains to be seen.

The U.S. government has maintained the constant position that control will not be assumed by another government or a multi-governmental entity, but rather must be supervised by a multi-stakeholder entity.  These issues were being debated at the UN’s International Telecommunication Union’s Plenipotentiary Conference, just concluded in Busan, South Korea.  As ITU Resolutions 101, 102, and 180 (Busan, 2014) indicate, the ITU (and representative governments) intend to take a much more active role in the ICANN debate, despite the official U.S. government position.

Coupled with the major theme of IANA Transition was the theme of “Accountability”, which was extensively discussed in meetings, hallways, and dinners. What kind of “accountability” – for the IANA Transition, for ICANN as a whole, for ICANN new gTLD decisions, to GAC governments? ICANN is now in danger of becoming a Tower of Babel, with different constituencies all speaking different trade languages and all with different agendas. ICANN has its work cut out for it for 2015 in order to move ICANN forward and to control the gale force winds trying to tear it apart. This second issue is also of great importance to brand owners, advertisers, and consumers since many view ICANN’s actions as without proper oversight today particularly in policy directions, finances, and the new gTLD decision making processes, let alone when parts of the ICANN management portfolio leave U.S. supervision.

Perhaps the other major story of ICANN 51 is the new assertiveness of the GAC concerning issues from protection of the Red Cross and Red Crescent names to geographical names to IANA Transition. GAC governments clearly want a larger voice in ICANN affairs, and some have openly questioned whether ICANN is truly the correct entity to address internet naming conventions at all (for example, the French government’s strong criticism of ICANN’s handling of the “.wine”/”.vin” applications), or to create new international law when it is not authorized to do so. Another major GAC initiative at the moment is the so-called “geo names proposal” which will significantly expand GAC control over any trademarks which may even remotely connote a geographical location. ANA is filing comments on this proposal, the deadline for comments for any interested party being December 31, 2014.

Surrounding this dialogue is increased uncertainty as to what 2015 will bring; topics include a so-called “remedial” round to review geographic names, community application requirements, and concerns of underserved communities and countries, particularly those in South America and Africa (call it “New gTLD Round 1 ½”).  In view of these controversies, many believe that the second round of gTLD filings will not occur until 2017. The newly elected Republican dominated Congress in the United States may also contribute to further uncertainty given predicted attempts to block or stall the IANA transition due to concerns about non-U.S. government control, management, and censorship of the internet. Despite a number of current cross-community working groups (CWGs) working within ICANN to address these controversial issues, there is no guarantee that what results from these discussions will be approved in whole or in part.

The ICANN 51 meeting with some 2,500 attendees demonstrated the diversity of the ICANN ecosystem but also the aftermath of the withdrawal of the U.S. as the guiding force of the organization. It still remains to be seen whether ICANN morphs into a global, multistakeholder community apart from U.S. oversight, a subdivision of the ITU or another intergovernmental agency with the inevitable higher levels of governmental control and bureaucracy, a group of competitors with administrators of other new “internets” of Russia and China when the global system fractures, or a newly born Swiss corporation. These issues and more will be on the overloaded agenda for ICANN 52 in Singapore in February 2015.

Reed Smith LLP is the ANA’s General Counsel.

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