Driving in to Durban from the airport this morning, I caught my first glimpse of the Indian Ocean: endless, exotic, deep, and full of mystery, it stretched to the blue horizon. While the Indian Ocean is more beautiful, it seems like ICANN 47 will be just as endless, exotic, and deep. Only time will tell what ICANN 47 is full of.
Although ICANN 47 does not officially start until Monday, the weekend features a number of working meetings of various ICANN groups, and is the unofficial beginning of each ICANN meeting. I spent my day in the meeting of the GNSO Council. The GNSO (Generic Names Supporting Organization) is a multistakeholder group tasked with developing policy recommendations for the gTLD (generic Top Level Domain) system – the domains we know and love (like .com, .net and .biz) and the domains yet to come (like .wtf, .sucks and .cool). The GNSO Council consists of representatives from each of the stakeholder groups that make up the GNSO.
The GNSO Council had a full plate today, receiving updates regarding various working groups and open issues. Two of the high points of the day dealt with the same issue, but in different ways – "policy" and "implementation" and the GNSO's role in both. This may seem rather abstract, but it is not. "Policy" recommendations are the business of the GNSO, and generally result from "PDPs" (Policy Development Processes) involving all those stakeholder groups. PDPs are grindingly slow; working groups consider it incredibly impressive if they can do their work in less than a year, and one working group founded in 2009 is apparently still "working." "Implementation" is typically the business of ICANN's staff, supervised by the ICANN Board.
Behind these two words lie much mischief. Because the PDP process is so long, some use "policy" to describe things they don't want to happen, while "implementation" describes things they do. Perversely, some on the GNSO Council also call anything they want to take charge of (and usually, stop) "policy," while implementation is reserved only for the boring and incredibly mundane.
First, the GNSO Council heard a report proposing the creation of a new working group to provide principles, processes, framework, criteria and guidance relating to the GNSO's role in policy and implementation. There was a great deal of interest in this "important" Working Group, and a number of Councilors volunteered for what should be at least a year of thought-provoking discussion, ending with a cluster of recommendations for changes to how the GNSO deals with policy and implementation issues at ICANN.
Not long afterwards, the GNSO Council considered a motion recommending that ICANN's By-Laws immediately be changed so that the GNSO would now be formally responsible for providing "advice" to the ICANN Board on "implementation." On top of that, the ICANN Board and staff could not take an action inconsistent with any GNSO "advice" regarding policy or implementation without first providing formal notice of the reasons for its actions and then "consulting" with the GNSO to try to find a "mutually acceptable solution." Makes one wonder what the Working Group would have left to do and why this huge change is not important enough for the important Working Group. Apparently, the Working Group would be left to figure out what the By-Laws change meant and how it would work – but only after it was adopted.
This motion was the subject of robust debate, with Councilors from some groups highly supportive of the motion, while Councilors from other groups were quite skeptical.
It should come as no surprise that this motion is supported by those groups on the GNSO Council that generally get their way (more or less) in Council deliberations (which does not include the Intellectual Property Constituency). Even less surprising -- it was explicitly inspired by an incident where the ICANN staff implemented a change that provided greater protections to brandowners, in spite of GNSO Council attempts to dub this change "policy" and a request by one GNSO stakeholder group that the Board repeal this change because they felt (wrongly) that it violated ICANN By-Laws. Clearly, this motion is designed to keep such changes from happening again. It's no wonder that those who believe in more robust trademark protections do not embrace this motion.
With contradictory actions like these, it seems that GNSO (and its Council) often moves at only two speeds – too slowly (and with too much thought and deliberation) and too quickly (and with too little). In this case, the GNSO Council apparently can't wait for its own processes to work and develop recommendations on the fundamental nature of the GNSO's work. Instead, it needs to rush ahead to quickly recommend a By-Laws change that would elevate the power and importance of the GNSO (and by extension, the Council). This seems like a vote of "no confidence" in the GNSO's policy development process. At the same time, it is a vote of great confidence in any "advice" (really, any letter, email, statement, etc.) rendered by the GNSO and especially the Council relating to policies or implementation. The dissonance makes my head hurt.
In other news, of greatest interest to brandowners (and others who need to track down domain name owners), the Council heard about an "Expert Working Group" recommendation that WHOIS (the system where domain name owners list their names and contact information (including, apparently, Donald Duck and Mickey Mouse)) be replaced with a centralized and verified system. This should be a good thing for brandowners. However, certain registry and registrar representatives objected to this new system, primarily on the basis of cost and the possible creation of a new entity to manage this system.
The rest of "Day Negative Two" at the GNSO Council was less eventful (and mostly, less negative for brandowners). Among other things, the GNSO Council listened approvingly to a report that recommended processes to avoid "cyberflight" by defendants in UDRP (domain name dispute resolution) matters, discussed the new Registrar Accreditation Agreement, and heard about a new "digital engagement" process designed to make ICANN more "user-friendly" and attractive to newcomers. They also received an update on a Working Group looking into protecting the names and acronyms of intergovernmental organizations (IGOs) and international nongovernmental organizations (INGOs), including (especially) the International Olympic Committee and the International Red Cross.
Tomorrow begins bright and early, with a 7:30 breakfast meeting. Let's see what "Day Negative One" holds....
This article is presented for informational purposes only and is not intended to constitute legal advice.