Original URL: http://www.theregister.co.uk/2007/03/30/icann_lisbon_registerfly_meeting/

ICANN ready to shut up and move on

Bye-bye bureaucrats

By Burke Hansen

Posted in Law, 30th March 2007 05:23 GMT

ICANN Lisbon "Turistas, if you cannot respect the silence of the Portuguese, go to Spain" - graffiti spotted at the entrance to the midieval Alfama neighborhood of Lisbon

ICANN may not be heading to Spain, but Lisbon will soon be rid a few more noisy turistas.

The ancient city of Lisbon - a name derived originally from that of the city's mythical founder, Ulysses - has loomed indifferently this week over obscure work on internet development, that is itself charting new territory.

ICANN, the de facto determinant of much that occurs on the internet, will wrap up its triennial meeting tomorrow with an unusual open board meeting on the controversial .xxx generic top level domain (gTLD).

The week has been a mixed bag - the unveiling of a new, more user-friendly ICANN website has been one of the nicest surprises, although the news that ICANN was itself subject to a lawsuit arising out of the seemingly never-ending RegisterFly disaster deflated what was an optimistic beginning to a long week. Ongoing arguments by the representatives of intellectual property owners (i.e., intellectual property attorneys) provided a nonstop subtext to just about every meeting attended by yours truly.

After days of being packed like that local delicacy, the sardine, into sweltering rooms for hours of arcane debate - even once being mistaken for tech support and asked to help out with a PowerPoint presentation, a subject about which I am completely and happily ignorant – I have tried to distill for our readership the main points of interest at this obscure but important event.

ICANN's greatest hits, so to speak.

Internationalization of Domain Names (IDNs)

The IDNs have been superficially uncontroversial but subtly troubling to all involved.

Nearly everyone agrees in principle that the internet needs to expand beyond its ASCII origins to enable domains in all the tongues of the world. Ulysses would approve.

This becomes more difficult once the linguistic nuances of the world's various languages come into play, as regional differences come blur what appears at first glance to be a relatively straightforward concept. Should .color really be .colour, for example? And what about .germany vs. .deutschland? ICANN officially plans to defer to the judgment of the countries' whose mother tongue is involved, but it remains unclear just how that will be implemented.

The Unicode that will replace the generic Latin script that currently forms the basis of all internet domains is in order, but the concerns of the trademark crowd about domain squatting and general trademark dilution once again reared up. Concerns about overly similar TLD strings, cultural sensitivities, and the problem of differing trademark protection rights in different jurisdictions all proved vexing. Some countries base trademark on usage, others give priority rights to whoever registers the mark first, regardless of whether it's in use or not. Some jurisdictions don't give trademark protection to non-commercial users.

The debate reopens old arguments surrounding ICANN about the need to artificially restrict TLDs at all - many of the problems regarding .xxx and potential duplication could have been resolved long ago had ICANN released an wide array of TLDs in the first place and let registrants gravitate toward whichever TLD suited their needs best. Instead, we have the current system in which there is a gross overvaluation of .com domains to the benefit of no one but Verisign, which now owns the .com registry in perpetuity.

At last word, these concerns were being punted forward to the San Juan meeting in June.

Whois database

The changes proposed to the Whois registry are problematic inasmuch as there is little middle ground between the opposing parties.

Europeans want more privacy protection, and the contingent of American intellectual property lawyers present wants as much information publicly available as they can get away with.

The current frontrunner by a narrow margin is the Operational Point of Contact (OPoC), which would provide the name of the registrant, an agent for purposes of notice, and sufficient jurisdictional information to allow IP lawyers to know what laws they need to be addressing.

The current system, in which those intent on protecting their privacy paid registrars to register for them as proxies is possibly the worst of all worlds, and will be tossed someday. ICANN is a consensus-based organization and change happens slowly.

The proxy system proved to be a mess in the RegisterFly case, in which a problem registrar refused to turn over the authcodes that would allow registrants to transfer their domains to another registrar. ICANN is still fighting over that charade.

The IP crowd has countered with a “special circumstances” proposal, in which individuals seeking to maintain their privacy online have to petition to an ICANN-approved third party to do so. Although pretty much everyone agrees that law enforcement will need access to this registrant information (they generally get exemptions for these kinds of things), the IP constituency worries that their private law enforcement will not be able to track down spammers, phishers, and other evil doers doing evil, and that they need to spoon feed this info to law enforcement to get anything going.

Mostly it will cost them more time and money to get the information they want– though whether or not European countries with strong privacy laws care if American companies have to fork over more dough to track people down is another matter entirely.

Reform of the Registrar Accreditation Agreement (RAA)

The ongoing turmoil involving RegisterFly, the big US domain registrar which collapsed this year, permeated the event like a nasty, aching hangover.

As El Reg revealed yesterday, ICANN has recently been sued by a RegisterFly customer over its alleged failure to supervise its accredited registrar RegisterFly. Not that ICANN bothered to reveal this information to its stakeholders (i.e., the internet community), a fact that seems to fly in the face of its current claimed emphasis on transparency and better communication with the public.

The RAA guarantees RegisterFly arbitration if ICANN revokes its accreditation, as it did after almost a year of complaints from RegisterFly's customers, which means that this fiasco will continue to simmer nicely. Although ICANN might be able to claim that it has fulfilled its contractual obligations, or in the alternative that the plaintiff is not a third party beneficiary of the contract and thus has no standing to sue in the first place, this is uncharted territory.

If ICANN loses on this one, you can bet the floodgates will open, as ICANN's years of neglect on this issue of supervision will come back to haunt it. ICANN is well aware that there are other potential RegisterFly situations out there, with plenty of other American lawyers eager for class-action status.

Chairman Vint Cerf at the welcoming ceremony continued to dish this one off to other parties, claiming without any apparent irony that the emphasis should be on reporting bad registrars to Better Business Bureau-type organizations (ICANN, like the BBB, allows registrar businesses to post its approved logo on their sites, and yet was completely blindsided when angry RegisterFly customers came to it for help).

Regardless, it’s impossible to see how the fraud alleged in the RegisterFly case will be rectified by a third party like the BBB – when someone like Vint Cerf gets defrauded, he doesn’t call the BBB, he calls his lawyer.

Needless to say, this is the story that just won’t quit.

Regional At-large Organizations (RALOs)

The expansion of the RALO effort, begun at the Sao Paulo conference last year with the establishment of an at-large organization for Latin America, has continued with contracts signed for European and African RALO groups.

These groups are part of an outreach effort by ICANN to allow for more public participation in its decision making, while taking into account the fact that there are at times unique regional issues to be addressed. Just how much accountability these organizations will give to ICANN is highly debatable - and accountability, or lack there of, has been a persistent criticism of ICANN for years, even by those within the organization.

One of the best things to come out of this meeting was a vastly improved website, with, of all things, an actual sitemap.

Considerably more information than ever is available, and in multiple languages. Of course, the latest round of RegisterFly obscurantism (in which ICANN made no mention of a major lawsuit against it) calls into question just how serious ICANN is about transparency and accountability.

Just how the RALOs play out remains to be seen, but it is, if nothing else, representative of the internationalization of the Web itself.

New generic Top Level Domains (gTLD)

Suggestions were tossed about for a special TLD just for financial institutions, though that is in the rumor stage, nothing more. More regional domains, such as .asia, are on the way.

Best of all, that old warhorse of ICANN controversy, the .xxx domain, will be resolved once and for all at a unique (for ICANN) open board meeting.

We’ll be there to cover the debate from start to finish.®

Burke Hansen, attorney at large, heads a San Francisco law office