Rod Beckstrom took over as ICANN President/CEO on July 1, 2009, so October 9 marked his 100^th day in office--and a good opportunity to examine the progress made by ICANN during his short tenure. Of course, the ICANN community (Board, staff and stakeholders) deserve credit for their hard work prior to Rod's appointment, which made ICANN's recent achievements possible. But to borrow an analogy from American football: when you have the ball in the Red Zone, you need to score touchdowns, not field goals. So far, under Rod's leadership, ICANN has moved down the field on a number of issues. In particular, ICANN scored a "touchdown heard round the world" by bringing the MoU/JPA to a successful conclusion.

Drinking from a Fire Hydrant

While Rod is no stranger to the technical sector, he was by no means an ICANN insider and getting up to speed on the myriad of issues confronting ICANN is no easy task. But since taking office, he has demonstrated an impressive willingness to listen to an almost unlimited number of sources, both within and outside the ICANN community, and to synthesize a sophisticated understanding of ICANN's mission and how that mission is perceived globally. In conducting this outreach, Rod has engaged contracted parties (registrars and registries), the business community, national and international organizations, the non-commercial community, and individual stakeholders via Twitter.

Affirmation of Commitments

Over much of the last 12-18 months, ICANN and the United States Government (USG) appeared to be engaged in a high-stakes game of chicken, seeing who would blink first regarding the expiration of the MoU/JPA. The Affirmation of Commitments (AOC), which succeeded the MoU/JPA, produced no clear winner or loser, but a win-win-win situation for ICANN, the USG and the broader Internet community by building into the ICANN governance framework increased accountability to the global private-public stakeholder community. It would be unfair to the many other participants in the AOC negotiations to give Rod sole credit. But he certainly does deserve credit for using this defining moment in ICANN's continued evolution as an opportunity to both reinvigorate participation by long-time ICANN stakeholders such as myself and to engage new stakeholders in the ICANN process.

A series of recent applications for national trademark rights in terms that correspond to likely strings for new top-level domain names, or TLDs, (e.g., ".BLOG") highlight just one way in which ICANN's new generic TLD (gTLD) application process is likely to be "gamed." But it is also a strategy to which some trademark holders may feel compelled to resort to defend their rights to that string. Unfortunately, it does not appear that ICANN is addressing these important public policy considerations. In fact, based upon some of the provisions in the proposed draft registry agreements, it appears that ICANN staff's actions may increase, rather than decrease, the ambiguity that opens the door to such gaming of the system.

Click here to download my latest paper on this subject (below), published by The Progress & Freedom Foundation, or click here to read more of my recent work at PFF.

On July 1st 2009, Rod Beckstrom succeeded Paul Twomey as the fourth CEO of the Internet Corporation for Assigned Names and Numbers (ICANN). Rod assumes this important leadership role at a critical juncture in ICANN's ongoing evolution. Saying that he is jumping into the deep end of a pool would not do justice to the magnitude of the tasks before him. The more appropriate analogy might be parachuting from a plane above the Mariana Trench during a typhoon. However, after reading some of his writings, reviewing his biography, and having met with him one-on-one during ICANN's recent Sydney meeting, I am confident that the ICANN Board made the right decision in selecting Rod to lead the organization at this defining moment in Internet governance.

Fourth Down and Goal from the 1 Yard Line

Besides the normal organizational and staff review that any new CEO undertakes, the immediate challenges confronting Rod on Day 1 include:

• The pending expiration of ICANN's Joint Project Agreement (JPA) with the US Government;
• The introduction of internationalized country code top-level domains (IDNs) such as (例子.测试); and
• Introduction of new generic top-level domains such as .WEB and .BLOG.

Together, these challenges create a unique opportunity for Rod to "punch the ball across the goal line" and bring to conclusion the hard work of ICANN's three previous CEOs over the last decade in "moving the ball down the field" on these issues. If Rod helps in scoring this critical "touchdown" early in his tenure as ICANN's next CEO, it will be a team accomplishment that the entire ICANN community could celebrate.

Here are my comments (PDF) on the NTIA's recent Notice of Inquiry regarding ICANN's future.  

I have been an active participant within the Internet Corporation for Assigned Names and Numbers (ICANN) process since its inception as an intellectual property lawyer and information technology specialist.  Over the last ten years, I have served in a number of leadership positions within ICANN, including a three-year term on its Board of Directors (2003-2006).   I applaud the NTIA for using the broad scope of this NOI to refocus the global Internet community on the original intent/focus of ICANN's MoU/JPA with the Department of Commerce (USG).  Unfortunately, over the last few years, ICANN has strayed from its narrow mission as the technical coordinating body originally envisioned in the 1998 White Paper, and has instead become a quasi-monopolistic regulator accountable to no one but itself.  This NOI provides the global Internet community the opportunity to deconstruct the current 

"ICANN 2.0" governance model and refocus on a successor "ICANN 3.0" governance model.  I submit that ICANN 3.0 needs to be a mix of getting "back to basics" (restoring ICANN's original mission) and implementing important "lessons learned" since ICANN's creation about how to make the organization more effective and accountable.  I discuss four broad issues:

1. ICANN's Periodic Review of its internal operations and supporting organizations has failed, and has become nothing more than a "perpetual motion machine of public comments and documentation producing no meaningful results." Only a second Evolution and Reform Process can solve ICANN's current deficiencies;
2. ICANN must hardcode into its policies and its contracts the principle that its policies cannot supersede national laws;
3. ICANN must cease any operational role in technical infrastructure as required by its bylaws and focus instead on its mission as a technical coordinator; and
4. Congress must avoid "kicking the JPA can down the road" and instead provide much-needed leadership by creating a solid foundation for ICANN 3.0 in legislation after proper consultation with the Government Accountability Office.

During the recent ICANN Board meeting in Mexico City, the Board authorized the creation and funding of an Implementation Recommendation Team (IRT). This team was to be comprised of "an internationally diverse group of persons with knowledge, expertise, and experience in the fields of trademark, consumer protection, or competition law, and the interplay of trademarks and the domain name system to develop and propose solutions to the overarching issue of trademark protection in connection with the introduction of new gTLDs." This IRT is tasked to produce a report for consideration by the ICANN community at the Sydney meeting.

The IRT consists of 24 members:

• Chairwoman Caroline G. Chicoine; and
• Seventeen members; and
• Six ex officio members: Four IPC-elected officers and two-GNSO elected Board Directors (Bruce Tonkin and Rita Rodin Johnston). 

I've previously proposed a number of rights-protection mechanisms that IRT should consider. Today, I offer a few suggestions that I hope will guide IRT as they embark on their important work tomorrow. In particular, I hope they'll implement some of my suggestions intended to make the IRT process more transparent-so the rest of the global Internet can follow along with their important work and provide constructive input where possible.
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TPI's Tom Lenard and Larry White released a study yesterday entitled ICANN at a Crossroads: A Proposal for Better Governance and Performance (PDF). ICANN is, indeed, at a crossroads: A number of critical Internet governance issues will be decided over the next 6-12 months-such as:

• How to roll out new gTLDs like .BLOG, which I've discussed here and here (PDF).
• ICANN's future as an increasingly independent organization, which I've discussed here.

But I strongly disagree with TPI's conclusion that:

ICANN should remain a nonprofit organization, but it should be governed by and accountable to its direct users: the registries and the registrars. The seats on ICANN's board could be rotated among the major operators in a manner that would reflect the diversity of viewpoints among the registries and registrars.

Having invested over 10 years of my life in ICANN's diverse and inclusive public/private partnership model, I speak from first-hand experience that ICANN is far from perfect as an organization. I've often feared that ICANN is heading in the wrong direction and I've never hesitated to say so. But despite these shortcomings, the various stakeholders I work with in the seemingly byzantine "ICANN process" remain as committed as ever to the principles set forth in NTIA's 1998 White Paper as the foundations of Internet governance. The staying-power of this shared belief in a common set of principles among all stakeholders reaffirms my faith in the public/private partnership-whatever other changes need to be made.

Lenard and White are right about one thing: We do need a new model for ensuring ICANN's accountability after the expiration of ICANN's current relationship with the U.S. Government. But the model they suggest isn't it--as Steve Delbianco has pointed out.

ICANN recently proclaimed that the "Joint Project Agreement" (one of two contractual arrangements that ICANN has with the U.S. Department of Commerce (DoC) governing ICANN's operations) will come to an end in September 2009. ICANN's insistence on this point first became clear back in October 2008 at ICANN's Washington, D.C. public forum on Improving Institutional Confidence when Peter Dengate Thrush, Chair of ICANN's Board declared:

the Joint Project Agreement will conclude in September 2009. This is a legal fact, the date of expiry of the agreement. It's not that anyone's declared it or cancelled it; it was set up to expire in September 2009.

ICANN's recently published 2008 Annual Report stuck to this theme:

"As we approach the conclusion of the Joint Project Agreement between the United States Department of Commerce and ICANN in September 2009..." - His Excellency Dr. Tarek Kamel, Minister of Communications and Information Technology, Arab Republic of Egypt

"Concluding the JPA in September 2009 is the next logical step in transition of the DNS to private sector management." - ICANN Staff

"This consultation's aim was for the community to discuss possible changes to ICANN in the lead-up to the completion of the JPA in September 2009." - ICANN Staff

ICANN's effort to make the termination of the JPA seem inevitable is concerning on two fronts. First, ICANN fails to mention that the current JPA appears to be merely an extension/revision of the original 1998 Memorandum of Understand (MoU) with DoC, which was set to expire in September 2000. Thus, because the JPA does not appear to be a free-standing agreement, but merely a continuation of MOU-as Bret Fausset argues in his excellent analysis of the relationship between the MoU and the JPA (also discussed by Milton Mueller). Therefore, it would be more correct to talk about whether the "MoU/JPA"-meaning the entire agreement as modified by the most current JPA-will expire or be extended.

ICANN's plan to begin accepting applications for new generic top-level domains (gTLDs) in mid-2009 may have been derailed by last week's outpouring of opposition from the global business community and the United States Government (USG). Having been involved with ICANN for over a decade and having served on its Board for three years, I've never seen such strong and broad opposition to one of ICANN's proposals.

This past June, the ICANN Board directed its staff to draft implementation guidelines based upon the policy recommendations of the Generic Names Supporting Organization (GNSO) that ICANN should allow more gTLDs such as .cars to supplement existing gTLDs such as .com. In late October, the ICANN staff released a draft Applicant Guidebook detailing its proposal. The initial public forum on this proposal closed on December 15-with over 200 comments filed online.

In its December 18 comments, the USG questioned whether ICANN had adequately addressed the "threshold question of whether the consumer benefits outweigh the potential costs." This stinging rebuke from the Commerce Department merely confirms the consensus among the 200+ commenters on ICANN's proposal: ICANN needs to do more than merely rethinking its aggressive time-line for implementing its gTLD proposal or tweaking the mechanics of the proposal on the edges. Instead, ICANN needs to go back to the drawing board and propose a process that results in a responsible expansion of the name space, not merely a duplication of it.