[bc-gnso] FW: The Affirmation of Commitments - What it Means

[George Kirikos]

Hello,

On Wed, Sep 30, 2009 at 11:31 AM, Marilyn Cade wrote:
> I wouldn't get irrationally enthusiastic about the agreement. The proposed accountability mechanisms that were posted, even though delayed in comment deadline, were not by any measure meeting the Comments from the community. There is much yet to understand.

As Marilyn suggests, one should temper any enthusiasm until one sees
how ICANN operates in practice under the new document.

For example, language like.

4. ....." To ensure that its decisions are in the public interest, and
not just the interests of a particular set of stakeholders, ICANN
commits to perform and publish analyses of the positive and negative
effects of its decisions on the public, including any financial impact
on the public, and the positive or negative impact (if any) on the
systemic security, stability and resiliency of the DNS."

appears very positive to those like myself who believe in cost-benefit
analysis of various decisions. However, the ICANN staff have taken the
position routinely that the promised "economic studies" for new TLDs
have been accomplished, even though most observers would find that
they do not come close to satisfying the concerns of the public.
Obviously better and more responsive staff are needed, and the
existing organizational culture needs to change considerably.

The DOC in some weighs tipped their hand in point #5 that they don't
expressly support the current ICANN plan for new gTLDs, in much the
same way they (with the DOJ) expressly failed to give immunity
protection to VeriSign when the .com settlement was approved in 2006:

http://www.ntia.doc.gov/ntiahome/domainname/agreements/amend30_11292006.pdf

"5. .... This approval is not intended to confer federal antitrust
immunity on VeriSign with respect to the Registry Agreement."

leaving the door wide open for the CFIT lawsuit to let a court
determine whether the contract was anti-competitive.

I was encouraged to see the language in 9.3.1 in regards to WHOIS.

Ultimately, the DOC can terminate the agreement by providing 120 days
notice. Given the IANA Function contract is more important, ICANN will
hopefully be compelled to meet its promises. The IANA contract can be
seen at:

http://www.icann.org/en/general/iana-contract-14aug06.pdf
http://www.ntia.doc.gov/ntiahome/domainname/iana.htm

and, if all options are exercised, comes up to be re-awarded in 2011.
That's the critical contract that exercises control over the root zone
file. So, one should not expect the political positioning and
posturing to cease in the coming years. I expect the US government
will never relinquish the IANA function permanently to ICANN, and I
would support that continued control by the US as an important "check"
to foil ICANN's tendency to "go rogue."

Sincerely,

George Kirikos
416-588-0269
http://www.leap.com/