[icann-eu] Zuerich Report

[Wolfgang Kleinwächter <wolfgang@imv.au.dk>]

Enclosed is the report from the Studienkreis meeting in Zuerich.

MfG

wolfgang


Technical Mandate vs. Political Challenge: ICANN after Marina del Rey

2nd Meeeting of the ICANN Studienkreis
Zürich, February, 2 - 3,  2001

The 2nd Meeting of the ICANN Studienkreis took place in Zürich, February, 2 - 3, 2001. Among the 200 participants, mainly from the German speaking Internet Community, were ICANN Directors Kraijenbrink, Schink and Müller-Maguhn, GAC Members Leibrandt (Germany), Maurer (Switzerland) and Delmas (European Commission), Members of the DNSO Names Council, ccTLD Managers, CEOs of Registrars and of the new gTLD Registries and numerous specialist from the business sector, the academia, policy and the media. ICANN Staff was represented by Andrew McLaughlin, Chief Policy Adviser, and Herbert Vitzthum, the new ccTLD Liaison Manager. The Meeting was opened by Marcel Schneider, ccTLD Manager for Switzerland and CEO of SWITCH and Wolfgang Kleinwächter, University of Aarhus and Initiator of the ICANN Studienkreis. 

Panel 1: 
Technical Mandate  vs. Political Challenge
(Moderator: Sandra Kegel, Frankfurter Allgemeine Zeitung)

ICANN Director Hans Kraaijenbrink underlined the technical Mandat of ICANN. ICANN was able to promote consensus within the global Internet community on key issues. This has proofed the efficiency of ICANN and the possibility of a self-regulatory mechanism, managed by the global internet community itself. ICANN would loose its "political heat" if it continues to stick to its technical mandate and to move to ordinary "business as usual". ICANN Director Andy Müller-Maguhn presented a different view. The commercialisation of the Internet and the very concrete interests of the private industry and of governments would lead to growing contradictions with the ordinary "netizen". Building a global consensus would be more and more difficult. The "public sphere" of the Internet can not be settled by "technical decisions". Domain Names, protocols and addresses have political, social and economic implications and need a more complex decision making procedure. Also the role of governments, and in particular the role of the US government in global internet governance, has to be reconsidered. Each governance model - governmental top-down regulation, bottom-up self-management by the "Internet Community" or industry self-regulation - has its strengths and weaknesses. A convincing co-regulatory system has still to be found. ICANN Director Helmut Schink also emphasized the technical mandate of ICANN and called for clearer criteria for decision making in the Board. In the discussion the role of the US government and the status of the A Root Server was critical reviewed. Some speakers expressed their dissatisfaction that there are no contractual relations between the US government and other governments concerning the control of the A Root Server. It was also so asked why the European Parliament does not convene similar Hearings on ICANN like the US Congress.
.. 
Panel 2: 
The trilateral relationship between ccTLDs, ICANN and national governments
(Moderator: Marcel Machill, Bertelsmann Stiftung)

Andrew McLaughlin, CPO of ICANN,  presented ICANN´s efforts to build a stable relationship between ICANN, the ccTLDs and national governments. It is not ICANN´s business, said McLaughlin, to interfere into the bilateral relationship between national governments and ccTLDs. ICANN is responsible for the stability of the Internet and will support every model which makes the Internet more stable and safe. GAC members Michael Leibrandt (Germany) and Francois Maurer (Switzerland) refered to the "GAC principles" and reaffirmed the position, that the national governments have the "ultimate public authority" within their territories, which includes also to sovereignty over the names space and the activities of the ccTLDs, including the question of delegation and re-delegation with regard to the ccTLD manager. Leibrandt went one step further by challenging the existing system of relationship between governments and the ICANN Board of Directors. He asked whether it would make more sense, if not the governments advise ICANN, but ICANN advises the governments. The proposals for a greater role of national governments in "Internet Governance" was rejected by various members of the "Internet Community". It was argued that the Internet is not an inter-governmental place. Also doubts were articulated whether it would be possible to draft a global consensus among 180+ national governments for a global "Internet Convention" or the establishment of an "UN Internet Organisation". The idea to bring the ccTLDs closer under governmental control was also rejected. Sabine Dolderer, ccTLD Manager for Germany, and Fay Howard, Speaker for CENTR warned that a "politization" of the Internet Domain Name Registration would be counterproductive and undermine the stability of the Internet. The majority of the national governments would lack the competences to manage the key ressources of the Internet. CcTLDs and national governments should agree on their relationship on purely technical criteria. There would be no need to have a unique global model for such a relationship, recognizing the broad variety of ccTLDs and governments. 

Panel 3:
ICANN's  UDRP and its follow up:  UDRPII, LDRP
(Moderator: Martin Stotter, Institute for International Relations and International Law, University of  Graz)

Erik Wilbers, Vice-Director of the "Arbitration and Mediation Center" of WIPO introduced the  Uniform Dispute Resolution Policy (UDRP). Since Dezember 1999 more than 4000 cases has been brought to the UDRP and more than 3000 are already decided. UDRP can be seen as a success, although some problems have become visible.The procedure is transparent, fast and cheap. In only some rare cases the conflicting parties have been not satisfied with the ruling and went to an ordinary court. Visible weak points of the UDRP are inconsistent decisions among panelists and UDRP Service Providers. The majority of the cases are in relation with trademark infringements. There is a need for a systematic evaluation of the UDRP and for further development of the system, to include more categories and more TLDs. There is also a need to re-balance the interpretation of the relationship between the protection of human rights, including free speech, and trademarks. The “WIPO II Process" is aimed to move foreward in this direction. Among the open questions is the issue whether there should be a similar mechanism for ccTLDs. Cases involving Doman Names registered under a ccTLD go normally to courts in the given country. Some ccTLDs consider to introduce a special “Local Dispute Resolution Policy" (LDRP) by using the experiences of the UDRP. Others, like DENIC´s lawyer Stephan Welzel, did not see a need for a special LDRP. A number of practical cases were discussed in the 2nd part of the session: "migros.org" by Ursula Widner (Switzerland), "libro.com" by Andre Rettberg (Austria) and "voteauction.com" by Siegfried Langenbach (Germany). The cases demonstrated a number of weak points in the present system. How to prevent that a domain name holder, who lost the domain in the gTLD area under the UDRP can reregister under the ccTLDs (migros.org)? How general words like “libros" should be treated, if a company has this term as a trademark and the domain name holder does not misuse the questioned name? Is a registrar in Germany obliged to follow a court decision in the US (voteauction.com)? Time is ripe for a systematic analysis of the cases and to build a “UDRP theory" on the basis of the present case law. 

Panel 4: 
New TLDs: The Way Ahead?
(Moderator: Kenneth Cukier, Wall Street Journal) 

The Session gave the impresison, that the introduction of the new TLDs will cost more time than expected. Eric Schätzlein, Afilias Consortium, which got the new gTLD ".info", and Richard Delmas, European Commission, responsible for the ".eu" Domain, reported about the slow process. The European Commission is still waiting for a "green light" from the European Council and the European Parliament. Afilias is waiting for the final draft contract from ICANN. Both hoped to start registration under the new TLDs in the middle of the year. Delmas announced that non-members of the EU like Switzerland and Norway would be included into the.eu Domain. The Session critisized again ICANNs selection procedure. Werner Staub, CORE, which did not get the ".nom", called the process unfair and onesided. Without "blue figures" and an American consultancy firm an applicant would have no chance to get a gTLD. Names Council member Michael Schneider was more relaxed by expressing satisfaction on behalf of the ISPs about the results. The selected seven strings would not provoke a"landrush" and ISPs could continue there businesses as usual. The new gTLDs are not attractive enough to be big winners. Wether ccTLDs and gTLDs will develop a partnership or will be more competitors ramains to be seen, expressed Marianne Wolfsgruber, at.nic*s lawyer.

Panel 5:
ICANN's ALM: Who is a member, how to elect and what is an ALM Director? 
(Moderator: Marc Holitscher, Center for International Studies,  ETH Zürich) 

While representatives of non-government Organisations, like Hans Klein, Chair of the Computer Professionals for Social Responsibility" (CPSR) and Alan Davidson (Center for Democracy and Technology) celebrated the October 2000 elections of the five ICANN ALM directors as a success, Andrew McLaughlin, CPO of ICANN, was more critical. The elections showed a number of weak points - reaching from big imbalances in the global representation until the danger of capture by national groups. In three regions the directors has been elected from countries, where the national media organized a "national race" to win an ICANN Board seat (Brazil in Latin America, Germany in Europa and Japan in Asia). ICANN expects answers on all the open questions from the new study committee under the chairmanship of the former Swedish Prime Minister Carl Bildt. Klein, Davidson, Mueller-Maguhn and others argued for a strong involvement of At Large Members and the Internet Users in ICANNs Board. It is not the aim of ICANN to eliminate the ALM concept, stressed both McLaughlin and Kraijenbrink. ICANN is obliged to have an adequate representation of Internet Users in the Board. The question is how such a representation can be organized in a way which fits best the interests of the global Internet Community. Jeanette Hofmann, Wissenschaftszentrum Berlin, reported about the NAIS (NGO and Academic ICANN Study) Project, where a number of NGOs and  academic Institutions will present an own study. On the ALM issue. Herbert Burkert, University of St. Gallen, argued, that the management of a global public common goods needs a global public representation and legitimacy which will come only by elections. This was supported also by Joerg Tauss (MdB), Internet-Spokesman of the Social Democratic Party (SPD) in the German Bundestag. 

The 2nd Meeting of the ICANN Studienkreis was hosted by SWITCH (Swiss Academic & Research Network) in Zürich. The meeting was organised by the NETCOM Institut Leipzig in cooperation with the Bertelsmann Stiftung and DENIC e.G., Frankfurt. The 3rd Tagung of the ICANN-Studienkreis will take place in early 2002 in Salzburg, Austria. 



Wolfgang Kleinwächter