ICANN Day 5
Coming up in about an hour — the public ICANN board meeting. Although there are big issues swirling around, most of our discussions this morning will probably be about incremental developments.
This is frustrating for people who would like to be proposing new top-level domains. As of yet, we don't have a process for them to enter. Back in March 2006, we passed a resolution about our intent to advance the implementation of such a process. A lot has happened since then, and the organization within ICANN that gives policy advice about generic top-level domains (the GNSO) plans to finish its own process in time for the board to consider the process in Los Angeles in October.
But it's difficult for anyone to say when the process will be implemented. It should include internationalized domain names (non-ASCII names), in my view, and there may still be policy questions about that. Many people wish that we could be clearer and more deterministic about deadlines for processes. I share that wish.
=== my favorite picture from this morning, taken by Joi Ito.
ICANN Day 4
Today is the Public Forum — schedule is here. It will be webcast and we are actively soliciting online participation. There are some very important topics being discussed this week, including the idea of having different tracks for different categories of new generic top level domains and the progress we're seeing on internationalized domains generally.
We're trying to avoid reading any reports or presentations as much as we can. Instead, the Board committee chairs will be available to answer questions, and we'll have ample open mike times.
For Los Angeles (the next meeting - in October 2007), we're trying to think of ways to change the format of the public forum to make it even more interactive and meaningful. Much of the work of this week has happened in constituency and cross-organization meetings — how can we get that word out to the world in the best and clearest way? I'm personally very interested in making progress in this direction, so please do let me know (here in comments or via email) how we change things in an effective/efficient way.
Not About ICANN Day 3
So the Yale Law School alumni office has been sending out a zillion emails about my talk on July 9 in New York City. And, right at this same time, we've hit a really dry spell on this blog. I'm at a truly arcane and self-involved meeting, circling around and talking about internationalized domain names and how to reform the GNSO.
Yikes. You may be saying this to yourself. Why would I ever go hear her talk? Well, I see your point. I really do. It looks from these last entries as if things are really boring in the Susan Crawford Blog land.
I swear it isn't always like this. It's just ICANN! It has this way of sucking you in and making you sit squirming for hours and hours, as the globe spins and your life goes by without you. You can't leave the room, you can't even go outside, because you're supposed to be there for a solid week, paying rapt attention, all alone in a sea of circular policy-talk.
I promise not to talk about ICANN on July 9. Nope, I'm going to have a lot of interesting things to say, one or two of which you will remember until July 10 if I do my job right. I predict there will be some reflections on the digital life, a few cave-dweller-lawyer jokes, some thoughtful asides about human reaction to overwhelming change, a neat set of stats, and a little Second Law of Thermodynamics riffing. It will not be a waste of time to attend, and my talk won't last long.
So — do come, okay? July 9, 6:30-8:30 p.m, 42 West 44th
Street, New York
City. Go here to register. There will probably be great snacks.
ICANN Puerto Rico: Day II
After I wrote yesterday's post, I went up and moderated a two-hour workshop on “protection of registrants.” Transcript here, agenda here. The idea behind the workshop was to make sure ICANN is making the right kind of progress in dealing with failing registrars and registries. We've got a Registrar Accreditation Agreement that doesn't allow for sanctions other than cutting off an accreditation entirely - which is a pretty blunt instrument that ICANN doesn't use. And it has a data escrow provision that hasn't been enforced (although some registrars have been doing escrow on their own).
A key problem is communication. Registering a domain name can still be confusing for end-users, although some registrars make an effort to explain what's going on. It can be hard to tell who you're dealing with or what will happen if you don't pay on time. ICANN and its many parts (and its millions) could do a lot more to ensure that various actors make clear what the different roles are and what registrants should watch out for.
I was also part of a workshop on changes to the Generic Names Supporting Organization structure (agenda). I'm a member of a working group drafting suggestions for consideration by the Board. I think we made some progress during the workshop, but re-structuring something that is under way and working very hard to make policy is tricky. One of my goals is to just make clear (communication again) what each “level” (working group to council to board) is supposed to be doing, what questions they're supposed to be answering, and who has discretion to do what. I'm hopeful this kind of information will emerge from the process we're working on now.
Between those two workshops was a third, focusing on new generic top-level-domains. This is a subject I care about a great deal, and the portion of the discussion I heard was very lively. When the transcript is available I'll post some portions here.
So yesterday was a big day, and today is bigger - we will visit several constituencies, have more committee meetings, and keep going all day. There are things happening here that will provide lots of fodder for academic papers and work for lawyers - for years.
ICANN Puerto Rico: Day 1
Today the public portion of the ICANN meeting begins. Several of the Board Committees have already met, task forces have been working on WHOIS and new TLD policies, and the Board itself has already spent a long afternoon discussing what's going on. But we start the public portion with a little ritual of welcome and speech-making. This is the 29th ICANN meeting.
Doug Brent, Chief Operating Officer of ICANN (presentation here), is noting that ICANN has net revenue of US$46.6 million, and expenses of $41 million. But it looks as if revenue will actually be more like $50 million. (!) So perhaps ICANN should reduce transaction fees that it collects from registrars. (Most of ICANN's revenue comes from registrants paying registrars, and registrars paying fees on to ICANN.) And Doug is suggesting that a large reserve fund is being contemplated. Are we doing meetings in the most cost-effective way? he asks. Doug also says we could present data better to everyone. What's driving our spending? $1.6 million on new gTLDs, $1 million on ALAC and outreach, almost a million on IDN, compliance about $800K, $700K on legal, $530K on registrar data escrow, $400K on economic assistance (by economists).
Wow. $50 million. That's just enormous. But no one's stirring in the crowd - just a lot of typing all around me.
The mike opens up now, questions for Doug, Tina Dam (re IDN), and Paul Twomey (CEO) are timely. No one approaches the mike. Now what? I guess we'll close this session. I start a workshop at noon on registrant protection.
AHA! No, Amadeu Abril comes up. He says it's a shame not to have public comments. (Bravo!) He asks what implementation process will be for IDNs - what sort of rollout will we have next autumn. Vint says we'll be talking about that this week — new gTLDs and IDN TLDs are the same. We should treat them all as new TLDs. “So the ensemble of TLDs expressed using internationalized characters needs to be treated as a whole.. this coalesces into a common expression.” (This is a point of view with which I agree.) Vint goes on — “I'm not sure that “translations” are a practice that we should endorse - I'd rather see proposals for new TLDs that are specific and unique.” I agree.
Changing your life
I leave tomorrow for another week-long ICANN meeting, and I'll report from there. So today was a constructive Saturday. Which meant a lot of talking and not so much reading or writing. Hence — nothing here except a link to Black Swans.
Big issues at ICANN: new gTLDs, IDNs, protection for registrants, GNSO reform. I'll try to translate. We're meeting in Puerto Rico this time around.
The Lessig change is great. It's always a good idea to do something completely different once in a while. Every few years, re-examine the whole package. Why are you doing what you're doing? Is it fulfilling?
Most hated internet words here. I'm giving a “talk about blogging” in a couple of weeks, and naturally the word “blog” is just about the most hated of all. Perhaps I'll start by exploring what people think a blog is. Snarky? Self-satisfied? Self-indulgent? Sappy? Superficial? Sanctimonious? Other words that start with “s”?
Loopiness
Douglas Hofstadter's I Am a Strange Loop has my attention right now. It's an unexpected book that seems to be operating on several levels at once, just as minds do; it is at once simple/anecdotal and obscure.
There's a division that Hofstadter sets up early on - those who enjoy and look for feedback (self-referential) loops, and those who flee from them, trying to set up worlds that don't involve things that fold in on themselves. Hofstadter from a young age was obsessed with feedback loops (and music).
His aim in this book is to explore how souls, selves, and consciousness develop. The physical parts of the brain don't interest him - he's interested in structural/architectural abstractions like these:
long-term memory and short-term memory
episodic memory and melodic memory
analogical bridges
memes
. . . sense of humor
“I”
Three good things
Pride in Chicago, where the Mayor’s Advisory Council on Closing the Digital Divide has issued a report that builds on the work of the Chicago Digital Access Alliance. Congratulations to Michael Maranda and his colleagues in Chicago (and a few thoughts re wondering how things are going in New York City).
The Peer to Patent Project has officially launched. Congratulations to Beth Noveck for her tireless and visionary work! Now knowledgeable people have to get in there and review a few patents — GE, HP, Intel, IBM, and Red Hat have posted several applications for review.
And Commr. Adelstein has come out in support of some flavor of open access requirement for the soon-to-be-auctioned 700 MHz licenses. Harold Feld, who really understands this area, has the scoop here.
Moving Slowly in the Fast Lane
The Federal Communications Commission, our national communications regulatory body, is asking the wrong questions and heading in the wrong direction. We need new leadership in this country that has the political muscle to implement radical change. A key national priority, on a par with funding Head Start programs and adequate national healthcare, must be to ensure that access to an unfettered internet is universal, speedy, and cheap.
Thirty years ago, two-way communications in this country were controlled by Ma Bell. After eight years of litigation, AT&T agreed to divest itself of its local telephone companies, and those local telephone companies (the “Baby Bells”) agreed not to leverage their local monopolies into the market for long distance service.
Where are we today? The Baby Bells have re-consolidated. Telephone service in this country is essentially controlled by AT&T (in the West) and Verizon (in the East), with Qwest filling in gaps. And two-way communications in this country – which, these days, means highspeed internet access – are controlled by a duopoly of Big Phone and Big Cable. Many Americans don’t have a choice of highspeed providers, and, as Consumers Union, Consumer Federation of America, Free Press, Media Access Project, and U.S. Public Interest Group recently told the FCC, “Americans pay 10 to 20 times as much [as people do in other countries] for far less service.” The duopoly is something like Shamu and Godzilla on hire for televised wrestling – giant beasts gently swatting at one another for the cameras. They aren’t competing, these giants. There is a clear failure in the market for highspeed internet access in this country.
Even people who don’t often think about interactive communications have heard that the U.S. is lagging far behind many other developed nations when it comes to highspeed internet access. As with other key infrastructure issues – like Head Start and healthcare – we just don’t seem to care about giving our people a firm foundation for life.
Network operators, the Shamus and Godzillas of interactive communication in this country, want to control and monetize highspeed access to the internet. They believe that they can and should control this complex system by, among other things, deliberately degrading upload speeds (so that we users can’t produce and host our own materials) and keeping highspeed access for their own content.
Many other countries have taken a hard look at their communications policy and have understood that communications and economic growth are tightly intertwined. Economic growth is driven by new ideas creating ever-newer goods and services and new ways of making a living. We have never had an interactive communications platform like the internet before – it’s capable of producing enormously diverse ideas (in the form of new niches, new roles, and new understandings of information) and allowing them to be disseminated on a large scale. Universal highspeed access to the internet could trigger crucial economic growth that would benefit U.S. society as a whole.
And this access has to be fast. We are beginning to see the video future of the internet, and that future requires that information flow far more quickly over the now-monopoly-controlled local bottlenecks in this country than it does now.
We should care about the economic health of our country. Access to the internet at high speeds should be something that we make available to everyone in the U.S. as a public infrastructure. We don’t even know what we’ll be capable of using this access for – yet – because our expectations have been so dimmed by the craven practices of our local Shamus and Godzillas.
In an ongoing regulatory factfinding mission (undertaken because the Commission didn’t have the political will or sensitivity to actually act), the FCC is asking whether anyone using a U.S. network operator has been blocked from accessing particular sites. That’s the wrong question, as Consumers Union and its colleague advocates have told the Commission. The FCC should instead be asking why we haven’t mandated competition for highspeed access by requiring that all providers sell unfettered transport services at wholesale rates into a competitive market for retail transport. Even better, Congress should take the reins and demand that the duopolies divest themselves of their transport services so that they aren’t tempted to try to monetize internet access in favor of their own movies and phone services.
But for the FCC and Congress to change direction and start asking the right questions will take leadership. We don’t have that kind of leadership now. All acts are incremental; all steps are taken with the advice and approval of the incumbents. We don’t have a national economic policy that is tied to internet access because no one is willing to step up and lead. Sen. Kerry made a good speech at a recent hearing about auctioning off key airwaves, but even if that auction is run as he suggests it won’t solve the larger infrastructural problem.
We need much more from our national leaders. Who will be the candidate who will understand this central issue? Mike Bloomberg has run networks, even if they are proprietary, and might be the guy. We’re waiting, but in the meantime we’re moving excruciatingly slowly in the supposed American fast lane.
==Do read the CFA/CU/MAP/FreePress/USPIRG comments - they're excellent.
Monday links
Big opinion [Warshak v. U.S.] from the Sixth Circuit on the Stored Communications Act today. (My perplexed cyberlaw students will be very relieved to read this.) We expect as much privacy in our email as in our phone calls. So government agents will need to get a warrant based on probable cause before obtaining stored email from service providers. EFF press release is here.
Many congratulations to superlative cyberprofs Tricia Bellia and Susan Freiwald for their key amicus brief:
Because government agents intrude upon users’ reasonable expectation of privacy when they acquire private e-mails, they conduct a search under the Fourth Amendment. That expectation of privacy obtains whether the e-mails acquired are stored or in transit, and whether or not their recipients have accessed them. Nothing in the private contracts between users and their internet service providers affects the application of those constitutional protections. . . .
Email messages, unlike transactions disclosed to a bank, are the kinds of things that we expect are and will remain private. Katz is still alive, and the mere involvement of an intermediary doesn't destroy this expectation of privacy — one that the Constitution protects. As Bellia and Freiwald said, “A service provider’s policy of complying with legal process . . . cannot defeat a user’s reasonable expectation of privacy. E-mail users must be entitled to presume that agents will present appropriate legal process, not that they will present any legal process.”
The Sixth Circuit is tackling a question that is central to law enforcement, and we can expect that this decision will be challenged in a hundred ways. We depend so much on intermediaries, and the Sixth Circuit decision stands firmly on ground the government won't like:
Like telephone conversations, simply because the phone company or the ISP could access the content of e-mails and phone calls, the privacy expectation in the content of either is not diminished, because there is a societal expectation that the ISP or the phone company will not do so as a matter of course.
In an era in which telephone companies routinely cooperate with law enforcement without asking for legal process, in which law enforcement routinely claims that every request for information it makes has something to do with terrorism or espionage, and in which my students routinely say they have no reasonable expectation of privacy (in anything), it's a fine moment. The courts are making clear that they still have a role to play.
The Fourth Amendment can't be overwritten by either broad language in a cooperative provider's terms of service or by the hopeful interpretation of a statute — here, the Stored Communications Act — by the Executive Branch.