My Day With the Reps, or Today I Am A Wonk.

Every profession has its little milestones. As a confirmed Washington policy wonk, I’ve always wanted to testify before Congress (in a situation where I did not have to take the Fifth). Well, TODAY I AM A WONK. (Actually, it was Thursday, September 21.) I testified at the House hearing on ICANN. You can read some of the (very light) news coverage here, and my official testimony here (executive summary here), and you can listen to an audio of the hearing by going here and clicking on the relevant link.

For my personal observations and comments, see below….

For those who don’t usually follow this stuff, the Internet Corporation for Assigning Names and Numbers runs or supervises some of the critical functions in the “domain name system” (DNS). The DNS translates names into IP addresses, the numerical addresses computers read to send internet traffic.

The big deal about ICANN is that it says who gets to put a “generic top level domain” (gTLD) like “.com” into the “root” (the table of nameservers that tells computers where to look to resolve names) and under what terms. ICANN has a contract with the National Telecommunications Information Administration, which gets to review ICANN’s decisions and also gets to decide every few years whether ICANN keeps its contract. This privileged position by NTIA, combined with the fact that .com and .net are run by an American company, keep the world mildly irritated with us.

I used to play a lot in ICANN-land. In 2003, after a term on the Names Council which included ICANN’s restructuring reforms and redelegating the .org TLD, I basically dropped ICANN except as an observer. For one thing, I was pretty burnt out. For another, ICANN had moved away from the issues of concern to my employer (free speech) and into other areas (like WHOIS privacy). For a third thing, ICANN is an awful lot of work for relatively small payoff.

So for the last few years I’ve kibitzed as a member of the Non-commercial Users Constituency and doing the occassional blog post. Most recently, a post of mine about the controversy over price-tiered domain names landed me a spot as a panelist at a briefing for house staff. The briefing was really designed to say why it would be awful to have the U.N. run the DNS. I basically tried to explain that while having the U.N. take the place of ICANN was a stupid idea, that does not mean that (a) we should ignore very legitimate concerns of other nations or stakeholders; or (b) ICANN should get a free ride from its current very real structural problems. I also urged that the U.S. embrace the U.N.-sponsored Internet Governance Forum (IGF) as a good thing and a place to talk about governance issues that don’t belong in ICANN.

To sum up, I said “there is a very real difference between a position that we will not compromise our security and economic interests, but will work with other nations” and “boy, sucks to be you, don’t it. Now, if you want to keep your ccTLD, dance the Macarena for me!”

This went over reasonably well, so I got an invite to come back the next week and do a repeat performance for the Senate. In the midst of this, I got a call from the relevant counsel for the Telecom Subcommitee asking if I wanted to testify.

“But I don’t ICANN anymore,” I protested. “I’m just an observer.”

“But you really seem to know a lot about what’s going on, and we need your perspective.”

“My perspective” is a peculiar function of how Washington rules work for panels that are not deliberately biased. Sure, you get the occassional “real life” witness — the mom whose daughter got stalked and it’s all the fault of that evil “myspace.com,” for example — but mostly it’s:

1) Relevant decision maker (usually fed official, here John Knuer, acting head of NTIA and Dr. Paul Twomey, ICANN’s President)

2) Trade Association Person or CEO (industry rep #1);

3) Other Trade Association Person or CEO (sometimes with interests opposed to industry rep #1);

4) Neo-Con/Libertarian Think Tank Person;

5) Consumer Protection/Progressive Think Tank Person.

So I got cast as spot (5) “Progressive Think Tank Person.” No, Media Access Project, my employer, is not a think tank, but it is close enough for casting purposes. Traditionally, this role was played by Alan Davidson (when he was at the Center for Democracy and Technology), with occassional back up from Jamie Love (of Consumer Project on Technology) or Michael Froomkin of the University of Maimi Law School. But Alan is now off at Google and can no longer qualify as “Progressive Think Tank Person,” Jamie is off doing stuff about medication for developing nations, and Michael has an actual life outside of Washington DC.

So they needed someone, I’ve written a book chapter about ICANN, and they got a preview of me the week before. What’s not to love? Other than the fact that, as I kept telling people, I haven’t actually done much with ICANN for the last three years.

So I did a quick investigation and found that, in the last three years, not bloody much has changed. ICANN is still yacking endlessly about impementing internationalized domain names, what is the purpose of WHOIS, and should there be a policy for puting new gTLDs in the root. My concern that I had grown so out of touch with ICANN that I would have nothing useful to say was quickly dispelled.

If I had any further doubts on that score, they were put to rest by my reading the testimony of the other witnesses. I swear to God, it was like a bad policy drug flashback. According to NTIA and ICANN, everything is hunky-dory except for all these people whining about “process” and “accountability.” The two trade association guys, Steve DelBianco of Association for Competitive Technology and Mark Bohannon of the Software and Information Industry Alliance wanted ICANN to do more on making sure WHOIS data was accurate. My opposite number, Thomas Leonard of the Progress and Freedom Foundation, thought ICANN should avoid being a regulatory body. Nobody thought the UN should run the DNS.

There were other reasons I wasn’t too worried. While House members are no dummies, ICANN is not exactly a huge issue for them. The hearing was scheduled for Thursday afternoon, when members typically go back to their districts. In an election year, they head home as soon as possible, so they can be up at dawn Friday morning for the first of many exciting fundraising/campaign events. So I figured that I could comfortably stick to generalities without getting too bogged down in the details of the latest discussion of how the implementation of IPV.6 will impact roll out of IDNs.

You if you listen to the recording of the hearing (available here) you will get the gist of it. The big news, confirmation that NTIA would renew its agreement with ICANN, had been announced at the Senate hearing the previous day. As a result, there was little new news to cover and most members simply came in, read their opening statements, and left. The big issues were:

a) A number of democrats were concerned about the ICANN/Verisign deal. A number of registrars and a few others think it was too favorable to Verisign. Of particular concern is the fact that Verisign gets to keep .com in perpetuity and that Verisign gets to raise its rates by 7% in 4 of the next 6 years. Markey had the best line here, comparing review of the agreement by the DoJ Antitrust Division to a review by Rip Van Winkle, since DoJ seems to have fallen into an unrousable slumber for the last few years.

b) A bunch of members expressed concern that ICANN have decent processes, although they recognized progress had been made.

c) No one wants the DNS transferred to the UN.

d) The U.S.G. and trade groups that lost in the ICANN fight to get the purpose of WHOIS defined narrowly are determined to win at the next policy level.

This last is why I hate ICANN and why it will always, always, always, get stuck doing policy and why it always, always, always have NTIA oversight. As long as people think ICANN can fix their problem, they will keep asking it to do so. WHOIS is the list of who has what name. It is wide open to the world, so people who want privacy (for good reasons as well as nefarious reasons) give false WHOIS info.

So now everyone wants ICANN to “fix” this WHOIS problem somehow. Nevermind that it’s bleedin’ impractical for ICANN to try to enforce WHOIS accuracy. After a gazzillion years of ICANN task forces and constituency meetings and blah blah, the Generic Names Supporting Organization recommends to ICANN that WHOIS isn’t meant as a great big phone book for law enforcement, intellectual property holders and spammers, and thererfore ICANN shouldn’t issue global mandates to all TLDs to maintain an open, accurate WHOIS that lets everyone in the universe have personal data.

Not satisfied that the ICANN process came up with the “wrong” result,“ the folks who want open WHOIS are now complaining to anyone else who will listen and who can make ICANN come up with the ”right“ result, i.e. the one they want.

So ICANN remains a bloody mess, with NTIA and the U.S. Congress leveraged as clubs over ICANN in the event that it ever actually does come up with a decision and the powerful interests that circulate around ICANN don’t like it. Then we wonder why people say ICANN is dysfunctional and the U.S. has too much control.

But back to the testimony. The only time I got any pushback was when I said we shouldn’t categorically rule out transferring the ”A“ Root (the master table of rootserver names) outside the U.S. My point was we should explore whether we can protect our national interests while not unilaterally taking an option off the table if we can avoid it. This gets back to my feeling that we do better if we don’t act like our commitment to the world community is just so much chin music that we ignore whenever we feel like it. At the least, we should pretend to care. Even this modest notion of international commity made me a minority view.

My other point was when Twomey kept saying that everything was hunky-dory in ICANN process land and the only reason people complained was because they lost. Twomey put great store on the fact that no one has used the ICANN dispute resolution process as proof everyone is happy, despite the 700+ comments to NTIA saying ”ICANN’s accountability really sucks rocks.“ For one thing, this attitude is what drove me nuts when I did serious ICANN work. I have no doubt the ICANN folks think everyone is happy except for a few whiners who didn’t get their way. They can’t for the life of them figure out why this issue keeps coming up. It is a mental block so absolute that nothing, not even the fact that the rest of the world nearly preferred the UN to ICANN, makes a dent in their will to believe that everything is really wonderful (except for a few complainers).

For another thing, I can get this at the FCC from their pathetically lame enforcement staff.

So, as I explained to Dr. Twomey, there are two posibilities. Either nobody uses the ”accounatbility“ mechanisms at ICANN because everyone is happy, or because no one thinks it is worth the effort. Twomey, and I presume the rest of the folks in ICANN, prefer to believe option #1. Anyone who hangs out in ICANN, however, very quickly learns it is option #2.

I don’t expect this hearing to change much of anything. It’s primary purpose was so that the relevant subcommittees could keep an eye on things and let NTIA know they are paying attention in the event NTIA does anything Congress considers silly. That’s an important function, btw. I actually don’t want Congress micromanaging NTIA to micromanage ICANN. And I do want them to stay infromed. So I’m not down on the hearing or how it went. Sometimes routine is justifiably routine.

Still, it was fun to do. I’m happy to check off a box on my little ”Wonkepedia checklist”.

Who knows, maybe next time I will testify about something I am working on.

Stay tuned . . . .