Byron Holland's Perspectives on the Internet and Domain Space.

The Stop Online Piracy Act (SOPA)

Posted by: Byron Holland

Tomorrow, a number of very high profile websites will go dark in protest of the proposed U.S. Stop Online Piracy Act. Though the White House has since made it clear that the President will not support the bill, the fact that it was proposed at all is an indicator of the threat the Internet faces. And, according to this post from Michele Neylon, SOPA may not be quite dead yet.

The bill builds on existing U.S. legislation like the Digital Millennium Copyright Act and international agreements like the Anti-Counterfeiting and Trade Agreement to protect online copyright and prevent counterfeiting.

Though it is American legislation, it could have a tremendous impact on global Internet users. It would require U.S. Internet Service Providers (ISPs), search engines, ad networks, and payment providers to withhold services to websites deemed by a court to be infringing copyrights held by U.S. content producers. If a Canadian website is found to infringe on copyright, U.S. search engines may be required to stop indexing the site in their results. If the site is hosted by an American ISP, it could be shut down. A Canadian online business could find itself without a system to collect payments if a U.S. online payment provider is required to not do business with them.

Many of you will remember The Helms-Burton Act, which extended the U.S. embargo of Cuba to foreign companies trading with that nation. Like SOPA, it shows just how far the tentacles of U.S. law can reach into other nations.  And while the Act can only directly affect U.S. service providers, many of the major service providers are American or have significant U.S. connections.

Fact is, if SOPA were to pass, it would mark the end of the free and open Internet we have been enjoying for the past couple of decades. The Internet’s free and open nature has given rise to the creativity and innovation that has enabled it to be the most incredible economic and social driver the world has seen since the industrial revolution. Yes, online piracy is a problem and it is something governments are going to have to deal with. However, draconian measures like SOPA/PIPA that would put limits on the Internet’s free and open nature are a bit like dropping a nuke to kill a cockroach – it might work, but is it worth the collateral damage?

In November 2010, a number of websites were shut down in a crackdown on copyright infringement and counterfeiting, including many that were not based in the U.S. but were operating on a U.S.-based top-level domain (like .COM). A number of the sites’ owners claimed they were  innocent and there was no proof they were engaged in copyright infringement or counterfeiting. SOPA would allow American authorities to cast their net even wider and take down or otherwise impact the free operation of websites that do not have U.S.-based top-level domains, but rely on other U.S. service providers. Clearly, the opportunity for rights to be breached is endless.

There is an irony in the development of SOPA. Paul Vixie has a great explanation of this here. For a few years now, engineers and others have been working to make the DNS more secure. When implemented, DNSSEC will add an additional – and needed – layer of security to the DNS. SOPA would require American ISPs to block DNS resolution and redirect traffic for websites infringing on copyright. Redirection of traffic to these domain names would be detected as a malicious attack once DNSSEC is implemented. Other proposals under SOPA would be equally as ineffective, according to Vixie. While trying to make the Internet a more lawful place, SOPA’s designers have inadvertently found ways to do the opposite.

We are not immune to the copyright debate in Canada.  Bill C-11 (also known as the Copyright Modernization Act) is currently tabled in Parliament.  It attempts to coordinate Canada’s copyright laws with internationally recognized norms, and includes several elements that may improve Canada’s record of being a safe haven for digital piracy.  These include a “notice-and-notice” regime, which requires ISPs to forward notices from copyright owners to suspected infringing subscribers.  It also contains protections for technological protection measures (also known as digital locks), and distinguishes between commercial and non-commercial infringement for the purposes of enforcement.  However, it does not introduce any elements of undermining the basic infrastructure of the Internet to accomplish copyright protection goals.  It seems the Canadian government is still searching to find the right balance between intellectual property consumers and producers (after considerable pressure from the likes of Michael Geist), but all indications at this point seem to show that C-11 won’t contain measures as draconian as SOPA.

While a number of entities seek to put limits and regulations on the Internet, I believe these actions are misguided. Regulating online content (copyrighted material) by legislating the medium (the Internet) misses the point. You only succeed in blocking a path to that activity, like closing a road because there’s a store selling pirated music on it. While you may slow traffic to the store, you haven’t done anything to stop the illegal activity. Anyway, there are a lot of smart folks on the Internet, and they will always find workaround and gain access to what they are looking for. In fact, SOPA has not even passed and there is already a workaround.

This gives rise to the question: how can we strike the balance between protecting copyright and preventing counterfeiting while maintaining a free and open Internet?

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On Usage-Based Billing

Posted by: Byron Holland

A few weeks ago, I spoke at a dinner at the ISP Summit in Toronto. The conference brought together Internet service providers from across Canada to hear about issues like DNSSEC, IPv6 and Internet exchanges, among others.

Interestingly, the day of the dinner happened to coincide with the CRTC’s announcement of its decision regarding usage-based billing. This controversial issue was certainly the high profile event for the Canadian telecommunications industry that day. Tension was palpable among certain groups, and there was no way the CRTC was going to please everybody.

So, with a room full of ISPs, I didn’t know what to expect when Timothy Denton, one of the CRTC commissioners, proposed a toast. For sure, no one in the room expected the following.

So, as CIRA’s Christmas gift to you (and with Tim’s blessing), I present On Usage-Based Billing, by CRTC Commissioner Tim Denton:

On usage-based billing, oh let’s take a stab!
Perhaps it’s no more than a revenue grab
And network congestion, which we try to fix
Is just like the shortage of IPv6
A number so large, so vast, and so great
Like stars in the sky, we can’t estimate.

Whatever the problems, we must settle the rates
That players may know what shall be their fates
So networks are built and blockages go
Investors rejoice, and signals do flow.

Demand must be forecast, a risky affair.
The costs are predicted, and traffic load share
Is derived by methods unwise to declare
Assumptions are made, the numbers inserted
From the mouth of the spigot, the prices are spurted.

The Commission’s at work, deliberations profound
To sift through the mountains of evidence found.
If we get it wrong, our doom is foretold,
The Commission’s abolished, its assets are sold.

If we get it right, the public’s appeased,
The carriers will groan, but the Cabinet’s pleased.
So where do we go, to solve the dilemma,
of Internet pricing – no easy problema.

T.M. Denton

CRTC Commissioner

By the way, if you are interested, here’s a link to the CRTC’s decision.

Happy holidays.

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Beyond words: Diverse voices and miscommunications

Posted by: Byron Holland

A few days ago, I sat in a meeting here in Ottawa with our IT Director and Director of Marketing and Communications. These are two highly intelligent people working on the same team, for the same company, talking about a common subject. And yet, something was amiss in achieving mutual understanding. Each was seeing things from his own distinct perspective and as such, speaking his own language. As I reflected on my team’s internal dynamic, I began to see parallels in areas that have an even more direct impact on the Internet ecosystem.

Recently in Dakar at the meeting of the ICANN Governmental Advisory Committee (GAC) and the Generic Names Supporting Organization (GNSO), different languages (and I mean that figuratively) were clearly being spoken and mutual understanding was not achieved. Phrases like ‘very, very disappointed’ were used, voices were raised, and the tension in the room was palpable.

While fireworks often happen at ICANN meetings, there was a new sense of urgency displayed.

A lot happened behind the scenes, and it was, in my opinion, symptomatic of a few challenges facing a maturing organization.

ICANN is made up of many – sometimes – disparate voices. That’s the beauty of the multi-stakeholder model – those who should have a voice do have a voice. However, disparate voices can also lead to some severe, albeit unintentional miscommunications.

I live in Ottawa, and as anybody who has lived or worked here knows, government folks have their own language. It goes beyond a vocabulary rife with acronyms; every message, every sentence (to us outsiders, anyway) is nuanced and massaged. Contrast this to the direct nature of private sector players, Registrar and others, in the Internet world.  These are “chronic entrepreneurs,” folks who look for the most efficient, pragmatic solution, often bred in the wide open early days of the Internet. When these two groups get together, the potential for miscommunication is enormous.   Each speaks the same language, but the “dialects” of their cultural groupings can be quite different.

The law enforcement community has been calling on Registrars for a long time to curb criminal use of the domain name system. This issue has finally come to a head with the blowout at the meeting of the GAC and the GNSO, who represent the interests of the Registrar community at ICANN, and subsequent meetings between the GNSO and other groups.

Law enforcement first introduced a set of recommendations in a document called, appropriately, ICANN Law Enforcement Due Diligence Recommendations, to curb illegal activity on the Internet in 2009, and these recommendations were endorsed by the GAC in 2010.

The Registrar Stakeholder Group, a sub-group of the GNSO, had a discussion at the ICANN meeting in Singapore in June 2011 about implementing the law enforcement recommendations. There was a clear miscommunication at that time, because in Dakar the GAC were convinced that the Registrars would be returning in Dakar to report on progress toward implementing in short order nine of the 12 recommendations.

When the Registrars came back with an update on implementing just three of the recommendations (and at that, they were the three most minor of the bunch), the GAC was understandably upset.

In the government’s world, the appearance of making progress can be just as important as progress in and of itself. There’s no point in doing something if you can’t show that you’ve done so.

The Registrar Stakeholder Group, I’m sure, believed they were reporting a major success. They have a point. The fact is, even if they adopt all 12 of the recommendations and shut down nefarious activity originating in their respective countries, a Registrar somewhere else in the world will likely just fill that void. Why make investments, time and money, if it’s likely not going to make a difference?

In the minds of the Registrars, they think they’ve made real progress. If you can’t get 100 per cent, there’s no point in wasting time and energy trying. Most of the good guys are already taking appropriate steps anyway. The GAC is going to have to go back to their respective countries, where some of them are facing a good deal of pressure to have Registrars implement the Law Enforcement recommendations, and let their leaders know Registrars won’t voluntarily adopt them and self-regulate.

Fine, you can’t get 100 per cent, but you have to give us something, the GAC seems to be saying.

This was seen by both the GAC in particular, and as a result the ICANN board, as having some pretty severe consequences, and they let the Registrars know their disapproval.

But what’s the GAC really saying here? It’s a metaphorical scream for help. It’s a, “Guys, help us so we can help you!”

Why?

Because governments want – need – to curb criminal activity on the Internet. If the current structure that oversees the Internet is ineffective in helping them do so, another model for governing the Internet will start looking more attractive to them.

Bodies like the GAC, who have been, for the most part, supporters of the multi-stakeholder model, are trying their best to protect that model from external pressures, often coming from governments. Fact is, governments are flexing their muscles, and all of the players in the Internet governance ecosystem better listen. There are expectations placed on GAC members by their home governments, and when they need to deliver, they need to deliver.

And there are a few options that are gaining awareness around the world, such as in moves by the International Telecommunication Union to exert their control over the Internet, and more recently we’ve seen it in the form of a proposal commonly referred to as the IBSA proposal.

The IBSA is a proposal developed by India, Brazil and South Africa (thus, the acronym), calling for the development of a new global body, within the current United Nations system, that would oversee the technical development and operations of the Internet. In other words, it calls for the dismantling of the multi-stakeholder model for governing the Internet.

Fact is, the IBSA is the sound of the bolts being tightened around the key players. Although it’s unlikely to succeed, there will be other proposals that will follow, and if something doesn’t change soon (as in, start listening to each other, Registrars and GAC), eventually one of them is going to succeed.

In a way, this really puts the Registrars in a no-win situation. If they’re not willing or able to materially self-regulate, regulations are going to be imposed by governments. And, it’s in their best interest to self-regulate. This course of action will be the best for everyone involved because it will be the path to protecting the multi-stakeholder model.

Many of the Registrars need to better appreciate that the Internet isn’t the Wild West anymore. It’s a maturing industry, and it’s an industry like no other – all of the disparate stakeholders have a (more or less) equal say. And, more and more governments around the world are starting to take notice.

At some point the Registrars need to realize that they need to start really listening to what the other stakeholders are trying to say to them. This not only means listening to the words being spoken but also really hearing the meaning of what is being said. It’s in their own best interest. I can promise you one thing – if the multi-stakeholder model is dismantled, whatever replaces it won’t have nearly as much room for a voice from private sector actors like Registrars (or any other non-governmental agency, for that matter).

Coming back to my team at CIRA; we are increasingly sensitive to the idea that we need to listen closely to each other’s dialects so that we don’t miss the meaning of what is being communicated. A net gain is achieved when we broaden our view point beyond what directly impacts us in our own disciplines and really approach at the situation holistically.

What do you think? Am I understanding the GAC and Registrars’ respective points of view or am I also interpreting through my own lens?

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ICANN and a Conflict of Interest policy

Posted by: Byron Holland

As I thought, the issue of ICANN’s lack of a robust conflict of interest policy is a hot topic here at the ICANN meeting in Dakar. On my way here, I was working on the following blog post. Now that I’m here, there are a few quick points I’d like to make.

A strong conflict of interest policy would address two very different things. A Board member must declare a conflict and recuse themselves from voting. This is in the current ICANN COI policy, as was clearly stated by Ray Plzak at the ccNSO ICANN meeting on Tuesday. This provision covers the ‘now’, as in “If I am influencing something right now that I will benefit from then I will step aside.” The other important issue (in my opinion and in light of recent events THE most important issue) is that of the serious lack of any kind of revolving door policy – what happens when a Board or staff member leave the organization.

What’s the difference? While it’s important to declare a conflict when one exists, it is critical that mechanisms be put in place to protect from a board or senior staff member from benefiting in the future from decisions made now.

The time to act is now. There are some big decisions coming up around the new gTLDs, and ICANN’s Bruce Tonkin stated at the ccNSO ICANN Board meeting that a new policy will not be in place before January 12 (the launch date for the new gTLDs). With the implementation of the new gTLDs, ICANN is being watched.

I’d also like to note that I like what Steve Crocker, the current ICANN Chair, has been saying this week, so I am certainly encouraged by what I am hearing. Let’s just do this right and get a robust COI policy in place before the year end, at the latest, and take this issue off the table.

That said, here is the original post I was working on:

Since the departure of Peter Dengate Thrush as chairperson of ICANN, and his subsequent appointment with Top Level Domain Holdings, there has been a fair amount of criticism of ICANN for its lack of a robust conflict of interest, and particularly a “revolving door” policy. Fact remains, Dengate Thrush did not break a single ICANN rule by taking a position at Top Level Domain Holdings. Why? Because, as quite a few of us blogged, at this time, there isn’t a rule regarding post-employment at ICANN to break.

ICANN is an organization that hasn’t gotten a lot of mainstream press in the past. This is changing, in part because of recent decisions from the ICANN board on new gTLDs and .XXX, and also in part to – or maybe because of? – broadened interest in Internet governance.

As an entity that succeeds because of its agreements (here and here) with the U.S. government, and one that is increasingly in the public eye, it is more important than ever that ICANN put in place policies and procedures to protect itself and its employees – just like every other major organization.

To this end, I’m pleased to see that one of the topics up for discussion at the ICANN meeting in Dakar is Ethics and Conflict of Interest. In fact, ICANN has gone so far as to set up a ‘work party’ to revise the current ICANN policy and develop an “Ethics Regime,” and have engaged an external party to advise “on ethical issues, to advise and help develop an ICANN Ethics Regime or set of Guidelines for the Board, the staff and the community.”

But let’s face it – ICANN is not like any other organization. It is the force that, like it or not, guides the development of the Internet – an entity where borders don’t exist. Add to that the fact that it is a not-for-profit corporation, governing one of the greatest economic drivers of the post-industrial revolution world, and you have a very unique organization.   Further, as an added complexity, it is a stakeholder-driven organization.  This means that the folks who work at ICANN, and those that volunteer for Board positions typically come from – and have to go back to – the Internet industry.

Clearly, ICANN, and more specifically the ICANN Board, is in a position to make decisions that can make people and organizations a lot of money. Couple that with the fact that the Internet space is a highly mobile one, with industry influencers moving freely between organizations, and you have the recipe for real and perceived conflict.  An appropriate balance has to be drawn between preventing real and apparent conflict, with people’s right to continue on making a living in the Internet industry post-ICANN involvement.

So what would a conflict of interest policy for ICANN look like?

Fundamentally, it would establish trust that the directors and employees of the organization are doing their job in the best interest of ICANN. It also protects directors and employees for being put in harm’s way leading to undue temptation, and practically eliminates the potential for perceived conflict.

Apart from the obvious components, such as disclosure of gifts, abstaining from voting on an issue when a conflict of interest exists, the critical part will be around post departure rules and ensuring that people cannot directly benefit from rules or policy they have recently been involved in making while at ICANN.  This will be no easy challenge, as many industry actors participate actively, positively and constructively  in various ICANN roles.  A delicate balance will need to be drawn..

I’d like to see a provision regarding post-service rules for employees and directors. Lots of organizations have them; I called for one at ICANN in a recent blog post .

It’s important to remember that I’m not in any way implying that past, current or future ICANN employees and directors have or will engage in nefarious activities. What I am saying is that ICANN is an organization that is increasingly in the public eye and under scrutiny from a number of corners. Even a perception of wrongdoing can and will seriously damage the organization, and the implementation of a robust conflict of interest and revolving door policy will go a long way in protecting both the organization and its people.

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The Model is the Message

Posted by: Byron Holland

In 1964, Marshall McLuhan (a Canadian, by the way) famously wrote, “The medium is the message.” This phrase popped into my head last week as I listened to the opening speakers at the Internet Governance Forum in Nairobi.

McLuhan meant that the form in which a message is delivered – the medium – embeds itself in the meaning of the message. The medium influences how the message is perceived and understood and is therefore inseparable from the message itself.

What does this have to do with the Internet?

The bottom-up, multi-stakeholder governance model that currently governs the Internet enables decisions to be made at ‘Internet speed’, and has allowed it to thrive. Any other governance model would NOT have resulted in the Internet becoming the incredible economic and social force it has become. The success of the Internet is inextricably linked to the way in which it is run.

The organic mix of public and private entities at the regional, national and international levels that are at the heart of governing the Internet is the reason why the Internet became a success – it ensures that those who have a stake in the success of the Internet are the ones making decisions about its future. The model also ensures that those decisions are made in a manner that is in keeping with the dynamic nature of the Internet.

This model for governing the Internet is also behind its democratising power, and its ability to promote innovation, human rights and social and economic development.  On the other hand, countries in which the Internet is blocked, controlled or shut down by governments often have poor human rights records and their populations cannot benefit fully from what the Internet has to offer.

Therefore, I am disheartened by the thought of what the Internet, and indeed the world’s economic and social situation, would look like if a different model, for example, a multi-lateral model – such as is employed at many United Nations agencies like the International Telecommunication Union (ITU) – were used. That model has worked well in the past for different industries. Case in point, the ITU (which has been around for more than a century), has ensured a robust and functional telecommunications network globally.

However, what would the Internet be like if a multi-lateral body were in charge? As history shows, it is often not the issues of the day that influence the discussions at these institutions. Rather, multi-lateral treaty-based organizations are typically hierarchical, top-down bodies that exist in a hyper-political environment. As such, they are susceptible to political intervention, influence and trade-offs, are slow-moving, and involve decision-makers so far removed from the implications of their choices that discussions, and resulting policies, can be very challenging. This is demonstrated with Dr. Hamadoun Touré’s comments at ITU’s Plenipotentiary last year.

As numerous nations and multi-lateral bodies continue to push their agendas, Internet governance has been the subject of quite a few media stories lately, and not just by the core Internet-focused bloggers.  While it concerns me to hear about the push by some to move the Internet away from its current model, it is important that these issues be discussed and debated openly.

These discussions should take place not only in the media, but in fora like the Internet Governance Forum, where certain states like India, Brazil and South Africa were openly questioned last week about their proposal (.PDF) to create a new body (within the UN structure) to oversee the Internet.

Their proposal received cross constituency, real-time feedback from the stakeholders and experts at the multi-stakeholder IGF. In essence, feedback was provided on a major proposal in a timely manner by the very organizations, nations and experts that the proposal affected. This is the multi-stakeholder model at its best.

The irony was not lost on many of us that the very model the group set to dismantle was the model that proved its power in this discussion. Such a fulsome and timely debate would likely not have happened in a multi-lateral treaty-based environment.

With apologies to McLuhan, with regard to Internet governance, the model IS the message.

Don’t get me wrong. I am not arguing that one governance model is better than any other. What I am saying is that each model has its place, and the model that suits the Internet is the multi-stakeholder one. There is room for both models, and each has its role to play – let’s just make sure we put the right model in the right place.

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Regional and National Internet Governance Forums

Posted by: Byron Holland

Last week, I was in Nairobi for the United Nations coordinated Internet Governance Forum (IGF).  The IGF brings together governments, private sector, academia, and civil society in an informal, democratic and transparent structure. There are no mechanisms at the IGF to make binding decisions; its objectives are simply to facilitate dialogue and find solutions to policy issues, to foster the sustainability and robustness of the Internet, and to facilitate development. That said, it’s much more than a talk shop. It is an appropriate venue to discuss, in an “apolitical,” multistakeholder environment, issues confronting the Internet.

The IGF provides numerous opportunities to discuss and debate many different issues.  It’s also a venue for national and regional Internet governance forums to present their local concerns and issues.

I participated in a panel to discuss how regional and national governance fora related to the global IGF, and presented the process and findings from the 2011 Canadian Internet Forum, a CIRA-led initiative where we engaged Canadians in dialogue on issues related to Internet governance. The CIF was incredibly successful, and we will be launching the second CIF in a few short weeks.

It was very interesting to hear the experiences of the other panellists, some of whom were presenting on behalf of regional IGFs (for example, West  Africa, Asia-Pacific) and others on behalf of national IGFs (such as United Kingdom and  Japan). Depending on the region, very different processes and themes emerged.  While IGF-USA engages in scenario exercises, where they considerer different Internet governance models, East Africa’s IGF looks at ways of improving access and infrastructure. While some national IGFs last for one or more days, others take on a year-long project format.

Though there are very real fundamental differences between national and regional IGFs, there are some surprising similarities. For example, improving digital literacy and access to the Internet, two major themes that emerged at the CIF, were also top-of-mind at most regional and national IGFs. As well, while the global IGF is a discussion forum with no decision-making ability or concrete outcomes necessary, the opposite is often true for regional and national IGFs. Concrete, practical policy recommendations are common.

Local discussion of Internet issues are fed up to the global community. The debate and best practice sharing this amazing dialogue produces makes the global IGF experience rich, rewarding, and crucial to maintaining the multi-stakeholder governance model we currently enjoy.

As I mentioned, we’re planning the launch of Canada’s next Internet forum in a few weeks. We’re looking forward to hearing about the issues Canadians  raise and how we can contribute to continuing the success of the Internet. Keep your eyes and ears open – we’ll be making an announcement very soon about how we are going to engage  you in this dialogue.

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CIRA’s Election Results

Posted by: Byron Holland

Yesterday, we announced the names of the successful candidates in CIRA’s Board of Directors’ election.

Congratulations to Kerry Brown (who is a returning Director), Bill St. Arnaud, Susan Mehinagic, and Andrew Escobar. I look forward to working with them over the next year.

A full list of all the candidates and their vote count is available here.

I would like to acknowledge the hard work of all of the candidates. This was one of the hardest fought elections I have seen since my involvement with CIRA. The issues were debated in the candidates’ forum, in social media and face-to-face at networking events like CIRA’s AGM.

I’m also very proud to say that we had a 22 per cent increase in voter participation over last year. I think our message of the importance of getting engaged in the discussions that affect the Internet in Canada is resonating with our Members.

I would also like to thank the Directors who are departing the CIRA Board: Lynne Mackan-Roy, Ross Rader and Tom Williams. Thank you for your dedication to CIRA and good luck.

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