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Multistakeholderism Is Working: A Short Series of Articles

I was in a conversation with a close friend the other day, you know the kind where you have been friends for so long that you have endured each other experimenting with changed politics, evolving religion, and if you are unlucky, flirtations with multilevel marketing. We were discussing politics that day, which is not unusual given our ancient friendship and the recent change at the helm of the United States. We were laughing about how our political affiliations have changed over the years and that it seemed to have more to do with the shifting positions of the major political parties rather than any shifts in our core beliefs. My friend asked me if I still felt allegiance to any particular political party. I half-jokingly said, “yes, the multistakeholderist party.” While this friend is not an “ICANN friend,” they have been with me on my journey for so long that they knew to what I was referring.

I am happy to say that I continue to believe that ICANN’s multistakeholder model of Internet governance is working. It may work slowly, it may work imperfectly and inefficiently, but it does, in fact, work. In order to function, it requires the participants to set aside maximalism and come to the table ready and able to creatively fashion and build consensus around solutions that meet the needs of the day. Stakeholders also have to be open to the idea that, due to the community’s wise decision to constantly review itself and its outcomes, no issue is ever fully resolved and can always be the subject of continuous improvement. This is the first of several short articles about what has worked and is working in ICANN’s multistakeholder environment. Apologies in advance to CircleID, since I know that good news never “sells” as much as bad news.

Chapter 1: Multistakeholderism and Rights Protection Mechanisms—tweaking what isn’t broken (or at least not demonstrably broken), pivoting for efficiency’s sake, and learning from a bumpy process

ICANN just finished up Phase 1 of its PDP on the Review of All Rights Protection Mechanisms (RPMs). Phase 1 was focused on those RPMs that affect new gTLDs. For example, the Trademark Clearinghouse, the Claims Notice, the Sunrise Registration process, and the Uniform Rapid Suspension Policy (URS). The GNSO Council considered the work of the PDP’s Working Group (WG) and unanimously adopted it and sent it to the ICANN Board. It now sits with the Board for decision. Let’s look at the major outputs:

The Trademark Clearinghouse: Tweaking What Isn’t Broken (or at least not demonstrably broken). As most know, the Trademark Clearinghouse does not convey any rights, it simply is a place to lodge verifiable trademark rights so that the Claims Notice process works. The Claims Notice, again, does not convey rights, it merely alerts a would-be registrant to known trademark rights and also alerts the trademark holder of any registration of a corresponding mark. Importantly, it does not block registrations nor does it alert brand owners of attempted registrations. Basically, it saves a would-be registrant hundreds of dollars in trademark searches that it otherwise may have to spend by relying on an ICANN process to provide them with due diligence information about prior trademark rights. Some of the WG believed that the Sunrise Claims process had a “chilling effect” on new registrations. This group of WG participants believed that when domain name registration attempts were made, otherwise innocent would-be registrants with good faith uses in mind for thousands of domain names dropped those registration attempts when they encountered (apparently for the first time) a trademark owner’s list of public known trademarks. In other words, part of the WG believed that would- be registrants overreacted to the Claims Notice. This seemed implausible to brand owners in the WG who believed, instead, that the Claims Notice just scared away would-be cybersquatters. In other words, this group within the WG believed that the failure to complete the transaction was simply cybersquatters seeing the light and dropping the attempt before they got into hot water with brand owners.

Guess what? Neither point of view was backed by actual data. Guess also what? The multistakeholderists on the WG acknowledged that fact and decided to make improvements to the Claims Notice anyway. That is how multistakeholderism works—the various sides strenuously argue their positions, provide what facts are available, come to compromise, ask for better fact gathering mechanisms in the next round, and patiently await the next review of the subject matter which will, in ICANNland’s good time, come about in the ordinary course. Good multistakeholderists believe in improvement for improvement’s sake and are open to improving something even when it is not broken (or at least not demonstrably broken). As one of the co-authors of the original Claims Notice, I was glad to see this outcome.

The Uniform Rapid Suspension Policy: Pivoting for Efficiency’s Sake.

It became pretty clear pretty early on to the WG that digging into substantive aspects of the Uniform Rapid Suspension Policy (URS) in Phase 1 would overlap with much of the work of Phase 2. The second phase of the RPMs PDP is meant to look at the UDRP which shares many elements with the URS. This was a moment when the multistakeholderists on the Phase 1 WG came together and made a decision to push consideration of the substantive portions of the URS to Phase 2 for efficiency’s sake. Those who hoped to see significant curtailment of the UDRP or significant enhancement of the UDRP could have insisted that the URS review happen in Phase 1 in the hopes that the changes to the URS would “stick” upon the UDRP in Phase 2. But, instead, the multistakeholderists within the WG saw the efficiency benefits of combining the substantive review of both policies into Phase 2 and the WG focused its attention on procedural aspects of the URS. Again, maximalist tendencies were set aside in favor of cooperation and good faith community planning.

Learning From a Bumpy Process: Open Membership and the Three Co-Chair Experiment. The RPMs PDP, which took several years, kicked off before the GNSO Council’s latest round of process improvements. What this meant was a completely open PDP membership with no limits on the number and affiliation of the participants. This has its upsides, for example, the old adage “many hands make light work.” It also had its downsides since it did seem that while the membership of the PDP was huge, only a fraction did the heavy work. No doubt that some of the lessons learned from this open mode PDP fed into the GNSO Council’s reform activities. This PDP also had three co-chairs (really four as one of the co-chairs resigned partly through the process and another leader stepped into that role). In my experience, the three co-chair model had difficulties, especially when a co-chair, who might not be leading that particular day’s call, would “take off their co-chair hat” to become a positional advocate, which leads to natural concerns about whether or not they were being neutral when their hats were back on. I happen to personally know, and like, each of the three co-chairs, but it did lend a bit of extra drama from time to time. It will be interesting to see how the GNSO Council decides to structure the chairing role in Phase 2. The important part, from a multistakeholderist standpoint, is that the three co-chairs worked ceaselessly over many years, and even though their role was somewhat experimental, the members of the WG adapted and the PDP ultimately reached its goals. Being flexible and adaptive is part of a successful multistakeholder model and this PDP WG, along with its dedicated chairs, proved that they were both of those things.

Stay tuned for my next article, coming soon, on an additional example of how the multistakeholder model is working.

By Paul McGrady, Attorney / Author

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Interesting considerations Mark Datysgeld  –  Mar 19, 2021 8:50 PM

Mr. McGrady,

Those are some interesting considerations to make, especially during the strained times we live in. Something that would be good to hear about in a future instalment of the series are your thoughts on the impact of the fully remote model on the MSM and on the policymaking ability of the community.


MSM did work -- not sure now... Frederick Felman  –  Mar 24, 2021 4:43 PM

While I love your optimism, I find optimism hard to apply to all aspects of the multistakeholder model. The EPDP on the Temporary Specification for gTLD Registration Data and its work on the System for Standardized Access/Disclosure to non-public gTLD registration data (“SSAD”) are examples where rose-colored glasses don’t make the picture prettier. It is hard to believe that a wide and diverse group of people were able to sit in a room and argue for over 2 years about subjects that have long been settled in the real commercial world for nearly a decade. For example, well-crafted legal acknowledgments about the use of data have long been used to scope liability and have shielded millions of online businesses from action by Europe and California strict privacy laws, yet the ICANN’s MSM can’t manage to marshal simple solutions to complex problems. And, managing business risk has long been the role of insurance. ICANN and its MSM, in this case, has managed to hopelessly complicate what is a relatively simple issue that has been solved in the commercial world over and over.

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