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In Congress, A Confusing Argument Against New TLDs

In a recent post to CircleID entitled New Domains and ICANN Accountability, Steve DelBianco paints himself as “frustrated” that ICANN didn’t take a different path toward new Top-Level Domains (TLDs). Mr. DelBianco was one of four witnesses at a hearing before the House Judiciary Committee’s Subcommittee on Courts and Competition on September 23, 2009. He is a creative advocate for his clients, an engaging speaker, and a skillful writer, and he produced a synopsis of the hearing which sounded convincing—until I tried to make sense of it.

My take on the proceedings is decidedly different than Mr. DelBianco’s.

For starters, the panel was not, as Mr. DelBianco claims, historic, except insofar anything that happens, passes, and is recorded is historic. The hearing was mostly a rehash of the familiar pro- and anti-new-TLD arguments, with two notable exceptions: ICANN COO Doug Brent’s solid testimony, and Mr. DelBianco’s showmanship and dizzying arguments, neither of which I had experienced before. (Paul Stahura of eNom and Richard Heath of INTA also testified.)

ICANN has in the past represented itself quite poorly before Congress, culminating with Paul Twomey’s defensive performance (some called it arrogant) before the House Subcommittee on Communications, Technology, and the Internet in June 2009. Last week, Doug Brent was the opposite—reasonable, responsive, and firm while remaining humble and respectful. His testimony was, in my opinion, very helpful for ICANN’s image.

Mr. DelBianco is a different kind of presenter. With stage props, clever quotes from Mark Twain, a mellifluous tone, and a perfect understanding of committee protocol, he presented what seemed to be a well-fashioned argument: non-Roman-character top-level domains now; Roman-character TLDs much later, if ever.

At first, I couldn’t really make sense of it. Why was DelBianco pushing IDNs? Remember the setting—the House members, which included Howard Coble, a co-author of the letter that set the stage for the hearing), have been heavily lobbied by the many representatives of big intellectual property holders. Verizon by itself has 120 full-time lobbyists in Washington, and they are active on this issue. The stage was set by the letter to ICANN, very sparsely attended by subcommittee members, and those mostly Republicans, even though the subcommittee is dominated by Democrats. The lawmakers were primed for an anti-new-TLD message, and Mr. Coble in particular read out a prepared statement that hewed exactly to the position that had so frequently from major companies such as Verizon, Time Warner, and other large trademark holders—no new TLDs. Why then the advocacy for IDNs?

DelBianco’s testimony was two-pronged and dazzlingly contradictory. On the one hand he said—waving what would become a familiar prop, an enormous label-maker—that top-level domains were just “labels,” meaningless in themselves. On the other hand, he claimed, the masses of non-Roman-alphabet users were crying out for internationalized domain names (IDNs). So, according to DelBianco, on the one hand TLDs are pointless labels—except when they are not. On the other hand, there is no demand for new TLDs—except that non-Roman alphabet users are clamoring for them.

Why are new TLDs mere “labels” when they are in Roman characters, but oh-so-meaningful when they are not?

When Paul Stahura asked, “Why should the Chinese get .BLOG in Chinese characters, but I can’t get .BLOG is English?” the Republican subcommittee members looked up, as if they too were suddenly wondering how they had got themselves into the position of supporting unlimited new TLDs for the Chinese, but none for Americans. And what about Africans, South Americans, and Europeans who do use Roman characters but speak different languages. Are they not also disadvantaged by the limited choice of generic top-level domains?

How, I wondered, did DelBianco, a polished advocate, tie himself in such knots?

Cicero’s great question was cui bono?—whom does it benefit?—when trying to understand the motivation behind a speech in the Roman Senate. Understand who stands to gain, and you will understand much of the argument. DelBianco’s outfit, NetChoice, has a short list of members, which include big trademark holders, and, significantly, VeriSign. And while most big trademark holders would like to see no new TLDs—some of them would probably like to see the Internet disappear altogether—VeriSign wants to see new business, but only the kind which doesn’t threaten the dominant position of .COM. Privately, VeriSign representatives have told me that they want to see .COM replicated world-wide in IDNs, and I don’t believe that this is much of a secret.

From that point of view, but not from any other that I can discern, Mr. DelBianco’s testimony makes a kind of sense, which makes it all the more worrying that he is also known to be lobbying the ICANN Board. VeriSign already has considerable influence in ICANN, and has been part of the new gTLD process since the beginning and have had ample opportunity to argue their case through the good offices of Chuck Gomes, their Vice President of Policy and Compliance. I would be disheartened to learn that they are “triple-dipping” by also lobbying Congress and the ICANN Board.

Such actions take the debate away from ICANN, its proper venue, and into the shadowy back halls of Congress where campaign contributions may have more weight than reasoned arguments. If ICANN’s Board responds to this kind of influence, others will have no choice but to follow suit, and much of ICANN’s purpose will have been compromised.

[UPDATE - SEP 28]: Fixed a malformed link in the 6th paragraph causing part of the text to be displayed incorrectly.

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