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For those participants that have been working rearranged hours and participating remotely in connection with ICANN's Nairobi meeting, here is a chance to sleep in. While ICANN Board tea leaf reading is not an exact science, there is a great deal of predictability to ICANN's actions so here are my big three predictions for tomorrow.

#1 – ICANN Board Approves the EOI

Kristina Rosette, GNSO Counsel representative highlighted how ICANN had already announced a webinar on March 18th to talk about the new gTLD process and the EOI/Pre-Reservation process. Now while ICANN staff promptly edited this page after Kristina's statement in the public forum, to include the following disclaimer (SUBJECT TO BOARD DECISION), this appears to be preordained based on the additional facts listed below.

#2 – Launch of the Global Communication Plan

The Seoul meeting was interesting as it was one of the first ICANN meetings were there was an absence of artificial timelines in connection with the launch of the new gTLD process. This meeting was also largely absent of timelines, expect for those attendees that managed to sit in on the new gTLD staff briefing given by Kurt Pritz to the Registrar Stakeholder Group. While the first slides in Kurt's presentation where almost identical to the other public presentations, the last two saw the re-emergence of project times. These slides were entitled "Applicant Guidebook V4—Shortest Path" and "Expression of Interest (EOI)—Shortest Path." While this power point presentation given to the registrars is not currently available on the ICANN website, I am sure that within minutes of this article being published it will timely appear on the ICANN website much like the update to the March 18th webinar.

#3 – Approval of the ICM Application

Today on the ICANN correspondence website there appears a private and confidential communication submitted by ICM to ICANN to settle its dispute. Given that this "private and confidential" communication is now public is a reasonable indicator that ICANN will accept the offer. The only suspense is if ICANN approves the last 2007 registry contract posted for public comment, or if it re-opens contractual negotiations. Given that re-opening negotiations would subject ICANN to intense lobbying from certain stakeholder groups that feel rather passionately about this subject and how this might distract staff from its Brussels' deliverables, it is a safe bet to predict that ICANN just bites the bullet and executes the 2007 agreement.

Shock and Awe

Regardless of what actions the ICANN Board takes tomorrow it will be criticized. Therefore, given the new style leadership demonstrated by ICANN President and CEO, Rod Beckstrom and Chairman Peter Dengate Thrush, I predict ICANN goes 'all in." While it may take several years to determine whether the ICANN Board made the right decision in Nairobi, this much is guaranteed for sure, ICANN's actions represent a global economic stimulus plan for attorneys of epic portions that will be paying dividends for year to come. Let the fun begin, and let the chips fall where they may.

Written by Michael D. Palage, Adjunct Fellow at The Progress & Freedom Foundation

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More under: Domain Names, Domain Registries, ICANN, Internet Governance, Top-Level Domains

The internet is among a record 237 individuals and organizations nominated for this year's Nobel Peace Prize. The number of nominations surpasses last year's record of 205 nominations. The internet's nomination has been championed by the Italian version of Wired magazine for helping advance "dialogue, debate and consensus".

Read full story: BBC

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The venerated BBC World Service recently commissioned a polled involving more than 27,000 people across 26 countries. The findings are unremarkable: some 87% of Internet users believe that Internet access should be a basic right, and more than 70% of non-users believe that they should have access to it.

Depending on your country, the Internet has been available for ten years or more, and for individuals—at least in the developed world—it has since become ingrained in psyches as an essential commodity, akin to access to fixed-line telephony, electricity and potable water. For a growing number, the Internet is essential for work, for a greater number it is the first port of call for problem solving and information (Wiki and online Yellow pages come to mind) or getting things done (banking, finding out timetables for travel, etc). Most governments, too, now take the Internet as a key component of infrastructure, crucial to a nation's future socio-economic potential.

What governments may do with the Internet is another matter. A decade's experience and use of the service has enabled a growing number of governments to manhandle the potential dangers of hacking, fraud and privacy as a means to tighten the screws on their own control of access, and of their nationals' use of it. This is rightly opposed by the users themselves, over half of whom surveyed for the BBC believing that no government should be empowered to regulate the Internet.

In Europe, the 'three strikes rule' threatens to become more fashionable, following measures first proposed in France: there, the Création et Internet Bill failed in 2009 when France's Conseil Constitutionnel ruled that it leaned too much to 'guilty until proven innocent' and that it threatened major sanctions (Internet disconnection and a national blacklist on access) without judicial oversight. Nevertheless, the government shoehorned the Bill a second time, which this month came before the National Assembly for debate.

The Bill proposes that the scheme be administered by a newly formed group called HADOPI. ISPs notified about alleged file-sharing would be required to send an e-mail to the customer involved, a registered letter at the second alleged offence and, for a third offence, terminate access for up to a year. A database managed by HADOPI could presumably prevent blocked users from switching ISPs.

Italy looks like adopting a similar approach. Having in 2009 sued the Swedish The Pirate Bay site and attempted to force ISPs to block access to its content, the more recent charging of Google executives with criminal charges resulting from YouTube content denotes a government leaning towards authoritarianism regarding the Internet. The Italian three-strikes proposal would be complemented by a requirement that all blogs register with the government.

In the UK, meanwhile, the government is pushing through its controversial Digital Economy Bill, which proposes empowering regulators to disconnect or slow down Internet connections of persistent illegal file-sharers. Amendments to the Bill passed this month at the report stage at the House of Lords before its third and final reading in the House of Commons, could in theory force sites such as YouTube which host copyright-infringing material to be blocked or forced offline. The UK's three-strikes rule is similar in its essentials to those of France and the UK, with disconnection following two warnings.

At the European Union level, the European Parliament was initially critical of the three-strikes schemes, largely due to the absence of judicial review. However, this month the Anti-Counterfeiting Trade Agreement (ACTA) was put forward for debate between the US, the EC, Japan, Switzerland, Australia, New Zealand, South Korea, Canada and Mexico. Aimed at preventing online counterfeiting, it threatens to punish ISPs for content delivered.

Polls show the sincerity of popular regard for a free Internet, and suggest that to tackle piracy other solutions than blocking ISPs and throwing citizens offline should be considered. Until they are considered, citizens should, as always, be vigilant about what their governments are legislating, lest they find themselves with a thoroughly policed Internet far removed from what they now know it to be.

Written by Paul Budde, Managing Director of Paul Budde Communication

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More under: Access Providers, Censorship, Internet Governance, Policy & Regulation, Privacy

Today is the morning of the most revered Thursday in the ICANN meetings calendar—The public forum. It is tradition personified. It is the day when the show and the showcasing really begin. It is the stage and the choreography of the open microphone that can help influence ICANN decisions one way or another and make the supposed bottom up model appear at its best. Often, it serves to inform the board of issues they may have overlooked, other times it is a pre-planned, pre-arranged and choreographed in advance by proponents aiming to influence the board like a popularity contest. This special day precedes the Friday when the ICANN board makes its decisions, in public, adopting resolutions on many vital issues.

ICANN Nairobi carries serious expectations by the community of the ICANN Board to stand up and be counted. On the card are the .XXX fiasco, The Expression of Interest, which I and others have called the expression of "Special" Interest as well as on the New gTLDs implementation which is still littered with many unresolved overarching concerns, and not forgetting the Review mechanisms to oversee ICANN performance per the Affirmation of commitments, which may end up being loaded up with ICANN loyalists.

However, this Thursday and this Friday are unlike any of the previous years. They represent crossroads in ICANN's path that will determine its credibility that will shape its role and influence for years to come under the Beckstrom / Dungate Thrush leaderships. The resolutions ICANN do adopt this Friday or if it chooses to defer decisions on some instead of addressing them squarely will either boost ICANN's credibility or damage them irreparably.

By Friday 12pm Nairobi time we all should know if the ICANN board and its leadership possess the wisdom and far sightedness of a Solomon or a Joe Blog. Whether they are up to the task, challenge and responsibility bestowed on them by the Affirmation of commitments to rule over the entire global internet will also be known. By noon we will know if they have exhibited the needed leadership, diplomatic, and executive skills and the sincerity to show they can rule over the global internet in a fair, equitable and ubiquitous manner to all its stakeholders from Akron to Afghanistan, from DC to Damascus, from Beijing to Bangalore, delivering on its Affirmation of Commitments (AOC) mandate of ensuring accountability, transparency and the interests of all global Internet users as well as promoting competition, consumer trust and consumer choice.

Most important and most compelling of all other issues in Nairobi is .XXX . No matter how the board acts ICANN's credibility will be impacted. If the board instructs staff to execute the 2007 registry contract with ICM, ICANN indirectly admits it was wrong and creates a precedent that its board decisions will be questioned endlessly and can be reversed by an Independent Review panels in the future. If the board chooses not to instruct staff to execute the 2007 contract, it raises serious concerns over the seriousness of the AOC and the review mechanisms over ICANN and the New gTLDs. The board may defer some decisions to a later date citing some excuse in order to gauge a better result and prospect.

But this raises new questions I don't hear much in the ICANN corridors:

A – Does or doesn't ICANN consider itself as a "Global Public Service Provider" ?
B – Isn't ICANN a" Global Monopoly Public Service Provider?
C – As per the AOC, what if ICANN is seen to have failed based on the AOC review panelists?
D – What happens next?

In a competitive market if I am a customer of AT&T and they fail me I switch to sprint or Verizon, it is also called consumer choice. But where is the choice in the ICANN role and what happens if ICANN does fails. Does the community issue statements and press releases calling on ICANN once again to improve it like we have the last ten years. This is hardly choice or competition. ICANN needs to remember the difference between the internet world dealing with it because it respects it and sees it providing a great service as a global monopoly Versus being the only game in town ( the world actually). If ICANN was a service provider in a competitive market, I wonder how many would continue using the ICANN service based on its current levels of "Constituents Satisfaction" if another one can serve them better, faster, and cheaper. Are Google or Microsoft listening, or should ITU the only one aiming at this role?

Other bloggers / friends who are dissatisfied with ICANN wrote and what I add.

Jonathan Zuck: "But when the Chairman backed away from that stance earlier this week in Nairobi, it became clear that we should have held our breath a little bit longer".

I say to Jonathan: Stop holding your breath, no human can keep their breath that long, how long have the IDN communities been waiting for IDN gTLDs. ICANN's rational show a clear monopolistic style of management that knows there is nowhere for you to go and get the service you seek of ICANN anywhere else. Welcome to ICANN style of competition and choice.

Andrew Mack: "A Little Flexibility from ICANN and We Might Just Get IDNs… for Everyone"

I say to Andrew: The little flexibility you hope for in ICANN is like the short distance that appears between stars when you look up to the night sky. In reality these stars are light years apart. And so is ICANN on IDNs for everyone, I can speak on this matter as an expert on IDNs who has served on the ICANN President Advisory Committee on IDNs since its inception in 2005.

I will post my verdict after Friday 12pm Nairobi Time.

Written by Khaled Fattal, Chairman and CEO

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Last week, the German Constitutional Court issued a much-anticipated decision, striking down its data retention law as violating human rights. It was an important victory for Europe’s Freedom Not Fear movement, which was formed to oppose the EU Data Retention Directive. But it was also a reminder of the political work which remains to be done to defeat it.

When the European Union first passed the Data Retention Directive in 2006, despite a hard-fought campaign by European activists, it seemed like the beginning of the end for Internet privacy. The directive sought to require telecommunications service providers operating in Europe to retain a detailed history of each of their customers' activity for up to 2 years for possible use by law enforcement; including phone calls made and emails sent and received.

The response from European citizens was swift and outraged. Under the banner of Freedom Not Fear, mass protests were held in cities all across Europe and beyond. The charge was led by the German Working Group on Data Retention (AK Vorrat), which in 2007 filed a class-action lawsuit of nearly 35,000 people challenging the German law.

The suit's complaints were mostly upheld by last week's German Constitutional Court decision. The court held that the blanket data retention mandated by the EU directive violated Article 10 of the German Constitution, which guarantees the basic right to private life and correspondence. The Court said that an infrastructure of exploratory surveillance results in an exceptional intensity of interference with human rights, which must be proportionately protected with appropriate safeguards. It also significantly narrowed the options for similar EU retention laws on other types of data. The court ordered the immediate deletion of all the data stored since the law went into effect in 2008 and ordered the suspension of data collection until a revised national law is proposed.

However, the court did choose to leave many important questions about the EU directive unanswered. In highlighting the need for increased safeguards, the court failed to recognize that the storage of data itself is what violates human rights. For instance, a survey of German citizens in 2008 found that 1 in 2 people would not have conversations with counselors or therapists by phone or email because of their concern about data retention.

A bolder stance was taken in October 2009 by the Romanian Constitutional Court, which ruled that the EU directive fundamentally violated Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private life and correspondence. Data retention itself, the court wrote, is "likely to overturn the presumption of innocence and to transform a priori all users of electronic communication services or public communication networks into people suspected of committing terrorism crimes or other serious crimes." As a result, all citizens would become "permanent subjects to this intrusion into their exercise of their private rights to correspondence and freedom of expression."

The rulings in Romania and now Germany set the stage for an imminent series of decisions on the status of national data retention laws across Europe. The recent Bulgarian vote on data retention legislation met with sharp criticism and protests. Petitions against the Belgian data retention law are available in both French and Flemish. The constitutional challenge against the Retention of Data Bill brought by Digital Rights Ireland may be referred to the European Court of Human Rights. In the meantime, despite the fact that the European Commission won its lawsuit against the government of Sweden for failing to implement the directive, the minimal penalty turns out to be worth the political risk.

In order to overturn a directive, the European Commission, Parliament, and Council have to agree. Viviane Reding, the incoming European Commissioner for Justice, Fundamental Rights, and Citizenship, declared at her confirmation hearings her dedication to defending the right to privacy. The members of the European Parliament, inaugurating their new term, flexed their political muscle when they recently rejected assenting to the SWIFT agreement that would have enabled the wholesale transfer of Europeans' financial data to the US. The European Council, representing the ministries of the individual Member States, will respond to the political climate in their home countries.

All in all, the threats to privacy and free speech posed by the Data Retention Directive are on their way to being nullified. In Germany, AK Vorrat launched its campaign against the new law being devised and set its sights on ending data retention on the European level. They will need the help of citizens across Europe to raise awareness and speak out for their rights on national levels.

Freedom Not Fear is planning another series of protests later this year – stay tuned to Deeplinks or sign up for FNF's mailing list to find out what is being planned near you.

Or at least majority of 895 technology stakeholders' and critics' that were recently surveyed by the Pew Research Center's Internet & American Life Project and Elon University's Imagining the Internet Center. Some of the quantitative results from the expert group include the following:

Google won't make us stupid: 76% of these experts agreed with the statement, "By 2020, people's use of the Internet has enhanced human intelligence; as people are allowed unprecedented access to more information they become smarter and make better choices. Nicholas Carr was wrong: Google does not make us stupid."

Reading, writing, and the rendering of knowledge will be improved: 65% agreed with the statement "by 2020 it will be clear that the Internet has enhanced and improved reading, writing and the rendering of knowledge." Still, 32% of the respondents expressed concerns that by 2020 "it will be clear that the Internet has diminished and endangered reading, writing and the rendering of knowledge."

Innovation will continue to catch us by surprise: 80% of the experts agreed that the "hot gadgets and applications that will capture the imaginations of users in 2020 will often come 'out of the blue.'" Some of the best answers are in Part 3 of this report. Respondents hope information will flow relatively freely online, though they expect there will be flashpoints over control of the Internet. Concerns over control of the Internet were expressed in answers to a question about the end‐to‐end principle. 61% responded that the Internet will remain as its founders envisioned, however many who agreed with the statement that "most disagreements over the way information flows online will be resolved in favor of a minimum number of restrictions" also noted that their response was a "hope" and not necessarily their true expectation. 33% chose to agree with the statement that "the Internet will mostly become a technology where intermediary institutions that control the architecture and ...content will be successful in gaining the right to manage information and the method by which people access it."

Anonymous online activity will be challenged, though a modest majority still think it will possible in 2020: There more of a split verdict among the expert respondents about the fate on online anonymity. Some 55% agreed that Internet users will still be able to communicate anonymously, while 41% agreed that by 2020 "anonymous online activity is sharply curtailed."

Related Links:
The Future of the Internet IV (Webpage / PDF)
Doc Searls sharing his my full responses to all the questions

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What's going to happen this week on .XXX? Nairobi is the first public board meeting since the independent review panel's nonbinding declaration in February that ICANN acted against its own rules in refusing to go ahead with .XXX. Reports that ICANN is going to 'do something' about .XXX have gone around the world via BBC news, and even surfaced on the radio in rural Ireland. The ICM team are out in force here in Nairobi, and there is endless speculation about what will happen at the Board's meeting on Friday.

ICM has no interest in being fobbed off with an invitation to join the new gTLD application process. That process is horribly delayed, of still uncertain timing and outcome, and would expose ICM to immediate competition from other porn-related TLDs. ICM has assiduously played by the rules and understandably does not wish to go to the back of the queue.

This could go one of two ways. First and most likely, the Board will fulfill its legal obligation to consider the panel's decision by having, and being seen to have at its public meeting on Friday, a discussion of the ruling. Then, perhaps regretfully, it will punt on any action by adopting some sort of delaying mechanism. One way to buy time and maybe even some credibility would be for the Board to put the 2007 registry contract with ICM out for another round of public comment. ICM says it will take legal action if there's any delay, though this might be hard to justify if it's 'just one more' round of public comment.

The second possibility is that the Board simply directs staff to execute the 2007 registry contract with ICM. This could and should happen. The US administration has changed and is no longer as beholden to the religious right. The remaining opposition within the GAC is likely quite isolated and far more concerned about new gTLDs in general. .XXX has been a thorn in the Board's side for several years, undermining ICANN's credibility and costing both parties around $6 million dollars. It can't go on. In arguments for 'not now': it would be a dramatic step that repudiates ICANN's past actions. The 2007 contract may no longer be fit for purpose. No one wants to be the host city or the CEO to open up the floodgates to yet more porn on the Internet.

Like any long running disagreement, the facts and sequence of events are in dispute. A posting by CEO Rod Beckstrom on the ICANN blog included an incomplete timeline and didn't commit to implementing anything more than the narrowest legal interpretation of the panel's findings. Many commenters attacked this, saying ICANN should just get on and do the right thing. This week in Nairobi CEO Rod Beckstrom has distanced himself from the blog posting, saying it was written by ICANN's General Counsel John Jeffrey. While that's not the most courageous stance I've ever seen, I hope it signals a move toward decisive action on .XXX.

Why is .XXX so difficult to sort out? The .XXX application triggered the perfect storm of conflict that got right to the heart of ICANN's mission and its point of deepest vulnerability. The average quango bumbles along for decades and never faces the precise set of people, motivation and cause with the potential to tear it apart. ICANN does so about every five years.

The .XXX affair exposed ICANN's core vulnerability, and gave flesh to all the conspiracy theories about the US government 'controlling the root'. The independent review panel's account sets out in black and white the invincible pressure on ICANN caused by a right wing religious lobby group's letter writing campaign to the US Department of Commerce. The panel drew strongly on Paul Twomey's statement that in the summer of 2005 the DoC said it would not put .XXX into the root. The version of events now in the public domain has not been publicly contested by the DoC.

The DoC's threat to unilaterally keep .XXX out of the root meant that ICANN, having gone through its whole consultative process and come to a decision well within the limits of its powers, would have publicly and finally been stripped of every last rag of its authority and raison d'etre. If this had been made public, ICANN would have been finished. At that point in the global Internet governance debate, the proof that the US government felt free to interfere in ICANN's work and exercise ultimate control over the Internet root would have fatally weakened the case for multi-stakeholder governance.

Not surprisingly, ICANN's leadership decided that is own failure to honour its commitment to ICM was the lesser of two evils. For the second time in eighteen months, ICANN faced down an existential threat and limped away, badly damaged. A legitimate question we can all ask ourselves is 'was it worth it'?

From the relative comfort of a lawyer's briefing room, it's easy to condemn ICANN's then leadership for not following through on the .XXX contract. ICANN's leaders faced the appalling dilemma of 'bombing the village in order to save it'. All ICM wants to do is run a registry and make some money. They played by the rules and didn't want to be drawn in to a world of international realpolitik. But there's no denying that's the world this dispute lives in. The legalistic nature of the dispute means ICM and most critics focus on ICANN's abrogation of its own procedures. This is important, but narrows the view too much to appreciate the big picture.

Who is the most at fault? Political appointees at DoC allowed religious extremists and bully boy tactics to drive policy on the stewardship of a global resource. They let momentary, parochial domestic impulses over-ride America's larger interest in a free and global Internet.

Stuart Lawley of ICM was absolutely right when he told me a couple of days ago that this issue is about much more than just a smutty little porn thing. It's a test of ICANN's accountability. The independent review panel is the jewel in the crown of ICANN's accountability mechanisms. Its declaration demands a substantive response, not just a discussion of the issues.

But .XXX is about more than ICANN's accountability, too. On a day in Nairobi that included a closed session on the role of the Government Advisory Committee and ICANN's institutional evolution, the transparency and accountability of individual governments should be in the spotlight, too.

Written by Maria Farrell, Independent Consultant

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The Treasury's Office of Foreign Assets Control (OFAC) announced on Monday key amendments to the regulation of United States sanctions against Cuba, Iran and Sudan.

The new provisions give a blanket license for the export of "certain services and software incident to the exchange of personal communications over the Internet, such as instant messaging, chat and email, social networking, sharing of photos and movies, web browsing, and blogging, provided that such services are publicly available at no cost to the user."

This clarification is just what EFF called for last June, and will go a long way to allay concerns that online service providers based in the U.S. cannot offer their services in those countries. Previously, despite the well-known freedom-enhancing capabilities of services like Twitter and Facebook in repressive regimes like Iran, it was unclear whether those companies could even offer their services there without falling foul of the United State's broad prohibition on the export of goods and services to these regimes.

This was not a hypothetical concern: other services that were useful for dissidents to communicate and organize, like Microsoft, and Google's instant messaging clients had previously been blocked from being used in these very countries -- not by the repressive states, but by companies themselves, cautious of violating sanctions.

While the change in the letter of the law is clearly positive, perhaps just as important is the signal this sends about the administration's new guiding policy on global Internet freedom.

Previously, cautious companies, afraid of running afoul of OFAC, have frequently forbidden or blocked all use in sanctioned countries, even when the letter of the law did not require such draconian steps. You can see this institutionally paranoid language, and its inevitable results, in Bluehost's terms of service, which pre-emptively prohibits all citizens of sanctioned countries from even applying to use their hosting facilities (a policy which lead them to shamefully throwing innocent Zimbabwean activists off their service last year).

Now we are moving (slowly) to a new, and better default, where technologists and their lawyers might assume that free Internet services that facilitate free expression and association need not be blocked pre-emptively for anyone, anywhere.

The Obama administration has shown with these changes that it would prefer to move toward that end. Have we got there yet? Is it what export law now says?

While we wait for export regulation experts to sweat the details, the answer is still far too hazy for comfort.  While the State and Treasury departments have fixed much that was wrong with Iranian, Cuban and Sudanese sanctions, there are still regulations on, for instance, Zimbabwe, Syria and North Korea for techies and their lawyers to worry about, and those sanctions still inhibit making software generally available. We also would like to see more clarity about collaborative software development locations, like Sourceforge.

We hope that this administration backs up these first steps with a continuing review of export rules, and pro-actively works to reassure Internet companies that they are free to build an open Internet for everyone, without expecting a knock on the door from their own government.

The National Broadband Plan that the FCC will present on 17 March will set the USA on a completely different telecoms path. This plan will hopefully show Congress that it is worthwhile making the legislative changes that will deliver the social and economic benefits of a national broadband infrastructure.

Groundwork for a new direction in telecoms

Shortly before Barack Obama won the election in 2008 I started to work with what became the Obama Transition Team on some of the US telecoms policies. Obama and his small team of technological experts were aware of the developments in Australia—particularly in relation to the need for trans-sector policy on broadband infrastructure.

Together with a team of national (US) and international experts we prepared half a dozen 'BigThink' strategy reports for the Obama Team in the White House.

We also established a good relationship with the FCC (Blair Levin's team) and NTIA (Larry Strickling).

ALL parties publicly agreed to a trans-sector approach and many of our suggestions are clearly reflected in the stimulus package (open networks) of the FCC national purpose strategy. And our suggestions also appear in the upcoming National Broadband Plan—in the trans-sector approach to the public safety sector and the proposed mobile broadband infrastructure for this sector.

Visionary plan now needs legislative action

However, if we're talking about 'national purpose' a transformation of the telecoms industry is crucial, and the FCC has been specifically forbidden by Congress to address this topic.

The National Broadband Plan will most certainly highlight the benefits attached to a 'national purpose' policy but it is up to the Congress to make it happen. The plan will provide a new, visionary direction for telecoms in America but unfortunately in its current state it is a toothless tiger. It will be up to Congress to take action through legislation—without that it will be impossible to implement the plan in any timely fashion.

As matters stand at the moment the plan is the best the FCC can do. They should be applauded for the work they have done so far—they have laid the foundation for a totally new telecoms direction in the USA.

All of these trans-sector/national purpose policy proposals require very significant changes to the way the telecoms industry works and if—as has been stipulated by Congress—this can't and therefore will not be addressed in the Plan.

Affordable access to broadband infrastructure

Another key to telco transformation is the creation of a level of 'affordability' both for the end-users and for the sectors that could use the infrastructure, you won't get this without tough legislation.

To just get very fast broadband to American homes in isolation from this trans-sector approach is fairly useless. While you might get such a service to all homes the reality is that without a utilities-based trans-sector approach towards the underlying broadband infrastructure it will be impossible to make that an affordable service. We only have to look at the charges that currently apply to such (fiber-based) broadband services to realize that probably only about 25% of Americans can afford this.

While not defined as such in the USA, broadband is simply infrastructure. (Access to that infrastructure is now declared a national right in several European countries.) A problem in the US legislation is that the previous Administration gave broadband the unusual classification of 'an information service' and not an access service.

National purpose good for the nation and for lowering the consumer bill

If the trans-sector approach is applied other sectors (healthcare, education, energy, public safety) can be directed by the government to start using this network—thus paying their share towards the cost of the broadband infrastructure—for the delivery of their services, e.g., the monitoring of aged people from their homes to reduce the need for hospitalization.

This has to be a government-driven approach as the social and economic trans-sector benefits fall outside the balance sheets of the telco providers. These benefits need to be carefully monetized and used as input by the government in developing government policies in these areas. The OECD has indicated that the savings made by using the broadband network for healthcare, education and transport alone could pay for the deployment of a national broadband network.

Unfortunately the economic benefits are very hard to calculate. But was it possible to predict the benefits of the electricity network when it was built? The naysayers in those days said that it was outrageous to pay for infrastructure that would simple replace candles.

Structural changes to the industry are needed

In order for those sectors to be able to deliver these services the broadband infrastructure needs to be made available to them on a utilities basis. This can't be done within the vertically-integrated structure of the telecoms industry. An open network policy is required, and that is clearly not on the table in the United States—at least not for 90% of the infrastructure that will be involved in its National Broadband Plan.

So, yes, even without legislative changes the new broadband plan might indeed deliver broadband to most people in the USA—but at what cost to the average American citizen? For the moment at least, the incumbents can't believe their luck at the honey pot the government is placing in front of them. They are in a prime position to deliver these networks and they will not be required to do this at an affordable price. The government will pay the going rack rate which will include a very fat premium to the carriers on top of costs.

This situation cries out for structural changes to the industry, but it doesn't look as though change will take place in the foreseeable future.

The end result is that access to broadband will remain significantly more expensive to Americans than to people in countries that opt for an open network and utility approach towards basic infrastructure.

Regional and Rural America will be second rated

Another result will be that regional and rural users will get a second-rate service (lower speed). There is no way that those premium prices charged by the incumbent telcos can be afforded to build an equivalent broadband network in regional America. This is a very dangerous development as it will undermine the delivery of the trans-sector services to those communities. Healthcare, energy and public safety services require Qos, security, reliability, privacy protection, etc. A second-rate network will certainly compromise some of that and might even render it unacceptable for the usage of such service.

As mentioned above, the incumbents are jumping up and down with joy and—in relation to voluntary cooperation to give some spectrum back—the broadcasters are arrogantly saying 'over my dead body'. But in reality, and based on decades of anti-competitive behavior, who among these players will voluntarily give up their monopolistic rents as requested by what is, in that respect, a rather powerless FCC.

The ball is now in the court of Congress

Congress should take a very hard look at itself and answer some these questions before propping up an outmoded telecommunications structure. This money can only be spent once and at present it appears that without structural changes to the industry the new National Broadband Plan will not provide the right foundation for those national interest investments. It would be impossible to successfully implement these policies without simultaneously addressing the structural issues in the industry.

We have top-class people involved in the development of the National Broadband Plan—the ones mentioned above, as well as the excellent team of extremely hardworking people that Blair Levin has built up.

So that's not the issue. The issue is the failure of the American political system.

For the first time in its history a different approach is being taken towards telecoms in America—we now accept such notions as open networks, network neutrality and trans-sector/national. Let us hope that Congress now takes the baton from the FCC and supplies the legislative follow-up that is required to implement this very important first step.

The plan, as it will be presented on 17 March, has gone as far as the FCC can take it. It is now up to the legislators to be visionary—to make sure that the National Broadband Plan is followed up with legislation that will enable the telecoms industry to deliver the enormous social and economic national benefits highlighted in the plan.

Written by Paul Budde, Managing Director of Paul Budde Communication

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More under: Broadband, Policy & Regulation, Telecom

• German Federal Constitutional Court rejects data retention law
• EDRi sends open letter to EU Commissioners to oppose Internet blocking
• ECJ: The Data Protection Authorities need to be completely independent
• UK Government to decide on the Internet disconnections and web blocking
• PNR agreements with US and Australia on the European Parliament's Agenda
• French Constitutional Court: No to police access to private space CCTV
• Article 29: Reduce the storing period of Google Street View's images
• Survey on Chip implants in Germany
• Declaration on Safer Internet proposed in the Macedonian Parliament
• ENDitorial: ACTA, the Euro Parliament resolution and political clarity
• Recommended Action
• Recommended Reading
• Agenda

The ebb and flow of gas and electricity into your home contains surprisingly detailed information about your daily life. Energy usage data, measured moment by moment, allows the reconstruction of a household's activities: when people wake up, when they come home, when they go on vacation, and maybe even when they take a hot bath.

California's PG&E is currently in the process of installing "smart meters" that will collect this moment by moment data—750 to 3000 data points per month per household—for every energy customer in the state. These meters are aimed at helping consumers monitor and control their energy usage, but right now, the program lacks critical privacy protections.

That's why EFF and other privacy groups filed comments with the California Public Utilities Commission Tuesday, asking for the adoption of strong rules to protect the privacy and security of customers' energy-usage information. Without strong protections, this information can and will be repurposed by interested parties. It's not hard to imagine a divorce lawyer subpoenaing this information, an insurance company interpreting the data in a way that allows it to penalize customers, or criminals intercepting the information to plan a burglary. Marketing companies will also desperately want to access this data to get new intimate new insights into your family's day-to-day routine–not to mention the government, which wants to mine the data for law enforcement and other purposes.

This isn't just a California issue. Many threats to the privacy of the home—where our privacy rights should be strongest—were detailed in a 2009 report for the Colorado Public Utility Commission. The federal government has been promoting the smart grid as part of its economic stimulus package, and last year, EFF and other groups warned the National Institute of Standards and Technology about the privacy and security issues at stake. For example, security researchers worry that today’s smart meters and their communications networks are vulnerable to a variety of attacks. There are also questions of reliability, as PG&E faces criticism from California customers who have seen bills skyrocket after the installation of the new "smart meters." Unsurprisingly, California legislators are questioning the rapid rollout. Texas customers are also complaining.

There are far more questions than answers when it comes to this new technology. While it's potentially beneficial, it could also usher in new intrusions into our home and private life. The states and the federal government should ensure that energy customers get the protection they deserve.

The pen is mightier than the word...or should be. When ICANN Chairman Peter Dengate-Thrush --­ an accomplished attorney—said last year that he wouldn't let one of his own clients agree to a contract that could be unilaterally changed after it was signed, the Internet community breathed a sigh of relief.

But when the Chairman backed away from that stance earlier this week in Nairobi, it became clear that we should have held our breath a little bit longer.

ICANN's Draft Applicant Guidebook (DAG) is the bible for companies and organizations seeking to launch a new top-level domain. The latest iteration of the DAG, released last year, included a provision that would allow ICANN to summarily rewrite the terms of its contracts with new domain operators, even after those contracts are signed.

Members of the community roundly criticized the proposal ­ which turns the fundamental covenant of a contract on its head, and has ramifications that extend far beyond prospective operators of new domains. When Dengate-Thrush signaled his own concern with the provision, many assumed that it was well on its way to being removed, or at the very least replaced with something more reasonable.

This week, however, the Chairman backed away from that position, saying that ICANN would need the flexibility to make changes to already-singed registry contracts. This has the potential to be a serious blow, not just to new registry operators, but also to clarity, contractual compliance and due process throughout ICANN.

Contracts form the backbone of ICANN's larger compact with the global Internet community. The subject of contracts, and of contract enforcement has been a repeated theme in the larger discussion of accountability and transparency within the organization.

On the eve of a critical review of ICANN's transparency and accountability, it would send a terrible message if ICANN were to take a giant step away from contractual certainty and fairness.

ICANN is under great pressure to finalize the DAG and launch the new TLD round, but this is an issue that cannot be overlooked. The community has spoken through the bottom-up process, and has said in a clear voice that this contractual provision is unacceptable. Even the most fervent proponents of the new TLD round cannot wish for a contractual obligation that can be changed at ICANN's whim.

The place to address this is here in Nairobi. ICANN needs to send a clear signal that it understands the community's concerns, and will work quickly to develop a contractual structure that is fair to all.

With any luck, new registries won't have to consider Dengate-Thrush's extremely sound legal advice, and not sign.

Written by Jonathan Zuck, President

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More under: ICANN, Internet Governance, Top-Level Domains

ICANN had previously given the domain the go ahead in 2005, but reversed the decision two years later amidst protests from US conservative groups. An independent review recently concluded that decision was unfair and that the plan should be reconsidered.

Read full story: BBC

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More under: Domain Names, ICANN, Internet Governance, Top-Level Domains

The entire family of devices built on the iPhone OS (iPhone, iPod Touch, iPad) have been designed to run only software that is approved by Apple—a major shift from the norms of the personal computer market. Software developers who want Apple's approval must first agree to the iPhone Developer Program License Agreement.

So today we're posting the "iPhone Developer Program License Agreement"—the contract that every developer who writes software for the iTunes App Store must "sign." Though more than 100,000 app developers have clicked "I agree," public copies of the agreement are scarce, perhaps thanks to the prohibition on making any "public statements regarding this Agreement, its terms and conditions, or the relationship of the parties without Apple's express prior written approval." But when we saw the NASA App for iPhone, we used the Freedom of Information Act (FOIA) to ask NASA for a copy, so that the general public could see what rules controlled the technology they could use with their phones. NASA responded with the Rev. 3-17-09 version of the agreement.

UPDATED: we are now also posting the most recent version of the agreement, dated January 2010.

This "license agreement" is particularly relevant right now, given the imminent launch of the iPad and anytime-now issuance of the U.S. Copyright Office's ruling regarding jailbreaking of the iPhone.

So what's in the Agreement? Here are a few troubling highlights:

Ban on Public Statements: As mentioned above, Section 10.4 prohibits developers, including government agencies such as NASA, from making any "public statements" about the terms of the Agreement. This is particularly strange, since the Agreement itself is not "Apple Confidential Information" as defined in Section 10.1. So the terms are not confidential, but developers are contractually forbidden from speaking "publicly" about them.

App Store Only: Section 7.2 makes it clear that any applications developed using Apple's SDK may only be publicly distributed through the App Store, and that Apple can reject an app for any reason, even if it meets all the formal requirements disclosed by Apple. So if you use the SDK and your app is rejected by Apple, you're prohibited from distributing it through competing app stores like Cydia or Rock Your Phone.

Ban on Reverse Engineering: Section 2.6 prohibits any reverse engineering (including the kinds of reverse engineering for interoperability that courts have recognized as a fair use under copyright law), as well as anything that would "enable others" to reverse engineer, the SDK or iPhone OS.

No Tinkering with Any Apple Products: Section 3.2(e) is the "ban on jailbreaking" provision that received some attention when it was introduced last year. Surprisingly, however, it appears to prohibit developers from tinkering with any Apple software or technology, not just the iPhone, or "enabling others to do so." For example, this could mean that iPhone app developers are forbidden from making iPods interoperate with open source software, for example.

You will not, through use of the Apple Software, services or otherwise create any Application or other program that would disable, hack, or otherwise interfere with the Security Solution, or any security, digital signing, digital rights management, verification or authentication mechanisms implemented in or by the iPhone operating system software, iPod Touch operating system software, this Apple Software, any services or other Apple software or technology, or enable others to do so

Kill Your App Any Time: Section 8 makes it clear that Apple can "revoke the digital certificate of any of Your Applications at any time." Steve Jobs has confirmed that Apple can remotely disable apps, even after they have been installed by users. This contract provision would appear to allow that.

We Never Owe You More than Fifty Bucks: Section 14 states that, no matter what, Apple will never be liable to any developer for more than $50 in damages. That's pretty remarkable, considering that Apple holds a developer's reputational and commercial value in its hands—it's not as though the developer can reach its existing customers anywhere else. So if Apple botches an update, accidentally kills your app, or leaks your entire customer list to a competitor, the Agreement tries to cap you at the cost of a nice dinner for one in Cupertino.

Overall, the Agreement is a very one-sided contract, favoring Apple at every turn. That's not unusual where end-user license agreements are concerned (and not all the terms may ultimately be enforceable), but it's a bit of a surprise as applied to the more than 100,000 developers for the iPhone, including many large public companies. How can Apple get away with it? Because it is the sole gateway to the more than 40 million iPhones that have been sold. In other words, it's only because Apple still "owns" the customer, long after each iPhone (and soon, iPad) is sold, that it is able to push these contractual terms on the entire universe of software developers for the platform.

In short, no competition among app stores means no competition for the license terms that apply to iPhone developers.

If Apple's mobile devices are the future of computing, you can expect that future to be one with more limits on innovation and competition (or "generativity," in the words of Prof. Jonathan Zittrain) than the PC era that came before. It's frustrating to see Apple, the original pioneer in generative computing, putting shackles on the market it (for now) leads. If Apple wants to be a real leader, it should be fostering innovation and competition, rather than acting as a jealous and arbitrary feudal lord. Developers should demand better terms and customers who love their iPhones should back them.

ICANN CEO, Rod Beckstrom, urges African leaders to "shatter" telecommunications monopolies in their nations in order to help lower the price of Internet access to their citizens during his opening remarks at the start of the 37th ICANN meeting in Nairobi, Kenya. Beckstrom noted that while 15 percent of the world's population lives in Africa, Africans make up less than 7 percent of all Internet users.

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More under: Access Providers, ICANN, Policy & Regulation, Telecom

After a series of board meetings on whether to cancel or not due to security issues, the Internet Corporation for Assigned Names and Numbers (ICANN) meeting kicked off in Nairobi. The meeting was overshadowed by security concerns and some ICANN members reportedly boycotted the meeting, choosing to hold parallel sessions in New York and Washington, D.C., instead of risking coming to Nairobi.

Read full story: Computerworld

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More under: ICANN

Nobody doubts that some time in the near future there will be Internationalized Domain Names (IDNs) in Chinese, Russian or Arabic scripts. The Chinese, Russian and Arabic-character-using worlds are large—encompassing hundreds of millions of current and potential users. They are politically influential blocs, with the ability to demand action in international meetings. And perhaps most importantly, they are—at least when taken together—rich. Everybody knows that access on the web in these languages is not a matter of if, but simply a question of when…

But what about the poorer nations of the world that use scripts other than the largest IDNs and the typical Latin character set currently available on the net? What about Amharic, or Georgian, Azeri or Thai, Burmese or Cambodian? Doesn't the internet community have a goal of reaching out to them in their own languages too? The answer is yes, but I fear that despite the rhetoric, some of ICANN's policies may actually end up creating disincentives for companies wishing to fully build out the IDN space.

To listen to the words of Rod Beckstrom, ICANN's new-ish leader, the community's goal is to help make the internet available to anyone in their own language—and in their own character set or script. And, as we heard during the Seoul ICANN meeting last year—there was actually a celebratory cocktail to usher in the new IDN age—IDNs are the future. Still, work on Chinese, Korean and the like is only the beginning. There are dozens of scripts out there.

However, there is potentially a real flaw in ICANN's planning that threatens to upend this vision of universal IDN access, effectively leaving some scripts "out in the cold". Under ICANN's new gTLD implementation plan as presently proposed, registries operating existing gTLDs (or those hoping to operate new ones) will be required to apply for each IDN version separately… and pay full fees for each one. This directly impacts the go/no go decision for registry operators who need to make a reasonable "business case" for each script that they apply for, in order to justify the high application costs. And, while these costs might seem trivial for gTLDs in, say, Chinese or Arabic, this policy pretty much ensures that registry operators (new or old) will leave some scripts undeveloped.

The likely upshot is that the gTLD revolution going on around the world will bypass Georgian, Burmese, and Amharic entirely… furthering the digital divide.

There may be a solution, if ICANN has the flexibility to adjust its policies. Many of the evaluation costs in the new gTLD process are duplicated. As just one example, if a potential registry operator applies for multiple gTLDs, it is likely that most technical qualifications will only have to be evaluated once. This would lower ICANN's evaluation costs, and should lead to reduced application costs as well, leading to more competition for (and interest in) smaller scripts. And there may be other ways to lower the barriers to entry so that companies large and small will be able to make the business case for a truly, fully IDN-friendly internet.

At every ICANN and Internet Governance Forum meeting we hear about the need to make the internet an equal- (or at least more equal-) access platform, one that respects language and culture diversity. Lowering the costs for companies wanting to provide IDN access in less popular scripts is one obvious, tangible way to make this happen. A little flexibility could go a long way to providing a real internet future for the millions that speak and write Armenian or Burmese or a host of other languages.

Written by Andrew Mack, Principal at AMGlobal Consulting

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More under: Domain Names, ICANN, Multilinguism, Top-Level Domains, Web

I recently participated in two Comverse events, and once again the message was driven home to me about the enormous opportunities that lie ahead of the industry in the field of new telecoms applications.

The middleware and cloud applications that are now appearing at the edge of the network will of course, be further developed once high-speed broadband becomes available, but already they are having an enormous impact on the telecoms market. The new user experiences that can be obtainable through these applications will enrich fast broadband networks beyond recognition.

What we now have is, on the one hand, the Over-The-Top (OTT) applications that have conquered the world thanks to companies such as Google, Facebook, Amazon, Skype, Microsoft, Apple, Yahoo, YouTube and so on; and, on the other, the attempts by the telcos to develop these apps though their broadband and mobile portals.

By using the OTT route one can avoid many of the problems that the telco industry has been dealing with for decades. I remember as far back as the early 1990s, when both Telstra and Optus launched their impressive new billing reforms; but today, more than twenty years later, their billing and operational support systems (BSS/OSS) are as far from completion as they were in the 1990s. In fact it is likely that they are even further behind now, since many new applications have become available since that time—applications that are making those telco systems look like dinosaurs. In the mobile market we can also refer to decade old failed strategy of introducing IMS.

While fast broadband is the essential infrastructure of the digital economy the real action will take place on the layer above the infrastructure. This is where for many years I have envisaged the future of the telcos—facilitating the development of the digital economy, rather than concentrating on end-user products like telephone calls, mobile portals or broadband applications.

This is the world of value-added infrastructure, middleware and cloud services. However the old infrastructure with its legacy of BSS and OSS systems has failed to make the transition to the new Internet-based ICT infrastructure, let alone being able to facilitate Web 2.0 or Web 3.0 services.

In the meantime it is the new digital media companies that are building not national but international middleware networks. While telcos fail to service customer bases that consist of millions of users the digital media companies are able to serve hundreds of millions of customers.

Therefore NBNs could be a godsend, since this will, potentially at least, give telcos the opportunity to build a value-added layer on top of the infrastructure that will be capable of delivering Next Generation Network (NGN) service such as Web 3.0+ services.

However, while the digital media companies are progressing in this field on a monthly basis, telcos still measure their progress in years, so at present the gap is still growing, but not in favour of the telcos.

So the sooner the telcos start their transformation the better.

However, after well over a decade of calling for change time is now running out. They have now also lost the mobile portal battle against the apps market (that happened so fast they never knew what hit them). If the telcos miss this last opportunity it is indeed highly likely that they will be relegated to being basic infrastructure operators—and that market is also under threat as construction companies are better-positioned to do this job after most telcos went out of this business one or two decades ago.

On a more positive note, while customers might not like their dinosaur telcos they do, at the same time, trust them. They have built robust systems with enormous reliability and sound security based on proper standards and availability everywhere.

So the telcos could use this advantage to offer that same level of trust in an Internet world where it is becoming increasingly difficult to know who is trustworthy and who is not. I have made this argument for many years, trying to get the telcos to move. Again, the opportunity is still there—but for how long?

Banks are in a similar position, but they have far more valuable data they can use to help customers navigate the digital economy. So they could easily compete in this market as well. Customer knowledge is the key element of the digital economy.

However, more immediate competition is coming from the social media sites, which are quickly becoming the new powerhouses of the digital economy; also, they already have far more information about their customers and can use this to expand their services.

So it is two minutes to twelve for the telcos here as well.

Looking at some of those fantastic applications from Comverse we see a range of enriched voice and messaging services with superior user experience, complete with visualisation, personalisation, location, multi-channel applications and an openness to social networks, UGC-sites and RSS feeds.

I can see the digital media companies offering these communications applications immediately, but the telcos may not move so fast. This would hurt the telcos right at the very core of their communications business and I can now quite easily see these products being offered by companies other than the telcos.

Some of the mobile companies are better-positioned than the fixed operators; however if we look at the mobile portals market versus the applications market we see that the mobile operators also have largely failed to make the transition to the new open web-based world.

Perhaps the telcos should start looking more at OTT services themselves. There are great applications with unified communication applications in relation to social sites, location-based activities, etc. If the telcos were smart they could offer voice free and allow customers to choose from a whole range of value-added voice services and to make incremental changes to the applications they really value.

Over and again I have argued that, rather than concentrating on their retail customers, the telcos should supply their middleware and cloud services to the content and services providers. They should be the key providers to the organisations that are going to drive the digital economy.

Written by Paul Budde, Managing Director of Paul Budde Communication

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More under: Broadband, Cloud Computing, Data Center, Telecom

Mobile operators are counting on Long Term Evolution (LTE) technology to handle surging demand for mobile data access. But LTE developers made some poor choices, cutting spectral efficiency and thus driving up operator costs.

LTE was envisioned as an all IP system, but the RF allocations follow the voice-centric approach of earlier generations. While LTE standards allow for either Frequency Division Duplexing (FDD) or Time Division Duplexing (TDD), all initial LTE equipment uses FDD. FDD requires two separate blocks of spectrum—one for each direction. FDD makes perfect sense for bi-directional voice traffic. It makes no sense for data. With the exception of peer-to-peer file sharing (which most mobile operators block), data traffic is very asymmetric. Sending data via FDD means one block of spectrum is fully utilized and the other, equal sized block, is dramatically under utilized. Result: the operator pays for almost twice the spectrum they actually use.

Verizon is deploying LTE in the 700 MHz C block which means they are using 746 MHz to 756 MHz (a 10 MHz channel) for their downlink (to the mobile device) and wasting most of 777 MHz to 787 MHz (another 10 MHz channel) for the uplink. If Verizon could deploy TDD (as used by WiMAX and as defined for LTE but not implemented), they could fully utilize both 10 MHz blocks for data transfers, almost doubling their data capacity.

I don't know the actual capacity Verizon will realize on average with their first generation LTE infrastructure. But suppose Peter Rysavy is correct (as implied by Gigaom) that Verizon will initially average 15 Mbps per 10 MHz channel. That's 15/15 Mbps, symmetric, even though average traffic is likely to be 15/2 Mbps. No single user is likely to see 15 Mbps; rather that 15 Mbps is shared among all users in that sector. With TDD (the default for WiMAX and an unimplemented option for LTE), the Verizon spectrum could support two channels of perhaps 13/2 Mbps each in that same sector. Again, no single user will see 13 Mbps, but all the users in the cell will be sharing 30 Mbps of capacity that can be dynamically divided between up and down—mostly like averaging 26/4 Mbps but able to allocate 15/15 or 28/2 as the traffic mix changes.

It's ironic the LTE implementors got this wrong when you consider their decision to use only IP in the rest of the LTE design, thereby dropping support for traditional voice or SMS services. That's right, initial LTE deployments won't support voice telephony or SMS messages, only data services, and yet LTE spectrum assignments were made as if voice comes first.

That's ironic.

Written by Brough Turner, Founder & CTO at Ashtonbrooke; Chief Strategy Officer at Dialogic

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More under: Access Providers, Broadband, Mobile, Telecom, Wireless