No ICANN Fix It

by Guest Blogger, 6/21/2002

Congress, Protecting Nonprofit Rights, Government Matters
The nonprofit organization responsible for the management of the Internet's domain name space has recently drawn renewed criticism from Congress, international governments, nonprofits, and the broader online public, most recently for a series of reorganization proposals developed to address earlier concerns about transparency, accountability, and fairness around its deliberations and overall operations. Since the start of its contract with the U.S. Department of Commerce in 1998, the California-based nonprofit Internet Corporation for Assigned Names and Numbers (ICANN) has been responsible for determining how issues around domain name registrations are handled. In order to obtain full management and control of the Internet domain name registry, ICANN is obligated to ensure that competition is increased in the domain name registration industry, the system itself is more secure, and that overall maintenance and governance process itself is more participatory, open, and accountable to the online public. The current contract is set to expire on September 30, 2002. Marked by a steady stream of turbulence and controversy, ICANN critiques generally focus on:
  • uncertainty of its mission and role, whether it is limited to coordinating maintenance of the domain name system and its technical stability and security, by providing an international forum for discussion and consensus building, versus serving a global Internet policy-setting or treaty-making organization
  • its inability to foster, much less support, significant involvement by the broader online public in its deliberations
  • its perceived inability to operate in a fair, transparent, accountable manner, that is amenable to the dictates of the various governmental entities and regulatory bodies affected by its deliberations, as well as other parties responsible for various Internet functions around the world
Until ICANN's contract expires, the U.S. government exercises a degree of authority, oversight, involvement, and influence unlike that of any government entity in the world, through the Department of Commerce's National Telecommunications and Information Administration (NTIA), the U.S. House of Representatives Energy and Commerce Committee, and the Senate Commerce, Science and Transportation Committee. That level of involvement has long stirred distrust and discontent, as there is currently no representation of any government interests on ICANN's board. In fact, of the total 13 board members, ICANN has still only managed to officially seat five of nine members representing the Internet public interest community, called for under the original organizing charter. By contrast, the other nine board members, one selected by each of the ICANN domain name supporting organizations, have been seated. Only the Government Advisory Committee (GAC) provides the means for government input in ICANN activity, but this is limited to non-binding recommendations, rather than direct involvement. There have been, however, attempts to maintain working relationships between ICANN and international intergovernmental entities, particularly the World Intellectual Property Organization (WIPO), the United Nations agency that advocates on behalf of intellectual property protections and enforcements through treaties around the world. WIPO helped develop the dispute mechanism employed by ICANN in matters involving combined domain and trademark name disputes. During its Internet Domain Name Process Second Session, however, concerns were repeatedly raised about the US government's direct involvement in ICANN, ICANN's potential role as a de facto trademark processing and arbitration body, and its decision making authority as a private entity operating under an amalgam of laws and rules around matters to a degree that potentially trumps international and intergovernmental arrangements. Similar concerns were echoed in the European Union presidency's June 3, 2002 draft statement sent to the EU Transport and Telecommunications Council, which is comprised of the telecommunications ministers from the 15 EU member countries. The Council followed suit during its proceedings, issuing signals on June 17, 2002 that ICANN needed more direct involvement from other governments, in order to prevent it from exceeding its boundaries. These articulations suggest that ICANN's role, whether unintentional or by design, inches more towards a global Internet governance body, rather than an inclusive international cooperation around the Internet's backbone. In a May 29, 2002 open letter to NTIA Administrator Nancy Victory, a group of nonprofits, led by the Media Access Project, called for ending the current agreements granting ICANN administration of the domain name system, and replacing it with a competitive auction for administration rights. The groups articulated this "wake-up call" to direct attention to the lengthy approval of new top-level domains, in addition to the needs of non-commercial domain name holders in the overall governance framework; and what it considered a disregard for direct participation by the online public. Just two days later, the ICANN Committee on Evolution and Reform, created to follow up a February 25, 2002 reform proposal drafted by president and CEO M. Stuart Lynn, issued its own set of recommendations. Public input was accepted on the specific recommendations in the report, in advance of the June 24 - June 28, 2002 ICANN board meeting in Bucharest, Romania to adopt the reform proposals. This reform committee proposed an ombudsman to receive public complaints and report, on its discretion, those meriting action to the ICANN board; a public participation manager to encourage more involvement from the online public in ICANN activity; and an arbitration process through which non-binding decisions could be rendered around individual allegations of ICANN violations of its own by-laws. But the proposals stop short of addressing key participation and accountability concerns. For example, the committee calls for the ICANN board to consist of 13 to 19 members, including 5-11 members chosen by a nominating committee, and one seat reserved for representation from the Government Advisory Committee. There is not, however, a recommendation to reserve seats for representatives directly elected by the Internet public. More importantly, the reform recommendations do not spell out who would actually sit on the nominating committee itself, much less how ICANN will generate funds to sustain itself and its activities. On June 10, 2002, Sen. Conrad Burns (R-MT) announced his intention to introduce legislation calling for more direct federal involvement in overseeing ICANN's operations, in order to ensure that it is limited to management of the domain name system, rather than broader Internet policymaking. Burns expressed concern that ICANN is operating without the transparency and accountability expected of federal agencies, and also criticized the Commerce Department for not being more watchful of ICANN activity to ensure that obligations were more aggressively met. On June 12, 2002, the Senate Commerce, Science, and Transportation Subcommittee on Science, Space, and Technology hearing featured several critiques of ICANN's current operations and calls for increased scrutiny and oversight. It did not, however, produce any visible signs that ICANN's contract would end. Rather, several voices (including Burns’) signaled interest in extending the contract, despite potential legislative activity to curb ICANN's scope of activity in the near future. GAO testimony during the same hearing urged the Commerce Department to issue an assessment of ICANN's performance and fulfillment of its obligations to date, something that NTIA's Victory promised to deliver as a publicly available document around the time of contract renewal. ICANN continues to be roundly criticized for its April 2, 2001 agreement with the Commerce Department to extend Internet domain name registrar VeriSign's exclusive control over the domain name registry for ".com" Internet addresses in perpetuity, and the ".net" domain name registry, in exchange for releasing control of the ".org" registry. In addition, ICANN was sued in March 2002 by one of its own board members, chosen under direct elections by the online public, for failing to provide access to corporate records, a violation of state law. The ICANN board offered to grant limited access upon signing a confidentiality agreement with the ICANN board. That move prompted the nonprofit Electronic Frontier Foundation to file a motion on May 21, 2002 with the Superior Court of Los Angeles seeking to give the board member immediate access to the records. As of this writing, the matter is still awaiting resolution. Resources 5/21-5/24/02 Proceedings WIPO Second Session on Internet Domain Name Process http://www.dnso.org/clubpublic/council/Arc10/pdf00001.pdf 6/3/02 Draft Statement to Transport and Telecommunications Council European Union Presidency http://register.consilium.eu.int/pdf/en/02/st09/09526en2.pdf 6/17/02 Results European Union's Transport and Telecommunications Council Meeting http://www.ue2002.es/portada/plantillaDetalle.asp?opcion=0&id=2196&idioma=ingles 5/29/02 Open Letter to NTIA http://www.mediaaccess.org/filings/DoCrebidfinal.pdf 2/25/02 ICANN Reorganization Proposal ICANN President & CEO, M. Stuart Lynn http://www.icann.org/general/lynn-reform-proposal-24feb02.htm 5/31/02 Recommendations ICANN Committee on Evolution and Reform http://www.icann.org/committees/evol-reform/recommendations-31may02.htm 6/11/02 Press Statement Senator Conrad Burns (R-MT) http://burns.senate.gov/p020611a.htm 6/12/02 Testimony from Peter Guerrero Director, Physical Infrastructure Group U.S. General Accounting Office http://commerce.senate.gov/hearings/061202guerrero.pdf 4/21/01 ICANN-VeriSign agreement http://osecnt13.osec.doc.gov/public.nsf/docs/icann-verisign-0518 5/21/02 Electronic Frontier Foundation filing on behalf of Karl Auerbach, ICANN board member http://www.eff.org/Infra/DNS_control/ICANN_IANA_IAHC/Auerbach_v_ICANN
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