To: Committee on ICANN Reform and Evolution firstname.lastname@example.org From: James Love, Consumer Project on Technology Mailto:James.Love@Cptech.Org http://www.cptech.org Re: Comments on ICANN Reform and Evolution.* Date: 30 April 2002 Introduction 1) The following are the comments of the Consumer Project on Technology (CPTech). CPTech was created by Ralph Nader to provide comments on consumer policy concerns involving new technologies, including information technologies. CPTech is a member of the DSNO constituency for non- commercial domain name owners. We appreciate the opportunity to offer comments on the Committee on ICANN Reform and Evolution. Powerful or Weak, broad or narrow? 2) Most of the ICANN critics are concerned about ICANN's current and potential power, and have proposed a number of mechanisms to decentralize decision making or weaken or limit ICANN's policy making authority. ICANN's staff and board no longer shrinks from openly discussing ICANN's "policy making" functions, and appears to aggressively resist efforts to decentralize decision making or share power. This seems to be a key issue. Is it desirable to have a strong centralized policy making body that uses its control over key Internet names and numbering resources to advance general Internet governance issues? Is it better to have a minimalist organization that addresses only narrow DNS issues that require global cooperation, such as resolving disputes over the uniqueness of top level domain names, or other coordination tasks? 3) In our opinion, ICANN should be the weaker alternative, a body with few powers of coercion, dealing only with coordination in areas where coordination is truly needed. 4) To some extent, ICANN was designed to be powerful enough to impose an alternative dispute resolution (ADR) system for domain name registries, in order to reduce the costs of cybersquatting or trademark infringement, and to force registries to maintain accurate and accessible information on the owners of domain names, for the benefit of copyright owners and law enforcement officials. Now that an institution was created that can do these tasks, there are concerns regarding other tasks ICANN may be asked to do, and questions about who should choose the members of the ICANN board. 5) The Lynn proposal would make ICANN more powerful. Lynn proposed to eliminate the requirements for bottom up consensus building processes, which tend to limit ICANN's powers. The ICANN staff and board refused to implement the independent review procedure, and Lynn offered an ombudsman as an alternative that would restrain ICANN less. The board eliminated the at large elections and its only popularly elected board members, and this is widely perceived as an effort to eliminate board members who sought to limit ICANN's policy making powers, and evidence that the ICANN board is not comfortable with the views of the majority of Internet users who oppose the notion of creating a powerful centralized institution that can exercise control over Internet activities. 6) There is a concern among many persons that ICANN is falling into an empire building mode. It may be unnatural for a board or staff to find ways to limit their own power, but this is in fact what many (non-staff and non-board) people want. There are certainly many important issues that relate to the Internet, but ICANN should not be the solution for every problem. Most of the board members give lip service to the need to limit mission creep, but have been reluctant to create mechanisms that would truly prevent ICANN from using its power to address new issues. 7) To demonstrate some sensitivity to this issue, it would be helpful if the Committee on Reform and Evolution could at least explain why it is dangerous to give any one entity too much power over the Internet. Some notion or theory as to what the dangers are would help one evaluate the proposals for reform. Depending upon who one fears the most, perhaps it would be good to imagine ICANN controlled by any (take your pick) of the following entities: a) Microsoft b) The Motion Picture Association of America c) The Chinese Government d) The 2600 Club If the board can understand why an ICANN controlled by any of these parties would present a concern, perhaps they can understand how others feel about an unrestrained ICANN dominated by a particular group. Most of the efforts to limit's ICANN's powers are to prevent ICANN from being a negative influence on the Internet, by stifling innovation, limiting competition, favoring cronies, or using its powers to advance intrusive systems of surveillance or control speech, such as those advocated by some of the groups listed above. Also troubling is the prospect that an undemocratic organization would assume even broader policy making functions, without adequate representation from the general public. There is a concern that power can corrupt, or put another way, that power attracts forces that will seek to exploit power. For all of these reasons, there is interest in shrinking ICANN, or at least limiting its growth. Decentralized or Centralized? 8) ICANN was designed to centralize control over Internet resources, but most of its power is presently related to its control over top level domains. It seems as though the protocol and numbering supporting organizations have much stronger internal decision making traditions, and it appears to be much more difficult (at present) for ICANN to impose its will on these groups. In contrast, ICANN has turned the DNSO into essentially an advisory board, ignoring its recommendations when it wants (such as the DNSO recommendation for .org), or even micromanaging domain name decisions, such as the ICANN board's insistence that the airline industry use .aero instead of .air, for its new top level domain. 9) We support far greater decentralization of decision making. We think that decentralization should include greater separation or independence for the three supporting organizations, and probably the separation of the management of IANA and other ICANN managed functions. We will defer to others on the specifics of these issues, and focus more on issues concerning the DNSO. Decentralize DNSO decision making 10) The DNSO was created to allow ICANN to deal with domain name policy issues. The DNSO is the step child of the SOs. It lacks the respect and authority of the other SOs. The ASO is make up of three currently existing regional internet registries (APNIC, ARIN, and RIPE NCC). The PSO was formed by the Internet Engineering Task Force (IETF), the World Wide Web Consortium (W3C), the International Telecommunications Union (ITU); and the European Telecommunications Standards Institute (ETSI). Unlike these SOs, the DNSO was not made up of existing groups. Every constituency in the DNSO is new, and has no separate existence apart from ICANN. The DNSO is both the most important area for ICANN policy making, and the area where there have been the most problems. 11) ICANN's policy making for domain names includes this non-exhaustive list: a) The protection of trademarks as they relate to domain names, including such provisions as the UDRP, new TLD sunrise protection for trademark owners. b) The maintenance and disclosure of accurate whois data to protect copyright owners, and assist law enforcement officials and others who rely upon this information for law enforcement or civil litigation purposes. c) The reassignment of ccTLD registries, when the incumbent operator fails to function properly, according to ICANN. d) The regulation of entry by new TLDs, e) Regulation of gTLD registry prices. f) The regulation of gTLD registrars. g) The regulation of gTLD registry management models, such as the requirement to use ICANN approved third party registrars. h) The operation of some specialized TLDs. 12) The politics associated with the DNSO related functions have been extensive, and without getting into details, it is sufficient to note that ICANN has been criticized for becoming an overly controlling body, captured to some degree by registry and registrar interests, and for lacking sensitivity to some non-technical issues. ICANN's sense of power and control is so large that it rejected proposals by the United Nations to run a .un registry and the World Health Organization to run a .health registry. The International Confederation of Free Trade Unions (ICFTU) was rejected in its bid to run a .union registry. Some organizations that did obtain the few ICANN approved new gTLDs reported having spent considerable resources for well connected lobbyists, consultants and lawyers to obtain ICANN's approval. 13) As much as the current ICANN board and staff apparently enjoys its tight control over the approval of new TLDs, it is clear that the current model of favoritism, arbitrary choices and top level micromanagement is flawed. 14) The ICANN board needs to do something that does not come naturally. It needs to give up power, and allow others to make more of the decisions. Specifically, it should allow national governments or regional DNSO like bodies to authorize new TLDs, subject to coordination with ICANN on issues such as the uniqueness of TLD strings, the maintenance of minimum technical standards and those policy decisions which must be made at a global level, such as, for example, the UDRP or some issues relating to whois data. 15) The government model for this might work as follows. If the European Commission wanted to authorize the ICFTU to create .union, or the World Health Organization to create .health, or if the US Department of Commerce wanted to authorize the creation of .movie, this could proceed, with minimal interference from ICANN. Here I would suggest a simple model where countries would authorize the initial application, and ICANN would only review those aspects of the proposal that ICANN needed to review. 16) A regional DNSO model would be similar. The regional DNSO would do many of the same things that ICANN does now, but without the incentives to block entry by new TLDs. Any regional DNSO that acted slowly, like ICANN does now, would simply sit by and watch other regions launch new TLDs. 17) In the event that there was a controversy over the allocation of a particular string (such as .asia, .law, etc.), ICANN could resolve such disputes. But there is little reason for ICANN to be engaged in the type of detail it now addresses in regulation of gTLDs. Note that from 1995 to 2000 more than 100 new ccTLDs were added to the root without harm to the Internet, and without ICANN style regulation. To the degree that there are issues concerning use of dictionary names, ICANN could ration or limit the number of dictionary names any one country or region could use, in relevant languages. ICANN could also address complaints about confusingly similar TLD strings. The advantage of decentralization of other decisions is that different decision making bodies will innovate or protect different values. Europe might provide for stronger protections for privacy of personal information, or more detailed consumer protection rules. The US might do more (or less) in terms of addressing pricing issues. Some cultures might have different views of the uses of certain SLDs. In fact, one observes differences on these issues in the current ccTLD market. Diversity of regulatory regimes on issues that do not require common global approaches is a good thing, not something to eliminate. REPRESENTATIONOF CONSUMER INTERESTS IN SOs. 18) The ICANN SOs are now all dominated by business interests, and this is certainly true for the DNSO. The Lynn plan is very much focused on business interests. The ICANN board has eliminated the at large elections which would allow consumers and individuals to have more of a say in ICANN policy, and among the three SOs, consumer interests have virtually zero power. 19) If ICANN's policies had no impact on users or the general public, this would not be very important. But ICANN routinely engages in policy making that has an impact on a broad public. Decisions about whether or not to allow unions or the WHO to create new TLDs are not only technical issues. Decisions about privacy, appropriate levels of consumer protection for domain name registrations, or the reassignment of the .org registry, are matters of significant concern to users. How can we be happy about a system that gives ICANN enormous discretionary powers, but gives users no power to influence those decisions? 20) ICANN could fix this if it wanted to. For example, it could embrace the newly organized ICANN-at large effort as a SO, with the right to put persons on the ICANN board. The DNSO could be fixed so that at least half its members represent user interests, as was suggested by TACD. 21) ICANN should stop charging user interests to have a say in ICANN matters. Providers of DNS services can pay money to participate in ICANN. End user interests typically cannot. In the case of domain names, the domain name holders pay to register domains. The registrars and registries can pay fees to ICANN, but if you treat users as if they were businesses, you won't get much participation from users. The ITU has a process for fee waivers that is used for NGOs, including the Internet Society. The WTO, the WHO and lots of UN bodies allow civil society and consumer NGOs to participate without paying fees. This is done to ensure that the global governing bodies benefit from the input of civil society and consumer interests. That is how responsible big league global institutions act. ICANN needs to grow up and realize it isn't a trade association, selling the right to vote. Boundaries on ICANN policy making. 22) We are interested in the proposal by the ITU to work with ICANN on a boundary statement. The current ICANN legal status is as follows. ICANN can and routinely does change its bylaws. Any part of the ICANN articles of incorporation can be changed by a 2/3 vote of its board. The staff is increasingly candid about its desire to engage in a broader policy making agenda. We need more than a series of "we can" statements. We need some "we can't" statements. The ITU is the only global body that has shown even remote interest in addressing this thorny issue. If the ITU is jealous of ICANN's authority, it may still serve a useful purpose, by helping to craft a more narrow boundary for ICANN policy making. If the ITU is unacceptable, because of its well documented efforts in the past to block the development of the Internet in order to protect local phone monopolies, then there should be an alternative, including possibly a sui generis agreement between ICANN and a group of countries, such as the present membership of the GAC. Indeed, if the ITU isn't the right intergovernmental body, perhaps the GAC is. 23) The GAC could be asked to negotiate a contract with ICANN that provides ICANN with terms of reference regarding the boundaries of its policy making authority. Choosing ICANN board members 24) I am putting this issue last because I think it is related to the boundaries of ICANN policy making and the degree to which decisions are decentralized. There are probably lots of ways that would work. There are some that are clearly objectionable. The Lynn proposal is objectionable. It would basically create a self- perpetuating board, even setting out the possibility of salaries and compensation for board members. This must be a dream for some of the ICANN insiders, but it is a nightmare for ICANN outsiders. 25) ICANN promised the NTIA that it would have elections for half its board members. It has not done so, and it has shown itself extremely uncomfortable with even a small amount of dissent. This is not reassuring. There is no support anywhere to give ICANN a blank check in terms of authority without accountability based only upon some notion that the current board are good people who will pick highly qualified board members. This isn't enough. The "trust good people" system of running the DNS system pretty much died when Jon Postel passed away. This Committee on Reform has to come up with a coherent explanation as to how it chooses its board members. One simple test would be to create a system that can be populated by a new board, with none of the current incumbents, and without any votes from the current board. The current board would be the outsiders, looking in, and this would be a one test of the fairness of the new system. 26) As long as ICANN exercises significant discretionary policymaking authority, it needs to be accountable to outside bodies. The election of board members from the SOs is bottom up accountability. The election of board members from an at large membership (even as an at large SO) is another. But regardless of which system is in place, board members must be elected by someone other than the board itself. 27) If ICANN is going to make policy that affects the general public (or end users of domains), the general public (or end users of domains) should have the opportunity to elect people to the ICANN Board. 28) The more ICANN decentralizes the real policy making functions, the less anyone will care who is on the ICANN board. The more ICANN sets itself up a central planning body for the Internet, the more *everyone* will care who is on the ICANN board. * corrected.