To: Committee on ICANN Reform and Evolution
reform-comments@icann.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.