[IFWP] Re: [ga] Essay on ICANN

[Bill Lovell]

At 02:12 PM 7/23/99 -0400, you wrote:

This is an excellent analysis of the history and the problems -- today seems to
be bringing out a bunch of them!  However, I would not buy into the proposed
solution, i.e., nurse the ICANN body to health.  I had an excellent post on my
computer the other day, but unfortunately I dumped it: it discussed the whole
constituency thing and DNSOs, Groups A, B, C. . . . ad infinitum, giving the
distinct impression of an Animal Farm run amok and the final triumph of form
over substance.  The lean, mean Internet is turned into a maze -- a delight to
all political science professors, I'm sure, who want examples of how not to do
things. It is that monstrosity that is the principle product of ICANN so far, and
as the various groups vie for commanding membership roles -- just how many
delegates should NSI have? -- one can see the debilitating virus of economic
gain and greed take over what was intended (by the White Paper) to be mostly
a simple technical issue.  So I say again: the techynerds build a functioning
and stable system around the IANA and IETF models (I'm guessing here -- I've
not heard anything bad about those systems), the politicos and profit seekers
stay out, and the latter carry out their battles outside of the internet.

Bill Lovell
>
>     Mr. Chairman, my name is Jon Weinberg and I'm a law professor at Wayne
>State University.  In 1997-98, I was a professor in residence at the
>Federal Communications Commission and I worked on some of the issues that
>are currently before the Subcommittee.  I am not appearing here, though, on
>behalf of either Wayne State University or the U.S. government; rather, I
>am speaking only for myself.  In my view, the largely self-inflicted wounds
>that ICANN has suffered to date need not be fatal.  ICANN must move quickly
>to implement mechanisms for choosing new Board members who will be drawn
>from, and who can represent, the Internet community.  Second, and
>relatedly, it must learn to act like a part of the Internet community.
>Finally, it must find an adequate way of defining, and limiting, its own
>policy mandate.  If it can do all of these things, it will be able to
>fulfill the role that the White Paper laid out for it.
>
>Background -- IP numbers and domain names
>
>       Every computer connected to the Internet must have a unique Internet
>Protocol (IP) address in order to receive information, just as every
>telephone on the public switched network must have a unique telephone
>number.  A stable and reliable IP addressing system is crucial to the
>proper functioning of the Internet.
>
>     IP addresses (such as 149.59.6.22), however, are opaque and hard to
>remember.  It would not be practical for a user to have to remember, and
>type in, a different IP address for every Web site he sought to visit or
>electronic mail message he wished to send.  Accordingly, under the current
>Internet architecture, each IP address maps to a more or less
>easy-to-remember domain name such as www.house.gov or www.law.wayne.edu.
>The domain name system (DNS) makes it easier for ordinary people to use the
>Internet.
>
>     The domain name system is hierarchical.  That is, the domain name
>space is divided into top-level domains, or TLDs; each TLD is divided into
>second-level domains, or SLDs; and so on.  The currently-available TLDs
>include .com, .net, .org, .edu, all administered by Network Solutions, Inc.
>(NSI), and the so-called "country code" top-level domains such as .us, .uk
>and .fr.  At the outset, it was thought that .com would used by commercial
>entities, .net by entities
>involved with the Internet networking infrastructure, .org by nonprofit
>organizations, and .edu by educational institutions.  NSI, though, does not
>enforce any such restrictions on registrants in .com, .org and .net.
>Indeed, NSI urges businesses to register their preferred second-level
>domain names in all three of those top-level domains.
>
>How we got where we are
>
>     In the early days of computer networking, there was no need for a
>hierarchical domain name system.  Until 1984, after all, there were fewer
>than 1000 "host" computers connected to the Internet.  That number,
>however, quickly grew.  It soon became clear that the Internet needed a new
>addressing structure.  Scientists including Jon Postel and Paul Mockapetris
>of the University of Southern California's Information Sciences Institute
>(ISI) developed the current domain name system, and the first domains were
>registered in 1985.  ISI assumed responsibility for oversight of the domain
>name system, including oversight of the root servers, which sit at the apex
>of the domain-name system and effectively determine which top-level domains
>will be recognized by the system.  These and other coordinating functions,
>performed by Dr. Postel and his staff at ISI, came to be known as the
>Internet Assigned Numbers Authority, or IANA.  The Defense Department,
>which had bankrolled almost all of the early development of the Internet,
>entered into a series of contracts with ISI under which the U.S. government
>paid for the IANA functions.
>
>     The Defense Department in 1985 assigned SRI International, a nonprofit
>Silicon Valley research institute, the job of registering second-level
>domains in the generic (non-country code) top-level domains.  Later on, the
>National Science Foundation (NSF) assumed the lead from the Defense
>Department in funding basic Internet infrastructure.  In 1992, NSF
>established a new structure known as the InterNIC, or Internet Network
>Information Center.  It entered into cooperative agreements with AT&T to
>provide Internet directory and database services; General Atomics to
>provide certain Internet information services; and NSI to perform the
>registration services that had been handled by SRI.  NSI agreed to register
>second-level domains in the generic TLDs and to maintain those top-level
>domains' master databases.  Those services were free to users; they were
>underwritten by the National Science Foundation.  NSI had physical control
>of the "A" root server, from which all of the other root servers get their
>information, but it operated that root server on instructions from IANA.
>
>     By 1995, the Net had come of age.  It had been more than 25 years
>since the initial establishment of the Internet's predecessor, the Arpanet.
> Business were beginning to use the Internet for commercial purposes.  The
>U.S. House and Senate were online.  More than 100 countries were now
>connected to the Internet backbone, and operated their own top-level
>domains.  The World Wide Web, which had become the dominant Internet
>application, was now thus truly world-wide.  NSI negotiated with the
>National Science Foundation an amendment to the cooperative agreement under
>which NSI would begin charging a $50 annual fee to domain- name registrants.
>
>     The NSI fee was unpopular, and crystallized growing unhappiness with
>the structure of the domain name system.  Registrants wondered why, in
>seeking to registering names in the generic TLDs, they were stuck with the
>service provided by, and the fees charged by, the NSI monopoly.  NSI also
>generated considerable animosity with its domain name dispute policies,
>under which it asserted the right to (and did) suspend any domain name upon
>complaint from a trademark owner, without regard to whether the trademark
>owner had a superior legal claim to the domain name.  Finally, there was
>growing consensus in the technical community that the architecture would
>support many more top-level domains than had so far been authorized.
>
>     Accordingly, Jon Postel floated a suggestion that IANA authorize up to
>150 new generic top-level domains, to be operated by new registries.  As
>the proposal went through successive iterations, IANA and the Internet
>Society formed an elaborate, internationally representative "Internet Ad
>Hoc Committee" (IAHC) to consider the question of adding new top-level
>domains, with representation from, among others, the International
>Telecommunications Union, the International Trademark Association and the
>World Intellectual Property Organization.  The trademark lawyers urged that
>the number of new domains be cut considerably; the group ultimately
>generated a proposal for the addition of just seven new top-level domains.
>Would-be
>domain-name holders, under the IAHC plan, could go to any of a large number
>of competing "registrars" to register names in those new domains; the
>actual master databases for all of the new domains would be controlled by a
>single nonprofit corporation known as CORE, to be run by the registrars.
>When Jon Postel requested that NSI insert the new CORE top-level domains
>into the "A" root server, though, NSI declined to do so absent
>authorization from the U.S.
>government.  The U.S. government, in turn, instructed NSI to wait; it was
>still in the middle of its own analysis of the domain-name situation.
>
>     In 1998, the Commerce Department issued a "Green Paper," followed by a
>"White Paper," expressing its views on Internet identifiers.  The White
>Paper emphasized that with the changing role of the Internet in the modern
>world, IANA's functions needed to be transferred to an entity, not funded
>by the U.S. government, with a more formal and robust management structure
>and more formal accountability to the international Internet community.
>While Dr.
>Postel had the loyalty and respect of a wide consensus of the community,
>his informal leadership was no longer enough   "What happens," the question
>ran, "if Jon Postel gets hit by a beer truck?"  The new entity, the White
>Paper continued, should have fair, open, transparent  and pro-competitive
>decisionmaking processes that protected it against capture by a narrow
>group of stakeholders.
>
>     The White Paper made clear that there was an urgent need for greater
>competition in domain name registration.  That competition, it explained,
>should come in two ways.  First, customers should be able to register
>domains in any top-level domain, including those currently operated by NSI,
>using any of a number of competing registrars.  The U.S. government
>contemplated that NSI would continue to control the "registry," or master
>database, for .com, .net
>and .org, but that it would have to offer equal access to competing
>registrars seeking to enter names in that database.  Second, the White
>Paper continued, IANA's successor should add new top-level domains to the
>root zone, operated by new domain-name registries, so as to expand the name
>space and maximize consumer choice.
>
>     The actual establishment of ICANN was clouded by tragedy.  Jon Postel
>had agreed to serve as Chief Technical Officer of a new corporation, to be
>known as the Internet Corporation for Assigned Names and Numbers, to
>perform IANA's technical management functions.  The corporation's Board of
>Directors were chosen from a group of distinguished personages who had had
>little involvement in (and, for the most part, little knowledge of) the
>"DNS wars" of the
>previous few years.  The facts that not all of the Board members had
>extensive technical expertise was not considered to be a problem, since Dr.
>Postel could provide that technical background and guidance.  On October
>16, 1998, though, Postel died at 55 of  post-operative complications from
>heart surgery.  In figurative terms, he'd been hit by a beer truck.  The
>Department of Commerce nonetheless, six weeks later, entered into a
>memorandum of understanding with ICANN, agreeing to work together to
>develop mechanisms and procedures so that the nascent ICANN could
>administer Internet technical identifiers in a transparent and fair manner.
>
>     Before the Internet took on its current economic importance, the
>substantive questions confronting ICANN could have been resolved within the
>Internet Engineering Task Force, a technical standards body composed of
>scientists and engineers interested in Internet infrastructure, with little
>attention paid by the outside world.  By the mid-1990s, though, those
>questions had too much money riding on them to allow such mundane
>resolution.  Those with
>money or prestige at stake   NSI, trademark interests, international
>standards organizations and others   all brought their lawyers to lobby in
>favor of their preferred models.  The high-profile White Paper process,
>indeed, probably encouraged any entities with economic stakes that had not
>yet "lawyered up" that it was high time they did so.  To an increasing
>degree, it was lawyers and lobbyists, rather than technical experts, who
>were demanding seats at the Internet architecture table.
>
>Where we are now
>
>     In its quest for legitimacy, ICANN has taken several wrong turns.  It
>started out under a considerable handicap since its Board members, for the
>most part, have little background in Internet technical issues.  They were
>chosen on the theory that it would be helpful for the Board members to be
>new to the DNS debates, so that they were not tainted by identification
>with past controversy.  The newness of most of the members to Internet
>technical issues, though, greatly complicated the task of securing the
>confidence of the Internet community.  The Board members' selection was
>shrouded in secrecy, and that secrecy was exacerbated by the Board's early
>penchant for closed meetings, so that the Internet community knew neither
>who these people were nor how they were reaching their decisions.  ICANN
>demonstrated a tin ear when it came to the Internet traditions of openness
>and communication.  For the most part, ICANN still communicates to the
>outside world through its public relations firm and its lawyers.  Those
>channels are all very well for a commercial firm, but they are insufficient
>to win ICANN acceptance as an organ   and thus a part   of the Internet
>technical community.
>
>     Nor have the structures ICANN created been the most representative.
>ICANN has brokered the creation of an arbitrary structure for its Domain
>Names Supporting Organization, which will have a lead role in the
>development of DNS policy, under which business and trademark interests
>will have a disproportionate role.  ICANN, further, lacks humility,
>notwithstanding that it has a great deal to be humble about.  I was bemused
>to read Esther
>Dyson's explanation, in her July 19 letter to NTIA Associate Administrator
>Becky Burr, that the public need not worry that ICANN will use its
>authority to impose inappropriate requirements on Internet actors.  Since
>ICANN, Dyson explained, is by its nature "nothing more than the reflection
>of community consensus," by definition it cannot do anything improper.  If
>this message is sincere, it reflects previously unimagined depths in
>ICANN's lack of understanding of others' concerns.
>
>     ICANN has seemed not to understand the importance of limiting its
>policy role.  The matter of domain-name dispute resolution provides one
>example.  The White Paper had urged that the World Intellectual Property
>Organization explore recommendations for a uniform dispute resolution
>approach for "trademark/domain name disputes involving cyberpiracy"   that
>is, abusive registrations of a domain name string identical or closely
>similar to another firm's
>trademark, solely for the purpose of reselling the domain name to that firm
>or one of its competitors.  "[I]t should be clear," the White Paper noted,
>that any dispute resolution mechanism put forward by ICANN should be
>limited to that category of disputes.  WIPO, after extensive deliberations,
>issued a report recommending such a dispute-resolution mechanism, limited
>to the cases described in the White Paper.  ICANN referred the WIPO report
>to its
>Domain Names Supporting Organization.  It then issued a press release
>expressing its view that the mandatory dispute resolution for domain name
>registrants imposed through ICANN-sanctioned contracts should not be
>limited to abusive registrations, and indeed should "ultimately cover all
>commercial dispute issues linked to Domain Name registrations" (emphasis
>mine).  This suggests that ICANN fundamentally misunderstands its role.  We
>do not need a world Internet government, imposing such policies as seem to
>it good.  We need a technical coordinator to perform the limited tasks of
>expanding the name space, protecting the stability of the domain name
>system, and policing bad actors who threaten competition and consumer welfare.
>
>     At the same time, though, not all of the criticisms of ICANN are
>justified.  ICANN has been much criticized for its proposal that it collect
>a fee to defray its own costs, from registrars registering domain names in
>.com, .net and .org, for each domain name they register, not to exceed $1
>per registration-year.  ICANN recently decided to table this fee for the
>time being, and to rethink it in conjunction with the directly affected
>entities.  This was a wise decision.  The fee was controversial, and
>ICANN's spending choices have not been beyond criticism.  Nonetheless, the
>White Paper contemplated that IANA's successor   unlike IANA itself   would
>be free from government support precisely because it could be funded by
>"domain name registries, regional IP registries, or other entities
>identified by the Board."  The problem with the ICANN fee was not that
>there is something wrong with such a funding mechanism in principle, but
>that the Board went ahead with it without first securing the sort of
>community support that would make such a fee sufficiently broadly acceptable.
>
>     ICANN has been criticized on the ground that it is seeking to impose
>overbearing requirements on NSI.  Conflict between NSI and ICANN, however,
>is inevitable.  NSI currently enjoys an unparalleled monopoly in domain
>name registration services, and is earning huge profits from its position.
>NSI's .com, .org and .net top-level domains include the overwhelming
>majority of domain-name registrations.  (NSI has over 5 million
>registrations in .com alone.  The
>largest top-level domain not administered by NSI is the country-code domain
>.de (Germany), with fewer than 400,000 registrations.)  ICANN's task, as
>set out in the Green and White Papers, is to destroy NSI's monopoly in two
>ways: first, by introducing competitive registrars to .com and the other
>top-level domains now administered by NSI, and second, by authorizing  new
>generic top-level domains to compete with those domains.  It should be
>unsurprising that NSI opposes ICANN implacably.
>
>     NSI has sought to forestall competition, and to leverage its effective
>control over the generic top-level domain master databases, in a variety of
>respects.  It has aggressively and unjustifiably asserted intellectual
>property control over the contents of the .com, .net and .org databases,
>and is seeking to market the information contained in those databases
>through such devices as its upcoming "dot com directory."    It has been
>recalcitrant in its relationship with the
>Department of Commerce, dragging its feet on registrar competition and
>imposing barriers in the way of the testbed registrars.  It now professes
>that because of "personnel resource limitations," it will be able to enable
>new registrars to access its databases only at the rate of only five per
>month.  It has arbitrarily and without notice blocked public access to
>sources of registration information, and has insisted on receiving a fee
>for maintaining the master database that
>unreasonably exceeds its costs.
>
>     It is plain that somebody needs to ride herd on NSI.  The DNS
>controversy was sparked in the first instance, after all, by user concerns
>over the monopoly franchise NSI was exercising under its cooperative
>agreement with the National Science Foundation.  Four years later, NSI
>continues to exercise tremendous market power.  The White Paper gave the
>job of supervising NSI to ICANN (with backup from the Department of
>Commerce).  In turn, the White Paper
>directed that NSI must recognize "the role of the new corporation [that is,
>ICANN] to establish and implement DNS policy and to establish terms
>[applicable to NSI among others] under which registries, registrars and
>gTLDs are permitted to operate."  NSI's economic interests lie in its
>acting to obstruct that process.
>
>     Some of ICANN's problems should dissipate as mechanisms are put in
>place to elect new Board members.  As new Board members drawn from the
>Internet community take their seats, ICANN's task of winning legitimacy
>should become easier.  Important questions, though, still remain.  The
>voting mechanism for ICANN's at-large Board members, to be elected by the
>global membership, remains unsettled.  Other aspects of ICANN's governance
>structure are already skewed.  Many observers have expressed concerns
>(which I share) that ICANN's Domain Name Supporting Organization, which has
>the lead role in initiating policy concerning the DNS, is structured in a
>manner that is arbitrary, haphazard, and systematically tilted towards
>trademark and business interests.  These aspects of ICANN's structure
>deserve continuing close attention.
>
>Where we go from here
>
>     ICANN is seeking to enter into contractual agreements with all firms
>seeking to register domain names in .com, .net, and .org, under which those
>entities agree to terms (beginning with financial and business
>qualifications) designed to implement DNS policy goals.  Later in the
>process, it will seek to enter into similar contracts with all entities
>seeking to operate top-level domains as registries.  This approach will
>allow ICANN to enter into registry contracts requiring
>the registries to enter into specified contracts with their registrars, and
>the registrars to enter into specified contracts with domain name holders,
>and so on.  Indeed, the WIPO report on domain- name dispute resolution
>contemplates exactly that: all domain-name holders, in order to register
>names in top-level domains included in the ICANN root, will have to agree
>to particular contractual terms related to dispute resolution.  This web of
>top-down contracts could give ICANN the power to impose a variety of rules
>on domain name holders (and in turn, the Internet population at large) that
>have little to do with Internet technical administration and domain name
>policy.
>
>     Such a result would be disastrous.  ICANN must not be a world Internet
>government.  Its role should not be to enact good policies, and impose them
>on the rest of us.  In particular, its role should not be to make the
>Internet safe for electronic commerce.  That effort, although much prized
>by business, would require a wide range of policy and value judgments that
>lie far outside ICANN's limited role.  Rather, it should limit its task to
>the structure and stability of the domain name system and the
>administration of other Internet identifiers.
>
>     Ironically, though, one of ICANN's biggest current tasks lies outside
>the boundaries I have just defined.  I have already referred twice to
>trademark-domain name dispute resolution:  ICANN has announced its
>intention to quickly adopt new rules, to be imposed on all domain name
>holders, potentially requiring their participation in dispute-resolution
>proceedings brought by trademark owners who feel that the domain names
>"pirate" their trademarks.  Yet resolution of such trademark-law disputes
>between trademark owners and domain name holders has no technical
>component.  It is not necessary to administration of Internet identifiers.
>It could be handled through ordinary trademark-law litigation, as it has
>been to date, without any threat to
>the stability of the domain name system.  It is precisely the sort of issue
>that IANA would not have dreamed of taking on, and that ICANN should not be
>engaged in.
>
>     ICANN is involving itself in domain-name dispute resolution for three
>reasons.  First, as a matter of pure practical politics, trademark holders
>have made clear that they will fight vehemently against the addition of any
>new top-level domains, in Congress and other fora, unless ICANN first
>implements a trademark dispute resolution mechanism.  Second, NSI already
>has a trademark dispute resolution "mechanism" in place   it will suspend
>any domain name upon complaint from a trademark holder with the same mark
>and nearly all parties agree that that mechanism must be replaced.
>Finally, the current ICANN structure gives business and trademark-owning
>interests extensive influence, and the Board members are sympathetic to
>their concerns.  At least the first two of these reasons may make the
>enactment of some sort of trademark dispute resolution mechanism inevitable
>at this point.  But this should be the last of
>ICANN's forays outside of issues relating to the structure and stability of
>the domain name space, and the administration of other Internet identifiers.
>
>     ICANN, in short, has three tasks before it.  It must move quickly to
>formulate, and to implement, mechanisms for choosing new Board members who
>will be drawn from, and who can represent, the Internet community.  Second,
>and relatedly, it must learn to act like a part of the Internet community.
>Finally, it must find an adequate way of defining, and limiting, its own
>mandate.  (It will not suffice for it to declare piously that, because it
>is impelled by community
>consensus, it is incapable of overstepping its bounds.)  If ICANN can do
>all of these things, it will be able to fulfill the role that the White
>Paper laid out for it.
>