> Commentary on Professor David Post's Essay of June 5 Concerning ICANN
>
> ICANN is pursuing
> its work program as spelled out in the Government's White Paper on the
> Management of Internet Names and Addresses and in the Department of
> Commerce's Memorandum of Understanding/Joint Project Agreement with
> ICANN that was executed last November.
I agree with this, and probably Post does, too. The unfortunate fact is that the White
Paper is a mandate for Internet governance, not for technical coordination. In a
direct debate with myself and Post in Washington May 6, J. Beckwith Burr did not even
attempt to deny this. Most obviously, the WP calls for the linkage of domain name
assignment and trademark dispute resolution. This fundamentally and immediately moves
ICANN out of the realm of technical coordination and into the realm of
regulation/governance. Just as the FCC's control of radio spectrum allocation was used
to license and regulate conduct and content, so ICANN's mandate has been to utilize
the control of domain name registration to license and accredit registrars, impose a
specific business model on the industry, and to police and enforce intellectual
property rights. Post was making the charge of "governance," not that you were
deviating from the White Paper.
> 1. Control of the Root Server
> The system of [currently thirteen] functionally identical root servers
> set up by Jon Postel is operated on a voluntary basis by a disparate
> group of international organizations with a common interest in seeing
> the Internet function well. In addition to the checks and balances
> inherent in this distributed functionality and responsibility,
There is an authoritative root server. All the rest download the zone files from it,
and act as backups. There is no distribution of the responsibility for the
authoritative zone files.
> there are
> the further checks provided by the fact that the major ISP's ultimately
> have the power to determine what name servers are actually used in the
> Internet. Various efforts to create a different root environment, such
> as alternic, have thus far failed because the leaders of the ISP
> industry see more value in a transparent and interoperable Internet than
> in one in which multiple root systems vie for attention.
Can you spell "lock-in by network externalities," Mr. Roberts? Efforts to start
alternative roots have failed for the same reason that an attempt to start up a new
telephone system without interconnection to AT&T would have failed in 1984. The value
of a root (or a telephone network) depends on the number of users connected to it. The
legacy root confers great power to its controllers simply by virtue of the fact that
it is the legacy root, and everyone points to it. It would take enormous coordinating
efforts and impose great risks of isolation upon anyone who attempts to break out of
its lock. That's why we have a problem with Microsoft and its dominance of PC
operating systems, too. There is, in short, no way around the fact that control of the
root creates the possibility of exercising governmental powers.
> Any significant evidence of the type of pathological behavior in the
> management of Internet routing hypothesized by Professor Post in his
> text almost certainly would lead to a similar type of government control
> of the Internet, both in the U.S. and abroad.
The more ICANN starts to act like a government and exercise quasi-governmental
regulatory powers, the less scary this great bogeyman of "government control" becomes.
ICANN now has a Government Advisory Commission that operates behind the scenes and in
closed-door meetings. The Chairman of the GAC claimed in public that governments
around the world played a major role in "making ICANN happen." Is ICANN a way of
avoiding government control, or is it a way of avoiding the procedural restrictions
and public oversight that typically accompany government action, at least in
democracies?
> 2. Support for ICANN's Budget
> the proposed fee [which] was explicitly stated to be no more
> than $1, because it is not clear exactly what ICANN's costs will be or
> how many names will be registered. Since ICANN is a non-profit, cost
> recovery vehicle, the fee will be adjusted over time to produce revenues
> that fund expenses - no more or less.
The problem with non-profits is that in the absence of market competition, expenses
are highly elastic. ICANN did not need to hold its Berlin meeting in the most
expensive hotel in Western Europe. ICANN may or may not need to pay its CEO USD
300,000. It is never difficult to find ways to get expenses to rise to the level of
revenue. (If you need more advice on how to do this, contact me ;-)
> The comment period did not produce
> any proposals for a more equitable means of supporting ICANN's
> activities.
The good thing about a domain name tax, as opposed to certain other funding
mechanisms, is that it does not bias ICANN toward large contributors who might
influence policy. Properly controlled, a domain name tax is a relatively democratic
method of supporting ICANN. I am still, however, concerned about the creation of a
huge surplus and its diversion to the creation of a huge and unnecessary bureaucracy.
What mechanisms are in place to align real costs with the size of the tax?
> In the idiom of the ICANN Bylaws, consent of the governed
> is obtained through the operation of the public notice and comment
> provisions. If there is a better way, let us hear it.
Ah, Mr. Roberts. "Consent of the governed." You have lost your debate with Mr. Post.
This is precisely the point we are trying to make. You are exercising
quasi-governmental powers. At best--and to some of the more anarchically inclined,
this is not very good--you can moderate those powers by putting into place
representational structures, public notice and comment, checks and balances. Those are
political processes, sir, let there be no doubts or misconceptions about what is going
on.
> 3. The WIPO Report
> the ICANN Board did not "adopt" the
> WIPO report in its action on May 27; instead, it took a series of
> detailed steps which included referring the majority of the report to
> its newly constituted Domain Name Supporting Organization for analysis,
> review and recommendation. It took these actions after five months of
> study and comment by members of its constituencies and its staff
That is an interesting assertion. The WIPO report was not finished and released until
April 30, 1999. The DNSO constituencies did not exist until May 28, 1999. Where did
those five months come from?
The real issue here is that WIPO represents the view of the trademark community, not
the Internet community, which is supposed to be your constituency. 80% of the
participants in the WIPO process were trademark lawyers and IP owners, looking for
ways to protect their rights. WIPO is itself an agent of those interests. The views of
individuals, free speech advocates, small businesses, registrars and registries, ISPs
were not reflected in the WIPO proposals. What ICANN needs to do is initiate a process
to define its *own* proposals for reconciling TM and DN rights.
Just to indicate how poorly this issue has been aired, you, Mr. Roberts, admitted in
Berlin that you had never before heard of the polic option that registries can
function effectively without *any* dispute resolution policy. The policy option
presented to you by the New Zealand registry, which is completely successful, was news
to you. This indicates that ICANN's Board still has a lot to learn about this issue.
Your propensity to view the WIPO report as the last word on the subject--and to adopt
parts of it in your accreditation contract before WIPO was even finished with it--does
a disservice to your constituency.
> and the actions reflected the consensus comments it received in the public
> notice and comment periods of both the March (Singapore) and May
> (Berlin) Board meetings.
Public comments overwhelmingly asked you to set aside the *entire* WIPO report and
refer the entire matter to the DNSO.
> this requirement for open access to the identity of those
> responsible for operating a domain name in the Internet goes back to the
> very early days of the American academic Internet and has been a
> mainstream attribute of Internet culture for many years. It seems to me
> and to many others to be a useful principle worthy of being continued.
Perhaps. Perhaps not. The point is: a) it's a public policy decision, not an act of
technical coordation, and b) you made the decision without any accountability.
> 4. Scope of ICANN Activities
> ICANN's role in this area is limited to
> "coordinating the assignment of Internet technical parameters as needed
> to maintain universal connectivity on the Internet."
Please explain to everyone how the reservation of famous names in the domain name
space is necessary to "maintain universal connectivity on the Internet." Please
explain how and why complete and accurate contact information in a publicly accessible
database is needed to "maintain universal connectivity on the Internet." Please
explain how the imposition of a *uniform* dispute resolution process is needed to
"maintain universal connectivity on the Internet." Please explain how requiring a
business model that mandates shared registries is related to the goal of "maintaining
universal connectivity on the Internet." Once you explain these things I will perhaps
understand better how you can continue to claim that ICANN "doesn't do governance."
-- m i l t o n m u e l l e r // m u e l l e r @ s y r . e d u syracuse university http://istweb.syr.edu/~mueller/
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