<nettime> ZDNet: ICANN Tethered

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ICANN Tethered
by Juliana Gruenwald and Rory J. O'Connor
Interactive Week
February 12, 2001 3:52 AM PT

To millions of users around the globe, creation of the Internet Corporation
for Assigned Names and Numbers two and a half years ago signaled - for
better or worse - a bold experiment in governing for the Internet age. 

Its creator, Clinton adviser Ira Magaziner, proudly touted the private,
international nonprofit group as one that would take the government out of
the Internet business and put tough new policy and technical decisions
where they belonged - in the hands of Internet companies and users around
the world. 

But three years later - and six months after the U.S. aimed to cut loose
its control of the group - the Department of Commerce maintains oversight
of both ICANN and what was supposed to be its prize: the Internet's "A"
root server, the database that makes up the Internet's domain name system. 

And even as ICANN continues its long struggle toward stability and
legitimacy - taking the brunt of criticism for controversial domain name
policies mandated by its agreement with Commerce - the government has
apparently laid no plans for removing itself from the picture. 

In short, Internet users and the industry that has grown up around them may
never get the truly private international network they have wanted. What
began in the late 1960s as a U.S. government project may remain under
nominal government authority for the foreseeable future. 

That means the bureaucracy of the U.S. government retains a powerful veto
over key decisions about expansion of the Internet, especially how quickly
and to whom new domains are given to compete with the lucrative dot-com,
dot-org and dot-net. And in so doing, it threatens to deepen the tensions
between U.S. and foreign governments, users and business. 

Whether that position will change under the new Bush administration remains
anyone's guess. But recent admissions by key officials, at the Department
of Commerce and others, have ignited debates about whether the government
really ever intended to give ICANN complete control of the Internet's root,
or whether it was just punting tough policy decisions under international
pressure to break the U.S. monopoly on the Internet's architecture and the
lucrative business of registering domain names. 

Indeed, one source close to the process said that at times it seemed that
what ICANN was handed was "undone government homework." 

Others speculate that the delay in what had originally been targeted as a
complete transfer of control last fall is less a conspiracy revealed than a
combination of several factors: an overly ambitious plan by Magaziner, a
series of missteps by the group's initial, appointed board and a changing
perception about what the government's role should be in Internet policies. 

"The process proved a lot more problematic and controversial than the folks
in the government hoped," said Jonathan Weinberg, a law professor at Wayne
State University. "Whether or not they wanted to do it, at the time . . .
it was politically expedient to say that was their plan." 

Sources close to the issue told Interactive Week that Clinton
administration officials came to the conclusion that the U.S. government
should maintain some oversight authority even if officials allow ICANN, at
some point, to take over the day-to-day management of the root server
system. For granting ICANN both technical and policy control of the root
server system would involve giving the nonprofit corporation not only the
duty to ensure the stable and secure function of the domain name system but
also the authority to decide which groups of domain names would be
recognized by those who surf the Internet and which would not. 

"For it to happen, it would require some serious policy decision that
involved a commitment to globalization of resources that the U.S.
government controls," said Milton Mueller, an information studies professor
at Syracuse University.  "It's political and controversial." 

"Control of the root potentially confers substantial economic and political
power," University of Miami law professor A. Michael Froomkin wrote last
year. 

There is also danger to the federal government in relinquishing its
Internet role to ICANN as long as there is any chance the still fragile
organization might fail. 

"I have trouble visualizing the transfer of the root to ICANN in its
current state," said Don Telage, an executive advisor at VeriSign, which
now owns Network Solutions, and a key player in ICANN's formation. "There's
a lot to be proved yet before any administration would be comfortable doing
that transfer because the risk of a failure would be catastrophic for the
U.S. economy," given the millions of dollars that companies, governments
and others have invested in establishing an Internet presence. 

Even top ICANN executives acknowledged the corporation is still too weak to
assume that control. 

"We need to get ourselves stabilized before we can have any claim over the
root," said Joe Sims, ICANN's outside counsel and a central figure in the
company's birth. 

That job now falls largely to Vint Cerf, one of the Internet's founding
fathers. Cerf replaced Esther Dyson as chair of the 18-member ICANN board
in November. 

For now, Cerf said ICANN is proceeding with preparations to take over the
technical management of the root and increase the system's security. ICANN
hopes to make a formal proposal to the Bush administration in a few months. 

"I am confident we will get there. It's important we get there," Cerf said.
"It is a source of continuing concern among other parts of the world
outside the U.S. that there is this continual linkage" with the U.S.
government. 

What Next, George? 

When and if ICANN presents that plan to the government, however, it could
find itself in the middle of a whole new political game. 

Final authority for Internet management now rests in the hands of President
George W. Bush and his advisers, a twist that seemed a long way off when
Magaziner selected ICANN to carry out his vision of private Internet
governance in 1998. 

So far, several sources said, the new White House has yet to focus on the
issue. When it does, ICANN may have a tough time making an initial good
impression on its new overseers. 

ICANN, whose board is elected by membership groups representing
international technical, business and Internet users' constituencies, has
been under fire from all directions since its inception. Republicans on
Capitol Hill questioned whether the Democrats were giving away a national
resource; Internet users and civil libertarians have repeatedly accused
ICANN of ignoring its democratic charter in favor of powerful trademark and
corporate interests. Now, the group is being criticized for how it selected
the first commercial domains to join dot-com, dot-net and dot-org. 

During a hearing last Thursday before the House Commerce Committee's
telecommunications panel, some lawmakers accused ICANN, along with losing
applicants for the new generic top-level domain names (gTLDs), of having
used a rushed and arbitrary process to pick the new domains. 

"Legitimate questions have been raised by several of our witnesses about
the fairness of the application and selection process," the panel's
chairman, Rep.  Fred Upton, R-Mich., said during the hearing. 

But Upton and others said they did not think the Commerce Department should
block these new domains from being introduced into the root. Instead, they
said, ICANN should work to improve the process for adding new top-level
domains in the future. While defending the process as fair, Cerf
acknowledged that the system needed to be streamlined. 

Ambitious Beginnings 

ICANN sprang from magaziner's efforts in 1996 to break the
government-sanctioned monopoly that Network Solutions had on registering
dot-com, dot-net and dot-org domain names. 

At the time, Jon Postel, another founder of the Internet, and Network
Solutions managed the root servers under government contracts. 

But companies and governments around the world were calling for a more
central structure. They wanted new top-level domains, as well as a chance
to compete with Network Solutions in the registration business on which it
built its fortune. 

At the same time, trademark holders were calling for rules to crack down on
cybersquatters, people who were registering popular words and names and
reselling them to Internet latecomers at hefty profits. 

The Clinton administration felt there was a crucial need to create ICANN
"for political, economic and geopolitical reasons," said Larry Irving,
former assistant secretary of commerce in charge of the agency that
established ICANN. 

"We wanted to minimize the role of the government and to minimize the
exposure of the government and not have [ICANN] perceived as an operation
of the U.S.  government," Irving said. "The fondest hope of many of us is
that we could go to being a monitor from being a participant." 

Long and intense negotiations among the government, Network Solutions and a
host of powerful Internet interests produced the final plan, or white
paper. 

"I remember thinking at the time, 'This [Internet] is going to unite the
world and get everybody on the same policy page, if not the same cultural
page'," Telage said, adding that he has since discarded that notion. 

Technical or Governing Body? 

But the resulting icann was viewed as something much bigger by some
Internet users, public interest groups, media and foreign governments. It
was seen, by some, as a government-in-waiting for the worldwide Internet,
an international ruling body poised to control a vital political and
economic force. 

So almost immediately, everything ICANN did - from naming its first board
members to designing procedures for its operations and closing its initial
board meetings - was scrutinized through a political lens. And even as its
leaders proclaim their determination to run a technical management
operation, its critics see it as a governmental body that lacks critical
oversight. 

"ICANN is in fact a government actor," said Barry Steinhardt, associate
director at the American Civil Liberties Union. "It is operating in place
of, with a delegation of authority from, the United States government, the
Department of Commerce." 

Although one of ICANN's first actions was to set rules on who can and
cannot register trademarks as domain names, ICANN's leaders insisted they
are not, and have never been, any sort of government. ICANN, in fact, is
nothing more than "a nonprofit incorporated in the state of California that
has contracts with the government . . . and has a structure dictated in
large measure by the white paper," Cerf said. And while ICANN has a
"significant responsibility to everyone who uses the Internet," Cerf said
that it is constrained by bylaws and "has a very narrow charter to see to
it the domain name system operates properly." 

Whether the U.S. government ever intended to hand over full authority to
manage the domain name system to ICANN remains a subject of much debate.
Some insiders maintain that the U.S. government planned to maintain some
control, though comments from U.S. government officials at the time offer
differing views on this. 

In his written testimony before the House Science Committee's basic
research panel in late March 1998, Magaziner said that until the new
corporation was established and stable, the U.S. government would
"participate in policy oversight, phasing out as soon as possible but in no
event later than September 2000." With the release of the white paper, the
U.S. government put this as an outside date and did not specifically state
that the U.S. government would relinquish all control over policy
decisions, though many critics insist it clearly left this impression.
Magaziner declined to respond to repeated requests for an interview for
this article. 

"The job wasn't as clearly laid out as anyone would like," admitted Becky
Burr, who oversaw ICANN until she left the Commerce Department last fall. 

At the time, the U.S. government was coming under pressure from Europeans
who were not happy with the U.S. maintaining primary authority over what
was becoming a global resource. 

The Europeans continue to demand a transfer of power. Christopher
Wilkinson, who handles domain management issues for the European
Commission's internal market directorate, said, "It's quite important, and
we expect the transition to be completed in the foreseeable future." 

Some argue, however, that some government officials and even industry
representatives now have a more sobering view of Internet regulation than
they did a few years ago. Michael Geist, a law professor at the University
of Ottawa, said the idea of transferring management of the domain name
system to private hands was introduced at a time when people believed
government regulation of the Internet should take a backseat to
industry-led efforts. But, he said, "We've come around to the notion that
there is a role for government regulation." 

And many now think that Congress might never let the U.S. government hand
over policy control of the root server system to ICANN. 

In an October letter to then-Commerce Secretary Norman Mineta, five House
Democrats expressed concern about relinquishing "power by the U.S.
government over a basic infrastructure of the Internet. ICANN is a young
organization that has struggled with controversy and doubts about its
authority and legitimacy." 

In a Nov. 9 response, Mineta said the "department has no plans to transfer
policy control of the 'A' root server to the Internet Corporation for
Assigned Names and Numbers." 

One source close to the issue said since the Clinton administration's
initial plan to privatize management of the domain name system was
released, some have voiced concern to U.S. officials about who would take
control of the root if ICANN failed. For this reason alone, some say the
government must retain some role in the process. 

Karl Auerbach, a new ICANN board member who was an outspoken critic of the
group's initial board, said the idea of the private sector taking complete
control was "a stupid, nonsensical goal." 

Lingering Issues 

Some insist that gaining control of the root server is not ICANN's greatest
challenge. It is instead symbolic of whether the experiment that is ICANN
can persuade its patron - and its constituents - to let it survive. And
that may force the company to take a far more restrained approach to
dealing with its critics. 

"ICANN should be less combative," said Dyson, who, ironically, was among
those board members most harshly criticized for dismissing anyone who
disagreed with ICANN. "They don't have the resources to respond to
everybody. And sometimes, it responded badly." 

ICANN has a list of other pressing issues on its plate. It is going through
a leadership transition with the installation of Cerf as chairman last
November and the departure next month of Michael Roberts, the group's
founding chief executive and president. He will be succeeded by M. Stuart
Lynn, the retired chief information officer at the University of California
system. 

In the midst of this transition, ICANN will find some of its harshest
critics now come from within its ranks. Two of the five newly elected
members to its board say ICANN needs serious reform. 

"ICANN is going off with all the concern for the populace that Louis XIV
had," said Auerbach, who was himself elected in October to the "at-large"
board seat from North America. "It is kowtowing to its friends, the
intellectual property industry and getting rid of anybody who doesn't smell
of money." 

Among ICANN's top priorities is ensuring the smooth introduction of the
seven new gTLDs. Since the selections were made in November, ICANN staff
has been working to complete contracts with the operators of the new
domains. It will likely take several months before the operators are ready
to begin offering the new names. 

However, that process is still under fire. Some of the fiercest criticism
was aimed at what some described as the inappropriate influence of the
staff over the gTLD selection process. In fact, some argue that the staff
plays too big of a role in ICANN's overall decision-making process. 

"The staff seemed to have decided how they wanted things to turn out and
presented it to the board that way," said Peter Schalestock, a Seattle
lawyer who represents Group One Registry, which submitted an unsuccessful
gTLD bid. 

Among those viewed as having the most influence within ICANN is Sims, who
has been with the organization since its beginnings. He started as Postel's
lawyer and stayed on with ICANN after Postel's death in 1998. 

A no-nonsense veteran, Washington lawyer and former Justice Department
official, Sims is reviled by some critics who question his true aims,
insisting he is on a power trip and hopes to ride ICANN to riches. One
ICANN power broker calls him "ruthless" and "forceful." 

"There is this character of ICANN that is arrogant and condescending, and
Joe Sims embodies that," Auerbach said. 

But the same man is also admired for keeping ICANN focused on the tasks
before it. Sims dismissed notions that he has used the ICANN connection to
boost his own practice - initially, he worked for ICANN on a pro bono
basis, and even though his law firm, Jones Day, now bills for its work,
Sims said he "can't trace any clients who have come to us" because of it.
In fact, he is probably far better known in high-tech circles for his legal
work on behalf of America Online Time Warner and its bid to gain federal
approval of the two companies' merger. 

"He is a trench warrior," said Diane Cabell, a fellow at Harvard Law
School's Berkman Center for Internet and Society. "His ulterior motive is
to keep ICANN in operation." 

At the same time, ICANN officials and others said the organization must now
focus more attention on a simmering dispute with the operators of the more
than 250 so-called country code top-level domains, such as dot-us and
dot-uk, concerning their role in ICANN. The group has asked ccTLD
operators, many of which are private companies not designated by their
governments, to pay a total of nearly $1.5 million to help fund ICANN's
operations. The ccTLD operators, however, said they want a greater role
within ICANN and clear contracts stating what authority ICANN does and
doesn't have over their operations and policies. 

ICANN also has promised to begin a review of a controversial process put in
place in late 1999 to help resolve disputes over domain names. Even as
ICANN dismisses charges that the process is tilted in favor of trademark
interests, the organization will likely be faced with calls to expand it.
This is expected to spark a new round of debate over whether the
intellectual property community has too much influence within ICANN and
whether its mission is as technical as Cerf and other ICANN officials like
to say it is. 

The World Intellectual Property Organization, which helped develop ICANN's
uniform dispute resolution policy, is studying whether this process should
be extended to cover categories beyond trademarks, like personal names and
geographical indications. It is expected to release a report later this
year. 

ICANN has another potentially controversial decision to make down the road,
on what voice the general Internet community should have in ICANN. When
ICANN was created, it was envisioned that nine board seats out of 18 would
be set aside for "at-large" members, or Internet users. ICANN's president
also holds a seat as an ex-officio board member. 

Five of these at-large members were elected from five regions around the
world during an online election in October. ICANN has put off a decision on
the election of the four other at-large board members until it conducts a
study of the election process and the need for at-large representation
within ICANN. 

Internet democracy groups and others worry that ICANN may move to eliminate
the at-large board members following the study. ICANN officials said they
are withholding judgment until the study is completed. 

Despite the rocky road, Sims said that without ICANN, there might have been
little or no progress in expanding either the number of top-level domains
or of eliminating the one-time monopoly by Network Solutions on registering
all domain names in the dot-com, dot-net and dot-org worlds. 

"Let's assume ICANN had never been created," he said. "Somebody would say a
multinational organization ought to be formed. Then you'd have some people
in Congress saying, 'We own this; we don't have to talk to these yahoos.' I
think nothing would have happened, and the world would be the same as it
had been in 1998." 

Irving, the former Commerce assistant secretary, said, "If the government
pulled out now, things are going to collapse without the sheriff's role of
the government to keep order. Who else are you going to give that job to?" 

And even some of ICANN's harshest critics think the alternative of a collapsed
ICANN is unpleasant. 

"I think ICANN has developed into an egregious institution," Auerbach said.
"But if ICANN were to disappear and create a vacuum, I and other people are
fearful what will fall into it. Whatever follows would be a disaster. We'd end
up with something like the FCC in the 1950s, facilitating AT&T, and the
consumer be damned." 

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