Milton Mueller on Sun, 15 Aug 1999 21:29:24 +0200 (CEST)

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<nettime> ICANN's Birth Pangs: Politics Closes in on the Internet

[There has been considerable confusion trying to clear the copyright of
this story with ACM. A lot of emails were exchanged but the situation
became more complicated, rather than less. Until this way out was found.
Thanks to Patrice Riemens and Milton Mueller.]

Just came up with a simple solution to the problem.
Below in ASCII is a different version of the article--longer, with some
different material. It is not copyrighted by ACM but contains basically
the same story. It's a Nettime exclusive!

This article is copyrighted by ME. I hereby grant you permission
to use it on Nettime.

Please make sure you:
1) identify this as my work.
2) do not charge anybody to see it
3) use it only on Nettime.


ICANN's Birth Pangs: Politics Closes in on the Internet

Dr. Milton Mueller, Syracuse University School of
Information Studies

The organizations and rules that coordinate the Internet are as much a
part of the infrastructure as fibers, routers, and servers. Global
internetworking simply would not work without formal and informal
procedures to coordinate domain name assignments, IP addresses, and root
server management. Remarkably few Internet users, however, are aware of
the profound changes underway in this "invisible infrastructure." 

For most of the Internet's history, the central authority behind Internet
names and numbers was the US government, in the guise of various military
agencies, the National Science Foundation (NSF), and civilian firms or
research institutes under contract to them. One man in particular was
closely associated with the number assignment function for 25 years: the
late Dr. Jon Postel, whose DARPA-funded administrative work became known
as the Internet Assigned Numbers Authority (IANA). Another contractor,
private firm Network Solutions Inc. (NSI), was primarily responsible for
operating the InterNIC under contract to the NSF. 

As TCP/IP networking became commercially significant in the early 1990s,
the US government acted quickly-in 1992-to privatize and commercialize the
Internet's connectivity functions. It was much slower, however, to release
control of the central coordinating functions. Not until July 1, 1997 did
it finally initiate a public proceeding to collect comments on
transferring those processes to the private sector. Even then the
government entered the picture reluctantly and with no clear policy
direction, having been virtually forced to act after three years of
growing rancor over domain name policy between the Internet Society and
IANA, on one side, and NSI on the other. A transition plan was finally
issued in June 1998 as a US Department of Commerce "White Paper" drafted
under the supervision of Presidential policy advisor Ira Magaziner. For
better or worse, the White Paper put forward the idea of "industry
self-regulation" as the solution to the problem of the transition.
Governments would stand aside and let the Internet community itself come
forward with a blueprint for the transition. 

It is not yet clear whether this transition is going to be a success, or
whether it will prove to be a fiasco comparable to Mr. Magaziner's tangle
with health care reform. 

What is ICANN?

The Internet Corporation for Assigned Names and Numbers (ICANN) is the
official product of this process. It was incorporated in the state of
California in October 1998 as a non-profit "public benefit corporation"
organized for "charitable and public purposes." It is supposed to take
over responsibility for IP address space allocation, protocol parameter
assignment, domain name system management, and root server system
management. Its interim CEO, Michael Roberts, is a Washington insider and
Internet veteran. He is one of the founders of the Internet Society and an
organizer of the Internet2 initiative. As a former Vice President of
Educom, a consortium of 600 American universities, he was in charge of
major education networking initiatives. ICANN also has an interim board of
Directors headed by Esther Dyson, the technology pundit who sits on the
board of the Electronic Frontier Foundation. Three distinguished
Europeans, a respected retired telecommunications executive from
Australia, a legendary Japanese Internet pioneer, and three other
Americans, all with impeccable business, academic and technology
credentials, round out the board. The CEO and board members, supposedly,
were all hand-picked by the widely respected Dr. Postel.  ICANN also has
the backing of Vint Cerf, creator of the IP protocol and one of the most
popular Internet elder statesmen around. 

With the imprimatur of the US government, the blessing of Postel and Cerf,
a stellar international board and a seasoned CEO, one would think that the
legitimacy crisis that has poisoned Internet administration for the past
four years would be over. Think again. Far from quelling the flames of
controversy, ICANN's creation only seems to have added fuel to them.
Indeed, the issues raised just seem to keep getting bigger and more
fundamentally political in nature. 

Unquenched Controversies

In line with its philosophy of "industry self-regulation," the US
Department of Commerce had hoped and expected that the Internet industry
would settle its scores by September 30, 1998 and present it with one
consensus proposal. It didn't happen. The Department received three major
proposals and was forced to hold another round of comments in an attempt
to choose among them.1 The ICANN proposal, despite its backing by the
Internet heavyweights noted above, received a lukewarm reaction-only about
one third of the respondents expressed unqualified support for it. The USG
decided to move ahead with ICANN, but forced it to negotiate modifications
with representatives of the two other proposals. Still, ICANN's final form
did not significantly alter the configuration of Internet industry
factions that existed before. 

If ICANN's birth failed to heal the old wounds, it did succeed in creating
new ones. Representatives of Latin America and Asia, who had participated
fully in the "industry self-regulation" meetings around the world, found
themselves entirely shut out of the interim board selections. ICANN and
the US Government ignored repeated pleas to expand the Interim Board from
9 to 11 members so that representatives from non-OECD countries in Latin
America, Asia, or Africa could be included. 

Trouble has also dogged the Internet community's attempts to create
"Supporting Organizations" (SOs). ICANN's bylaws call for it to recognize
three sub-organizations: one devoted to domain names, one to IP addresses,
and one to protocols. Each SO will place three members on the ICANN board.
Attempts to form a domain name supporting organization (DNSO) mirrored the
factional splits that plagued the formation of ICANN itself. Instead of
one consensus application to be recognized as a DNSO, ICANN received two. 

Curious about attitudes toward ICANN, the author sent out a query to some
of the relevant email lists asking participants which one of the following
three statements best described their feelings: 

1. ICANN is an unmitigated disaster and should be resisted, ignored or even

2. ICANN is imperfect and problematical but it is worth investing time and
effort in attempts to improve it and get it on the right track. 

3. ICANN is reasonably responsive and is doing a difficult job as best as
could be expected. 

Most of the comments were 1s and 2s. The comments revealed a surprising
level of ambivalence about the new organization. As a respondent who
classified himself as a "1.5" put it, "The responsible thing to do is to
try to fix ICANN, but at the same time quietly work on alternative
solutions for each of its areas of responsibility." Another respondent,
who described himself as "flip-flopping between 1.4 and 2.1 on your
scale," explained that "I rather fear that ICANN could be the cuckoo laid
in the IANA nest, and we all know what happens when cuckoos grow up." 

Why is ICANN so controversial?

ICANN is mired in controversy for two reasons: first, because the
functions it is supposed to perform have become thoroughly politicized;
second, because its formation did not constitute a consensus or compromise
among the warring parties, but actually constituted a victory by one of
the longstanding factions in the DNS wars. 

Politicization of the root

A curious schizophrenia characterizes the public discourse about ICANN.
The parties involved cannot seem to decide whether it is an obscure
technical coordinating body or an incipient world government. Will ICANN
be a simple successor to Jon Postel's IANA, with its five-person staff, or
evolve into the 21st century equivalent of the International
Telecommunications Union? 

If ICANN is just a "new IANA," then decisions can be made informally by a
small group of experts who are responsive to whatever technical criteria
they deem appropriate. Participation in the decisions could be limited to
corporations and other large industry stakeholders. Membership could
follow the high-priced, organization-only model typical of standards
organizations, such as, for example, the Committee T-1 of the Association
for Telecommunications Solutions (ATIS). 

If, on the other hand, ICANN is a governance organization that regulates
and sets policy for one of the world's most important communication media,
then membership must be broadly representative if not democratic.
Procedures must be transparent and open to the public. And ICANN had
better be prepared to become enmeshed in geopolitics. 

Attitudes of players in this drama range all the way across both of these
poles.  In fact, many key players move back and forth between the two
perspectives depending on who they are talking to and what they are doing. 

Take ICANN CEO Roberts, for example. ICANN has been widely criticized
because its Board of Directors refuses to hold its meetings in public.
Roberts responded to this by charging the critics with confusion about the
purposes of ICANN. "We have not," Roberts said, "been asked to make policy
for the whole Internet. We're chartered to look after Internet names and
numbers," implying that such a function was too mundane and technical to
be subject to public scrutiny.2

Yet only two weeks prior to this statement, ICANN released proposed
accreditation guidelines for domain name registrars. The guidelines belied
Robert's claim of technical neutrality; they showed that ICANN has an
expansive, regulatory notion of how to use its control of the root. The
detailed guidelines contained, among other things, measures designed to
police trademarks and to exercise quality control over the business
practices of domain name registrars. The ICANN proposals were much closer
to regulatory rulemakings of the Federal Communications Commission or the
European Commission than to the number assignments of the old IANA. 

Roberts is not alone in his oscillation between the two views of ICANN.
Many of the organization's critics would also like the new corporation to
be nothing more than a coordinator with very limited powers. But because
they do not trust the people running it, they demand openness,
transparency, representation, and procedural safeguards-as if ICANN were a
branch of the US Congress. 

The fundamental reason for this schizophrenia was pinpointed by David Post
of the Cyberspace Law Institute: 

"Any entity responsible for, and exercising control over, the root server
databases possesses immense power over the future development of the
Internet itself, and will, accordingly, be subject to immense pressure to
act in ways that may be contrary to the best interests of the Internet
community as a whole.  Devising ways to prevent arbitrary, oppressive, or
self-interested actions by this entity is a task of deep - of truly
constitutional - importance to that community." 

Post is right: despite its official status as a private, non-profit
corporation ICANN does possess the technical leverage to become a global
governor of the Internet and its users. And the commercialization and
politicization of the Internet exposes it to powerful pressures to use
that leverage. Unlike IANA and the InterNIC before it, which were
(nominally) subject to policy oversight by various US government agencies,
ICANN is on its own. 

Organizations that represent trademark owners were among the first to
realize the regulatory potential of the root. Led by the World
Intellectual Property Organization (WIPO), they have been lobbying
strongly to get ICANN to use its control of domain name registrations to
protect and expand the power of their brands. If they have their way, the
domain name registration process will be used as leverage to enforce a
wide range of intellectual property rights. Registration will impose a
requirement for a dispute resolution procedure, crack down on speculators
who attempt to register and resell domain names that match trademarks, and
reserve "famous" trademarked names in every level of the name space.
Proving that industry pressure can affect the nature of market competition
in Internet services, the trademark interests have played an important
role in preventing the creation of new top-level domains to compete with
the .com monopoly of NSI. And in their attempt to track down
cybersquatters for "service of process," they made it clear that the way
ICANN handles information gathered by domain name registries about their
customers has vitally important implications for global privacy

If ICANN's control of names and addresses can be exploited to police
trademarks and to track down alleged infringers, it does not take much
imagination to think of hundreds of other claims that will be thrust upon
it. It could be called upon to regulate the quality of ISPs, to control
entry into the name registration market, to enforce copyright protection,
to track down child pornographers, to throw terrorists and terrorist sites
off the Internet, to violate privacy rights, to protect privacy rights,
etc., etc. If some people have their way, the domain name registration
database could become the cyberspace equivalent of a social security
number-an identifier that both confers legal identity and ties the holder
to benefits that can be withheld on account of bad behavior. 

European-American rivalry also played a major role in politicizing the
root. In October 1997, EU Telecommunications Commissioner Martin Bangemann
proposed drawing up an "international charter" to govern the Internet. The
proposed governance structure would rule on issues such as technical
standards, illegal content, licenses, encryption, and data privacy on the
Internet. The US government reacted in horror, fearing that Bangemann's
"charter" would suck the Net into the morass of an intergovernmental
organization like the ITU. The perceived threat of a "Bangemann-ized"
Internet played a key role in the formation of the White Paper. The White
House tried to finesse the pressure for geopolitical intervention by
sweeping the Internet privatization process under the rug of "industry
self-regulation" and "private sector initiative." 

The wisdom of this finesse can be questioned, however. We have not escaped
regulation or politicization-it is simply being performed by a private

Another conflict with geopolitical implications quickly emerged around the
administration of the country-code top level domains (ccTLDs). The White
Paper claimed as its goal the removal of government from direct
administration of the domain name system. Yet on November 6, 1998, ICANN,
in a response to a Commerce Department inquiry, released a statement that
"ICANN will respect each nation's sovereign control over its individual
top level domain." That statement set off alarms among private businesses
that administer ccTLDs under RFC 1591, and seemed to indicate a disturbing
level of politicization in the Internet's core functions. 

1 As a disclaimer, the reader should know that the author of this piece
was a supporter of one of the alternative proposals.  

2 Quoted in Chris Oakes, "ICANN Fracas Moves to Singapore," Wired News 22
February, 1999.

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