[huridocs-tech] ICANN - The need for accountability

DIGITAL FREEDOM NETWORK: Human rights and cyber-rights news

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The need for accountability
by Bobson Wong, Digital Freedom Network
URL: www.dfn.org/focus/internet/icann-reform.htm

The future of the Net

(June 6, 2002) Last week, a little-known committee quietly released a
report calling for major changes in the governing of the organization
that manages the Internet.

The Committee on ICANN Evolution and Reform was formed by the Internet
Corporation for Assigned Names and Numbers (ICANN), a private U.S.-based
nonprofit organization that controls the distribution of Internet
addresses around the world and maintains the core systems at the heart of
the Internet. At first glance, most of ICANN's work appears to be nothing
more than obscure minutiae that have no effect on Internet users. But
scattered through its highly technical work are important issues about
Internet governance that affect users worldwide. Although ICANN was
created to coordinate technical management, it has broadened its powers
to include policy decisions that will dramatically affect what people are
allowed to do online.

The organization that coordinates the Internet's technical management has
been compared to Enron.

As ICANN expanded its mandate to become an organization that sets
international Internet policy, it has been compared to Enron or the
International Olympic Committee for its arrogance, potential for
corruption, and lack of accountability. Many have called for the
organization to be restructured or even eliminated.

ICANN finally answered these complaints by forming the Committee on ICANN
Evolution and Reform earlier this year and charging it to recommend
appropriate changes to the organization's structure. But the committee's
proposed changes, announced last week, would make ICANN even less
responsive to outside concerns than it is now.

Why ICANN matters

MORE ABOUT ICANN

To learn more about ICANN, including its history and its special
relationship with the U.S. Deparment of Commerce, see the DFN article
"The secret gatekeeper."

ICANN has already made several important technical decisions that have
hurt many individual users and organizations. Its two most controversial
decisions were the creation of new Internet addresses and a policy for
resolving disputes over ownership of addresses.

In November 2000, after years of contentious debate, ICANN added seven
new global top-level domains (suffixes to Internet addresses) such as
dot-pro and dot-info. Other organizations paid tens of thousands of
dollars in non-refundable fees to be considered, but ICANN rejected their
applications without giving any clear reasons. Since ICANN has given no
indication as to when it might approve additional new top-level domains,
Internet addresses remain scarce — benefiting ICANN (which retains
the power to approve new top-level domains) as well as companies that
manage the registration of Internet addresses.

In response to numerous complaints about "cybersquatters" (individuals
who registered Web addresses identical to existing trademarks and then
tried to sell the addresses to the trademark holders for profit), ICANN
devised a controversial procedure called the Uniform Dispute Resolution
Policy. This policy stated that disputes over who should own a
trademarked domain name would go to arbitration before one of several
groups approved by ICANN. Critics charged that the ICANN-approved
arbitrators issue decisions inconsistently, encouraging those who bring
complaints to go to the arbitrator most likely to issue a favorable
decision. Furthermore, they noted that ICANN created a new type of
regulation that transcends national law, creating a disturbing precedent.

Right now, ICANN's authority over the Internet is limited only by its
imagination.

The most alarming aspect of these two decisions is that ICANN acted
unilaterally in making them. While it actively sought input from outside
sources, it was under no obligation to listen to them. Given ICANN's
history of expanding its powers and refusing to share information or
authority with anyone, it could easily choose to set policy on other
contentious Internet issues like regulating "spam" (unsolicited bulk
e-mail) or copyright law. Without an independent body that can review and
if necessary overturn decisions, ICANN's authority is limited only by the
imagination of its board and staff.

ICANN's plan for reform

In its final report, released on May 31, ICANN's Reform Committee
supported the idea that ICANN should solicit input from various groups
but not cede any power to external groups. The report called for getting
more funding for ICANN, creating a separate entity that focuses
exclusively on the Internet's technical management (while keeping
policy-making decisions within ICANN), and restructuring several ICANN
committees and supporting organizations.

ICANN's reform plan actually reduces public participation.

Responding to frequent complaints that ICANN has acted unilaterally in
making decisions, the Reform Committee created a plan for restructuring
the board that actually further reduces public participation. Under the
plan, the board would no longer include members elected by Internet users
around the world. Seven of the directors would be appointed from ICANN
advisory committees and supporting organizations, and a nominating
committee drawn from various groups "interested in ICANN's work" and
chaired by an ICANN board member would select the other directors,
possibly with the ratification by the board. Since the public would no
longer be able to elect board members and the nominating committee would
be comprised mostly of ICANN insiders, the only way for Internet users or
any outside organization to participate in ICANN's decision-making
process is to send a letter to the organization — with no guarantee
that the board or staff would take any action.

In addition to restructuring the board, the Reform Committee also
proposed three weak mechanisms for limiting ICANN's authority and
promoting transparency:

 *  A nonbinding arbitration process, in which a "recognized
    international arbitration body" would review alleged violations of
    ICANN's by-laws, would probably not lead to any real change since the
    committee argued in its report that giving any entity the power to
    reverse ICANN board decisions was "inappropriate."
 *  A proposed ombudsman's office, which would receive and investigate
    complaints against ICANN, lacks independence since ICANN's board
    would hire the ombudsman, take responsibility for funding the office,
    and set the office's mandate.
 *  A manager of public participation, hired and managed by ICANN's chief
    executive officer to "enable effective public input into the ICANN
    policy-development process," has no clear role other than to maintain
    ICANN's public forums and report to the board.

The need for accountability

Key dates in ICANN's future

June 12, 2002: U.S. Senate scheduled to hold public hearings to examine
ICANN

June 24-28, 2002: ICANN meeting in Bucharest, Romania scheduled; ICANN
expected to begin implementing its reform plan

June 30, 2002: ICANN's agreement to maintain root server system (a
network of special computers that are critical to maintaining the
Internet) scheduled to expire

July 2002: U.S. House of Representatives scheduled to hold public
hearings on ICANN

September 3, 2002: Memorandum of Understanding (which outlines ICANN's
work) between U.S. Commerce Department and ICANN scheduled to expire

September 30, 2002: ICANN's agreement with the U.S. Commerce Department
to maintain "IANA functions" (certain tasks critical to the Internet
infrastructure) expires

October 27-31, 2002: ICANN meeting in Shanghai, China scheduled

Between December 31, 2002 and June 30, 2005: ICANN's agreements for
running dot-com, dot-org, and dot-net addresses scheduled to expire

Ironically, the U.S. government, which created ICANN in order to turn
management of the Internet over to the private sector, still plays a
major role in shaping its future. The U.S. Department of Commerce signed
the contracts that currently govern the organization's work. Since most
of those contracts expire this year, the Commerce Department could give
the Internet's technical management functions to another organization or
use that leverage to pressure ICANN to change.

ICANN critics believe that the expiration of its contracts gives them a
timely opportunity to push for reform. Last week, a group of U.S.-based
non-governmental organizations asked the Commerce Department to allow
other entities to bid for contracts for controlling how Internet
addresses are assigned. This "rebid" proposal holds considerable promise
as a short-term solution, although substantive change is not guaranteed
since no competitors to ICANN have been suggested yet. Others have called
for ICANN to be broken up into smaller, more focused organizations. Such
a breakup might involve a long and messy transition, although in the long
run it would probably lead to a more stable Internet.

Almost all of ICANN's problems stem from its lack of accountability. By
rejecting the need for anyone to oversee it, it has created an atmosphere
of mistrust and suspicion. Many have proposed sound and practical ideas
for ensuring accountability, such as allowing at least some board members
to be elected by the public or creating an independent organization not
chosen by ICANN with the power to review and reverse ICANN decisions.

But in order to prevent ICANN from implementing its own flawed
restructuring plan, someone with the political and legal power to
challenge ICANN's authority will have to intervene. Unless someone like
the U.S. government or the European Union steps in, the management of the
Internet will soon be controlled by a small group accountable only to
itself.

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Copyright (c) 2002 Digital Freedom Network (http://dfn.org). All rights
reserved. This article may be reproduced or redistributed for online
not-for-profit use without prior written consent as long as DFN is
recognized with this credit. For information about DFN's permissions
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