A Briefing On Public Policy Issues Affecting Civil Liberties Online from The Center For Democracy and Technology (1) Internet Governance Debate Poses Unique Global Challenges (2) ICANN Has Made Progress, but Falls Short of Goals (3) New Milestones for ICANN Autonomy May be Needed ------------------------------------------- (1) Internet Governance Debate Poses Unique Global Challenges As the Internet becomes increasingly essential to politics, commerce and daily life, the debate over Internet governance has evolved from a niche discussion among technologists into a global controversy over who should set the rules for one of the world's most vital resources. As the US Government plots its path forward and reconsiders its special role in overseeing the Internet's addressing system, it is important to determine how the shifting global environment is likely to affect the outcome of any US decision about the future of Internet governance. More than nine years ago, the US Government began the process of transitioning the Internet's core functions to private sector oversight. The nongovernmental body that emerged from that process -- the Internet Corporation for Assigned Names and Numbers (ICANN) -- has been an effective, if flawed, steward of the Domain Name System (DNS) that lies at the heart of all Internet communication. Initially, the US Government intended to maintain its special oversight role over ICANN for the first two years of the organization's existence -- in theory, long enough for the fledgling nonprofit company to establish stable control over the DNS and to develop a robust, bottom-up and transparent decision-making process that represented the needs of all Internet users. It is clear now that the original timetable established for ICANN was overly ambitious. Nine years later, questions remain about how well ICANN has met those initial goals, and the US Government retains an increasingly controversial oversight role in the ICANN process. The latest MOU with ICANN expires in September, and as part of the process of renewing that agreement, the National Telecommunications and Information Administration (NTIA), which oversees ICANN directly, has solicited public comments on how well ICANN has met the goals laid out for it in the MOU and the 1998 DNS White Paper. Specifically, NTIA asks whether ICANN has made enough progress to assume full, unsupervised control over the DNS. As NTIA notes in its notice of inquiry, the MOU identifies a series of milestones that ICANN was required to meet before severing its ties to the US Government. CDT was among several hundred organizations and individuals that filed comments with NTIA. These are important questions. As recent experiences in the two-year World Summit on the Information Society (WSIS) demonstrate, issues of Internet Governance have grown increasingly contentious, and could eventually become destabilizing, as nations that oppose US Government involvement consider the use of alternative addressing systems that could undercut the Internet's value as a global, interconnected medium. A detente of sorts was reached in November 2005 when world leaders agreed to leave the current governance structure untouched and to convene an Internet Governance Forum (IGF) to discuss lingering issues. Still, many nations remain dissatisfied with the status quo, and are likely to remain so as long as the US Government retains a special role in Internet oversight. Although the Internet community is justified in being concerned by continued US involvement in ICANN, it is difficult to imagine how replacing the US government with an even more complex, slower moving, international bureaucracy would be an improvement. With a few important exceptions, NTIA has been a responsible steward for ICANN, taking a largely hands-off approach that has benefited the global Internet community. Clearly, an ICANN process free of direct government control is preferable to the current structure, but if the only viable options for the ICANN are continued US Government oversight or international control, many of in the Internet community will find themselves in the unfortunate position of supporting the status quo. To that end, it may be useful to discuss whether the goals and milestones established nearly a decade ago for ICANN on its path to full autonomy remain adequate in the face of a drastically different global environment. Certainly the goals of fostering stability, competition, representation and private, bottom-up coordination remain as relevant today as they were eight years ago, but in light of recent developments it is important for the Internet community to at least ask whether reaching all of those milestones (something ICANN has yet to accomplish) would be sufficient cause to cut the tether between ICANN and the US Government. CDT Comments to NTIA: http://www.ntia.doc.gov/ntiahome/domainname/dnstransition/comments/dnstrans_comment0603.htm ------------------------------------------- (2) ICANN Has Made Progress, but Falls Short of Goals Since its inception, ICANN has been a lightning rod of legitimate criticism, as well as a convenient scapegoat for people dissatisfied with aspects of the Internet beyond the control of any single management body. Many of those criticisms have been well earned. ICANN has yet to achieve the procedural transparency, and more importantly the broad involvement of Internet users essential to its bid for global legitimacy. On the issue of representation specifically, ICANN has taken notable steps backward, hastily abandoning direct public representation after an abortive experiment with global elections. But for all of its flaws, it is equally important to note the things ICANN has done well. ICANN's first mission was to introduce competition to a domain name market that was under the control of a government-sanctioned monopoly at the time of its creation. ICANN has made remarkable strides in introducing competition to the wholesale and retail domain name markets. Buyers of Internet addresses can choose from among hundreds of retail registrars selling addresses in dozens of top-level Internet domains like .com, .info and .biz -- all operated by different wholesale registries. As options for consumers have increased, prices have plummeted, and address sellers have broadened their service offerings in order to woo consumers in the competitive market. Preserving the stability of the DNS is another of ICANN's charter responsibilities, and here too, the organization has an impressive track record. The DNS under ICANN oversight has resisted both internal failures and external attacks. Much of that stability can be attributed to the ingenious design of the Internet's addressing system and to the extensive investments in security and redundancy made by the companies and organizations that operate the Internet's infrastructure, but credit too is owed to ICANN, which has made stability its top priority in recent years. It is ICANN's track record in preserving DNS stability that makes so many in the Internet community reticent to consider major changes to global Internet management. Any future changes to Internet management must be made in a way that preserves the strong framework for global DNS stability established by ICANN. While ICANN has made commendable progress in fostering competition and preserving DNS stability, the same cannot be said for the important goals of facilitating broad user representation and developing a system of private, bottom-up coordination. ICANN's failings are most apparent in the areas of representation and transparency. Under its original charter ICANN was intended to have a board divided equally between Internet "stakeholders" (Internet companies, standards-setting bodies, etc) and "at-large" members elected to represent the broad Internet community. Although those Internet stakeholders have always had a place at the ICANN table, the at-large representation has never materialized in a meaningful way. ICANN experimented with global at large elections in 2000, allowing Internet users from five regions of the world to elect one representative each to the 19-member board of directors. While still far short of the 50-50 mix envisioned in ICANN's founding documents, it was a strong step toward representation. But in 2002, ICANN inexplicably voted to end public elections altogether and restructure its board makeup permanently. Now, the ICANN board includes no elected representatives, and ICANN's poorly coordinated efforts to develop an "at-large constituency" to represent Internet users have yielded little success. Achieving representation would address many of the underlying concerns about ICANN. At a core level, a representative ICANN would be more responsive and accessible to ordinary Internet users. Also, regular elections would give Internet stakeholders around the world an outlet to redress their grievances with ICANN and play an active, definable role in the process. The current international tension over ICANN may never have reached its current level, had ICANN early on committed to establishing a meaningful system of global representation. Equally troubling is that ICANN has made little effort and even less progress toward improving the transparency of its decision-making processes. Too much deliberation on important issues still takes behind closed doors and on private phone calls. ICANN's non- appointed, full-time staff is still perceived as wielding too much influence in setting ICANN policy. Absent real representation, this lack of transparency has dealt a serious blow to ICANN's efforts to establish a truly bottom-up coordination structure. Most people outside the ICANN structure and even some that are ostensibly participating in the "bottom-up coordination" remain perplexed as to how ICANN reaches its decisions and which stakeholder groups maintain the real influence with decision makers. Regardless of any other issues, no serious consideration of cutting the ties between ICANN and NTIA should begin until 1) the organization has demonstrated that it can operate in an open and transparent manner and 2) meaningful structures have been put in place to ensure that ordinary Internet users assume and retain an appropriate role in the ICANN decision-making process. ------------------------------------------- (3) New Milestones for ICANN Autonomy May be Needed It has become commonplace in the ICANN debate for defenders of the status quo to simply point out the ways in which ICANN has failed to meet its obligations under the MOU as a tactic to head off any debate about altering the organization's oversight. But while members of the US Internet community may have determined that maintaining the status quo is the best of all the flawed alternatives currently available, it is still important -- for the sake of having a meaningful debate -- to ask whether those tasks should remain the only prerequisites for creating an autonomous ICANN. To be clear, all of the existing milestones remain relevant. An autonomous ICANN would need minimally to preserve DNS stability, encourage competition, provide appropriate representation for all stakeholders and operate in a transparent, bottom-up manner. Future agreements with ICANN should be written with the aim of urging ICANN to continue striving to meet those fundamental requirements. But none of those accomplishments will be of any value if ICANN is cut free from its existing US government tethers only to be recaptured by other governments. If the ultimate goal for ICANN remains that it evolve into an autonomous, nongovernmental body with a representative, bottom-up management structure, it is important to examine the potential threats such an organization could face in the current geopolitical environment. The recently concluded World Summit on the Information Society (WSIS) demonstrated that there is considerable interest among governments in playing a more active role in Internet governance. For supporters of a nongovernmental management structure, replacing US Government oversight with that of a intergovernmental bureaucracy would solve nothing. Under the current, imperfect structure, ICANN is protected from external capture by its contractual bonds with the US Government, but it remains unclear how an autonomous ICANN would fare upon dissolution of those agreements. It may be worthwhile for NTIA to commission an expert panel to study the issues associated with freeing ICANN from US oversight and to propose mechanisms to ensure that a potentially autonomous ICANN would be able remain autonomous upon release from its contractual obligations. And while capture is the most serious issue not addressed by the existing set of tasks and milestones, it may also be worthwhile for such a panel to engage in a broader examination of what new considerations should be taken into account as NTIA and ICANN prepare for the future. Such a study may suggest important new milestones for ICANN and one that helps preserve the continued stability of DNS management. Meanwhile, even as NTIA gauges the progress ICANN has made toward the milestones established in the MOU, and examines what other issues it may need to consider as it explores the possibility of relinquishing its contractual ties, the agency should also consider what steps it can take to lessen its own impact on the ICANN process. As noted above, NTIA has done a mostly laudable job of not interfering with ICANN's decision-making process, but its record is not unblemished. Members of the world Internet community were rightly outraged when the NTIA sent a letter pressuring ICANN to delay the creation of a new ".xxx" Internet domain intended for use by adult content providers. To those critical of the current structure, that episode provided the clearest illustration yet of the inherent inequity of US Government oversight. ICANN may not be ready to stand on its own, but that should not prevent the NTIA from looking into ways in which it may be able to contractually lessen its involvement in the ICANN process, without severing its ties completely. A good-faith plan to reduce the already limited amount of NTIA involvement in ICANN's activities would demonstrate to the world that the United States is serious about promoting non-governmental, bottom-up control of the DNS. -------------------------------------------------------- Detailed information about online civil liberties issues may be found at http://www.cdt.org/ This document may be redistributed freely in full or linked to http://www.cdt.org/publications/policyposts/2006/13 Excerpts may be re-posted with prior permission of dmcguire@cdt.org Policy Post 12.13 Copyright 2006 Center for Democracy and Technology -- To subscribe to CDT's Activist Network, sign up at: http://www.cdt.org/join/ If you ever wish to remove yourself from the list, unsubscribe at: http://www.cdt.org/action/unsubscribe.shtml If you just want to change your address, you should unsubscribe yourself and then sign up again or contact: < > -- Michael Clark, Grassroots Webmaster PGP Key available on keyservers Center for Democracy and Technology 1634 Eye Street NW, Suite 1100 Washington, DC 20006 http://www.cdt.org/ voice: 202-637-9800 fax: 202-637-0968 ================== HURIDOCS-Tech listserv ===================== Send mail intended for the list to < >. 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