The big ICANN roll-back
Like Enron, ICANN led a charmed life and received favor after favor from governments and corporations alike, in disregard of its dubious behavior. Like Enron, ICANN was run like a private corporation but threw its weight around everywhere on public policy. Like Enron, ICANN had every avenue open to success and yet failed, wasting huge amounts of money in the process. ICANN is even facing its own incipient financial scandal, stemming from its refusal to show its books to one of its own Board members.
On February 24 came the latest in a series of scathing critiques of ICANN that have emerged on a regular basis since the institution was first proposed out of the blue to a surprised public by the Internet Assigned Number Authority and the monopoly domain name registrar, Network Solutions. What is novel about the current critique is its author—the president of ICANN.
Many of President M. Stuart Lynn's critical points are reminiscent of those leveled by critics outside ICANN:
Mr. Lynn's solutions differ radically, of course, from those of the best-known critics outside the organizations. These critics have highlighted the far-reaching implications of his proposals by calling them "ICANN 2.0." Even that epithet understates the case, because Lynn is actually threatening to revoke all the contracts and memoranda on which ICANN was based and start over, doing whatever he wants in their stead.
Recalling the original documents and "near consensus" that predated ICANN, law professor Michael Froomkin writes, "The Lynn paper seeks to throw it all out, pretty much single handedly, and does so in a way that does violence to the substance and spirit of the original deal—and without much thought for what motivated it either."
To start with, Lynn's definition of the problems is self-serving. For instance, he is correct to label as overly ambitious, and perhaps counterproductive, ICANN's attempt to set up elections that involve every interested Internet user in the whole world. However, he wouldn't dare admit that this experiment, awkward as it was, created just about the only toehold for democratic activity in ICANN. In fact, two well-informed and severe critics of the organization were elected to the board, and this is probably what scared its leaders away from voting, not its theoretical weaknesses. (I don't feel sure, though, that an expansion of this cumbersome voting method would have produced more democracy. It might well have led to abuse and capture once powerful observers figured out how to play the game.)
I admire Lynn's boldness in throwing off the cloak of rhetoric and bureaucracy that has shielded ICANN up to now from facing its problems. He has taken the gamble of opening up a debate that ICANN proponents have been vigorously suppressing for four years. The question is, since ICANN has failed, why should we bother listening to a solution that comes from inside ICANN?
Given that ICANN made only laughable and token efforts in major areas (such as its seven new top-level domains), and given that it has renounced the "appropriate membership mechanisms" required by the memorandum in which the U.S. Commerce Department gave ICANN legal backing, why should we prolong its expensive tenure or grant its leaders any more power?
(The origin of the "appropriate membership mechanisms" clause is historically pertinent. The Commerce Department was persuaded by a group of expert critics, the Boston Working Group, to insert this clause. It was seen as a necessary check on the power of a private corporation that controls a key part of the information infrastructure. One of the Boston Working Group members, Karl Auerbach, became one of the dissident board members elected through the democratic experiment that resulted from the clause. He has subsequently challenged many of the organization's seamy procedures and made it harder for the old boys' club to roll along as it had before.)
What is to prevent the Commerce Department from thanking all the ICANN board members, staff, and volunteers for their efforts, then sending them home? We could easily roll back the debate four years and start again the public process that was aborted by the creation of ICANN. If Lynn were really willing to make "hard decisions" and work from a "candid assessment of ICANN's performance," he would have reached the same conclusion.
Several observers, including David R. Johnson and Susan P. Crawford in their paper ICANN 2.0, explain that ICANN is under contract to domain-name registries and registrars and cannot unilaterally change all the rules of the game. Lynn's proposals were rejected even by RIPE NCC, an IP address assignment authority and one of the Internet's most central and long-established organizations.
Many who currently follow ICANN's antics do not know what the domain name debate was like before ICANN was proposed. In truth, many healthy activities were taking place. In 1997 and 1998, the Commerce Department started an open, public comment process and released a White Paper that provided a focal point for all the groups interested in domain names. The locus for discussion was called the International Forum on the White Paper (IFWP) and was the only organization in the history of this sorry affair that included all stake-holders. They were making progress toward consensus, too, when they were pre-empted and undermined by the proposal to create ICANN.
The initial board of ICANN was chosen by a small group of people in a secret process. No one on that board had prior experience in areas of Internet policy. The backers of ICANN probably thought this strategy would maximize the power of the puppeteers hidden in the rafters, but instead it created paralysis and incompetence. Thus, ICANN did not fulfill the White Paper so much as flout it. The organization has labored unsuccessfully since its inception to gain legitimacy; in his aggressive treatment Lynn could well have dealt his patient the death blow.
The environment now is quite different from what it was in the Spring of 1998, of course. The World Intellectual Property Organization is trying to make policy in domain names, as the U.S. government asked it to do in the White Paper (though it certainly needed no invitation). Relationships between participants in the debate have been reshuffled by new laws such as the ill-considered "Trademark Cyberpiracy Prevention Act," passed by the U.S. in a whirlwind of back-hall trading. Good or bad, such laws have given trademark holders the powers they were asking ICANN and WIPO for.
Meanwhile, many of the best contributors to the debate in 1998 have experienced cynicism and burn-out. Few people have the patience for a truly consensual decision-making process; someone is going to have to take a little more control. This time, however, the solution should reflect the expertise of Internet leaders who have studied the domain name issue all these years.
As Lynn points out in his report, the high-tech economy is very different now from when ICANN was formed. This may actually be good for debate. The dot-com boom of the late 1990s made corporations drunk with excitement about getting on the Internet; they felt that the Information Highway was paved with gold that was theirs to enjoy if only they gained control. That is why the stakes seemed so high in the debate between trademark holders and ordinary folks on the Internet. Now these businesses are humbler and less convinced that domination will lead to profit. A sane policy for domain names is possibly more likely to get a hearing.
ICANN itself has changed the environment in ways that we can't reverse, and probably don't want to. For instance, there's no point in eliminating the handful of new top-level domains they created, or in taking away the power of the new registrars with which they signed contracts. But the significance of these domains and registrars (such as it is) will soon vanish in the swarm of new TLDs that a new body can create. This would also be a good time to recognize the thriving world of alternative domains that is already in operation thanks to the Open Root Server Confederation (ORSC), Name.Space, New.net, and others.
Similarly, we should probably keep the Uniform Domain-Name Dispute-Resolution Policy (UDRP) over which so many people toiled. As a document, it is not too bad. But the accompanying rules that (inconsistently) guide its implementation have to be completely overhauled. One of the key issues, given the severe bias in the current system shown by Michael Geist and others, is how to provide expedient and low-cost arbitrators who do not favor either side. (By the way, Geist has just updated his study to show that things have not improved.) Furthermore, new TLDs should be created that are safe havens from the policy; there should be a Hyde Park Corner in domain name space.
In short, the few accomplishments that ICANN managed to put in place can stay. Lots more remains to be done.
For instance, the most important addressing issue that faces the Internet today—rendering the fuss over domain names almost trivial—is the global implementation of IPv6, a new Internet numbering system that will greatly increase end-user participation and make network administration and routing easier. One would expect the body responsible for assigning addresses to take a leading role in promoting this historic shift, and whatever body succeeds ICANN will hopefully do so.
In conclusion, it takes a lot of audacity—to use a polite word—for an organization that tried and failed to gain hegemony over an area of public policy to ask for a second chance. In order to cut short an argument over who gets to kick off the new process (an issue I have previously referred to as "booting the system for Internet decision-making"), I recommend we return to the White Paper and the Commerce Department. There are certainly many other stakeholders who are more informed and mobilized to lead; one candidate, in fact, is the Civil Society Democracy Project set up by the organization I support, Computer Professionals for Social Responsibility. But to prevent destructive power plays, the simplest solution is to ask for consensus on rolling back the process to where it started.
The current Commerce Department cannot boast of the experience and track record that the Clinton Administration showed in high-tech. (They gradually learned that they had to abandon anti-encryption proposals, for instance, and the Commerce Department promoted universal access projects that the Bush Administration is trying to dismantle.) But the current department also doesn't have to answer for the bad decision made by that earlier body in contracting with ICANN. It should be made clear that public interest defenders are not going away and that we will not tolerate another end-run around the transparent discussion process that was originally carried on by the IFWP. Let's see whether we can recapture the openness that everybody claims is the strength of the Internet.
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