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 Internets “A” root server, the database that makes up the Internets 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 anyones 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 Internets root, or whether it was just punting tough policy decisions under international pressure to break the U.S. monopoly on the Internets 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 groups initial, appointed board and a changing perception about what the governments 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. “Its 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 ICANNs formation. “Theres 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, ICANNs outside counsel and a central figure in the companys birth.
That job now falls largely to Vint Cerf, one of the Internets 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 systems security. ICANN hopes to make a formal proposal to the Bush administration in a few months.
“I am confident we will get there. Its 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
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 Committees 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 panels 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.
ICANN sprang from magaziners 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
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 ICANNs first actions was to set rules on who can and cannot register trademarks as domain names, ICANNs 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 Committees 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 wasnt 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 Commissions internal market directorate, said, “Its 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, “Weve 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 administrations 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 groups initial board, said the idea of the private sector taking complete control was “a stupid, nonsensical goal.”
Some insist that gaining control of the root server is not ICANNs 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 dont 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 groups 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 doesnt smell of money.”
Among ICANNs 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 ICANNs 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 Postels lawyer and stayed on with ICANN after Postels 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 “cant 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 Schools 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 ICANNs operations. The ccTLD operators, however, said they want a greater role within ICANN and clear contracts stating what authority ICANN does and doesnt 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 ICANNs 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. ICANNs 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.
“Lets assume ICANN had never been created,” he said. “Somebody would say a multinational organization ought to be formed. Then youd have some people in Congress saying, We own this; we dont 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 sheriffs role of the government to keep order. Who else are you going to give that job to?”
And even some of ICANNs 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. Wed end up with something like the FCC in the 1950s, facilitating AT&T, and the consumer be damned.”