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."