[ncdnhc-discuss] CPTech comments on ICANN reform

[James Love]

http://www.cptech.org/ecom/icann/reform-comments.html

To:       Committee on ICANN Reform and Evolution
          reform-comments at icann.org

From:     James Love, Consumer Project on Technology
          Mailto:James.Love at Cptech.Org
          http://www.cptech.org

Re:       Comments on ICANN Reform and Evolution.*
Date:     30 April 2002

Introduction

1)   The following are the comments of the Consumer Project
  on Technology (CPTech).  CPTech was created by Ralph Nader
  to provide comments on consumer policy concerns involving
  new technologies, including information technologies.
  CPTech is a member of the DSNO constituency for non-
  commercial domain name owners.  We appreciate the
  opportunity to offer comments on the Committee on ICANN
  Reform and Evolution.

Powerful or Weak, broad or narrow?

2)   Most of the ICANN critics are concerned about ICANN's
  current and potential power, and have proposed a number of
  mechanisms to decentralize decision making or weaken or
  limit ICANN's policy making authority.  ICANN's staff and
  board no longer shrinks from openly discussing ICANN's
  "policy making" functions, and appears to aggressively
  resist efforts to decentralize decision making or share
  power.   This seems to be a key issue.  Is it desirable to
  have a strong centralized policy making body that uses its
  control over key Internet names and numbering resources to
  advance general Internet governance issues?  Is it better to
  have a minimalist organization that addresses only narrow
  DNS issues that require global cooperation, such as
  resolving disputes over the uniqueness of top level domain
  names, or other coordination tasks?

3)   In our opinion, ICANN should be the weaker alternative,
  a body with few powers of coercion, dealing only with
  coordination in areas where coordination is truly needed.

4)   To some extent, ICANN was designed to be powerful
  enough to impose an alternative dispute resolution (ADR)
  system for domain name registries, in order to reduce the
  costs of cybersquatting or trademark infringement, and to
  force registries to maintain accurate and accessible
  information on the owners of domain names, for the benefit
  of copyright owners and law enforcement officials.  Now
  that an institution was created that can do these tasks,
  there are concerns regarding other tasks ICANN may be asked
  to do, and questions about who should choose the members of
  the ICANN board.

5)   The Lynn proposal would make ICANN more powerful.  Lynn
  proposed to eliminate the requirements for bottom up
  consensus building processes, which tend to limit ICANN's
  powers.  The ICANN staff and board refused to implement the
  independent review procedure, and Lynn offered an ombudsman
  as an alternative that would restrain ICANN less.  The board
  eliminated the at large elections and its only popularly
  elected board members, and this is widely perceived as an
  effort to eliminate board members who sought to limit
  ICANN's policy making powers, and evidence that the ICANN
  board is not comfortable with the views of the majority of
  Internet users who oppose the notion of creating a powerful
  centralized institution that can exercise control over
  Internet activities.

6)   There is a concern among many persons that ICANN is
  falling into an empire building mode.  It may be unnatural
  for a board or staff to find ways to limit their own power,
  but this is in fact what many (non-staff and non-board)
  people want.   There are certainly many important issues
  that relate to the Internet, but ICANN should not be the
  solution for every problem.  Most of the board members give
  lip service to the need to limit mission creep, but have
  been reluctant to create mechanisms that would truly prevent
  ICANN from using its power to address new issues.

7)   To demonstrate some sensitivity to this issue, it would
  be helpful if the Committee on Reform and Evolution could at
  least explain why it is dangerous to give any one entity too
  much power over the Internet.  Some notion or theory as to
  what the dangers are would help one evaluate the proposals
  for reform.  Depending upon who one fears the most, perhaps
  it  would be good to imagine ICANN controlled by any (take
  your pick) of the following entities:

  a)   Microsoft
  b)   The Motion Picture Association of America
  c)   The Chinese Government
  d)   The 2600 Club

  If the board can understand why an ICANN controlled by
  any of these parties would present a concern, perhaps
  they can understand how others feel about an unrestrained
  ICANN dominated by a particular group.  Most of the
  efforts to limit's ICANN's powers are to prevent ICANN
  from being a negative influence on the Internet, by
  stifling innovation, limiting competition, favoring
  cronies, or using its powers to advance intrusive systems
  of surveillance or control speech, such as those
  advocated by some of the groups listed above.  Also
  troubling is the prospect that an undemocratic
  organization would assume even broader policy making
  functions, without adequate representation from the
  general public.  There is a concern that power can
  corrupt, or put another way, that power attracts forces
  that will seek to exploit power.  For all of these
  reasons, there is interest in shrinking ICANN, or at
  least limiting its growth.


Decentralized or Centralized?

8)   ICANN was designed to centralize control over Internet
  resources, but most of its power is presently related to its
  control over top level domains.  It seems as though the
  protocol and numbering supporting organizations have much
  stronger internal decision making traditions, and it appears
  to be much more difficult (at present) for ICANN to impose
  its will on these groups.  In contrast, ICANN has turned the
  DNSO into essentially an advisory board, ignoring its
  recommendations when it wants (such as the DNSO
  recommendation for .org), or even micromanaging domain name
  decisions, such as the ICANN board's insistence that the
  airline industry use .aero instead of .air, for its new top
  level domain.

9)   We support far greater decentralization of decision
  making.  We think that decentralization should include
  greater separation or independence for the three supporting
  organizations, and probably the separation of the management
  of IANA and other ICANN managed functions.   We will defer
  to others on the specifics of these issues, and focus more
  on issues concerning the DNSO.

Decentralize DNSO decision making

10)  The DNSO was created to allow ICANN to deal with domain
  name policy issues.  The DNSO is the step child of the SOs.
  It lacks the respect and authority of the other SOs.  The
  ASO is make up of three currently existing regional internet
  registries (APNIC, ARIN, and RIPE NCC).  The PSO was formed
  by the Internet Engineering Task Force (IETF), the World
  Wide Web Consortium (W3C), the International
  Telecommunications Union (ITU); and the European
  Telecommunications Standards Institute (ETSI).  Unlike these
  SOs, the DNSO was not made up of existing groups.  Every
  constituency in the DNSO is new, and has no separate
  existence apart from ICANN.  The DNSO is both the most
  important area for ICANN policy making, and the area where
  there have been the most problems.

11)  ICANN's policy making for domain names includes this
  non-exhaustive list:

  a)   The protection of trademarks as they relate to domain
     names, including such provisions as the UDRP, new TLD
     sunrise protection for trademark owners.
  b)   The maintenance and disclosure of accurate whois data
     to protect copyright owners, and assist law enforcement
     officials and others who rely upon this information for
     law enforcement or civil litigation purposes.
  c)   The reassignment of ccTLD registries, when the
     incumbent operator fails to function properly, according
     to ICANN.
  d)   The regulation of entry by new TLDs,
  e)   Regulation of gTLD registry prices.
  f)   The regulation of gTLD registrars.
  g)   The regulation of gTLD registry management models, such
      as the requirement to use ICANN approved third party
      registrars.
  h)    The operation of some specialized TLDs.

12)  The politics associated with the DNSO related functions
  have been extensive, and without getting into details, it is
  sufficient to note that ICANN has been criticized for
  becoming an overly controlling body, captured to some degree
  by registry and registrar interests, and for lacking
  sensitivity to some non-technical issues.  ICANN's sense of
  power and control is so large that it rejected proposals by
  the United Nations to run a .un registry and the World
  Health Organization to run a .health registry.  The
  International Confederation of Free Trade Unions (ICFTU) was
  rejected in its bid to run a .union registry.  Some
  organizations that did obtain the few ICANN approved new
  gTLDs reported having spent considerable resources for well
  connected lobbyists, consultants and lawyers to obtain
  ICANN's approval.

13)  As much as the current ICANN board and staff apparently
  enjoys its tight control over the approval of new TLDs, it
  is clear that the current model of favoritism, arbitrary
  choices and top level micromanagement is flawed.

14)  The ICANN board needs to do something that does not
  come naturally.  It needs to give up power, and allow others
  to make more of the decisions.  Specifically, it should
  allow national governments or regional DNSO like bodies to
  authorize new TLDs, subject to coordination with ICANN on
  issues such as the uniqueness of TLD strings, the
  maintenance of minimum technical standards and those policy
  decisions which must be made at a global level, such as, for
  example, the UDRP or some issues relating to whois data.

15)  The government model for this might work as follows.
  If the European Commission wanted to authorize the ICFTU to
  create .union, or the World Health Organization to create
  .health, or if the US Department of Commerce wanted to
  authorize the creation of .movie, this could proceed, with
  minimal interference from ICANN.   Here I would suggest a
  simple model where countries would authorize the initial
  application, and ICANN would only review those aspects of
  the proposal that ICANN needed to review.

16)  A regional DNSO model would be similar.  The regional
  DNSO would do many of the same things that ICANN does now,
  but without the incentives to block entry by new TLDs.  Any
  regional DNSO that acted slowly, like ICANN does now, would
  simply sit by and watch other regions launch new TLDs.

17)  In the event that there was a controversy over the
  allocation of a particular string (such as .asia, .law,
  etc.), ICANN could resolve such disputes.  But there is
  little reason for ICANN to be engaged in the type of detail
  it now addresses in regulation of gTLDs.  Note that from
  1995 to 2000 more than 100 new ccTLDs were added to the root
  without harm to the Internet, and without ICANN style
  regulation.  To the degree that there are issues concerning
  use of dictionary names, ICANN could ration or limit the
  number of dictionary names any one country or region could
  use, in relevant languages.  ICANN could also address
  complaints about confusingly similar TLD strings.  The
  advantage of decentralization of other decisions is that
  different decision making bodies will innovate or protect
  different values.  Europe might provide for stronger
  protections for privacy of personal information, or more
  detailed consumer protection rules.  The US might do more
  (or less) in terms of addressing pricing issues.  Some
  cultures might have different views of the uses of certain
  SLDs.  In fact, one observes differences on these issues in
  the current ccTLD market.  Diversity of regulatory regimes
  on issues that do not require common global approaches is a
  good thing, not something to eliminate.

REPRESENTATIONOF CONSUMER INTERESTS IN SOs.

18)  The ICANN SOs are now all dominated by business
  interests, and this is certainly true for the DNSO.   The
  Lynn plan is very much focused on business interests.  The
  ICANN board has eliminated the at large elections which
  would allow consumers and individuals to have more of a say
  in ICANN policy, and among the three SOs, consumer interests
  have virtually zero power.

19)  If ICANN's policies had no impact on users or the
  general public, this would not be very important.  But ICANN
  routinely engages in policy making that has an impact on a
  broad public.  Decisions about whether or not to allow
  unions or the WHO to create new TLDs are not only technical
  issues.  Decisions about privacy, appropriate levels of
  consumer protection for domain name registrations, or the
  reassignment of the .org registry, are matters of
  significant concern to users.  How can we be happy about a
  system that gives ICANN enormous discretionary powers, but
  gives users no power to influence those decisions?

20)  ICANN could fix this if it wanted to.  For example, it
  could embrace the newly organized ICANN-at large effort as a
  SO, with the right to put persons on the ICANN board.  The
  DNSO could be fixed so that at least half its members
  represent user interests, as was suggested by TACD.

21)  ICANN should stop charging user interests to have a say
  in ICANN matters.  Providers of DNS services can pay money
  to participate in ICANN.  End user interests typically
  cannot.  In the case of domain names, the domain name
  holders pay to register domains.  The registrars and
  registries can pay fees to ICANN, but if you treat users as
  if they were businesses, you won't get much participation
  from users.  The ITU has a process for fee waivers that is
  used for NGOs, including the Internet Society.  The WTO, the
  WHO and lots of UN bodies allow civil society and consumer
  NGOs to participate without paying fees.  This is done to
  ensure that the global governing bodies benefit from the
  input of civil society and consumer interests.  That is how
  responsible big league global institutions act.   ICANN
  needs to grow up and realize it isn't a trade association,
  selling the right to vote.

Boundaries on ICANN policy making.


22)  We are interested in the proposal by the ITU to work
  with ICANN on a boundary statement.  The current ICANN legal
  status is as follows.  ICANN can and routinely does change
  its bylaws.  Any part of the ICANN articles of incorporation
  can be changed by a 2/3 vote of its board.  The staff is
  increasingly candid about its desire to engage in a broader
  policy making agenda.  We need more than a series of "we
  can" statements.  We need some "we can't" statements.  The
  ITU is the only global body that has shown even remote
  interest in addressing this thorny issue.  If the ITU is
  jealous of ICANN's authority, it may still serve a useful
  purpose, by helping to craft a more narrow boundary for
  ICANN policy making.  If the ITU is unacceptable, because of
  its well documented efforts in the past to block the
  development of the Internet in order to protect local phone
  monopolies, then there should be an alternative, including
  possibly a sui generis agreement between ICANN and a group
  of countries, such as the present membership of the GAC.
  Indeed, if the ITU isn't the right intergovernmental body,
  perhaps the GAC is.

23)  The GAC could be asked to negotiate a contract with
  ICANN that provides ICANN with terms of reference regarding
  the boundaries of its policy making authority.


Choosing ICANN board members

24)   I am putting this issue last because I think it is
  related to the boundaries of ICANN policy making and the
  degree to which decisions are decentralized.  There are
  probably lots of ways that would work.   There are some that
  are clearly objectionable.  The Lynn proposal is
  objectionable.  It would basically create a self-
  perpetuating board, even setting out the possibility of
  salaries and compensation for board members.  This must be a
  dream for some of the ICANN insiders, but it is a nightmare
  for ICANN outsiders.

25)  ICANN promised the NTIA that it would have elections
  for half its board members.  It has not done so, and it has
  shown itself extremely uncomfortable with even a small
  amount of dissent.  This is not reassuring.  There is no
  support anywhere to give ICANN a blank check in terms of
  authority without accountability based only upon some notion
  that the current board are good people who will pick highly
  qualified board members.  This isn't enough.  The "trust
  good people" system of running the DNS system pretty much
  died when Jon Postel passed away.  This Committee on Reform
  has to come up with a coherent explanation as to how it
  chooses its board members.  One simple test would be to
  create a system that can be populated by a new board, with
  none of the current incumbents, and without any votes from
  the current board.   The current board would be the
  outsiders, looking in, and this would be a one test of the
  fairness of the new system.

26)  As long as ICANN exercises significant discretionary
  policymaking authority, it needs to be accountable to
  outside bodies.  The election of board members from the SOs
  is bottom up accountability.  The election of board members
  from an at large membership (even as an at large SO) is
  another.  But regardless of which system is in place, board
  members must be elected by someone other than the board
  itself.

27)  If ICANN is going to make policy that affects the
  general public (or end users of domains), the general public
  (or end users of domains) should have the opportunity
  to elect people to the ICANN Board.

28)  The more ICANN decentralizes the real policy making
  functions, the less anyone will care who is on the ICANN
  board.  The more ICANN sets itself up a central planning
  body for the Internet, the more *everyone* will care who is
  on the ICANN board.


* corrected for typos.

--------------------------------
James Love mailto:james.love at cptech.org
http://www.cptech.org +1.202.387.8030 mobile +1.202.361.3040