NTIA Proceeding on ICANN

[Milton Mueller]

Many of you are already aware of the important U.S. Commerce Dept.
Notice of Inquiry on ICANN.
http://www.ntia.doc.gov/ntiahome/frnotices/2006/NOI_DNS_Transition_0506.htm

Comments are due July 7, and a public meeting will be held July 26 in
Washington to discuss the results.

It is important that the community respond to this. The discussion
points below were developed by me and some colleagues at the Internet
Governance Project.

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Initial Discussion Points on the NTIA proceeding

The numbered points below correspond to the numbers in the NTIA Notice
of Inquiry (NOI).

1.	The 1998 White Paper articulated the following four principles
to guide DNS policy: stability; competition; private, bottom-up
coordination; and  representation. Are these principles still relevant?

This is probably the most important area to concentrate comments -- the
level of principle. I would suggest that three of the four principles
(stability,  competition, and representation) are still relevant.
Serious questions, however, arise around the principle of private,
bottom-up coordination. In the  original understanding at ICANN's
creation, the special USG oversight role was supposed to end after two
years. It never did. Last year, the USG asserted for  the first time a
principle that it will always retain a unilateral oversight role. This
new principle deviates from the White Paper principles. We know from the
WGIG Report and the Tunis Agenda that many in the international
community do not approve of this.

The pre-eminent position of the USG has enormous consequences for
ICANN's accountability. The White Paper strategy was to
"internationalize via  privatization." ICANN would be made globally
accountable and representative by relying on private, multi-stakeholder
mechanisms for policy making while  avoiding intergovernmental
mechanisms. The term "privatization" is not popular among many in civil
society but one must understand that in many respects it  is easier for
civil society and governments to hold ICANN accountable if it is a
private, nonprofit corporation than if it is an international treaty
organization or quasi-governmental entity. Private nonprofit corps are
subject to all kinds of regulations regarding disclosure of financial
information,  etc. and cannot be shielded by powerful states such as the
USG.

The USG and international community must to come to grips with the
contradiction between the principle of "internationalization via
privatization" and the  privileged position of one national government.
Civil society and/or IGC comments should highlight this contradiction.

The NTIA Notice of Inquiry speaks repeatedly of a "transition" to a
"privatized DNS." We should ask, What is the end state of this
transition? and make  specific and practical proposals to find a way out
of the contradictions of the US position. There are basically 4
options:

a. Status quo. Leave things as they are. Unacceptable.

b. Amelioration. Accept US control but take concrete steps to minimize
and neutralize it; e.g., proposing that the U.S. issue a formal
commitment not to make arbitrary changes.

c. De-nationalization. End U.S. oversight, make ICANN a private corp.
under a specific national law (California public benefit corporation law
is quite good,  by the way) and thus subject to all the normal legal
checks that can be applied to corporations, such as antitrust law,
contract law, etc. There are other  details, such as a host country
agreement that would exempt ICANN from being bound by certain national
policies. There might also be a call for certain  procedural safeguards
and personnel changes needed to make this option secure.

d. Internationalization. Involve more governments in ICANN?s
supervision via a formal intergovernmental agreement. The degree of
internationalization can be arranged on a spectrum ranging from the
weakest (a very narrow DNS root-centered agreement, or an international
body that managed a competitive bid process  to award the IANA contract)
to stronger, wider-scope forms of involvement (e.g., a framework
convention).

IGP has a paper from 6 months ago basically advocating #3. Some
elements of #4 or even #2 could be acceptable.

2. Has ICANN achieved sufficient progress in accomplishing the tasks
set out for it in the MoU?

This question gets one involved in the details of the tasks set for
ICANN by the NTIA. Strategically, I suggest that we not get too involved
in this. If we  do anything here, we should criticize ICANN's failure to
develop a new TLD process and its bias against privacy in its handling
of the Whois issue. The Whois  bias can again be related to the USG?s
unilateral oversight, showing how US policy toward privacy is foisted on
the global community through its control of  ICANN, and belying US
claims of neutral stewardship.

3. Are these core tasks and milestones still relevant to facilitate
this transition and meet the goals outlined in the DNS White Paper and
the U.S.  Principles on the Internet?s Domain Name and Addressing
System?  Should new or revised tasks/methods be considered in order for
the transition to occur?  And  on what time frame and by what method
should a transition occur?

This item opens up discussion not only of the MoU substance, but the
process of oversight as well. Here I think we should be ready with a
specific timetable  for change, based on elaboration of one of the four
options discussed above. If our proposals involve any new tasks, such as
a competitive bid process for  IANA, it might go here.

4. Are stakeholder groups involved effectively? Are there additional
stakeholder groups?

CS actors from developing countries may wish to address this issue. I
would not presume to speak for them so will await comments.

>From an ICANN-veteran perspective, the major issue revolves around the
role of the At Large (ALAC). ALAC is supposed to represent the
individual Internet  user and domain name registrants. Its proposed
structure under the "reformed" ICANN is not workable. IGP partners,
especially Klein and Mueller, have always  advocated a return to direct
elections as a way of solving the collective action problem for
representation of individual users.

This section might also provide a way to discuss the issue of
governments and the changing role of the GAC in ICANN. We could argue
that governments are not  involved properly -- instead of participating
as equals in the development of policy they are trying for an after the
fact veto, which is destructive.

5.	Are ICANN SOs doing their job and functioning properly?

For a broader civil society constituency I think this is a minor issue
and need not be addressed. If it is addressed, we could make all the
usual and obvious  arguments about the biased constituency structure of
the GNSO. Others with more information about the address SO and the
country code SO might have something  to say here.

6.	Automation of request processing for root zone changes.

This is one of the most promising areas where NTIA actually seems
likely to introduce a meaningful change. Automated request processing
basically reduces the  power of the root administrator and allows ccTLDs
and presumably other registries to modify the root zone file on their
own. We should support this idea.

7.	How can information exchange, collaboration and enhanced
cooperation among these organizations be achieved as called for by the
WSIS?

Participate in good faith in the IG Forum. Here is a chance to
elaborate the proper vision for the Forum, where cross-cutting issues
are considered and  international and intergovernmental organizations
are subjected to independent assessment.