When the Enron scandal broke, many analysts warned, “There
are lots of other Enrons out there.” One such corporation,
ICANN, is in the
process of breaking up now.
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:
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That it has made little progress on the key Internet issues
for which it was formed.
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That it is encumbered with a structure far more complex than
its tasks or size demand.
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That its attempts at accountability are “artificial.”
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That it is living outside of its financial means.
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That its obscurantist process has driven away many important
potential participants.
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
href="http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm">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.
Should ICANN be allowed to replace ICANN?
