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Workshop on Cyberlaw, ICANN and Software Patents

with Lawrence Lessig, Jeanette Hofmann, Rob Blokzijl and Daniel Riek

10. April 2000, Roter Salon der Volksbühne Berlin

-- Jeanette Hofmann: ICANN --

Volker Grassmuck: We should start with the second block of our workshop today which will be on ICANN, the Internet Corporation for Assigned Names and Numbers. The issue will be introduced by Jeanette Hofmann who is a political scientist and has been doing work on the sociology and politics of technology, especially watching what is happening in the area of standardisation, the IETF process and the ICANN process. And I would like to start again -- I have a predeliction for mission statements today -- with another short quote: "Nothing is of greater importance to the future of the global resource that is the Internet then the way in which ICANN performs its role as manager of the domain name system." This is the mission statement of ICANN Watch, not of ICANN itself, but of the watch dog body. "Nothing is of greater importance ....," that is something to chew on. So please, Jeanette Hofmann. 

Janette Hofmann: I have to warn you. I have been asked to give only a short introduction that spares you boring details but sort of frames the agenda, instead. And that is exactly what I'm going to do. I'll give you a short review of the history of ICANN, and then I will highlight some of the problematic aspects that have come up in the meantime. 

ICANN, the Internet Corporation for Assigned Names and Numbers, succeeds another organisation called IANA, the Internet Assigned Number Authority. IANA was an informal offspring of the early Internet community. IANA's job was to manage the various name and number spaces that emerged during the development of the Internet. IANA was regarded as a function performed by a person rather than an organisation. In fact, IANA seemed to consist of one person only: Jon Postel, the great legend among all those legendary fathers of the Net. Up to the early nineties he controlled practically all central functions of the Internet: names, numbers and not least the primary root server. There was nothing unusual about this one-man business. The engineers who once had developed the infrastructure of the Net also administered its resources. 

What was seen as a typical feature and a big advantage of the Internet's management became a problem in the nineties. To put it in engineering terms: The Net's informal model of administration clearly lacks scalebility. The authority of IANA and Jon Postel relied on a small and in many respects very special engineering community: The IETF or Internet Engineering Task Force, the main standards setting body of the Internet. Ingenious wisdom and heroic achievements on which reputation and authority are based in this biotop are rather unknown, are just less admired beyond its borders. In the nineties more and more people who had probably never heard of Jon Postel's outstanding accomplishments began to think about the Net's future. Among them where the WIPO, the World Intellectual Property Organisation, the OECD, the EU and other organisations who had eventually come to discover the economic potential of the Internet. 

Domain names took on a key role in those considerations. The blooming world of e-commerce expressed an urgent need for clear and stable rules regarding the allocation of names. In the meantime, it had dawned upon the IETF that the entire domain name system had been a disaster waiting to happen. Quote: "A flawed and irrelevant system for locating people and things on the Net," as Scott Bradner and others wrote some years ago. According to the IETF the DNS should be substituted by a properly designed directory system. The IETF's ideas didn't succeed. Neither did their claim on the leading role in solving the DNS problem. Governance of the Internet, until then treated as a purely technical task, had become a matter of politics. The world of commercial, political and legal players now demanded a say in the management of the Net. At stake was the sovereignty over the Net's name space. The intellectual property rights of the real world had collided with the original notion of domain names as a public good. 

By 1997 the last attempt to establish a new Internet governance model free of state intervention had failed. The US government had joined the crowd and made clear from the beginning that it intended to take the lead. A conceptual framework was set up by the Department of Commerce which let to the founding of ICANN in late 1998. In a way, the underlying purpose of ICANN is to institutionalise and formalise the administative functions of the Net in a way that partly reallocates the power involved in those functions. Commercial and political actors for instance and even individual users who were excluded from the Net's management have obtained an official address now to voice their concerns and fight for their interests. From another perspective ICANN maybe regarded as a more or less involuntary experiment. An experiment to explore new forms of transnational consensus building. Since the decentralised architecture of the Internet does not lend itself easily to national forms of control a new institutional framework needs to be established. It goes without saying that the process of setting up ICANN is accompanied by a lot of criticism. 

I'm going to mention only a few points as more will come up certainly in the course of the discussion. The first one relates to the process. ICANN is the expression of a particular idea of Internet governance. This idea, this model is not the result of rough consensus building. It has been imposed by the US government against a lot of opposition. ICANN was founded as an American non-profit corporation. Many of those involved in the debate had argued for an international organisation, instead. A pointing question is here the accountability of ICANN. To whom is ICANN accountable? To the American Department of Commerce, which reserves itself the right to terminate its contracts with ICANN? 

This leads us to a second controversy. Contrary to its official statements, the American government shows no intention of giving up its power over the Net. First of all, the US government claims a so called 'dormant' authority over the administration of names and numbers. In the name of safeguarding the stability of the Internet, the DoC may well suspend the whole governance model. What is more, the DoC keeps control over the primary root server and thereby over the root zone file. The administration of the root zone is one of the very few centralised functions on the Net. Authority over the root zone implies far reaching control over the domain name system. Accordingly, the various contracts between the US Department of Commerce, NSI, ICANN, and IANA ensure that no modifications of the zone file are permitted without the agreement of the DoC. In other words, the US government reserves for itself the final decision about the pending DNS reform. No top level domain can be added without its approval. While the Whitepaper, the document issued by the DOC in 1998 which gave sort of an outline of the organisation succeeding IANA, while this Whitepaper states that the Internet should be coordinated in a private manner without direct government intervention, the US government seems to silently exclude itself from this very principle. 

My third and last point concerns the much debated role of users in administrating the Net. According to the bylaws nine of nineteen directors of ICANN are to be elected by individual users of the Net. In order to get the right to vote, users have to become member of the so called at large membership. The at large membership is expected to have five directors representing five world regions elected by November this year. Whether elections of the other four at large directors will follow at some later stage is left open. A change of opinion regarding the at large membership seems to be in the offing. In fact, the board of ICANN has delegated this question to a comprehensive study which according to the minutes of its meeting in Cairo in March shall evaluate the whole at large membership concept. Actually, the rather charming idea of giving even plain users a voice in the management of names and numbers has apparently met with a lot of opposition, lately. During the meeting in Leipzig the other week, the role of the at large membership within ICANN turned out to be one of the most contested topics. 

Interesting enough, the question whether or not users should be permitted to participate in governing the Internet is directly linked to the likewise controversial question about the very nature of ICANN's functions. Are those functions merely technical or are they political, or perhaps both? Needless to say, there was no agreement on this issue in Leipzig. In any case, all those who regard the administration of names and numbers as a technical task look at the impending participation of users or, to be precise, of the directors elected by users, as a potential source of trouble. A general concern of ICANN's board members seems to be that the at large directors might lack qualification or slow down the policy process by raising the wrong questions. Of course, the problem is not new. There is never an easy trade-off between democracy and efficiency. 

The other camp consists of those who think that designing and administrating name and number spaces is a political matter -- a political matter of growing public attention and therefore too important to leave it to small circles of self-appointed experts. After all, the commercial users of the Internet were quite successful in making their interests known and beeing taken care of by ICANN. Why shouldn't then the same rights be granted to private users? And furthermore, could ICANN's authority be called legitimate at all if the majority of users were excluded from the process of consensus building? However, no matter to which camp one belongs, there seems to be a serious problem associated with the project of a democratic self-governance of the Internet. An essential pre-condition for self-governance is the formation of some sort of constituency held together at least by a loose tie of common topics and concerns, norms and principles that every part of this 'self' can relate to. What we see on the Net instead, is a highly fragmented landscape consisting of some well-organised groups, among them standard setting bodies, the commercial domain name holders, the governmental representatives organised in the governmental advisory committee and so forth, and on the other hand, millions of individual users who seem to have nothing in common whatsoever. How, one may ask, can such diverse approaches to using the Net to be organised and articulated in order to form something that deserves to be called 'the interest of the users'? In other words, what is or could be the distinct collective interest of users that can't be excluded and should play an essential role in governing the Internet? End of introduction. Thank you very much. 


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