Milton Mueller
Associate Professor, Syracuse University School of Information Studies

[Summary by Harish Bhatt, CPSR]

Prof. Mueller began his opening remarks by indicating that he would briefly examine why, in his opinion, ICANN had failed.  To set the context for his analysis, he offered the following definition of the term "governance."  He suggested that governance was "the exploitation of technical bottlenecks or access to technical resources to regulate socio-economic conduct."  By way of example, he stated that a good example of governance at work was in the broadcasting industry.  Mr. Mueller maintained that ICANN was in the business of governance, and not technical coordination, because it sought to exploit a bottleneck over cyberspace to regulate conduct.  He said that this was evident by the position that ICANN had taken in the areas of dispute resolution policy and famous marks, the imposition of a business model on domain name registration, the manner in which Working Group discussions were conducted, and the various sovereignty claims to TLDs.

Mr. Mueller stated that in order to understand what’s wrong with ICANN, and why it was so controversial, it was helpful to first understand the process by which it came into being.  He remarked that the notion of “private sector control” and “self-regulation” did not spring up all of a sudden when [Ira] Magaziner and the NTIA were drafting the White Paper.  He stated that ICANN’s approach was the culmination of a process that began in 1990.  This process began with the formation of the Internet Architecture Board (IAB) in 1990 and the Internet Society (ISOC) in 1992. and ISOC (1990-92).  This was followed by IANA's attempt in 1995-96 to privatize itself, at which point 150 new gTLDs were registered and a fee of $2,000 + 2% of revenues was charged.

Next came the IAHC and the gTLD-MoU era in 1997, during which the major players were ISOC-IANA, WIPO, ITU, and new registrars.  He commented that this period was marked by the adoption of a shared registry model, a "cartelization" of the top-level domain space, and the linkage of domain name assignment to trademark protection.  Mr. Mueller said that it did not matter whether you agreed or disagreed with the gTLD-MoU’s governance agenda.  He maintained that the main point was that it was a governance agenda – i.e. it attempted to use the leverage of the root server system monopoly to impose economic and intellectual property regulation upon the Internet.  It was not pure technical coordination.  Further, he remarked that it did not command a consensus.  Lots of people did not agree with it; indeed, it was extremely divisive within the Internet community.  It was vehemently opposed by consumer activists such as DNRC, academics such as himself, and Internet Service Providers who wanted to enter the domain name market.  Mr. Mueller suggested that attempts to dismiss opposition to that agenda as being entirely driven by NSI (and its attempts to maintain its monopoly) were completely inaccurate.

Next, Mr. Mueller considered developments in connection with the White Paper and ICANN.  He noted that the White Paper essentially abdicated direct government action.  It reflected behind-the-scenes agreement with the United States Government, the Europeans, IBM, WIPO, and ISOC-IANA on governance agenda --which essentially made it the same as gTLD-MoU that preceded it.  Mr. Mueller suggested that once you understood the problems with the gTLD-MoU, it was much easier to understand the problems that have afflicted ICANN.

He maintained that the White Paper, and the subsequent decision of the U.S. Department of Commerce and Ira Magaziner to recognize ICANN, did two things:

1. The substance of the White Paper, and the behind-the-scenes deals which drove its content, basically ratified the agenda of the gTLD-MoU.  In other words, the United States Government agreed that WIPO would be given a direct role in the adjudication of domain name trademark disputes, and that domain name registration would be contractually linked to such adjudication.  At the same time, ICANN also bought into the shared registry model.
2. The Initial Board of ICANN, as selected by Ira Magaziner, Jon Postel, and IBM, turned complete control over the new organization to the gTLD-MoU faction.

1. The notion of “industry self-regulation” was little more than a mask, that allowed a specific coalition of actors, led by the Internet Society (ISOC), IBM, and a small number of European allies, to take over the administration of the public and global Internet.
2. ICANN’s initial board was controlled by a single faction with a specific governance agenda that did not command consensus.  The determination of that single faction to implement its agenda as quickly as possible, fatally undermined the new corporation’s ability to function as a vehicle for consensual “self-regulation” or develop durable, trusted processes.
3. The Clinton Administration gave the new organization an almost impossible task.  ICANN was expected to create entirely new structures of global accountability, representation and policy formation.  At the same time, it was expected to rapidly execute a specific policy program, one that would make the DNS safe for trademark owners, implement a shared registration system, and open up the ".com", ".net", and ".org" TLDs to competing registrars.
4. Normally, one would expect the definition of a policy and the execution of a program to follow the development of procedures for representation and policy formation.  In this case, ICANN tried to execute before its procedures were in place and its component parts formed.  Its self-appointed nine-member board, from the beginning steeped in controversy and mystery regarding its origins, immediately set about making decisions about the most divisive policy issues in Internet governance.