Computer Professionals for Social Responsibility (CPSR)

Governing the Commons:
The Future of Global Internet Administration
September 24-25, 1999, Alexandria, VA, U.S.A.

PROCEEDINGS

Ralph Nader
Consumer Advocate

[Summary by Harish Bhatt, CPSR]

Mr. Nader began his Keynote Address by indicating that global Internet administration was a very important topic in today's world.  He indicated that he was glad that the CPSR was making contributions to further our understanding of this complex topic, by attempting to anticipate upcoming trends.

He stressed that it was vital for the global economy that "we get it right" as we work through the various complex issues involved in the area of global Internet administration.  To highlight the importance of getting it right, Mr. Nader provided historical anecdotes of other projects which had widespread impact on the general population, and it took a number of iterations over the course of several years, before they ultimately began delivering on their original mission.  The specific examples he mentioned included the structuring of the Mutual Insurance Companies, the International Monetary Fund (IMF), and the Educational Testing Service (ETS).  He expressed his concern that even to this day there are many scientific and engineering organizations, and even the American Bar Association (ABA) in which the general membership is not allowed to directly vote for their President.  Instead their management structure is composed of a number of delegates who are elected by the general membership, and who in turn vote to select the President.

Mr. Nader remarked that the current effort that is underway for addressing the issue of global Internet administration in general, and in connection with ICANN in particular, would ultimately impact people all over the world.  Therefore, it was very important that participants in this global effort take heed of the various lessons that history has to offer in the area of democratic governance.

He indicated that he was glad that at least in the case of ICANN, there was a general consensus that a democratic governance model was the appropriate model.  Making it happen in a global context, however, would require a very thorough and deliberative process.  It was very important that information on the various -- rather complex -- issues be widely disseminated to the general population, and the importance of the issues be highlighted so that there was a widespread and general understanding of the stakes involved, as well as the various alternatives that were under active consideration.  He indicated that the current level of communication on these topics was rather inadequate, because many people -- even those who were skilled in the field of Computer Science -- did not have the foggiest idea as to the work that was underway at ICANN, NSI, the U.S. Department of Commerce, and other participating organizations.

Mr Nader noted that ICANN was created through a Memorandum of Understanding (MOU) -- which no one really understood :-)  -- between the U.S. Department of Commerce and ICANN.  This resulted from a presidential "directive" that was first vetted in a "Green Paper" with the U.S. Department of Commerce going through the steps of ordinary rule-making.  The regulatory procedure was dropped, though, and instead of going through the publication of final rules etc., the U.S. Department of Commerce simply published a "White Paper" and entered into an MOU (a contract) with ICANN, the designated new company to handle Internet administration.

The White Paper laid out four guiding principles for this new company (ICANN) which were:

1. promote competition;
2. provide for stability of the Internet;
3. bottom-up procedures;
4. representation.

ICANN was tasked with the following:

1. make policies to manage the Domain Name System (DNS);
2. allocate the address space;
3. assign protocol parameters;
4. manage the root server system.

The problem was that there was no boundary on these functions.  For example, making policy decisions about the DNS involves questions of trademark, copyright, property, privacy, etc.  Besides, no executive treaty or Act of Congress led to the creation of this new entity, i.e. ICANN.

Further, as currently constituted, ICANN had several procedural problems, including:

1. Lack of transparency.  (ICANN's bylaws do provide for transparency --to the extent feasible).
2. Lack of accountability procedures.
3. Lack of membership at the moment, and an unelected Interim Board of Directors which is making policy decisions that precede the Initial Board.
4. A grievance procedure that gives mainly commercial interests a role in selecting arbiters of dispute, but the members have no say in who become the judges.
5. Applicable law.

 These were substantive problems.

Mr. Nader noted that ICANN had an accredition policy with would-be Registrars about the terms that they and Registrants (of domain names) must agree to.  He indicated that he would call such an agreement a Contract of Adhesion.  It was worse than "shrink-wrap" because if someone did not want to "play" by ICAAN's rules, they had no alternative competitive provider to go to -- at least not yet.  Registrars had to be accredited to issue domain names and to have access to the root server system.  Such a situation could constitute an antitrust violation of some sort.  Once ICANN got the root server away from NSI, it would have monopoly power, and an entity could then only access the DNS if it agreed to ICANN's terms.  This was ironic, because ICANN was created to be an entity that was supposed to promote competition.

Addressing another topic of concern, Mr. Nader noted that inherent in domain name policy decisions was the question of speech rights versus property rights.  Just as in the case of WIPO (where property rights were valued over speech rights), ICANN appeared to tilt toward property rights.  This was inherent in the structure of the DNSO where six of seven constituencies were commercial in nature.

Mr. Nader commented that administering the DNS allowed the manager to connect authorized use with an individual.  So the manager could determine what the user could and could not do with his/her named site.  The manager could even revoke the user's site if it did not approve of what the user was doing with the site.  Mr. Nader remarked that this called for the creation of some sort of "Bill of Rights" to combat abuse.  No such document was currently available.  Besides, there were all sorts of privacy policy implications that would have to be addressed at some point.

Returning to the topic of ICANN's "mission," Mr. Nader said that currently only very vague boundaries had been defined in connection with ICANN's existence.  The organization was not accountable to any government.  Even though the organization had adopted various Articles and Bylaws, there was nothing which prohibited it from modifying them at some point in the future.  Therefore, ICANN could effectively take it upon itself to expand its own agenda and begin making decisions in a variety of ancillary areas.  If it did do this, and any particular entity did not like the decisions being made by ICANN, the only available recourse would be to approach the Attorney General of the State of California.  This would be unacceptable to most foreign entities.

Mr. Nader opined that some sort of Act of Congress or a Treaty would have to be created to vest ICANN with legitmacy.  Alternatively, litigation would be necessary to put some boundaries on what ICANN could and could not do.  He said that history indicated time and again that when power is concentrated in the hands of a few it eventually leads to an abuse of such power.  This was corroborated by the fact that some of the wisest sayings that are very much applicable in today's modern world were actually due to such historical figures as Aristotle, Plato, and a variety of Roman thinkers.  Mr. Nader suggested that one specific quote that was attributed to Cicero, viz. "freedom is participation in power," should be our guiding light as we address the issues surrounding ICANN.

He stressed that it was important to remind ourselves why we were even undertaking this effort in the first place.  He said that it was critical that we keep the big picture and bottom line objectives in mind and not get distracted by details.  We must make an effort to stay focused on our primary goals: e.g. enlightenment, health, safety, preservation of resources, better communication, addressing the scourge of disease, managing power and controlling its abuse. Commenting on his experiences while attending computer trade shows, he said that he had encountered people who were speaking in jargon that was highly specific to their field, and which the average person had great difficulty comprehending.  This was not conducive from the point of view of communicating with the average user.  Mr. Nader said that every effort must be made to explain the importance of -- complex -- topics associated with global Internet administration to the average user, and these explanations must be in an easy to understand language.

By way of constructive criticism, Mr. Nader offered the Consumer Project on Technology proposal of "A Framework for ICANN and DNS Management" as a starting point in the dialog on the topic of global Internet administration in general, and the role of ICANN in particular.  The highlights of this [initial] proposal are as follows:

1. ICANN's authority should be based upon a multilateral government charter.  That charter should define and limit ICANN's authority.
2. The charter should be based upon a limited purpose sui generis agreement among countries that express interest in working together, and that agree that ICANN's role should be limited to tasks essential to maintaining an efficient and reliable DNS management, and that ICANN will not be used as an instrument to promote policies relating to conduct or content on the Internet.  (Additional multilateral institutions may be desired, but ICANN should not be created as teh foundation for a vast Internet governance institution.  See http://www.cptech.org/ecom/cpt-wcpo.html)
3. ICANN should not use its power over domain registration policy to exclude persons from the use of a domain on issues that are not germane to managing the DNS system of mapping IP addresses into domain names.  The right to have a domain on the Internet should be considered the same as the right to have a street address, a telephone number, or a person's name.
4. ICANN should identify a membership and elect its Board of Directors from its membership before it makes additional policy decisions (in those areas appropriate for action by ICANN).
5. Membership should be open to anyone who uses the Internet.  There should be no fee associated with membership or voting rights.
6. The records of ICANN should be open to the public, and the public should have the rights to documents as those rights provided in the U.S. Freedom of Information Act.
7. The meetings of ICANN should be open to the public.
8. The public should be given an annual opportunity to review and comment on the ICANN budget.
9. The budget of ICANN should be subject to review by the countries that provide the ICANN charter.  Fees associated with domain registration should only be spent on activities essential to the management of the DNS system.
10. National governments should be permitted to exercise discretion over policies relating to the use of country top level domains (.fr, .uk, .us, etc.).
11. For generic top level domains (.com, .org, .net, and new gTLDs), the domain space should be declared a public resource.  The registrar or registries will perform services on behalf of the users of the domains, [but] will not own the domain space.  It should be possible to replace firms engaged in registration services and DNS management without risking the stability of the Internet.
12. On matters of public interest, such as policies regarding the use of trademarks or privacy of domain registration information, ICANN should make recommendations to the sui generis multinational body created to manage ICANN, and the multinational body should accept, reject, or modify the recommendations, after giving the public a fully adequate opportunity to review and comment on the proposals.
13. On the issue of trademarks, the charter should explicitly protect the public's rights to parody, criticism, and free speech.  For example, domain names like GM-sucks.com, which would not be confused with GM.com, should be permitted.

In conclusion, Mr. Nader asked rhetorically what wisdom we could draw upon in connection with global Internet administration in general, and ICANN in particular.  He noted that, in the United States of America, all corporations are created by a delegation of authority, and that they are all chartered entities -- chartered mostly by State governments.  He said that ICANN is being delegated some pretty awesome powers.  What's at stake here are the principles of democratic constitution and freedom for the future.

Q&A Session

Eric Menge of the U.S. Small Business Administration, asked Mr. Nader to clarify what he meant when he suggested that domain names should be treated as a public resource.  Would Registrars have any rights to the domain names they issue, or could domain names be reassigned (like telephone numbers)?

Mr. Nader replied that these were issues that needed to be worked out.  He noted that the framework proposed by the Consumer Project on Technology treated country top level domains (.fr, .uk, .us, etc.) differently from generic top level domains (.com, .org, .net, and new gTLDs).

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Karl Auerbach of Individual Domain Name Owners (IDNO), asked Mr. Nader to clarify the [direct] voting mechanism he had suggested for ICANN.

Mr. Nader replied that when it comes to voting, there are two major mechanisms that have traditionally been adopted by organizations: viz. the general membership can directly elect the President of the organization, or the general membership can elect delegates to represent them, and these delegates -- in turn -- elect the President.  He indicated that the first voting mechanism, i.e. in which the general membership directly elects the President of the organization would be preferred in the case of ICANN.

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Mr. Nader was asked what he would do after he had received comments to the CPT's [initial] proposal for "A Framework for ICANN and DNS Management."

Mr. Nader replied that the next step would be to expand the dialog and come up with guiding principles for a declaration of accountability.  He felt that the appropriate form of the [ICANN] organization would be a multinational body together with a dispute resolution system that was not cut from an arbitrational legacy --so that questions about who selects the judges do not get in the way.  ICANN's contract was due to expire in September 2000, and that would be a good opportunity to modify the organization's structure.

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Chris Ambler of Image Online Design, Inc., asked Mr. Nader what he felt would be the timeframe over which the various open issues in connection with global Internet administration would be sorted out.

Mr. Nader replied that because Network Solutions, Inc. had been awarded a contract by the United Sates government, it was currently immune from antitrust laws.  However, its contract was due to expire in September 2000, and at that time ICANN would get limited to the "plumbing."  Unlike the situation last year when NSI's contract was extended, Mr. Nader felt that due to the [expected] formidable opposition for another contract extension, the contract would not be extended once again.

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Jean Camp of the Kennedy School of Government, Harvard University, said that she felt there was an inherent conflict in Mr. Nader's call for a more direct and democratic form of governance on the one hand, and the desire for a government-controlled Board of Directors on the other.

Mr. Nader replied that the idea of a "global citizen" participatory process or mechanism was new -- except in the case of rescue operations -- and there was little precedent to help guide us.  What was needed was a new global model of international accountability.

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David McGuire from Newsbytes News Network, asked Mr. Naer to address the issue of ownership of ComNet by Network Solutions, Inc.

Mr. Nader replied that there should be a judicial determination that they do not own it.  He repeated his call to limit the function of ICANN, and said that if we do not establish narrow boundaries, we can expect to see a gradual tendency toward excesses and an abuse of power.

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Mr. Nader was asked what was the need for an organization like ICANN.

He replied that we did need some organization to act as a traffic cop, similar to the case of radio frequency management.  In the case of global Internet administration, we are grappling with issues on a worldwide scale, and will need to have some entity to go to in case of disputes, coordination etc.  There would always be some form of governance, whether we like it or not.  We cannot escape it.  Attempts at sweeping governance aside in favor of an [invisible hand] theory of free markets is just dreaming.  Modern day corporations are focused on maximizing shareholder value by managing sales and profits, and do not allow themselves to get distracted by other issues.  The important question that we must address is what form of governance is appropriate.

Today, Internet technology (like genetic engineering) is way ahead of relevant policies, processes, governance issues, ethical and legal frameworks, etc.  There is a major synchronization problem today between the current state of Internet technology and applicable societal processes.  It will take time to bring the two into alignment.  We are dealing with a [new] technology of enormous proportions here, and so we need to think in new and creative ways about governance.  We cannot permit ourselves to remain prisoners of the past.