Background: the transfer of authority for assigning domain names and Internet numbers, which in itself is a minor issue in the administration of the Internet, became a major political battle among Internet proponents in 1997. The first attempt to gather the world around a solution was a Memorandum of Understanding written by a committee set up by the Internet Society, that Internet International Ad Hoc Committee. Rejection of this proposal by numerous domain name holders, Internet service providers, and other interested parties led to a process started by the U.S. Commerce Department. The culmination of this process is several proposals submitted in early October, which are the subject of the following CPSR comment.

Filing on the Private Sector Proposal for New Domain Name Corporation

by Computer Professionals for Social Responsibility

The history of the domain name system (DNS) reform controversy is repeating itself. The Commerce Department must make sure that this second occurrence is not a tragedy.

Computer Professionals for Social Responsibility (CPSR) recommends that the Commerce Department should reject the unilateral, unaccountable, and non-consensus approach of IANA—styled now as the Internet Corporation for Assigned Names and Numbers (ICANN)—in favor of the proposal of the Open Root Server Consortium (ORSC). Only in this way can the values of openness, Internet self-governance, and balance among all Internet stakeholders (including users) be achieved in the formation of what Rep. Chip Pickering has appropriately called “the constitution for the Internet.”

The purpose of forming a non-profit corporation to take over the IANA and related root server functions, which CPSR has fully supported, is to establish a mechanism for transferring the last formal involvement of the U.S. government with administration of the Internet. The Commerce Department’s Green Paper/White Paper process was initiated because broad segments of Internet users were deeply unsatisfied with the process conducted by the Internet International Ad Hoc Committee, which was criticized as closed, unfair, and resulting in an unaccountable organization. A contrasting process—open, fair, balanced, and dedicated in creating an accountable organization—was begun by Green Paper/White Paper and shepherded by the International Forum on the White Paper (IFWP). If it is to retain the support of the Internet community and foreign governments, the Commerce Department must insist that this open process, and the values it represents, be continued. (Harvard Law Professor Lawrence Lessig made these same points in a speech at CPSR’s One Planet, One Net conference last Saturday.)

The IANA proposal for the new domain name corporation did not adequately follow the open, balanced process envisioned by the Green Paper/White Paper. IANA acted essentially in a unilateral manner, negotiating with Network Solutions and the Commerce Department instead of allowing the wide range of stakeholders in the IFWP to approve their document. Among other things, the structure of the ICANN differs in important respects from the IFWP consensus, the ICANN-nominated interim Board members were never discussed or confirmed by any public process whatsoever, and the ICANN was incorporated in California at the unilateral direction of IANA. Although IANA claims it acted to reflect what it terms “the IFWP consensus,” the reality is that the IANA proposal represents little more than an effort by the existing individuals and organizations responsible for DNS administration to extend their influence into the new era of open Internet self-governance that the Green Paper/White Paper process was intended to inaugurate.

It is critical for the U.S. government to use its leverage to ensure that the new corporation follows the core values of openness, fairness, and accountability. These values are demanded not just by U.S. participants, but by members of the public from around the world who have expressed their concern with domain name administration. The choices we make on DNS will provide a model for future administrative issues on the Internet. Although we commend IANA for submitting drafts for public review, the final IANA proposal is very weak in the critical areas of openness, accountability and balance required for healthy Internet self-governance.

CPSR believes that the proposal from the Open Root Server Confederation is much more in keeping with the White Paper goals and reflects the broadest possible coalition of those who have participated in discussions around domain names. While CPSR does not feel it is appropriate for us to pick and choose parts of each proposal and submit the hodgepodge as our own proposal, we suggest simply that the Commerce Department adopt the spirit of the ORSC proposal and use it as a model for formation of the “new corporation,” while continuing to solicit input from many sectors. We will also mention in this comment some of the key points we wish to see enacted.

CPSR is not ignoring the work of other groups and individuals, such as the Boston Working Group, which have made thoughtful submissions on this complex subject. We are concentrating on the ORSC proposal because it has tried to be a unifying and synthesizing force, which is just what the process of setting up a new corporation needs.

Initial Board

The key decision at the beginning of the new corporation’s history is the choice of the initial Board. We reject the IANA strategy of picking a slate. We also note that initial Board members should evince a history of following the many complex DNS issues, whereas many of the IANA choices are made for supposed “neutrality” and do not demonstrate sufficient background to handle the intense politicking and technical hair-splitting that is sure to beset them when they begin their deliberations.

A broader input for the initial Board is required. Voting is unfeasible given the amorphous state of global participation in the IFWP. But certainly the Commerce Department can identify the most respected individuals and organizations from the various factions that have arisen, including Internet users and public interest advocates, and put together a Board where every significant faction has some representation. At the very least, whether or not proportional representation is required, a minimum representation of all stakeholder interests is necessary in order for the new corporation’s interim Board to command the respect of the Internet community necessary to forge a consensus on the substantive policy issues left unsettled by all the current proposals. Including a good number of public-interest, non-commercial members will help to ensure that the corporation represents the values of openness and fairness.

Membership

After the selection of the initial Board, the other key determinant of the core values expressed in the White Paper is a provision for membership in the new corporation. No proposal has completely solved this problem, but the ORSC makes a step in the right direction. CPSR values the participation of small stakeholders, such as non-profit domain names holders and Internet users. A low barrier to membership will help to preserve openness, fairness, and accountability. On the other hand, there should be safeguards to prevent capture of the corporation by large, well-funded organizations, perhaps subverting democracy by stuffing the membership.

Role of supporting organizations

CPSR supports the proposal of the Boston Group and the ORSC that supporting organizations not select Board members. The reason for this choice is that supporting organizations are expected to represent communities of technical experts. The Board’s purview, however, is policy decisions rather than technical ones. To give the supporting organizations seats on the Board, as the IANA proposal does, would be to risk politicizing supporting organizations and weakening their competence to advise the Board technically. It would also place too much control in the hands of a few organizations responsible for technical administration, to the detriment of the vastly wider communities of domain holders and Internet users.

Accountability

The ORSC proposal addresses a key deficiency of the IANA/ICANN approach, namely that the ICANN Board and interim Board would be accountable only to themselves. This is a matter of some seriousness, as without the U.S. government to act as ultimate arbiter, there must be some mechanism for those dissatisfied with policy decisions of the new corporation to air grievances. The ORSC proposal incorporates hearing procedures and financial accountability clauses related to business planning, budgeting and fee structure. CPSR believes these sort of accountability mechanisms are crucial to the success of the new corporation.

Guarantees of free speech

The concern of the Electronic Frontier Foundation for free speech is salutary. At present, the structure of the Internet facilitates the spread of ideas from any originator to any recipient. However, it is possible that governments or large Internet providers will try to skew the system to facilitate censorship or the tracking of users. The corporation should be set up to ensure as much as possible that it does not create a structure for content control.

Conclusion

If the Commerce Department accedes to the IANA/ICANN proposal, it will make a charade out of the forward-looking principles of the Green Paper/White Paper process. The values of openness, fairness, balance, and accountability are inherent in Internet self-governance, but these values are scarce, if not missing entirely, from the IANA/ICANN approach. Furthermore, as a participant in the Green Paper/White Paper and IFWP processes, CPSR resents IANA’s self-proclaimed, unilateral assertion that it has either the legitimacy or authority to fashion a new corporation, on its own, to control the important issue of DNS reform. If, as many believe, DNS is just the first of many issues of Internet policy that the new corporation will b required to address, the US government must ensure that the fundamental and publicly announced principles for the transition to private sector Internet DNS administration are respected. The ORSC proposal comes closest to meeting these principles, and should be used as the model for formation of the new corporation.

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