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Mikki
Barry
Testimony to U.S. Congress' Oversight and Investigations
Committee, The title of the hearing, "The Domain Name System Privatization:
Is ICANN Out of Control?"
22 July 1999
Introduction:
Thanks to the Committee for providing the opportunity to provide feedback
to Congress regarding the role of ICANN and the Commerce Department
in the ongoing battle for Internet governance. Although you have received
letters from others who attempt to downplay ICANN's role, make no mistake;
it goes far beyond that of technical management and enters the realm
of a regulatory body. ICANN's policy will effect commerce, freedom of
expression, and likely stifle the very medium it seeks to regulate.
ICANN has not provided an accurate picture of the Internet world to
the Committee. We felt it was necessary to correct and explain much
of what they reported to you in response to your questions.
Personal Qualifications:
I have been participating in Internet issues since 1984 and am currently
President of the Domain Name Rights Coalition. I am a consultant with
Internet Policy Consultants, a member of the Boston Working Group, a
member of the Open Root Server Confederation, former steering committee
member of the IFWP, steering committee member of the Individual Domain
Name Owners' constituency of the Domain Name Supporting Organization
(which is still waiting for confirmation by ICANN), member of INTA,
and a trademark attorney and member of the Virginia Bar. I am co-founder
of InterCon Systems Corporation, the first commercial Internet software
applications developer on the Macintosh platform.
Summary:
ICANN's is now trying to execute a policy agenda before it has created
the participatory structures that would allow its decisions to be accepted
and trusted by a broad spectrum of stakeholders.
Most of the ordinary participants in ICANN's activities thought that
they were participating in an institution-building process. They thought
that ICANN was a level playing field where all the competing groups
could come together to work out a consensus approach. They thought they
would have an opportunity to create membership structures, representational
mechanisms, and policy development procedures FIRST, and that actual
policy making would happen SECOND.
At every step of the way, however, they have been completely frustrated
in this goal. ICANN's CEO and interim board has been driving the organization
into making irrevocable, substantive policy decisions as quickly as
possible.
Imagine what would have happened to the United States government if
the first meeting of the US congress had tried to pass laws, impose
taxes, and regulate commerce before half of its elected representatives
had arrived in Philadelphia, and even before some of the States had
elected representatives. The country would have been torn apart and
the Congress would have lost legitimacy. That will give you a good sense
of what it has been like to participate in ICANN.
ICANN cannot be an organization that executes the agenda of the gTLD-MoU
(one small faction in the DNS wars) and at the same time be an organization
that builds the procedures and representational structures for developing
a policy agenda that commands broad consensus. Either it already has
a policy and executes it, or it is designed to allow the Internet stakeholders
to formulate policy. Right now it is doing the former while claiming
to do the latter.
The sad fact is that ICANN has been "captured" from the beginning.
NTIA gave complete control of the interim board to one partisan group
in the DNS wars. That group was intent upon enacting its own agenda,
regardless of what the rest of the community told it.
History:
I have personally been involved with Internet governance issues since
the early 1980s. The Domain Name Rights Coalition was formed in 1995
directly because of the NSI domain name dispute policy which we thought
stifled the rights of individuals and small businesses to choose domain
names. The development and growth of the World Wide Web brought with
it a significant interest by the business community. It soon became
clear that IANA, a US government contractor run by Dr. Jon Postel, would
be unable to continue its management of domain names and numbers without
significant help. The first attempt to transfer control occurred in
1994 when Dr. Postel attempted to place IANA under the Internet Society
(ISOC.) This failed, but something else grew from that union. The IAHC
(International Ad Hoc Committee) was created, and tried to take over
Internet governance via a document called the gTLD-MOU. Comments were
solicited by the IAHC from the Internet community, but the responses
were largely ignored. It is not coincidental that many of the members
of CORE, POC (the Policy Oversight Committee) , ISOC (an original IAHC
advocate), WIPO, and the ITU are now heavily involved with the ICANN
process, and have in a sense "captured" that process.
The gTLD-MOU was stopped by the Internet community when it became clear
that the process was closed, unaccountable, and non-transparent. Various
people appealed to the Department ofCommerce and the State Department
for help. Through significant work and effort, the IAHC plans were thwarted,
and the Commerce Department produced the "Green Paper" as
a roadmap for technical management of names and numbers. The Green Paper
was truly a pro-competitive solution, one that was hotly contested by
many European Governments, and the previous supporters of the MoU. In
fact, it was right around this time, that Jon Postel redirected over
half of the world-wide root servers to his server in California. While
we may never know, this combination of events apparently derailed the
Green Paper, and started the process that resulted in the White Paper.
Thousands of comments were submitted by a large cross section of the
Internet community, although many questioned (and still question) under
what authority the Department of Commerce was taking control of Internet
functions. Many of these comments were incorporated in the "White
Paper" which provided a framework for considering these issues.
Using the White Paper as a foundation, the IFWP (International Forum
on the White Paper) was created in 1998 to discuss these issues and
attempt to reach the consensus that was required to move forward with
the plans envisioned in the White Paper for an open, transparent and
accountable organization, Newco, to manage domain names and numbers.
Please note that even with the White Paper, significant numbers of people
still ask under what authority Commerce is operating in choosing one
company over another, mandating that company's bylaws, mandating that
company to be non-profit, and assisting in choosing the unelected board
members of that company.
The IFWP steering committee consisted of members of the Internet community
who were involved with not-for-profit enterprises. These included CORE,
the Commercial Internet Exchange (CIX), Educause, the Domain Name Rights
Coalition (DNRC), and various other groups. It was chaired by Tamar
Frankel, a respected law professor and expert on corporate structure
and process from Boston University. The IFWP held meetings around the
world, and worked to come to consensus on various issues. In the midst
of this process, Joe Sims, attorney for Dr. Postel, promulgated a set
of by-laws for Newco. He did this in closed meetings with no public
input. These by-laws were presented to the IFWP, but did not gain consensus,
largely because the points on which the IFWP had already garnered agreement
were not included. Various further drafts followed, but still none of
them achieved consensus.
In late August of 1998 after the final IFWP meetings, the steering
committee met telephonically to plan the final or "wrap up"
meeting in which the consensus points would be memorialized, and further
concessions would be provided by all sides. Although there had been
multiple votes already taken that clearly supported a wrap up meeting,
yet another vote was called at that time. Mike Roberts vehemently opposed
a wrap up meeting, and was supported in this by Barbara Dooley of the
CIX. There is speculation that Mr. Roberts had already been contacted
at that time regarding serving with the ICANN board in some capacity.
Further, around the time of the wrap up meeting, Esther Dyson says that
she was approached by Roger Cochetti of IBM and Ira Magaziner in Aspen,
Colorado and asked if she would be interested in joining the ICANN Board.
The IFWP wrap up was finally completely derailed by ICANN's refusal
to participate in the meeting.
Some of the members of IFWP continued their work to create an open,
transparent and accountable Newco. Two major groups, the Open Root Server
Confederation (ORSC) and the Boston Working Group (BWG) promulgated
by laws for Newco through open process. Three sets of by-laws were provided
in a timely manner to the Department of Commerce. Although the Commerce
Department had long stated that they would not choose one set of by-laws
over any other, they chose the ICANN’s bylaws as a starting point.
The Commerce Department directed ICANN to consult with the BWG and
the ORSC regarding areas of concern to Commerce but there was little
reason for them to do so since their bylaws and structure had already
been chosen. ICANN did meet telephonically with BWG and ORSC, but failed
to make substantive changes in its bylaws to accommodate the diversity
of opinions towards fundamental issues such as openness of board meetings,
voting on the record, voices for individuals and non-commercial entities,
limitations on ICANN's powers to strictly technical issues, etc. Both
BWG and ORSC warned that the concept of constituencies would lead to
capture by corporate interests at the expense of expression. BWG wanted
to do away with constituencies altogether. ORSC wanted constituencies
structured so that everyone would have a voice. The ICANN constituency
structure has, as predicted, become the catalyst for capture by the
old gTLD-MOU crowd, and a large and powerful group of trademark interests.
These trademark interests are currently pressing non legislative expansion
of rights for trademark holders, at the expense of free speech and expression.
Substance:
The IANA Function.
ICANN received a sole source award to take over the IANA function.
In December of 1998, the Commerce Department through NIST quietly attempted
to give official authority to ICANN over the IANA functions in December
of 1998.
There were many discrepancies surrounding the transfer of the IANA functions.
First, Mike Roberts announced at the ICANN Meeting in Boston in November
that the IANA staff then reported to him. When questioned about that,
Becky Burr stated he had been mistaken. Then, quietly at the end of
December, Commerce tried to sole source the transfer to the IANA.
The ORSC (Open Root Server Confederation) appealed and it was rebid
sole source in January or February of 1999. ORSC and others informed
the Commerce Department that they were ready, willing and able to bid
for this contract, yet it was still sole sourced. No explanation for
this action has been provided. It is certainly not because there was
consensus that ICANN would be best able to provide these services. On
the contrary, ICANN states that it expected that all major participants
in the global Internet community would "rapidly come together to
make ICANN an effective vehicle for global consensus development (...)."
There is a reason that this did not occur. It was not an oversight.
ICANN is not receiving financial backing from most of the key players
in the Internet community because ICANN does not represent them, and
does not fulfill the mandate of the "open, transparent and accountable"
'Newco' envisioned by the White Paper. It also raises questions of ICANN
finances, which for the most part, remain hidden from the Internet Community.
It has been estimated that ICANN has expended more than 1.5 million
dollars, and at most, has raised $500,000. It is unknown where the remaining
financing is coming from, who is funding this deficit, why, and how
is ICANN paying for the IANA staff since January.
Creation of a Competitive gTLD Registry-Registrar System. Competition
is, of course, very important to the future of the Internet. We agree
with ICANN that there is indeed consensus on this issue, however, we
do not agree with ICANN's implementation. ICANN is requiring registries
to agree to a very onerous contract which includes provisions that will
stifle small business, individual, and free speech interests. Worse
yet, they are doing this without consensus of the Internet community,
without a membership in place (which was supposed to be the Interim
Board's first task), and without appropriate representation for individuals
and others. For example, the accreditation agreement in its current
form, requires registrars to agree that ICANN can confiscate a domain
name for any reason it sees fit. Domain name registrants must certify
to the best of their knowledge that their choice of domain name does
not interfere with anyone in the world. Domain Registries must be run
by non-profit entities eliminating incentive for competition and market
checks and balances. Clearly, these contemplated "guidelines"
which are required prior to entrance into the marketplace controlled
by ICANN, go far beyond the "technical management" contemplated
in the White Paper, including creation of a model whereby ICANN claims
ultimate ownership over all names in the Domain Namespace.
It is ironic in that in the midst of all the controversy over competition,
ICANN has hesitated to take the single step that would introduce the
most competition: creating new TLD registries. Indeed, it was the question
of new registries that moved Jon Postel to begin this entire process
in 1995. Instead, ICANN has delayed on the question and has passed it
on to the DNSO for a recommendation that the ICANN board has already
stated that it is free to ignore. It is difficult to imagine that any
new discussion can resolve this issue that has been the subject of a
distinct lack of consensus for over 4 years. An observation of the leadership
of the quickly-constituted (and, it should be noted, distinctly incomplete)
DNSO and the membership of the working group tasked to examine this
issue shows a clear predominance of IAHC, CORE and ISOC leadership.
It is no great surprise that the early discussions in the DNSO center
around the very concepts and requirements outlined in the gTLD-MoU and
CORE's operational documents, as its proponents attempt to manufacture
consensus as quickly as possible.
Coordination of the Root Server System.
First, and most importantly, we question the authority or rationale
for a CRADA. Professor Jun Murai was appointed to be chair of the CRADA.
While Professor Murai is clearly a distinguished individual in the Internet
community, he is also a member of CORE, the Counsel of Registrars formed
by the IAHC process. Professor Murai's involvement, while not a direct
conflict of interest, is questionable, especially as to the process
by which he was appointed. Professor Murai became chair by "fait
accompli" without any debate, other candidates offered, or any
type of open process. The public was not informed of his nomination.
In fact, it was accomplished at an ICANN meeting of the Interim Board
that was closed to the public. As there is no record of voting, the
Board cannot be held accountable. As there is no membership, no elected
Board members exist.
The Process of Consensus Development and Implementation.
ICANN is correct in that its formation was an unprecedented experiment
in private sector consensus decision-making. Unfortunately, that experiment
has failed. ICANN's claim of "openness and transparency, based
on Internet community consensus, bottom-up in its orientation and globally
representative" is far from the reality of the situation. ICANN's
Interim Board meetings are closed. Voting is not on the record. In nearly
all documents that ICANN promulgates, it speaks of consensus, however
no such consensus is apparent. ICANN is the classic top-down organizational
structure without accountability. When its by-laws are inconvenient,
they are changed without discussion.
Board of Directors -
Without a membership or even a plan for the construction of a membership,
it is misleading for ICANN to suggest that the Board will be expanding
"in the very near future."
ICANN Staff -
A small executive staff seems rather extravagant given ICANN's already
admitted lack of funding. This is especially so, given that they are
paying their President $18,000 per month. Please note that the position
of President was not contemplated by the White Paper and was added as
an afterthought by ICANN's by-laws. There was no notice and comment
on his appointment, or even for the addition of a new and costly position.
The position of President, has thus far been of no benefit to the ICANN,
and has instead caused public criticism of the organization because
of the conduct of Mr. Roberts towards ICANN's critics. As an example,
Mr. Roberts referred to those who disagree with him as "arrogant
juveniles" in a public e-mail message.
ICANN Meetings - ICANN has been holding periodic meetings in different
regions of the world. However, the regions picked have been among the
most expensive in the world to travel to, and to obtain accomodations
in.
Further, ICANN Board members have to date stayed in expensive hotels
and have held their meetings there. This, of course, drives the cost
up further for anyone who wishes to participate in person. While ICANN
had provided real-time broadcasts through the Berkman Center of Harvard
University, at their last meeting in Berlin, remote participants were
acknowledged only on the first day. Very few of the hundreds of real-time
comments from around the world were read on the second day. This was,
of course, very frustrating to those of us attempting to participate
remotely.
Advisory Committees and Supporting Organizations -
ICANN's Advisory Committees are a serious bone of contention in the
Internet community. Of special note is the GAC or Government Advisory
Committee. Beckwith Burr appointed herself to this committee. None of
the other committee members have provided any indication as to their
qualifications, reasons for inclusion, or any other information on their
backgrounds. Further, at the ICANN meeting in Berlin, representatives
chosen by sovereign nations were excluded from the closed meeting by
spontaneous "rules changes." Citing this as an ICANN funding
issue seems suspect.
Further, the GAC itself is headed by Paul Twoomey of Australia. Mr.
Twoomey, during the Berlin meeting of ICANN in May, made a point of
threatening the Internet community that if it did not support ICANN,
something even worse would take its place, run by international governments.
These same types of threats were used throughout the IFWP process. Unfortunately,
the result, ICANN, has all of the power but none of the oversight that
a government group would have.
Corporate and Office Expenses - ICANN's budget is far more expansive
than many start-up companies that many of us have been involved in.
One of the first expenses that ICANN took on was the hiring of an outside
public relations firm. There has never been an adequate explanation
of why this would be necessary for an open, transparent and accountable
organization. Also of note is the enumerated "basic legal services."
At a proposed budget of what is estimated at $65,000 x 9 months or $585,000,
these legal services seem far from "basic." Please note that
despite numerous requests, we have been unable to obtain exact figures
from ICANN or from Joe Sims.
Possible Cost Recovery Mechanisms -
It is disingenuous for ICANN to claim that many supported their creation
throughout the USG policy development process. The creation that was
supported was that of "Newco," an open, transparent and accountable
entity with bottom-up representation, a membership structure, elected
officials, and fair hearing panels. ICANN is none of these things.
ICANN further states that it is desirable for the name AND ADDRESS
registries to participate in the funding of the costs of consensus policy
development (...) [emphasis added]. ICANN's role in charging for address
allocations was not contemplated by any of us who were involved in the
process. We feel this is a very dangerous tack to take, and could be
even more detrimental to the further development and growth of the Internet
than the current plans for domain names. The power to "charge"
(even if not directly called a tax) is the power to destroy. There is
no widespread dissatisfaction with the current IP registries (which
are arguably representative of the Internet Service Providers in their
respective geographical regions),
Conclusion:
The Internet is the single most significant communications medium ever
created. Its power goes well beyond that of shopping malls and e-commerce,
and empowers individuals in a way never before imagined. It is thus
a national as well as an international resource. The ability to control
important aspects of this technology cannot be underestimated. It is
up to all of us to remain vigilant when organizations are given special
privilege by a branch of the US Government to control this vast means
of expression. Safeguards must be put into place whereby individuals,
non-profit entities, churches, tribal governments, and other disenfranchised
groups may provide unencumbered input and opinion to an open, transparent
and accountable entity. This entity is, unfortunately, not ICANN. ICANN
must either be restructured, with all current Board members and policy
decisions rescinded, to be replaced with a new and elected Board, forced
into acceptance of irrevocable bylaws changes that ensure these fundamental
rights, or should be replaced with an organization that will be chosen
from and by the Internet community.
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Introducing
myself to IDNO
I
have domain names in .com, .org, .net, .to, and .cx. I have been on
the Internet since 1982 and co-founded the first TCP/IP applications
company for the Macintosh platform in 1988.
In
1991 I graduated law school and became an Internet attorney. Later,
I joined the Domain Name Rights Coalition, became a board member, and
last year became president. DNRC has long fought for the rights of individual
and small business domain name holders in the face of further erosions
of free speech and fair competition.
These are the kinds of threats a typical small Domain
Name Holder faces:
1.Extortion letters from unscrupulous lawyers.
It has come to our attention that
you have registered and are using numerous domain names that use our
client's mark xxxxxxxxxxxx, including, but not limited to, 'openxxxxxxxxxxxx2k.com,'
'openxxxxxxxxxxxx2k01.com,' 'xxxxxxxxxxxx2k01.com,' and 'xxxxxxxxxxxx2k.com.
Your unauthorized use of our client's mark is likely
to confuse consumers into believing falsely that our client endorses
or is affiliated with your goods or services. Any unauthorized commercial
use of our client's mark will also dilute the distinctive qualities
of our client's famous mark xxxxxxxxxxxx. Accordingly, we must insist
that you immediately stop using all domain names that use our client's
marks, or domain names that are confusingly similar to our client's
marks. In addition, we request that you transfer these
domain names to our client.
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