Editor's Note: If one does not understand how ICANN came to be, one
will not grasp the complex interaction of forces that are powering
it. It will remain the mysterious black box that can be interpreted
differently for different audiences. The tiny group directing it has
found it desirable to run it in a way that gave lip service to
transparency while obscuring the coalition of trademark, regulatory
and e-commerce interests behind it. Without the road maps provided
by ICANN's private fund raising correspondence and an unpublished
analysis of ISOC coalition building, the self-interested nature of
the glue holding together the forces behind ICANN is unclear. ICANN
is not the disinterested technical coordinating body for "Internet
plumbing" that Esther Dyson claims it to be. While it is clear
enough to its critics that ICANN is bad what, at heart, it really is
has generally been obscure.
ICANN has been such a jungle of groups and committees operating in
secret that policy makers have had no other choice but to throw up
their hands and accept ICANN's public relations rhetoric. The first
part of this long article intends to give a framework for
understanding what is happening by looking at the evolution of what
came to be ICANN over the past five years. It does this with the hope
that, for the first time, it should therefore become possible to
formulate cohesive policy for dealing with ICANN. It has been
possible to do this thanks to the insights of an analytical framework
laid out in an unpublished paper by someone I know and consider to be
an authoritative source. I have read his paper and written my own
summary taking into account its key ideas. What follows is not an
abstract of this paper and its conclusions. It is my own work that
owes a strong debt to the arguments and events recounted in the
paper. It also gives my own insights into the coalition building
carried out by ISOC. While the paper reminded me of many details, I
am indebted to it primarily for two reasons. One is its emphasis on
ISOC's coalition building, and two is its analysis of how the lack of
legal foundation for the administration of the Internet's new
technology made DNS an extremely attractive area for the trademark
interests to ally with ISOC in establishing control over intellectual
property on the Internet by means of ICANN.
I am in the awkward position of not being able to identify the author
of the paper publicly because, shortly after mentioning the paper on
a small mail list, he has gone on travel and been incommunicado. I
have tried through numerous emails and phone calls from September 4
through September 9th to contact him. He is not expected to be
reachable before September 13. Given the speed of events, it looks
as though if I wait to publish until Monday what I have written will
be in need of significant up dating by then. I have decided
therefore to go ahead and publish in such a way that will leave him
the option of not being identified should he not wish to be
identified at this point. Next week, if he agrees to be identified,
I will give him full public credit. At any rate it is the ideas that
are important -not the particular personality. Since last Saturday I
have done due diligence and asked several other people to read and
critique the introduction that follows. Agreement with it was
general . Where my commentators had reasonable suggestions I have
incorporated them.
The framework that follows shows how ISOC, under the leadership of
Vint Cerf and Don Heath, wanted to establish itself as the private,
focal point of Internet governance. However, ISOC soon found its
efforts to institutionalize its control disrupted by the trademark
interests. The trademark community saw DNS control as a Nirvana by
which it could extend and protect its private property interests in
cyberspace for a fraction of what it might otherwise cost. At this
point ISOC went forward through additional rounds of coalition
building to achieve in ICANN a governance structure that may be
accountable to their coalition partners but leaves the interests of
those not a part of this narrow coalition process at risk.
Part One
Introduction: A Framework for Understanding ICANN
The ICANN crisis can be traced directly back to ISOC's 1995 plan to
take over domain name space. [Published in August 1999 COOK Report,
pages 19-20.] Trademark, and intellectual property interests went
into the DNS arena, at first, out of fear of the loss of their
enforcement capabilities. Very quickly ISOC realized that an
alliance with them could provide the economic and political muscle
necessary to enable ISOC's own ambitions which were to become
responsible for the administration of the technical aspects of IANA
functions. If such functions were to be exercised on behalf of the
trademark interests, the act of doing so would create a backlash on
the part of those with businesses enabled by the new technology. To
carry forward in the face of such a backlash the ISOC trademark
interests had to move to establish rigid control over areas that had
formerly operated by consensus.
Given the new arena of immense economic value enabled by the
commercial Internet, it was perhaps inevitable that it would attract
property interests. It is not surprising that these interests
established their agendas to carve out advantages in a way designed
to capture, alter and control key parts of the technology for their
own benefit. The source of their authority to take such actions is
likely to be unclear. This is because authority for handling key
components of a new technology is unlikely to have been structured in
such way as to be an adequate foundation for controlling such
components once they become assets of immense economic value. The
coalition of formed by the Internet Society and intellectual property
interests has an opportunity with ICANN to create a new governing
structure which can provide the intellectual property interests with
a highly cost effective way of both extending and enforcing their
rights in the new medium. If this governing structure can be put
into place by stealth before those affected by it realize what is
happening and, more importantly, how and why actions are being taken,
the ISOC, Trademark and now European government coalition can achieve
a long lasting power base.
Control of DNS Root Seen as Necessary for Establishment of Property
Rights in DNS
Control over the DNS root and the database under girding it is seen
as control over the means of interconnection of all computers
worldwide. While domain names were once just more easily remembered
user address that the 16 digit IP string, in a commercialized
internet many domain names have also become brand names and marketing
tools. The more catchy the more desirable and the higher the value
for some domain names. These names acquired their value as a single
global location service due to the existence of a single coordinated
and authoritative global root server system.
Beginning in 1995 and continuing through 1998 control of DNS policy
and of the DNS root became the focal point of the activity for those
who were attempting to establish their property rights for use in
this new arena of increasing and, for the moment, uncontrolled
economic activity. Their means of conflict became DNS name -
trademark conflicts and the right to add new top level domains to the
root servers. Among the business community the increasing
understanding of the growing economic value of a domain name drove a
desire to establish stronger property rights over them. Trademark
law became their means of accomplishing this. Since a domain name
gives global visibility to its owner, it transcended the traditional
geographically based restrictions and line of business restrictions
on a business name in a way that wealthy businesses could ill afford.
The question of who might add new Top Level Domain names to the root
servers became enmeshed in a series of complex questions within the
arena of the public policy of property rights extended via trademark
law to Domain Name Space. These questions could not be resolved
without the creation of a new institutional framework that could be
given the authority to resolve them. Because the Internet had
developed a culture of "self governance," Internet institutions that
might have successfully asserted authority in these areas did not do
so. Furthermore the "self governance was designed to handle
technical standards and operational issues. These (intellectual
property) issues were neither technical nor relevant to the operation
of the Internet..
In the meantime the various federal agencies involved were for
varying reasons unable either to assert their authority or to design
new institutional arrangements. The vacuum of authority was
intensified because the Internet is itself a decentralized
technology. International organizations such as the ITU found
themselves no better able to fill the vacuum.
Before the Internet, acquiring property rights to a registered name
under which global business could be conducted was a very time
consuming process that cost thousands of dollars in each of the
countries where it had to be simultaneously undertaken. Registering
a globally visible domain with Network Solutions on the other hand
took only a few minutes, became globally useful in a few days.
Trademarks registration was slow and cumbersome. Internet name
Registration was fast and cheap and out of the control of the
traditional governmental authorities.
On the one hand, Domain Names registered to speculators for the
purpose of exploitation of trademark owners could cost those
interests tens of thousands of dollars to pursue even prior to court
action, if the owners could be physically located, which often they
could not be. On the other hand, access to the registration data
base drove down the cost of monitoring the use of new domain names to
unprecedented lows. Why? Because in the physical world there is no
single centralized database into which all people doing business
needed to enter their business names and whereabouts. In the
Internet there was such a database. One database to patrol versus
hundreds if not thousands. By 1995 it became clear that the internet
could offer trademark owners a huge reduction in the transaction
costs of registering and protecting domain names if they could
engineer a few structural weak points in their favor. Enter ISOC.
ISOC Tries and Fails to Assert Control
Between 1995 and 1998 a series of players tried to gain authority
over the DNS root. Vint Cerf had begun moves to centralize standards
authority by creating the Internet Architecture Board (IAB) as "the
coordinating committee for Internet design, engineering, and
management." In 1991 Cerf had been instrumental with Mike Roberts
and Tony Rutkowski in creating the Internet Society as a non profit
entity that could provide and umbrella of legal authority for the IAB
and other Internet governing organs. Jon Postel had in the IANA,
which he alone controlled, the ultimate responsibility for policy
making in the key areas of interest to the trade mark community. In
1994 Postel wrote a contract by which he proposed to transfer the
IANA authority from a DOD contract to ISOC. Postel and Cerf expected
to be able to implement the arrangement without any specific legal
operation and went ahead despite some question within federal
agencies as to whether ISOC should be regarded as sanctioned with
full legal responsibility for implementation of DNS space.
In September1995 Postel asserted that, "I think this introduction of
charging by [NSI] for domain registrations is sufficient cause to
take steps to set up a small number of alternate top level domains
managed by other registration centers. I'd like to see some
competition between registration services to encourage good service
at low prices." Postel drafted a proposal for 150 new TLDs to be
added over a period of three years. This action had two announced
purposes "competition in Domain Name Registration" and "extending
the legal and financial umbrella of the ISOC to IANA". IANA and ISOC
were proposing a new privatization of the root without any formal
legal authority to do so. Postel's proposal was not successful
encountering opposition from the ITU which wanted to be making these
decisions and from trademark interests who didn't like the expanded
enforcement effort that would come with new domain names ISOC's Don
Heath appeared with David Maher of INTA and Robert Shaw of ITU at the
Harvard Kennedy School of Government convocation in June of 1996.
Heath pulled the plug on Postel's effort saying that he was now in
charge.
ISOC Adds the Trademark Intellectual Property Interests and Fails Again
IIn October 1996 ISOC moved forward again this time determined to
break new institutional ground as it did so by co-opting its critics.
Robert Shaw, the ITU person who criticized the process was given a
seat on the eleven member "International Ad Hoc Committee" (IAHC).
Trademark and intellectual property interests (INTA and WIPO) were
also included and were later given permanent roles in ICANN.
The charter for the IAHC committee was released on November 11, 1996
and three months later a final report was issued that proposed the
management of domain name space as a "public resource." Ira
Magaziner later told the COOK Report that November 1996 also marked
the month in which large corporate players turned to his task force
to complain that electronic commerce would suffer if trade mark
issues were not adequately dealt with.
In the IAHC system DNS administration was directly linked to
trademark concerns for the first time. Registrations of new names
would not become effective until after the expiration of a 60 day
waiting period where they would be reviewed by WIPO administrative
challenge panels. The IAHC governance structure was encompassed in a
document called the Generic Top Level Domain Memorandum of
Understanding (gTLD-MoU). Registrars were to incorporate in Geneva
as a non-profit Council of Registrars (CORE). Policy for the CORE
registrars was to be decided by the Policy Oversight Committee (POC)
which had a make up reflecting the same constituencies as the IAHC.
The ITU records show Heath signing the gTLD-MoU on 2 Apr 97 for ISOC,
and Postel on 7 Apr 97 for IANA. By the terms of the gTLD-MoU, these
two signatures executed the agreement. The signing ceremony at the
end of April at the ITU's premises was to add further signatures and
give it the aura of an intergovernmental agreement. The
Administration of Albania was the only governmental signatory.
One problem was that in June of 1997 the ISOC and IANA still had no
more legal authority over the root than they had a year earlier. By
the end of the summer of 1997 the ISOC IANA attempt to assert their
authority had failed again. IAHC's involvement with the ITU raised
concerns at the State Department and brought matters to the attention
of the European Commission. The shared registry system was attacked
because it limited the expansion of TLDs and imposed significant
regulations on upon participating CORE registrars. Some thought it
was a sellout to trademark interests but INTA itself thought it went
too far. The European Commission attacked the plan as "too
US-centric" and asked for more EC "public debate."
The concerns that were concomitant with the gTLD-MOU process caused
the beginnings of US government involvement in December 1996 and a
formal white House assertion of control over the NSF handling of NSI
at the beginning of March 1997. This process became formalized with
the July 1 1997 NTIA Notice of Inquiry that produced the Green paper
on January 28 and the Postel hi-jacking of the root on January 27
1998. The Green Paper asserted the US government's full authority
over the root and IANA. Magaziner told the COOK Report than he had
informed Postel over lunch on December 10, 1997 that he would not
under any circumstances be allowed to add the IAHC names to the root.
When Postel redirected the root servers on the 27 of January, the
eight that complied were at Universities and research institutes.
Those that did not were at PSI (a commercial network) and US
Government installations. ISOC had formally criticized entire NTIA
proceeding as a form of "government intervention" in what it claimed
was a "self-governing" Internet.
ISOC Succeeds: European Bureaucracy and E-Commerce Lobbyists Join the
ISOC INTA WIPO ITU Coalition
Once again ISOC lead a successful counter attack against the US
Government position. This time ISOC expanded its coalition again to
include The European Commission and US electronic commerce interests
as represented by MCI and IBM which had led in the formation of a
lobbying group called the Global Internet Project (GIP) in the fall
of 1997. On June 3 1998, in response to both European pressure and
heavy ISOC lobbying the White Paper gave up the goal of direct action
by the US government. Instead it called for a form of "industry
self-regulation" that proposed to shift most of the responsibility
for the formation of the new organization to "the private sector."
The White Paper also maintained the primacy of the trademark and
intellectually property interests by promising WIPO its own role in
the transition. The White Paper gave the internet industry 4 months
to come up with a corporation that commanded consensus among
stakeholders. ICANN was the alleged consensus product. In reality,
as we have seen it was Postel and ISOC (Cerf and Heath) returning to
what was by now a rather enlarged version of their IAHC coalition.
As author of the unpublished paper puts it: "Since then it has become
evident that the real meaning of "industry self-regulation" and
"stakeholder consensus" was to give the ISOC-led coalition a chance
to implement the main features of the gTLD-MoU plan. Under the White
Paper process the implementation of that plan has proceeded more
slowly, a bit more transparently, and with the official sanction and
participation of the US government, the European Commission, ITU, and
WIPO. ICANN's status as an institutional innovation should be
evident. Nominally a private corporation, it has been given
quasi-governmental authority over a global resource, the Internet
root. It can be seen both as a product of direct government
intervention by the US and Europe, and as part of a deliberate
attempt to keep certain aspects of Internet administration out of the
hands of traditional institutions, such as national governments or
intergovernmental treaty organizations like the ITU."
At the same time that it delivered ICANN, the other part of the White
Paper process called for a WIPO study and findings. These findings
were completed on April 30, 1999. They delivered instructions to
ICANN to preserve, on as favorable terms as possible, a system that
will yield the highest rate of return to the large corporate
intellectual property lobby that can be gotten away with. The
analysis reminds us that "Implementation of the WIPO proposals hinges
upon ICANN's ability to inherit the root server system. If ICANN
controls the root and adopts WIPO's proposals, it can enforce the new
WIPO regulations by means of its contracts with registries and
registrars. ICANN's control of access to the root would make it
impossible for anyone participating in the domain name system to
avoid the regulations.
The Democrats Sell Out the Internet
The Clinton Administration lobbied by the GIP and worn down by ISOC
caved. It turned the internet over to a ICANN as a body run
primarily by three men (Cerf, Heath, and Roberts) who used a major
corporate attorney (Joe Sims) to create an Internet governing
structure that first and foremost existed to serve trademark and
intellectual property interests and secondly the interests of old
line telcos. In picking ICANN as the likely winner for the body to
implement Internet self-regulation and steadfastly maintaining that
the Internet would not be regulated, the Clinton administration
hypocritically chose a policy that allowed it to have its cake and
eat it too. ICANN would adopt publicly an anti-regulatory stance
while, in reality, it would build a control structure that would warm
the hearts of pro-regulatory Democrats. The Clinton Administration
could afford to take a strong stance against Internet regulation
because it had ICANN to regulate the Internet on its behalf.
In the process that has yielded ICANN, the price of Cerf and Heath
winning the amount of influence for ISOC that they demanded was a
structure that only paid lip service to the ISOC slogan that the
"Internet is for everyone." In reality its structure was carefully
crafted to give both large corporate interests and governments
wanting to oversee communications and financial activity a mechanism
by which their needs for control of a hither-to uncontrollable medium
could be carried out. If ICANN appears inflexible and unaccountable,
it is so because of the need of the people running it to satisfy
their corporate and governmental benefactors. It serves them by
creating a registrar process that is designed to shift the burden in
the enforcement of current property rights and acquisitions of new
ones from the wealthy owners of trademarks onto the shoulders of
small and not yet wealthy entrepreneurs.
The GIP, GAC and ISOC masters of ICANN have a script that has been
decided on behalf of the vested interests of their coalition allies
in advance. They cannot afford to deviate from it without
disaffecting one potentially important supporter or another. To win
they had to embrace the most conservative intellectual property
interests and e-commerce interests - the ones that are dependent on
maintaining next quarters' profit figures as opposed to the smaller
and more nimble operations from where the innovations have come from
that fueled the Internet revolution. ICANN after it's Santiago
meeting has made it quite clear that its duty is to cooperate in
promoting the interests of its sponsors, the Bureaucrats of the EC,
the interests of legacy e-commerce companies like IBM, and US
government bureaucrats.
It seems that what we have seen for the past three years has been a
jumbled series of end runs around policy pronouncements that say one
thing and wind up meaning another. Instead we believe that the
analysis which we have sketched in this introductory section can
serve as a very useful guide to understanding the ICANN actions to be
recounted in the following sections. Namely, ICANN cannot be expected
to be accountable to anyone save its trademark, e-commerce,
government and legacy telco masters because this is coalition that
ISOC has found it necessary to put together to triumph over its
critics. While Vint Cerf and John Patrick are saying if ICANN dies,
the sky will fall, in fact a collapse of ICANN will best serve those
interested in the continued operation of an Internet whose doors are
not closed to entrepreneurs and innovators.
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The COOK Report on Internet Index to seven years of the COOK Report
431 Greenway Ave, Ewing, NJ 08618 USA http://cookreport.com
(609) 882-2572 (phone & fax) ICANN: The Internet's Oversight Board -
[EMAIL PROTECTED] What's Behind ICANN's Desire to Control
the Development of the Internet http://cookreport.com/icannregulate.shtml
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