ICANN

[Steve]

A Kind of Constitutional Convention for the Internet

Carl S. Kaplan
NY Times 10/23/98


At first blush, the new nonprofit organization selected by the
Clinton Administration earlier this week to take over the important
job of administering Internet domain names appears to be just
another geeky technical standards group. 

But look closer, say some legal observers, and you will see that the
newborn baby, called the Internet Corporation for Assigned Names and
Numbers (ICANN), is actually the beginning of something big -- a
unique form of government for the global Internet. 

Over the next few weeks, these observers say, a constitutional
moment in the life of the Internet will occur as representatives of
the government and various interest groups seek to hash out the
corporation's structure and rules in an effort to give it final
shape and check its power. 

But unlike the gathering in Philadelphia where the United States
Constitution was created, this process is much more informal and
decentralized. 

"This is a constitutional convention in a sense," said Jonathan
Zittrain, a law professor at Harvard University and executive
director of the Berkman Center for Internet and Society, the
school's cyberspace research center. "That's why there's such great
interest" in ICANN and its birth, he said. 

David Post, a law professor at Temple University who specializes in
the legal issues of cyberspace, added: "If there is going to be this
one entity that has a great deal of power, you'd have to say that
the process of deciding how that power will be exercised is
constitution-making. This absolutely is a critical moment." 

Post, who wrote an article about ICANN in the November issue of The
American Lawyer, said in an interview that any organization that
controls the Internet's addressing system -- including the
assignment of domain names, like "nytimes.com," and corresponding
numerical addresses -- has a potential "choke hold" on cyberspace. 

"For all the talk about how difficult it is for any country to
govern the Internet because the Internet is global and decentralized,
well, this is the only place in the system that is in some sense
centrally managed and centrally controlled," Post said. 

He noted that ICANN could theoretically govern the Internet by
imposing certain conditions on people who wish to participate in
cyberspace. For example, he said, if it wanted to outlaw anonymity
on the Internet, ICANN could tell Internet service providers that
they could not get a domain name address unless they took steps to
make their subscribers fully identifiable. The organization could do
the same to enforce a privacy policy or other rules, Post said. 

Previously, the domain name system was supervised by the United
States government through contractual arrangements with the Internet
Assigned Numbers Authority(IANA) and Network Solutions Inc. Over the
past year or so, the government encouraged companies and groups with
an interest in the Internet's future to submit proposals for a
not-for-profit corporation that would take over control of the
Internet address system.

On Oct. 2, Dr. Jon Postel, an Internet pioneer who ran IANA,
submitted a plan to the Secretary of Commerce for the establishment
of ICANN, based on extensive discussions with a wide range of people
and organizations. Postel died last Friday of complications after
undergoing heart surgery. 

The ICANN plan vested power over global domain name policy in a
geographically diverse board of 19 directors, to be selected by an
interim board and three technical subgroups. Critics complained that
the plan was undemocratic and dangerous. 

"The biggest problem that we found was accountability," said Diane
Cabell, a Boston lawyer and member of the Boston Working Group, a
loose collection of Internet users that submitted criticisms of the
ICANN plan to the Commerce Department. 

"The board was not accountable to anyone because there were no
members or shareholders," she said. In addition, the plan does not
call for a competing organization to check the board's power, nor is
there any regulatory oversight of its activities, she said. 

Karl Auerbach, a member of the Boston Working Group who has been
involved with the development of the Internet since 1973, said in an
interview that the ICANN proposals gave the impression of openness
and responsiveness. "But really the power was in the hands of a few
-- half a dozen people running this thing for the whole world," he
said. "That terrified me." 

The Boston Group and some other critics want to check ICANN's power
by requiring the organization to have members who will elect the
board and participate in annual meetings. They also want to lessen
the role of the three technical subgroups. 

For its part, the government seems to be nudging but not requiring
ICANN to adopt a membership structure. In a letter sent last week to
ICANN representatives, the Commerce Department said that although it
regarded the ICANN proposal as "a significant step" in the
privatization of the domain name system, it also expressed the hope
that the organization would "review and consider the many thoughtful
and constructive comments" from critics, including the Boston
Working Group and the Open Root Server Confederation. 

In particular, the letter noted that the ICANN board, under its
proposed bylaws, is encouraged but not required to establish a
membership structure. 

"We believe ICANN should resolve this issue in a way that ensures
greater accountability of the board of directors to the Internet
community," the letter said. 

Ira C. Magaziner, the White House's Internet guru, said in an
interview that over the next few weeks the ICANN group "is going to
work on amending their proposal" to respond to the government's
concerns about accountability, among other things. "If they fail to
do that, we will have to consider other alternatives," he said. "But
my guess is they will succeed. 

"It's been suggested that some type of membership organization may
be necessary to achieve the type of accountability everybody wants.
We don't want to dictate how this should be done, however." 

Joe Sims, a Washington-based lawyer who represents ICANN, said his
group will give "serious consideration" to criticisms of the plan,
but he declined to comment specifically on how the ICANN proposal
might be modified. He added that he didn't think there was "a
significant gap" between ICANN and some critics on the membership
issue. 

Sims also said he thinks the importance of the negotiations over
ICANN's structure has been overblown. "This is at heart an
administrative body," he said. 

Post said he thinks that some sort of membership structure for ICANN
would be better than nothing. But he fears that even this may not be
a sufficient check on the board's concentrated power. 

"The best thing would be to split up ICANN's power into competing
centers of power -- break it up into pieces and give it to different
institutions," he said. Otherwise, he said, it would be too easy for
private interests to "capture" the board. 

Zittrain of Harvard said that he believes fragmenting power too much
can be inefficient. "You've got to trust somebody," he said. "I
think a high-profile board from a broad electoral base" would give
those involved with the Internet good protection from possible
abuses. 

Zittrain added, however, that although he had high hopes for a
modified ICANN, he found something ironic in the birth process. The
government, he explained, believes that the task of running the
domain name system can better be handled by the private sector. At
the same time, it is helping to create an entity that resembles a
government. 

"Sooner or later this thing [ICANN] will start looking and talking
like a duck, so what makes it not a government?" he asked. 

Copyright 1998 The New York Times Company 




* * * * * * * * * * * * * *  From the Listowner  * * * * * * * * * * * *
.	To unsubscribe from this list, send a message to:
majordomo at scn.org		In the body of the message, type:
unsubscribe scn
END