Welcome to As the CaveBear Growls.
This publication is an occasional newsletter covering topics of interest to the author, generally related to the Internet to a greater or lesser degree.
Over to the left of the screen is the catalog of issues, past and present.
Senator Conrad Burns of Montana requested that I testify before the Senate Commerce, Science and Transportation Committee, Communications Subcommittee, of which Sen. Burns is the Chairman, on questions regarding ICANN. Yesterday, February 14, 2001, I presented this testimony in three parts - a prepared written submission, an oral statement, and oral answers to questions presented by members of the Subcommittee.
The hearing record is still open and I will probably end up submitting clarifications and extensions as well as answering subsequent questions.
The oral and written submissions may be found below.
Good morning.
Mr. Chairman and distinguished Senators. Thank you for giving me the opportunity to appear.
I have been involved in the Internet since 1974.
I am a computer engineer - I work in the Advanced Internet Architectures Group of Cisco Systems.
I neither represent nor speak for Cisco. My opinions are my own.
I am a member of the ICANN Board of Directors.
I am the only person on ICANN's Board of Directors who obtained his seat through an open election of the Internet community of North America.
The Internet is seductive.
Because the Internet is new and technical there is much room to dissemble public policy as technology.
Because the Internet recognizes few borders, it is easy for subtle controls to have broad impact.
And the Internet is unclaimed territory upon which an administrative agency may plant its flag and expand its regulatory powers.
I support the continued existence of ICANN. ICANN is a valuable institution; its roles as a technical coordinator are quite properly needed for the smooth functioning of the Internet.
However:
ICANN is ill designed,
has been ill operated,
has brought upon itself significant ill will within the Internet community,
and has greatly exceeded its proper scope.
I believe that significant restructuring of ICANN is needed so that the corporation can fulfill its purposes and fulfill its obligations towards its stated beneficiaries.
My primary focus within ICANN is on limiting ICANN's scope of authority, creating well defined procedures for fair decision making, and establishing solid business practices. These are conservative and reasonable goals.
ICANN is a secretive entity. Even as a Director I have difficulty discovering what ICANN is doing. There are parts of ICANN to which I am denied access.
ICANN has a strong aversion to democratic principles.
ICANN has been obligated from the outset to create an at-large membership.
ICANN assured Congress that such a membership would be in place and then proceeded to backtrack, pair, and equivocate on that assurance.
The election that we had last fall was for only a portion of the board seats that were promised.
Those few of us who were elected have received seats of reduced duration as compared to those of the non-elected Directors.
And now the existence of the at-large membership is at risk.
Indeed, ICANN's staff has gone so far as to declare that the at-large membership no longer exists.
There are lessons to be drawn from ICANN:
- ICANN has shown us that governmental powers ought not to be delegated to private bodies unless there is an equal obligation for full public participation and public accountability.
- ICANN has shown us that a public-benefit and tax exempt corporation may be readily captured by those who think of the public less as something to be benefited than as a body of consumers from whom a profit may be made.
- The role of the US Department of Commerce in ICANN has shown us that Internet may be used as a camouflage under which administrative agencies may quietly expand their powers without statutory authorization from Congress or the Executive.
Thank you very much for this opportunity to speak, I will be happy to answer any questions you may have at this time.
Prepared Statement of
Karl Auerbach
before the
Senate Commerce, Science and Transportation Committee
Communications Subcommittee
February 14, 2001
Good morning.
I have been involved in the Internet since 1974 and have actively participated in the transition of its administration to the private sector for the past five years.
I am a computer engineer - I do research pertaining to ways of making the Internet more reliable and efficient in the Advanced Internet Architectures Group of Cisco Systems in San Jose, California. I am also working on a joint Cisco - University of California research project on advanced control and provisioning mechanisms for the net.
With respect to my service on the board of ICANN and for all the opinions I am expressing here today I neither represent nor speak for Cisco. My opinions are my own.
I am also an attorney. I graduated cum laude in 1978 from Loyola of Los Angeles specializing in commercial, international, and administrative law. Although I maintain my status as the member of the California Bar and the Intellectual Property Section of the California Bar, I am not engaged in active practice.
I have been a founder, principal, or first employee in several Internet related start-up companies. These include Epilogue Technology Corporation (now part of Wind River Systems); Empirical Tools and Technologies Corporation; Precept Software (now part of Cisco Systems); and InterWorking Labs, Inc. These have provided me with a broad base of experience in commerce and technology. I have direct experience with the needs and obligations of Internet related businesses. I am sympathetic to the needs of Intellectual Property owners. I own copyrights, I have owned Federally registered trademarks, and I have filed for patents.
I have been active in the core design and standardization body of the Internet, the Internet Engineering Task Force (IETF), since the mid 1980's. And I have been a member of the Internet Society (ISOC) since its formation.
I have been deeply involved during the last several years with the evolution and activities of what has become ICANN. I am a founding member of the Boston Working Group, one of the groups that submitted organizational proposals to NTIA in 1998 in response to the so-called "White Paper."
I am a member of the ICANN Board of Directors. I was elected to represent North American Internet users. Four others were elected at the same time to represent other regions of the world.
I was elected to my seat. I was not appointed.
I was elected to represent the Internet users of North America in an election in which I ran against six other highly qualified candidates: the Chancellor of the University System of Maryland, the Chief Scientist of BBN Technologies, the President of the Information Technology Association of America, the former President of the Association for Computing Machinery (ACM), a Professor of Business at the University of Texas, and the former holder of the Berkman Chair at the Harvard School of Law.
I am the only person on ICANN's Board of Directors who was elected by the Internet users of North America.
I have only been on ICANN's Board of Directors for a few months - my term started shortly after the well-publicized and controversial selection of a mere seven new Top Level Domains (TLDs).
However, despite the short time I have been a Director, I have already learned much to confirm my fears that ICANN is suffering from a lack of public process, lack of accountability, mission creep, poor communication, excessive delegation of policymaking to staff, and poor business practices. As a Director it is my job to work to correct these weaknesses. But I despair at the immensity of the task.
My primary focus within ICANN is on limiting ICANN's scope of authority, creating well defined procedures for fair decision making, and establishing solid business practices. These are conservative and reasonable goals.
As both an engineer and an attorney with long experience in other Internet governance organizations I have a solid grasp of the issues ICANN has sought to address.
ICANN should be based on viable real-world ideas and processes, not on some abstract notion that suggests that ICANN can somehow fly above technical, economic, and political realities.
Those who use the Internet ought to have a voice in the running of the Internet. I do not subscribe to the notion that people can be properly represented by pre-defined, one-size-fits-all "constituency" structures such as are found in much of ICANN's present structure.
I support the continued existence of ICANN. ICANN is a valuable institution; its roles as a technical coordinator are quite properly needed for the smooth functioning of the Internet. However, ICANN is ill designed, has been ill operated, has brought upon itself significant ill will within the Internet community, and has greatly exceeded its proper scope. I believe that significant restructuring of ICANN is needed so that the corporation can fulfill its purposes [1] and fulfill its obligations towards its stated beneficiaries. [2]
I would like to discuss the following matters:
1. What kind of entity is ICANN?
2. How can ICANN obtain acceptance and legitimacy?
3. ICANN's obligation to have meaningful public participation in decision-making.
4. Specific things Congress, the US Department of Commerce, and ICANN ought to do.
1. What kind of entity is ICANN?
ICANN is Internet governance.
ICANN is far more than mere technical coordination.
ICANN is about policies for the allocation of Internet resources.
ICANN is responsible to no one other than the Attorney General of the State of California.
ICANN's policies have an economic impact that is potentially measured in billions of dollars. The impact of decisions in the Domain Name System (DNS) space have been well noted elsewhere and were illustrated last week in hearings before the House Subcommittee on Telecommunications.
There are those who say that ICANN is merely a technical body. I am a technologist. Yet I have a difficult time understanding how any of ICANN's decisions concerned with the Domain Name System have any technical content at all.
One must wonder where the technical component might be in ICANN's Uniform Dispute Resolution Policy - a policy that expands the protection of trademarks to an extent not granted by any national legislature. And one must also wonder where the technical component might be in ICANN's preservation, indeed in ICANN's extension, of the hegemony of Network Solutions over the naming systems of the Internet.
In other words, ICANN is very much a regulatory body. And it is a regulatory body that has been flung into existence with the support and aid of the US Department of Commerce. As if to underscore that ICANN is a fruit that has fallen not far from the administrative agency that engendered it, ICANN was created with the express purpose of "lessening the burdens of government". [1]
But unlike regulatory bodies that are part of the government, ICANN is a private corporation [3] and is not obligated to undertake any of those troublesome constitutional Due Process burdens imposed on governmental administrative bodies. ICANN is not subject to the burden of judicial review or the Federal Administrative Procedures Act. ICANN is not required to make it possible for those affected by its decisions to participate in the making of those decisions. And there is no mechanism to compel a truly independent review of ICANN's actions.
ICANN's internal mechanisms for review are moribund or exist only as paper placeholders. I have had one request for independent review pending for nearly a year because ICANN has been too busy galloping off doing mission-expanding policy development, leaving it no time to pay attention to the implementation of fair procedures for review.
And until a viable at-large mechanism is created and full rights of membership accorded, ICANN has no external entity to which it is accountable other than the Attorney General of the State of California.
ICANN has gone so far as to assert in amicus briefs that ICANN believes that it, not the courts, should be the forum for resolution of disputes.
ICANN is the result of a strange brew of governmental powers and private lack of accountability.
ICANN, despite its claims to the contrary, is extremely secretive. We know more about how the College of Cardinals in Rome elects a Pope than we do about how ICANN makes its decisions. As a member of the ICANN board I have been surprised at how often I learn of ICANN actions from outside third parties. And I have perceived a very strong resistance on the part of ICANN's staff to opening its activities, even to members of ICANN's Board of Directors.
ICANN has several internal committees and organizations that have no distinct legal existence apart from ICANN. As a Director I am responsible for the assets, liabilities, and actions of these bodies. Yet some of these bodies act as completely autonomous, independent, and often very secretive entities. At least one of these entities maintains distinct financial records that seem not to be incorporated into ICANN's overall financial statements. Another refuses to allow Directors to inspect its activities or meetings.
I have a hard time reconciling ICANN's opaque processes and structures with the obligation in its bylaws that "[t]he Corporation and its subordinate entities shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness." (ICANN By-Laws Article III, Section 1.)
ICANN has an organizational structure that is truly Byzantine. ICANN has so many "committees", "organizations", "working groups", "councils", and "assemblies" that one's mind goes numb simply looking at the fully detailed organizational chart. An older version of the org chart, one that lacks many of ICANN's newer elements, may be seen at http://www.icannwatch.org/images/orgchart.gif. Gilbert and Sullivan could easily write a sequel to The Mikado with ICANN as its subject.
The ever-ramifying complexity of ICANN's organization makes it exceedingly difficult for any but the most determined, or well financed, to penetrate past even the outer layers. This has made ICANN very much the province of professional business advocates and has deterred the participation of the average citizen.
It is frequently overlooked that ICANN in addition to its role over DNS, also regulates the allocation of Internet Protocol (IP) addresses. Address allocation policies will have a very significant impact on the future growth of the Internet and more particularly on what data carriers survive and dominate and which will fall by the wayside. It is likely that over the long term ICANN's IP address allocation policies will have a much greater economic impact than ICANN's Domain Name policies.
The very real technical need for IP addresses to be allocated and then sub-allocated in accord with the present day topology of the Internet creates a situation that tends to create a preferential lock-in for those who are currently at the top of the address allocation hierarchy and a discriminatory lock-out for those who may aspire to that role in the future. Address allocation is an area of substantial and subtle interaction between technical, economic, and social policies. In this area ICANN is for the moment leaving the task to the three worldwide regional address registries that were already doing the job before ICANN was formed.
How can ICANN obtain acceptance and legitimacy?
ICANN aspires to transcend national borders. ICANN conceives of itself as a supra-national body that may act in ways that no single nation can, and equally, ICANN harbors a hope that it ought to be above the reach of the laws of any single nation.
And indeed it is true that ICANN has powers that supersede those of any single nation. For instance, ICANN's Uniform Dispute Resolution Policy (UDRP) amounts to a worldwide law, a law that is distinct and different from that enacted by any national legislature.
ICANN's UDRP is applied via a cascading contractual scheme. But because of ICANN's position as the sole gatekeeper of the Domain Name System, those who wish to have domain names have no choice but to submit to ICANN's will.
Under ICANN's UDRP trademarks are expansively interpreted at the expense of non-commercial uses of names and even traditionally acceptable nominative and free speech uses of trademarks. Suffice it to say, ICANN has created a new law of trademarks that as a practical matter overrides in many regards the trademark laws enacted by the Congress of the United States.
ICANN's decisions as to who does and who does not get a Top Level Domain (TLD) have transformed ICANN into an intrusive worldwide zoning board issuing licenses that determine who gets the privilege to set up a lucrative name-service shop on the Internet Boulevard.
Apart from the merits of the UDRP, this supranational scope is necessary - the Internet is supranational and ICANN's decisions as to its resources necessarily have supranational impact.
The real question is not whether ICANN ought to have this power but rather how ICANN's possession of that power obtains acceptance and legitimacy from the nations of the world and the users of the Internet.
My own answer is very simple: If ICANN makes good decisions using sound procedures, it will come to be accepted as reasonable and legitimate.
As a Director I am very concerned that ICANN's rejection of public participation, its structural bias in favor of certain commercial interests, and its poorly defined and applied procedures will harm its long-term prospects for achieving such acceptance and legitimacy.
ICANN was given two distinct tasks by the US National Telecommunications and Information Administration (NTIA) when ICANN was formed. The first of these tasks was to deal with domain name issues. The second was to achieve public acceptance of this new thing under the sun. ICANN leapt into the first task - deciding DNS policy - while it slept on the second - achieving the public participatory structures that would provide a foundation upon which that DNS policy might be erected.
Until ICANN reforms its procedures and until it starts allowing meaningful public participation in its decision making, ICANN's policy decisions will be perceived as leaning towards special-interest concerns and thus undermine ICANN's long term hope of general acceptance and legitimacy.
ICANN's obligation to have meaningful public participation in decision-making.
As mentioned above, ICANN's hopes for acceptance and legitimacy depend to a large extent on there being a perception that ICANN is responsive to all not just to some small set of business interests. To this end, a viable and believable means by which the public can participate in ICANN is essential.
ICANN is obligated to have a well-formed mechanism through which the public may meaningfully participate in ICANN's policymaking. However, ICANN has a history of impeding the creation of such a public role. Even today the public has obtained only a partial position - it elects only about one half of its nominated quota of Directors - and that partial position is at risk of being eroded or eliminated.
The "Executive Committee" of ICANN's Board of Directors appears to be increasingly active. The Executive Committee acts in lieu of the full Board, thus effectively eliminating any role for those Directors not on the Committee. The Executive Committee contains only one Director elected by the at-large membership. The impact of this is to dilute the role of the public by diluting the role of its elected representatives.
ICANN is explicitly required by its Articles of Incorporation to "operate for the benefit of the Internet community as a whole". [2]
ICANN has made several promises to have a body in which the general public may fully participate in ICANN's policymaking. That promise remains unfulfilled.
In 1998 during ICANN's formative period, NTIA obligated ICANN to discuss various matters, including public participation in ICANN, with groups such as the Boston Working Group.
In 1999 ICANN formed a Membership Advisory Committee. This body issued its report in spring of 1999. The report was reasonably detailed and complete - and it favored the creation of a public "at-large" body that would elect Directors.
In July 1999, ICANN's chairman promised a subcommittee of the US House of Representatives that nine board seats would be filled by public election by the fall of the year 2000. [4] That promise was made to Congress 18 months ago. Although we did in fact have an election, it was for a mere five of the nine seats. Furthermore ICANN is now taking the position that the entire at-large body, including its quota of Directors, may be eliminated altogether.
Moreover, this election was not held until two years after ICANN's formation and well after many of ICANN's fundamental and important decisions had been made and put into effect.
The remaining four seats continue to be occupied by unelected people who were chosen, somehow, back in 1998 for one year terms. Those terms have now been extended to be at least four years. This extension is so long that my own term, and the term of all five of the Board members who were actually elected, will expire before then.
ICANN has initiated a "clean sheet" study to reconsider even the existence of the "at-large" membership and the election of board members by the public. I personally consider this study to be unnecessary as it does little more than revisit the ground already covered by ICANN nearly two years ago. I also consider this study to be overbroad because it explicitly places at risk even the bare existence of any public participation in the selection of ICANN's Board of Directors. This risk is not idle conjecture - within the last few weeks, ICANN executives have declared that the at-large membership no longer exists under ICANN's By-Laws.
Even if ICANN eventually implements a full quota of seats for the at-large, there will not be an election until fall of 2002 - four years after ICANN's inception. And in those four years, ICANN and time will have poured large amounts of metaphorical concrete around its prior decisions, making them essentially irreversible and forcing the public simply to accept that which was done while they were locked outside of ICANN's primary decision making body.
Changing the subject slightly - That election of the fall of 1999 had some strange characteristics and failures.
Many voters were denied the ability to register to vote, or if registered, were not given sufficient information and pass codes in order to cast their vote.
Neither candidates nor voters were allowed access by ICANN to the voter lists. This made it nearly impossible for the voters to discuss matters except via the limited channels provided by ICANN. This limitation made it virtually impossible for the voters to form coalitions or parties, to otherwise organize their votes, or to promote their favored candidates. In the long term, this will damage the ability of ICANN's voters to evolve into a well-structured and principled institution. Moreover, ICANN's denial of the voter lists was arguably in contravention to the Corporations Code of the State of California under which ICANN is incorporated.
I was elected by the at-large voters. But because of ICANN's restrictive controls over the voter rolls, ICANN has made it impossible for me to speak to my constituents or to solicit their advice.
This denial of the voter lists is justified by ICANN on the basis of privacy. Yet, the California legislature has determined that in corporate elections, the integrity of the election process requires that voters and candidates have means to communicate with one another outside of the view and potentially manipulative control of corporate management. If ICANN has a problem with the enactments of the California legislature, ICANN ought to take it up with the legislature rather than unilaterally undermining the viability of public participation in ICANN.
ICANN's structure, whether taken piecemeal or as a whole, seems designed to include selected business interests - particularly those of trademark owners and DNS name registry/registrars - and to exclude Internet users. Deployment of a fully empowered at-large membership, with its full quota of Directors would go a long way towards redressing this imbalance.
Specific things Congress, the US Department of Commerce, and ICANN ought to do.
It is my desire to improve ICANN. To that end let me make some specific suggestions.
1. Congress should take care that the Internet does not serve as a means by which Federal administrative agencies slip their leash and assume unwarranted and undelegated powers.
2. Congress should take care that Federal administrative agencies do not try to do an end-run around their limited powers by outsourcing jobs to private bodies such as ICANN.
3. The Department of Commerce should exercise its independent judgment when dealing with recommendations coming from ICANN even if this may mean that the Department has to engage in hearings or other procedures.
4. The Department of Commerce should make it clear to ICANN that it expects ICANN to remember the obligations imposed on ICANN during its creation and thus improve its procedures and quickly create a fully formed vehicle for meaningful public participation in all of ICANN's decisions.
5. ICANN should be made accountable to someone more than just the Attorney General of the State of California.
6. ICANN should return to its mission and focus on technical coordination, leaving the public policy decisions to institutions better designed to accommodate public policy debate.
7. ICANN should fully adhere to the ideas of open access to all interested persons, transparent decision-making processes, and accountable decision makers. No ICANN process or body should be closed except when dealing with personnel, contract negotiations, litigation, or other expressly enumerated matters.
8. ICANN should emphasize implementation and deployment of good, fair procedures, such as its internal review mechanisms, even at the risk of delaying substantive policy decisions.
9. ICANN should follow the procedures written into its By-Laws and avoid ad hoc processes. In particular, this means more delegation of issues to the ICANN's specialized "supporting organizations."
10. ICANN should take steps to remedy the apparent capture by certain industry segments of ICANN's Domain Name Supporting Organization (DNSO).
11. ICANN should remove policymaking discretion from "staff" and sharply reduce the discretionary powers of executive officers.
12. ICANN should drop the "clean sheet" study of the at-large membership and simply get on with the job of filling all nine of the Board seats long promised to the public. At the same time ICANN should fully recognize the rights of at-large members as provided for under the California Corporations Code.
13. ICANN should rid itself of its excessively complex organizational structure.
14. ICANN should not have embedded entities that have no distinct legal status but which block review by members of the Board of Directors or the public.
15. ICANN should adopt better procedures for internal decision-making. In particular it should mandate semi-formalized procedures and rules of order for use by its numerous organizational entities.
Notes
[1] ICANN's purposes are stated in its paragraph 3 of its Articles of Incorporation. Emphasis has been added to highlight those parts mentioned in the text above.
3. This Corporation is a nonprofit public benefit corporation and is not organized for the private gain of any person. It is organized under the California Nonprofit Public Benefit Corporation Law for charitable and public purposes. The Corporation is organized, and will be operated, exclusively for charitable, educational, and scientific purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), or the corresponding provision of any future United States tax code. Any reference in these Articles to the Code shall include the corresponding provisions of any further United States tax code. In furtherance of the foregoing purposes, and in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, the Corporation shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv).
[2] The beneficiaries of ICANN's operations are described in paragraph 4 of ICANN's Articles of Incorporation. Emphasis has been added.
4. The Corporation shall operate for the benefit of the Internet community as a whole, carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law and, to the extent appropriate and consistent with these Articles and its Bylaws, through open and transparent processes that enable competition and open entry in Internet-related markets. To this effect, the Corporation shall cooperate as appropriate with relevant international organizations.
[3] ICANN's legal form is that of a corporation organized under the public-benefit/non-profit corporations laws of the State of California. ICANN is also exempt from US Federal taxes under 501(c)(3) of the tax codes.
[4] Esther Dyson, Chairman ICANN, made the following statements on July 22, 1999 before the House Committee on Commerce Subcommittee on Oversight and Investigations. (Emphasis has been added.)
Elected Board members. ICANN's elected Directors will join the Board in two waves: the first wave will consist of nine Directors chosen by ICANN's Supporting Organizations; the second wave will be elected by an At-Large membership consisting of individual Internet users. The Board expects the first wave to be completed by November 1999, and the second wave as soon as possible following that. In any event, the process of creating a fully elected Board must be completed by September 2000.
As to the first wave of elected Board members, ICANN expects that the nine Directors to be elected by its three Supporting Organizations (the Domain Name Supporting Organization, the Address Supporting Organization, and the Protocol Supporting Organization) will be selected and seated in time for ICANN's annual meeting in November in Los Angeles.
As to the second wave, it is ICANN's highest priority to complete the work necessary to implement a workable At-Large membership structure and to conduct elections for the nine At-Large Directors that must be chosen by the membership. ICANN has been working diligently to accomplish this objective as soon as possible. The Initial Board has received a comprehensive set of recommendations from ICANN's Membership Advisory Committee, and expects to begin the implementation process at its August meeting in Santiago. ICANN's goal is to replace each and every one of the current Initial Board members as soon as possible, consistent with creating a process that minimizes the risk of capture or election fraud, and that will lead to a truly representative Board.
