Statement for the Record of

Karl Auerbach

Former (and only) North American Director Elected to the Board of Directors of ICANN
Yuen Fellow of Law and Technology (Caltech and Loyola Law School)
Norbert Wiener Award (2002)
Co-Founder Boston Working Group (BWG)
Chief Technical Officer, InterWorking Labs, Inc.
Director, Domain Name Rights Coalition
Attorney at Law (California) and member of
the Intellectual Property Section of the California State Bar.

on

The Continued Transition of the Technical Coordination and Management of the Internet Domain Name and Addressing System
NTIA Docket No. 060519136-6136-01

July 7, 2006

Summary

NTIA asks us to comment on “The Continued Transition of the Technical Coordination and Management of the Internet Domain Name And Addressing System”.

The key words here are “transition” and “technical”.

Has there been actually been a transition of technical coordination or technical management? As far as technical matters are concerned, the NTIA-ICANN relationship has resulted in virtually no change that could be construed as a transition of either technical coordination or technical management.

On the other hand, the NTIA-ICANN relationship has caused very large changes in the economic, regulatory, legal, and social rules surrounding internet domain names. But none of these changes can be characterized as technical.

Looking on it as a whole, ICANN does almost nothing that can be construed as technical. ICANN stands near internet technical questions, and ICANN is affected by technical constraints, but ICANN's policies and actions are based on ICANN's perception of of proper social, economic, and business practices, not on technical issues.

For example, over ICANN's entire lifetime ICANN has never engaged in its obligation to coordinate and manage the reliable, unbiased, accurate, and efficient generation of DNS response packets to DNS query packets. Yet during that same period ICANN has imposed upon those in the domain name business, both buyers and sellers, a thick and heavy body of non-technical regulation concerning prices, dispute resolution, terms of sale. ICANN goes even further to dictate who may, and who may not engage, in the business of providing or selling domain names.

Nor does ICANN engage, except in the most tangential of ways in technical matters of internet addressing – those duties ICANN has abandoned to the Regional IP Address Registries (RIRs).

Fundamental questions of authority have been left dangling ever since the creation of ICANN – questions such as the authority of NTIA to even engage in this “transition”.

The lack of answer to these questions of authority is a sword of Damocles that threatens to fall upon every thing that has been put in place since the inception of ICANN. There is no statute of limitations on NTIA's possible lack of legal authority. And if that sword falls, it will fall upon the entire pyramid of contracts and MoUs and agreements upon which so many business and internet users depend.

Looking back to the aspirations for this transition – better innovation, lower costs, public accountability, open and transparent processes – we can see that we have almost completely missed the target.

Today we have an ICANN-created system of domain name sales that inflates prices by forcing them to contain a fiat registry fee that is entirely out of proportion to the actual cost of the registry service.

We have an ICANN that has ossified domain name business practices and rejects both technical and business innovation. We have government intrusion into ICANN decisions.

We have an ICANN that has been captured by a small set of business interests to the exclusion of the public.

And ICANN has operated with a degree of secrecy that would be the envy of many security agencies. ICANN's penchant for secrecy goes very deep – we ought not forget that ICANN even tried to deny to its own Directors the right to inspect ICANN's financial records.

ICANN, with the approval of NTIA, has eliminated all but the most dilute means for the public to take part in the making of ICANN's decisions that have resulted in as much as a billion dollars in inflated, non-competitive domain name registry fees.

NTIA, through ICANN, seems to have created something that closely resembles one of those dreadful bureaucracies that drew up Five Year Plans in the now defunct USSR.

And ICANN's growing bureaucracy and budget make it further resemble the classical image of a bloated government bureaucry. ICANN's rate of decision making is so slow that almost might be measured in geologic time scales. For example, there are forty companies who paid substantial application fees ($50,000 each) to ICANN who have been kept waiting for ICANN decisions for as long as six years – and since ICANN has not yet even considered moving forward on their already paid applications, they could easily wait another six years, or longer.

NTIA has not assuaged the concerns of other nations about US hegemony over the internet. Other nations have become so concerned about the US position that fragmentation of the internet DNS name space, and perhaps even the IP address space, is now a real prospect.

All-in-all, I submit to you that NTIA's experiment with ICANN has been a mistake. It is a mistake that should be recognized and redressed.

Full Statement

I am writing this statement on the 230^th anniversary of the United States Declaration of Independence.

That document contained a list of grievances against what was then the most powerful authority on Earth. That list of grievances was not coupled to an invitation to negotiate. It was an overt declaration that those grievances would no longer be tolerated. It was non-negotiable.

I would hope that NTIA today realizes that it now is playing the same role with regard to the internet as George III played with regard to the North American colonies – and now, as then, a rupture is imminent.

Moving nearer to our own era, it it surprising how much the issues of the internet resemble previous debates regarding of the transformation of public holdings into private domains. In the late 1940's and 1950's the US government faced strong pressures to transform our national forests, national monuments, and even our National Parks, into permanent, private properties for private use and profit by those designated as “stakeholders” of the era and that issue – cattlemen, sheepmen, and miners. It was a question whether we would hand over national assets to private dissipation, and eventually “shovel most of the west into its rivers”,¹ or whether we would look to the broader national interest, rather than that of a few designated “stakeholders”. Fortunately for us as a nation we took the latter course.

Those lessons have apparently been forgotten. NTIA and ICANN are rapidly converting hired caretakers – such as Verisign – into perpetual owners of the Internet.

I begin with a question to myself – why bother writing this statement? It is a beautiful sunny day on the shores of the Monterey Bay; I could be walking in the virgin redwoods or be out on the water sailing.

Certainly I have no strong belief that anyone, at least anyone with any authority, at NTIA will ever read what I write here.

My experience with NTIA with regard to ICANN has taught me that NTIA seems to listen only to lawyers from certain DC law firms, to political agendas-du-jour from the White House, and to a strange blending of 1960's flower-power conceptions of the internet with an oligarchic notion that powers of a governmental nature are best exercised by selected, privileged private actors.

So why do I write this? One reason: A choice is being made about the future of one of the most important communications changes since the invention of printing.

But there is a more important reason: A choice is being made about the future of constitutional and democratic governance.

The internet has made it obvious that the conceptions of national sovereignty that we have known since at least the end of the Napoleonic wars are eroding. This erosion began at the end of WW-II as multinational corporations became able to choose national jurisdictions of opportunity. Today national governments are finding it increasingly difficult to protect their citizens and cultural values on an internet that has few visible borders.

The granules of the authority that nations are losing are not dissolving away; they are finding their way into the hands of new actors.

Those who created this country 230 years ago knew that the paramount issue was that of preventing the excessive aggregation of authority and creating institutional forms to constrain the arbitrary use of authority. NTIA, when it comes to the internet, seems to have forgotten that which was so obvious to our Founding Fathers and has decided to return us to the days of oligarchs and trade guilds.

NTIA, via ICANN, is trying to channel these granules of authority into private hands. NTIA isn't trying to hide this goal, indeed, NTIA waves the flags of “public-private partnership” and “privatization” whenever it can.

But these private hands are, in reality nothing more than new regulatory bodies. But these new bodies are free from the normal forms of accountability. And as such they contradict the entire thesis of limited authority upon which this country was constructed. Privatization of governmental power and authority without also privatizing accountability and limitations is dangerous.

These issues are exacerbated by the anti-democratic turn that ICANN has taken. Having been one of the directors who lost his seat on ICANN's board when ICANN erased, with the approval of NTIA, the seats of the five publicly elected members of its board of directors, I can personally attest to the low esteem in which ICANN holds the public voice and the public interest - as if these were nothing more than pretty flags to decorate a meeting or a press release.

Vesting governmental powers into the hands of private actors is a bad enough first step. But when those actors thumb their noses at the public and slam the doors on the public, then we have a real problem.

I do not have much faith that NTIA will be able to see the flaws in its ways, much less to cure them. I hope I am proved wrong.

Who Am I?

I am Karl Auerbach.

I served on ICANN's Board of Directors as the only publicly elected Director for North America.

I served for roughly 2 ½ years until ICANN abolished my seat and that of all other publicly elected Directors.

I am the only person from North America who will ever be elected by the public to ICANN's Board of Directors.

I have been deeply involved with the technical development of the internet ever since its inception. I had my first ARPAnet email address in 1972, I helped design several internet protocols, chaired working groups at the IETF, and was the editor and a co-author of one of the most heavily used Internet Standard protocols.

I have been a principle or early member of several internet related start-ups. Code from my companies, including code I have written myself, runs in millions of infrastructure devices found the heart of the internet. In the mid to latter parts of the 1990's at a startup that was subsequently acquired by Cisco, I largely designed and implemented the real-time networking components of IP/TV², a system to distribute entertainment grade audio and video over the internet to large audiences.

I spent several years in Cisco's Advanced Internet Architectures Group looking forward to what the internet could become in the first part of the 21^st century.

Today I continue today to create and implement new internet products through my current company, InterWorking Labs.

I am a co-founder of the Boston Working Group – The BWG submitted one of the other proposals for what would become ICANN, and over the years the BWG has remained active in ICANN at all of its levels.

Structure of My Comments

I will ask, in several different ways, two fundamental questions:

• What do we want to achieve?

• Who are the intended beneficiaries?

My comments will often look backwards at what has been done. But they will also look forward to consider how to better serve the public interest.

I will then address the seven specific questions asked by NTIA.

I begin with two clarifying questions:

What Is ICANN And What Is IANA – Where Are The Boundaries?

There is a considerable lack of clarity about what is “IANA” and what is “ICANN”. Are they severable? Is the discussion here merely about “ICANN” and not about “IANA”? Where does the L-Root server fit into this? Should the IETF be paying for the protocol number services it receives? And is IANA itself a monolithic function or is it really composed of distinct jobs that could be split apart? Indeed, is ICANN actually an agglomerate of jobs that might be better done by several, independent bodies?

These muddy waters are made even more opaque by the multiplicity of mechanisms (and proxy parties, such as the use of NOAH) to define the relationship between NTIA, ICANN, and IANA. The situation has been exacerbated by the lack of accurate, concrete, and complete descriptions and enumerations of ICANN/IANA deliverables and of government-furnished rights and properties.

Whose Marbles Are We Playing With?

Who, ultimately, has the right to determine the fate of .com, and all the other internet assets that are being “managed” by ICANN?

There have never been formal transfers of title or irrevocable grants. Everything in place today is the result of sequences of dependent contracts (or “agreements”, “memorandums of understanding”, or purchase orders for the performance of services) all filled to the brim with conception of oversight and caretakership, but never of grants of title or ownership.

This question is very important – One outcome that should be under serious consideration is a return to the status quo ante of 1997. ICANN may have a contract under which ICANN has transfered a perpetual right to profit from .com to Verisign, but that right remains derivative and dependent on ICANN's continued existence.

Perhaps we ought to take seriously the question of revoking ICANN's caretaker role for .com and other TLDs. This would probably automatically vacate Verisign's derivative role and all other derivative roles that ICANN has granted.

Verisign might then claim that ICANN has breached their contract. But that's their problem, and their problem only – it is not ours. We should not sacrifice the future of the internet because Verisign was able to negotiate the pants off of a couple of DC lawyers and an amateur board of ICANN directors.

What Are We Trying To Achieve?

One of the reasons why we have had so much difficulty in these matters of internet governance is that we are operating without a solid foundation.

We have never really asked two very important questions:

• What are the social values or technical goals that we are trying to promote?

• And for whom?

The former question has typically been answered with vague platitudes – like “stability”, “competition”, or “bottom-up”.

The latter question has been evaded. We have leapt, without any real thought, away from the question and have accepted as an answer a highly exclusionary conception that contains great danger - “stakeholder”.

It is time to step back and once again ask the question and seek an answer. And this time we should do it with the honesty to recognize when we are simply reflecting the economic desires of a small group of industrial actors and when we are sacrificing principles of competent and accountable governance.

Only after we have really faced these questions should we begin to turn to the modes and methods. And we ought to continuously remind ourselves that in our system of constitutional government, the powers of governmental agencies, particularly administrative agencies like NTIA that obtain authority only through explicit delegations from one of the three constitutionally defined branches, are limited and constrained. In other words – if there is a question regarding authority, NTIA or the Department of Commerce must seek appropriate legislation from Congress.

Unfortunately we have a lot of history to overcome. ICANN seems to have been born wrong-end first. In a frenzy of “public-private partnership” exuberance, NTIA dismissed and ignored the question of fundamental source of authority and went forth and caused ICANN to be created. ICANN, in turn, ignored questions of purpose and principle as it raced forth to define trademark-over-domain rules and impose a rigid, almost unbreakable, hammerlock over the domain name marketplace.

NTIA and ICANN, whether through hubris or excessive zeal, have severely damaged the internet.

• Innovation has been suppressed.

• Entrepreneurs have been denied the opportunity to enter the market place.

• The technical stability of the internet has been ignored, leaving it an orphan.

• A goodly fortune has been sucked out of the pockets of internet users and into the hands of domain name businesses licensed by ICANN.

Thus I submit that the questions facing NTIA today is larger than a mere review of what has happened since 1997. NTIA should be asking how to repair and redress the damage that has been caused.

What Is A “Stakeholder”?

I submit that the real “stakeholder” is the individual human being who uses the internet. Users may form aggregates that we call corporations or governments or churches or trade unions, but at the bottom of it all we find living, breathing people. If the phrase “bottom-up” means anything, it must mean that the atomic unit of “stake” is the interest of each individual person who uses or who is affected by the internet.

Yet the term “stakeholder”, particularly in the ICANN context, has come to mean those who have a business-related financial stake, particularly a vendor's stake, in the internet.

What has occurred within the ICANN process is the elevation into positions of privilege of a very few, highly selected, business interests – mainly DNS businesses (registries and registrars), intellectual property lawyers (but relatively few intellectual property creators), and very large businesses.

As those interests were advanced to the lofty role of “stakeholder” the real parties of interest – the community of users of the internet – were sent into exile.

• ICANN today is not “bottom-up”.

• ICANN today excludes internet users.

• ICANN's At Large Advisory Committee (ALAC) is a sham and a failure.

ICANN has evolved into a trade body composed of those who sell domain names or who have elevated concerns for the protection of trademarks.

Consequently, ICANN is really nothing more than a medieval trade guild returned to us in electronic garb.

The ICANN guild sets product specifications, sets sales terms, establishes minimum prices, choses who may become and remain a vendor of DNS products, and dictates a de-facto law (and judicial system) of trademarks-over-domain-names that largely displaces national laws and judicial processes.

The cost of this ICANN guild is quite large – it is easily estimated that for .com alone the ICANN guild pumps several hundred million dollars each year out of the pockets of internet domain name purchasers into Verisign's bank accounts.

Some naive businesses have argued that these amounts are, as perceived by the individual businesses, small and easily absorbed. These naive business operators do not consider the loss of innovation and the denial of business opportunities to those who wish to try their hands (and risk their own money) in the DNS name business. Yet, it has long been the tax policy of the US government that small amounts do make large differences – we often see arguments put forth by the US government that a few dollars of tax relief will cause large changes in the economic climate. If those arguments of the US government are true than we must recognize that the fact that a few businesses are willing to pay a few extra dollars is irrelevant to the fact that the ICANN system is reallocating billions of dollars.

I predict that ICANN will ultimately fail - whether it be through legal challenge as a combination in restraint of trade or through efforts of the technical and user communities to bypass the bloated, expensive, glacial bureaucracy that ICANN has become – unless ICANN reorganizes itself and its relationship to NTIA in recognition of the fact that the real stakeholders are the community of internet users.

Failure Of Public-Private Partnership

NTIA and ICANN form a symbiotic pair, each needs the other.

NTIA could not do what ICANN does because NTIA is a constrained government body, yet NTIA uses ICANN as a sock puppet to promote administration goals and policies.

And ICANN could not continue to exist without the protective hand of NTIA (and thus the US Government) on its shoulder. If that protective hand is ever lifted, ICANN will stand naked before the world as a private combination in restraint of trade – and in every separate nation the question will be asked how ICANN fits, or if it fits at all, within the anti-trust laws of that particular nation.

We should not underestimate the inconvenience that would result should ICANN crash on the rock of lack of NTIA administrative authority or a legal order to dismantle ICANN – there is no doubt that it would send large waves through the hierarchy of contractual relationships that are ultimately rooted in ICANN and its vague grants from NTIA.

But we should also not overestimate the damage. ICANN has abandoned its role as provider of technical oversight and management. ICANN has no hands on the knobs and levers that actually control the operation of the internet. If ICANN, or NTIA, were to vanish the internet would still move, packets would still flow from source IP address to destination IP address, DNS queries would still be answered, web-servers would still respond, e-commerce would still be transacted, email, instant messages, and spam would still flow.

In short - ICANN's failure to engage in matters of that actually relate to the technical stability of the domain name system or IP addressing has rendered it dispensable.

The Road Forward

The road forward is clear:

• We must identify and precisely define those few technical items that require uniform, coordinated oversight. Preconceptions should be examined in bright, harsh light of objective inquiry to winnow the matters that absolutely require oversight from those that would merely be more acceptable in the eyes of some observers if oversight were applied.

  To be more particular: Large numbers of new top level domain opportunities should be made available to entrepreneurs of all forms, with all varieties of business models, with minimal application fees, minimal inspection of business plans and assets, and with the full recognition that these TLDs should be allowed to succeed or fail on their own merits.

• Technical coordination should not protrude, except to the minimal extent necessary, into the realms of law, economics, social planning, or cultural and moral values – and vice versa.

  To be more particular: Matters of law should be left to legislatures – private laws such as the UDRP should be eliminated. National governments should not pander to local political interests by attempting to label a thing as a technical matter and then applying pressures towards a desired decision. Issues that reflect social, economic, and business policy choices should be decided by our traditional systems – legislatures, courts, free competition – and not be coerced by labeling them as technical imperatives.

• Internet business opportunities, even for core technical items, should be open to anyone who is willing abide by a few clearly articulated, clearly defined technical obligations.

  To be more particular: ICANN's intrusive review of TLD applications, as well as the outrageous fees charged by ICANN, should be eliminated. It must be replaced with a system that inquires only of the applicant's willingness to operate in accordance with broadly accepted, written technical standards and practices. Application fees should reflect the actual costs of this minimal degree of supervision – a reduction of a thousandfold from ICANN's current application fee levels is not unreasonable.

• The rest should be left to the free interplay of a well informed body of providers and users without the imposition of artificial monopolies, guilds, or government intervention.

Answering The Specific Questions

NTIA has asked seven specific questions. I turn to these now:

1. The DNS White Paper articulated principles (i.e., stability; competition; private, bottom-up coordination; and representation) necessary for guiding the transition to private sector management of the Internet DNS. Are these principles still relevant? Should additional principles be considered in light of: the advance in Internet technology; the expanded global reach of the Internet; the experience gained over the eight years since the Department of Commerce issued the DNS White Paper; and the international dialog, including the discussions related to Internet governance at the United Nations World Summit on the Information Society (WSIS)?

It is naive to consider these principles as having become irrelevant. However, the principles listed above are really secondary corollaries to a more basic, more important, axiom.

I believe the following is the proper foundation of internet governance:

The First Law of the Internet

• Every person shall be free to use the Internet in any way that is privately beneficial without being publicly detrimental.

• The burden of demonstrating public detriment shall be on those who wish to prevent the private use.

• Such a demonstration shall require clear and convincing evidence of public detriment.

• The public detriment must be of such degree and extent as to justify the suppression of the private activity

The NTIA question goes beyond this First Law in an important way. The First Law does not distinguish between government and private authority. The NTIA question does.

This nation was founded on the conception that governmental power should be limited and that people, the real stakeholders in the nation, as they are in the internet, are the reservoir of authority. That does not mean, however, that governmental power is bad or that it should be tossed into the hands of private actors without accountability or limitations.

Consequently, I suggest that the proper way to deal with the issue of private versus government authority is to leave it up to the real stakeholders (not the faux “stakeholders” we have today) to decide how they would like to structure their bodies of internet governance.

NTIA, and the US Government should stand by with an open hand to accept such authority if the true stakeholders decide that NTIA or the US Government is the appropriate repository for these powers. And NTIA and the US Government should be equally willing to properly empower and transfer authority to any other inter-governmental or private bodies that the stakeholders might find appropriate.

2. The DNS White Paper articulated a number of actions that should be taken in order for the U.S. Government to transition its Internet DNS technical coordination and management responsibilities to the private sector. These actions appear in the MOU as a series of core tasks and milestones. Has ICANN achieved sufficient progress in its tasks, as agreed in the MOU, for the transition to take place by September 30, 2006?

As I mentioned previously, there has been no transition of technical matters whatsoever. The only thing that has really changed over the years since 1997 is that decisions regarding the business and legal operation of the domain name system have been outsourced to ICANN.

The technical operation of the DNS root servers remains in the hands of a loose coalition of root server operators. This group, although they operate today with a great deal of integrity and competence, are not subject to any obligations, apart from those they voluntarily impose upon themselves, to respond equitably and promptly to DNS query packets and to refrain from data mining or data manipulation that could, were they so inclined, be used for for commercial gain.

ICANN's decisions about new top level domains are made almost entirely on non-technical basis. And those technical measures that are reviewed are primarily related to the ability of the TLD applicant to meet ICANN's notion of how to provide business services to customers and are not related to the technical questions of providing responses to DNS queries from internet users.

Were, by way of analogy, ICANN in charge of airline flight safety, ICANN would be issuing flight safety permits based on the length of the ticket counter lines and the color of the boarding passes rather than whether the aircraft are maintained by trained personal and operated in accord with air traffic control rules.

All that has occurred since 1997 is the growth of ICANN into a regulatory body that is captured by those it regulates and from which ICANN extracts tithes to sustain and increase ICANN's ever engorged and ever ramifying bureaucracies.

In the meantime, ICANN has watched, largely with implicit approval because of the increase in ICANN revenue, with the transformation of the internet's domain name system into something more tailored for bubble-mentality speculation than for use as a lifeline grade infrastructure.

For NTIA to release an fully privatized ICANN onto the world would be nothing short of a nightmare – It would be an out of control regulatory body that is subject to no oversight, no control, no accountability that would have a permanent right to continue and extend its existence by imposing fees, fees without any grounding actual costs, that are ultimately paid by the community of internet users. And if ICANN's history is any guide, a freed ICANN would become even more a creature of those it regulates and even more willing to sacrifice internet stability on the altar of incumbent profits and speculative fevers.

3. Are these core tasks and milestones still relevant to facilitate this transition and meet the goals outlined in the DNS White Paper and the U.S. Principles on the Internet’s Domain Name and Addressing System? Should new or revised tasks/methods be considered in order for the transition to occur? And on what time frame and by what method should a transition occur?

As I have written earlier, it is appropriate to revisit first principles and understand what we want to achieve and who are the intended beneficiaries.

ICANN started out as if drawn from the life of the George F. Babbit³ - no principles except those prefixed with dollar signs.

I have previously mentioned “The First Law of the Internet”. I would now propose that we adopt an additional principle that should guide the size and shape of structures we might chose to create:

Form follows function⁴

ICANN was given form before it was given purpose. That is backwards.

Once we have ascertained the what, and the for-whom of internet governance we should follow this principle and create institutions of governance, whether they be private or public, that are shrink-wrapped to precisely the size needed to accomplish their jobs, and not one whit larger.

It is easy to perceive what several of these jobs would be. The following list enumerates them. These need not be in one body. Indeed it is best if they are performed by separate bodies that have only highly formalized interactions and no common management, funding, or facilities:

1. “Protocol parameter” assignment on behalf of the IETF. (This job is presently inadequately defined. The IETF and IANA are working on a better definition. A clear definition would state not only what is the IANA job, but also what it is not.)

2. Clerical preparation of a root zone file using data provided by identified, authenticated sources.

3. Accurate dissemination of that file to the world (not merely to the root servers.) Just so that the scope and level of effort can be appreciated: we are talking about a file that contains fewer bits than the typical button image on a typical web page.

4. Establishment of service level obligations for root server operators. I have previously suggested elsewhere⁵ some of these obligations:

• Servers must be operated to ensure high availability of individual servers, of anycast server clusters, and of network access paths.

• Root zone changes should be propagated reasonably quickly as they become available.

• User query packets should be answered with dispatch but without prejudice to the operator’s ability to protect itself against ill formed queries or queries that are obviously intended to cause harm or overload.

• User query packets should be answered accurately and without manipulation that interferes with the user’s right to enjoy the end-to-end principle and to be free from the undesired introduction of intermediary proxies or man-in-the-middle systems.

• Operators should coordinate with one another to ensure reasonably consistent responses to queries made to different root servers at approximately the same time.

• There should be no discrimination either for or against any query source.

• Queries should be given equal priority no matter what name the query is seeking to resolve.

• There should be no ancillary data mining (e.g. using the queries to generate marketing data) except for purposes of root service capacity planning and protection.

• The operator must operate its service to be reasonably robust against threats, both natural and human.

• The operator must demonstrate at reasonable intervals that it has adequate backup and recovery plans. Part of this demonstration ought to require that the plans have been realistically tested.

• The operator must demonstrate at reasonable intervals that it has adequate financial reserves and human resources so that should an ill event occur the operator has the capacity (and obligation) to recover.

5. Oversight to ensure that those service level obligations are met. (The oversight body could also make financial commitments [such as letters of credit] to assist root operators should they find themselves faced with a need to recover from human or natural disasters.)

6. Choosing among competing claims to a ccTLD.

7. Establishment of TLD technical standards.

8. Establishment of an even-handed system of granting entrepreneurs the right to operate a TLD in the the root zone file. (It has been suggested by many that this system be a combination of auction and lottery based mechanisms, and that the numbers of new TLDs be sufficient to create a wide variety of choice to those domain name buyers who are not yet locked into a existing top level domain.)

9. Establishment of data preservation practices and data formats so that should a TLD fail that a successor in interest, if there be any, or the customers of that TLD may revive the operation of the TLD.

10. Establishment of top-level IP (IPv4 and IPv6) allocation policies. (This work is being done, but it is being done in the context of the regional IP address registries [RIRs] who have only a tenuous relationship with ICANN. A possible path here may be simply to recognize that ICANN has abandoned this job and that it be best to separately institutionalize that part of IANA that does the highest level of global allocation and to place this new body over the existing RIRs.)

4. The DNS White Paper listed several key stakeholder groups whose meaningful participation is necessary for effective technical coordination and management of the Internet DNS. Are all of these groups involved effectively in the ICANN process? If not, how could their involvement be improved? Are there key stakeholder groups not listed in the DNS White Paper, such as those with expertise in the area of Internet security or infrastructure technologies, that could provide valuable input into the technical coordination and management of the Internet DNS? If so, how could their involvement be facilitated?

As I discussed above, the concept of “stakeholder” is deeply flawed – it hearkens back to a pre-democratic era of wergild – the concept that a person worth is measured by his/her rank and affiliation.

Every “stakeholder” group defined in the White Paper is composed of people. The power of those groups should be reflected by the number and persuasive power of its members, not vice versa.

However, even if one were to accept the “stakeholders” enumerated in the White Paper one must conclude, based on observation of ICANN development, that ICANN adheres to George Orwell's words: “All animals are equal, but some animals are more equal than others”.⁶

The degree to which ICANN has systematically closed its doors to the public - even erasing public seats on its board and substituting a system that resembles the old system of Soviets from the now defunct USSR – has made it clear to every objective observer that among those considered as “stakeholders” by ICANN, the community of internet users is not to be found.

Without the bottom, the community of internet users, the oft-bandied phrase “bottom-up” has no meaning in ICANN.

5. The DNS White Paper listed principles and mechanisms for technical coordination and management of the Internet DNS to encourage meaningful participation and representation of key stakeholders. ICANN, in conjunction with many of these key stakeholders, has created various supporting organizations and committees to facilitate stakeholder participation in ICANN processes. Is participation in these organizations meeting the needs of key stakeholders and the Internet community? Are there ways to improve or expand participation in these organizations and committees?

Yes, ICANN has indeed created “supporting organizations” and “committees”. But those “supporting organizations” and “committees” do not in any sense of the word, represent the key stakeholders of the internet. Rather, these “supporting organizations” and “committees” reflect a very arbitrary, and extremely limited view of who has a “stake” in the internet.

These “supporting organizations” and “committees” elevate certain business, legal, and governmental interests, and nearly ignore small businesses, educational bodies, churches, trade unions, local and and state governments. And these “supporting organizations” and “committees” entirely exclude individual people who are affected by the internet.

Would the United States government consider itself adequately composed if it gave voice only to a very few large corporations, one segment of the legal profession, and a few governmental officials while excluding the citizens of the US? No, it would not. Yet, that is precisely how ICANN is structured.

The actual interests that ICANN represents is but a tiny portion of the full community of interests that are affected by the internet. As a result, ICANN really represents only a tiny fraction of those who really ought to be empowered by, rather than excluded by, ICANN.

The narrow base on which ICANN stands will continue to make it weak and unstable. ICANN must widen its base, and eliminate the preferences that are built into its structure that favor the incumbents, else it's support will further dwindle.

And the support for ICANN is in fact dwindling. It is very hard to find anyone in the internet community who holds ICANN in high regard. Yet it is very easy to find members of the internet community who find ICANN a laughable exercise, or worse.

6. What methods and/or processes should be considered to encourage greater efficiency and responsiveness to governments and ccTLD managers in processing root management requests to address public policy and sovereignty concerns? Please keep in mind the need to preserve the security and stability of the Internet DNS and the goal of decision-making at the local level. Are there new technology tools available that could improve this process, such as automation of request processing?

We should be careful not to build too much into one monolithic machine of ccTLD management. It is best to consider ccTLD matters as two distinct items:

1. The act of recognizing who is a ccTLD manager is tantamount to the internet recognition of who is a nation or who has the privilege of acting in the minds of most internet users as the electronic proxy for a nation. This choice is a highly charged political question; it is not a technical matter.

2. Once a manager has been recognized it then becomes a relatively straightforward matter how such managers are credentialed and their identity authenticated so that a clerical system can be operated to maintain the very small number of DNS records required to support a ccTLD.

The actual administration of ccTLD records within DNS and the authentication of update requests is far from a monumental task – there are rather less than 250 ccTLDs and they really don't change very often. The actual administrative workload is quite small.

7. Many public and private organizations have various roles and responsibilities related to the Internet DNS, and more broadly, to Internet governance. How can information exchange, collaboration and enhanced cooperation among these organizations be achieved as called for by the WSIS?

This is easy: There is no reason why these groups can not form their own associations and interact according to systems of their own. ICANN has long suffered from a kind of paternal anxiety that drives it to impose structure onto discussions and participation. As we learned from the ICANN elections in year 2000, if ICANN gets out of the way, there can be an amazing organic growth of self-created structures that are vibrant and far more effective than anything ICANN has conceived.

The door should not be slammed in the face of participants, whether it be done explicitly, as ICANN has done to the community of internet users, or implicitly, as has been done in ICANN by elevating the interests of a few select “stakeholder” interests so that others perceive that their participation would be but a foredoomed exercise.

Secrecy is an additional factor – ICANN's inability to operate in the open with transparent processes for making decisions has made it exceedingly difficult for any but the determined and wealthy to fully engage in these debates. ICANN meetings are full of closed doors, unpublished agendas, secret meetings, late and vague minutes, etc. This must cease.

Conclusion

ICANN has been a attempt to paint the words “public-private partnership” on something that is really just a 21^st century version of an old Soviet Central Planning Committee.

It is an attempt that has failed:

• The community of internet users is no more protected against technical dangers to the stability of the internet than it was in 1997. Indeed because ICANN has created the false perception that there is such protection, it is reasonable to conclude that the internet is actually at greater risk of technical instability today than it was in 1997.

• ICANN has ossified what was potentially a great opportunity for entrepreneurial innovation into a stagnant pond filled by a tiny number of permanent incumbent providers who receive ICANN regulatory fiat prices for products that actually cost an infinitesimal part of those prices.

• Those who wish to innovate have had the door slammed in their faces – some because ICANN board members had difficulty pronouncing their names, some because they once exercised their legal rights in ways that offended some ICANN supporters, some because they wanted to innovate, and many because the could not or would not pay ICANN's exorbitant fees or subject their proprietary information and business plans to review against arbitrary, vague, and usually irrelevant criteria.

• The community of internet users has been denied any place at the ICANN table, much less a place that reflects their position as the largest and most important of all internet “stakeholders.”

The road forward must be one in which we shed the predispositions to treat governance and government as evils to be shunned at every opportunity – we are dealing with questions of power and authority, the shaping and limitation of which is the proper science of governance.

We must also shed the leftovers of flower power ideas about the internet. The internet is not some halcyon dream out of a Utopian novel. It is a real-life thing in which people and entities engage and compete, often near, or even beyond the limits of law. The methods used by technologists to debate and resolve technical questions are not appropriate when dealing with the far more nuanced and emotional issues of internet governance – we should not attempt to preserve methods that today, even in their original setting, are not adequate.

And we must dispense with the notion that only economic concerns matter and that people, their families, their religions, their schools, their unions, and their aspirations, do not.

We can take a surgical scalpel, wield it with detached judgment, and separate the technical necessities to keep the internet running reliably, accurately and efficiently. We can build institutions around these necessities – removing discretion, removing the temptation to engage in social engineering. And for the rest we can debate, legislate, or allow the free marketplace to function.

But to do this we need to abandon and reverse much of what has been done since 1997.

If the NTIA, an agency of a department of a branch of the United States government, is unable to do this, we may well find that a rather larger body of stakeholders – the rest of the nations of the world – may change the game in ways we have yet to imagine.

Notes