Communications of the ACM

Communications of the ACM

Commentary: ICANN and Internet Regulation

By Milton Mueller
Communications of the ACM, June 1999, Vol. 42 No. 6, Pages 41-43
10.1145/303849.303860
Comments

Organizations and rules aren't normally considered an "infrastructure." But global internetworking simply would not work without formal and informal procedures to coordinate domain-name assignments, IP addresses, and root-server management. Remarkably few Internet users are aware of the profound changes under way in this invisible infrastructure.

For most of the Internet's history, the central authority behind Internet names and numbers was the U.S. government, in the guise of various military agencies, the National Science Foundation, and civilian firms or research institutes under contract to them. One man in particular was closely associated with the number assignment function for 25 years—the late Jon Postel, whose DARPA-funded administrative work became known as the Internet Assigned Numbers Authority (IANA). Another contractor, private firm Network Solutions, Inc. (NSI), was primarily responsible for operating the domain-name registration database under contract to the National Science Foundation.

As TCP/IP networking became commercially significant in the early 1990s, the U.S. government acted quickly—in 1992—to privatize and commercialize the Internet backbone and local access services. It was much slower, however, to release control of the central coordinating functions. Not until July 1, 1997 did it finally initiate a public proceeding to collect comments on transferring these processes to the private sector. Even then the government entered the picture reluctantly and with no clear policy direction, having been virtually forced to act after three years of growing rancor over domain-name policy between the Internet Society and IANA, on one side, and NSI, on the other. A transition plan was finally issued in June 1998 as a U.S. Department of Commerce "white paper" drafted under the supervision of presidential policy advisor Ira Magaziner.

The Internet Corporation for Assigned Names and Numbers (ICANN) is the official product of the white paper policy. Incorporated in California in October 1998 as a nonprofit "public benefit corporation," ICANN was formally organized for "charitable and public purposes." It is now supposed to take over responsibility for IP address space allocation, protocol parameter assignment, domain-name system management, and root server system management. Its interim CEO, Michael Roberts, is a Washington insider and internetworking veteran, as well as one of the founders of the Internet Society and a former vice president of Educom, where he supervised major education networking initiatives. ICANN also has an interim board of directors headed by Esther Dyson, the technology pundit who also is on the board of the Electronic Frontier Foundation. Three European businesspeople, a respected retired telecommunications executive from Australia, a legendary Japanese Internet pioneer, and three other Americans, all with impeccable business, academic, and technology credentials, round out the board. The CEO and board members were all supposedly hand-picked by the widely respected Postel. ICANN also had the backing of Vinton Cerf, creator of the IP protocol and one of the most popular Internet elder statesmen.

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One would think the legitimacy crisis that has poisoned Internet administration for the past four years would be over. Think again.

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With the imprimatur of the U.S. government, the blessing of Postel and Cerf, a stellar international board and a seasoned CEO, one would think the legitimacy crisis that has poisoned Internet administration for the past four years would be over. Think again. Far from quelling the flames of controversy, ICANN's creation only seems to have added fuel to them. Indeed, the issues raised just seem to keep getting bigger and more fundamentally political in nature.

ICANN's temporary, unelected board is now struggling with such issues as defining a membership structure, the role of geographic representation, national sovereignty, privacy, and intellectual property.

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A Curious Confusion

ICANN is mired in controversy because the functions it is supposed to perform have become thoroughly politicized. It is also controversial because the secretive way it was formed did lasting damage to its legitimacy. A curious confusion now characterizes public discourse about ICANN. The parties involved cannot seem to decide whether it is an obscure technical coordinating body or an incipient world government.

Many in the Internet community would like to believe that ICANN is nothing more than a successor to Postel's IANA, with its five-person staff. IANA was the focal point of an informal consensus-building process that involved the IETF, ISPs, and domain administrators around the world.

If ICANN is just a "new IANA," then decisions could be made informally by a small group of experts responsive to whatever technical criteria they deem appropriate. After all, how many of us know or care about who creates and assigns the unique hardware addresses on Ethernet cards?

But others believe that ICANN's control of Internet coordinating functions puts it in a position to regulate the most important communications medium of the 21st century. If that is true, then who runs it and how it is run matter greatly. Membership must be broadly representative if not democratic. Procedures must be transparent and open to the public. Checks and balances must be in place. And ICANN had better be prepared to become enmeshed in lawsuits and geopolitics.

The problem is that no one can decide which kind of an animal ICANN is. Indeed, the players in this drama seem to oscillate back and forth between the two extremes.

Take ICANN CEO Roberts, for example. ICANN has been widely criticized because its board refuses to hold public meetings. Roberts has responded by charging the critics with misunderstanding the purposes of ICANN. "We have not been asked to make policy for the whole Internet," Roberts said. "We're chartered to look after Internet names and numbers," implying that such a function is too mundane and technical to be subject to public scrutiny.

Yet only two weeks prior to this statement, ICANN released proposed accreditation guidelines for domain-name registrars that belied Roberts' claim of technical neutrality. The detailed guidelines showed that ICANN had an expansive, regulatory notion of how to use its control of the root. They contained, among other things, measures designed to police trademarks and to exercise quality control over the business practices of domain-name registrars. They also proposed to finance ICANN through a domain-name tax, a proposal that would generate hundreds of millions of dollars in annual revenue as the Internet grows. The ICANN proposals were much closer to the regulatory rule makings of the Federal Communications Commission or the European Commission than to the number assignments of the old IANA or the consensual deliberations of the IETF.

Roberts is not alone in his oscillation between the two views of ICANN. Many of the organization's critics would also like the new corporation to be nothing more than a coordinator with very limited powers. But because they do not quite trust the people running it, they demand openness, transparency, representation, and procedural safeguards—as if ICANN were a branch of the U.S. Congress.

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Immense Power Over the Internet Itself

The source of this confusion was pinpointed by David Post of the Cyberspace Law Institute: "Any entity responsible for, and exercising control over, the root server databases possesses immense power over the future development of the Internet itself, and will, accordingly, be subject to immense pressure to act in ways that may be contrary to the best interests of the Internet community as a whole. Devising ways to prevent arbitrary, oppressive, or self-interested actions by this entity is a task of deep—of truly constitutional—importance to that community."

Post hit the nail on the head. Despite its official status as a private, nonprofit corporation, ICANN's administration of the root servers gives it the technical leverage to become a global regulator of the Internet and its users. And the commercialization and politicization of the Internet exposes it to powerful pressures to use that leverage.

Organizations representing multinational corporate trademark owners were among the first to understand the regulatory potential of the root. Led by the World Intellectual Property Organization, they have been lobbying strongly to get ICANN to use its control of domain-name registrations to protect and expand the power of their brands in cyberspace. If they have their way, the domain-name registration process will be used to enforce a wide range of intellectual property rights. Registration will impose a requirement for a dispute-resolution procedure, and the threat of being evicted from cyberspace will be used to crack down on people attempting to register domain names that match trademarks. The proposals would also reserve "famous" trademarked names in every level of the name space. The trademark interests, such as the International Trademark Association, have even been able to veto the creation of new top-level domains to compete with the .com monopoly of NSI until trademark protection rules are in place, even though there are no technical obstacles to the addition of new top-level domains.

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From Trademarks to What?

In their attempt to track down cybersquatters for "service of process," the trademark lobby made it clear that the way ICANN handles information gathered by domain-name registries about their customers has vitally important implications for global privacy protection. Indeed, if ICANN's control of names and addresses can be exploited to police trademarks and to track down alleged infringers, it does not take much imagination to think of hundreds of other claims that will be thrust upon it. It could be called upon to regulate the quality of ISPs, control entry into the name registration market, enforce copyright protection, track down child pornographers, remove terrorists and terrorist sites from the Internet, and more. If some people have their way, the domain-name registration database could become the cyberspace equivalent of a social security number—an identifier that both confers legal identity and ties the holder to benefits that can be withheld on account of bad behavior.

The surveillance potential of the root is probably the main reason the U.S. government dragged its feet so long in privatizing Internet administration. IANA was funded by the U.S. military, and the U.S. national security agencies' hunger for methods of centralized surveillance of domestic and international telecommunications is legendary.

In short, we have come a long way since the days when the Internet was touted as a totally decentralized, self-governing system that could simply route around any attempts to control it. The levers of control have been exposed for all to see, and ICANN's tumultuous and fascinating evolution is the best place to watch how an increasingly globalized society balances the need for open communication with demands for centralized control.

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The Digital Library is published by the Association for Computing Machinery. Copyright © 1999 ACM, Inc.

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