Confederation of European Computer User Associations

 

CECUA Euro - News

(This is a translation, by Stuart Goold in collaboration with the author, of the original paper written in French which is published on the web-site
http://www.iris.sgdg.org/les-iris/lbi/lbi-110402.html which is the authoritative document).

If the Internet appears to be a technical device focused on its uses, it also has many bottlenecks, which imply centralized management of certain aspects of its operation. As much as any other technical network, the sustainability of the Internet depends upon the technical definition of all the rules for interworking between its components so as to ensure the coherence of the system. The characteristics of the Internet in this field is due to the existence of a network of more or less formal structures which all are in the United States, and whose outlines, missions and articulations are vague, but which in combination play an essential role in the governance of the Internet.

In order to ensure the operation of this system, a certain number of technical parameters are essential. Each machine connected to the Internet must thus be able to be identified in a univocal way. It is the numerical address IP which constitutes the single identifier of these machines. The IP address is quite simply the equivalent of the telephone number for data processing.

For each www.myname.com type of domain name, there is a corresponding numerical IP address. The advantage of domain names compared with IP addresses is that it is possible to locate a machine on the Internet by using letters and not figures, which makes them more easy to use and memorable.

Each domain name for a Web site is transformed into IP address by specialized servers which store all of the conversions from domain names to IP addresses. Thirteen root servers distributed around the whole world are updated from the principal server which contains all the conversion codes for the world network and thus constitutes the true epicentre of the Internet. This principal server is located within the NSI-Verisign company, which manages its operation under the authority of ICANN.

ICANN is indeed the organization officially responsible for the whole of the system of Internet addresses, which is more usually called DNS ("Domain Name System"). However, following internationalisation and rapid marketing of the Internet from the middle of the 1990s, control of the DNS server has become a crucial political and economic stake. This is why ICANN is regarded today as the principal authority of governance of the Internet.

1. DNS before ICANN

As one of the first developments of the protocols for data-processing communication, the adoption of easily remembered semantic addresses for locating connected computers appeared judicious. In the United States, this idea goes back to 1971, when Peggy Karp created the first list of domain names.

Since 1985, the Institute of the Information Sciences of the University of Southern California has been officially entrusted by the Defence Department of the United States with the responsibility for the management of DNS. The operational maintenance of DNS was then with Jon Postel, as the person in charge of an ad hoc entity called IANA (for "Internet Assigned Numbers Authority"). The financing of IANA was ensured by a grant awarded by the Defence Department to the University of Southern California.

In 1993, the National Science Foundation replaced the Defence Department as the source for financing of the DNS. Vis-à-vis the explosion of demand for domain names, the National Science Foundation decided immediately to transfer operational management from the University of Southern California to NSI (Network Solution Inc.).

NSI is thus seen as the entrusted operational (organisation) responsible for housing the main root server and recording, receiving payment, the domain names in .com, .net and .org based on the principle of "first come first served". Nevertheless, if this agreement gave to NSI operational control of the system of the addresses, this company remains legally under the authority of Jon Postel and the IANA.

Very quickly, the monopoly of NSI in issuing domain names in .org, .net and especially .com, its status of a profit making company, and finally its role in the management of conflicts of property rights of domain names, caused much controversy.

Created in 1992 by pioneers of the Internet, ISOC (Internet Society) wished to take operational and decisional control of DNS with the active support of Jon Postel and IANA. In addition, foreign governments also started to wonder about the legitimacy of the control of such a crucial component of the Internet by the United States government. Lastly, private companies wished that the relationship between trademark law and the recording of the domain names be clarified.

This is the reason president Clinton officially asked (in July 1997) the Department of Commerce (DoC) to ensure the transfer of the addressing system into a private and competitive system. After much negotiation, in June 1998 the DoC finally published a White Paper giving a "statement of policy" on the DNS [1], which accepted a relatively favourable opinion of the principal actors concerned.

1.2. White Paper with the creation of the ICANN

In this White Paper, the DoC starts by defining the four guiding principles that must officially guide the reform of the DNS. It must:
- ensure the stability of the system so as to maintain an environment favourable to trade;
- introduce competition and market forces;
- privatise the management of the DNS together with introducing a bottom-up model of decision-making in order to increase the flexibility of the system;
- ensure representativeness of the various structures of management of the DNS in order to reflect the diversity of the involved interests and the international character of the Internet.

The White Paper also called for the "spontaneous" creation of a new company with non-profit making aims representative of all (my italics, SG) of the users of the Internet in the world, which would have the role of taking control of the management of the DNS in the place of IANA.

Lastly, this document has some recommendations on the policy to be implemented by the newly created entity. By way of examples, it recommends:

- the creation of new generic domain names (gTLDs)
- the development of competition in the recording of the domain names
- the setting up of a specific system for the resolution of conflicts on domain names
to which all the named agents would be obliged to subject itself in the event of protest on behalf of the holders of trademarks.

Following the publication of the White Paper, IANA and ISOC started more or less secret negotiations in order to impose their own plans closer to the DoC view. For this purpose, Jon Postel engaged a lawyer, Joe Sims, whose mission consisted of writing the statutes of the new entity to be created. Joe Sims finally sent the DoC (in October 1998) a proposal outlining the company intended to replace IANA. This proposal, of course, included the statutes of the aforementioned company called ICANN. It also included the structure of its temporary office as well as the biographies of its members who had been selected in the framework of intense negotiations in particular between Postel, the government of the United States and the European Union. On the following 25 November, the DoC recognized ICANN as the entity with which it was going to work. The contract between DoC and the ICANN, in particular, stipulates officially that these two entities must collaborate to reform the DNS by ensuring the transition from its management towards the private sector [2].

2. Governance of ICANN

A good part of the debate about ICANN consists in defining the nature of its links with the DoC on the one hand, and the nature of its missions in the management of the DNS on the other hand. The evocation of these two questions constitutes the ideal start for the better understanding of the type of governance being pushed by ICANN.

2.1. ICANN under the influence of DoC

Officially, ICANN is a private company with non-profit making aims under Californian law with a contract with the DoC, with the aim to become "the global consensus entity to coordinate the technical management of the Internet's domain name system". The articles of incorporation of this organization state in particular that ICANN has the function "to lessen the burdens of government and promote the global public interest in the operational stability of the Internet" [3].

In fact, the relations between DoC and ICANN are at the very least ambiguous:

- on the one hand, the DoC officially reveals its will to privatise the management of the DNS and avoids intervening openly in the decisions of ICANN;
- on the other hand, the DoC retains ultimate control on the main root server managed by NSI-Verisign, which is the true owner.

The influence of the DoC on ICANN is particularly obvious in the management of TLDs. In a document on the extent of its missions, ICANN itself recognizes that: "Under ICANN's existing relationship with the U.S. Government, all TLD delegation, re-delegation, and name server change requests require final approval of the U.S. Government. Thus, currently ICANN's role in this regard is limited to making recommendations for changes to the US Department of Commerce, which has the operational oversight responsibility for the DNS root zone file." [4].

In addition, according to the Law Professor Michael Froomkin, an official representative of the DoC, admitted himself that ICANN consults the DoC before each of its major decisions [5].

Lastly, the DoC has the right to put a term in the contract, which binds it constantly to ICANN.

In the final analysis, Froomkin concludes, the authority of DoC is such that any decision other than purely technical decisions issued by ICANN, is systematically submitted to the DoC for its prior approval [6]. However, the decisions of ICANN are much less of a technical nature than political. It is also the reason that ICANN is an authority of governance.

2.2. ICANN as an authority of governance

Naturally, ICANN is presented in the form of a technical organization for the coordination of the Internet. In a letter addressed in June 1999 Ralph Nader and to James Coils, Esther Dyson, then president of the ICANN, declared that this organization deals only with "plumbing" [7] This presentation is also supported by the DoC which affirms in its White Paper that the creation of the new company "should not correspond to the installation of a structure of governance of the Internet".

However, as in the first lines of a relevant official document on the definition of its missions, ICANN recognizes openly that its role is "at the same time technical and political". In a report on the reform of the ICANN, Stuart Lynn, the current president of this organization, also recognizes that the extent of the missions assigned to ICANN makes the latter the equivalent "of the traditional model, pre-Internet, of a multinational governmental treaty organization" [8].

Finally, if the DoC made ICANN a simple private company, it is also a private form of governance in fact. In this respect, the Commission of the European Union observed in a report on the DNS published in July 2000 that: "Even while remaining within the strict limits of their mandate, ICANN and GAC make decisions right now that, in other circumstances, governments would make a point of making themselves within the framework of international organizations" [9].

3. The ICANN with the prism of the governance

Insofar as ICANN is a private organization of governance of the Internet, the question of its democratic legitimacy arises naturally with a very strong acuity. Nevertheless, the importance of this criterion of legitimacy should not overshadow that of effectiveness. Indeed, the promoters of new forms of governance generally resort to the distinction between two forms of legitimacy of public action.

- One stresses the democratic legitimacy of public action (it is "input-oriented").
- the other privileges on the contrary the effectiveness of the public action (it is "output-oriented").

Confronted with the difficulty in calling upon the democratic legitimacy of the new forms of governance, its promoters generally have recourse to a speech of legitimacy based on the effectiveness of the action. The advance rhetoric of the ICANN fits perfectly in this trajectory.

3.1. A democratic lack of legitimacy

Confronted with the recurring criticism of its weak democratic legitimacy, ICANN had recourse to three principal forms of legitimacy:

- that of the transparency of its operation;
- that of the representativeness of its members;
- and finally that of the decision-making based on consensus.

Transparency

The ICANN documents insist repeatedly on the need for ensuring the transparency of its action. Thus it is specified on several occasions in its statutes [10] that "The Corporation and its subordinate entities shall operate to the maximum extent feasible in an open and transparent." However, many observers were ironical about the relative opacity of this organization. As an example, the professor of Law, Jonathan Weinberg, is ironical about the management committee of ICANN for "closed meetings" and its slowness "to embrace" the supposed spirit of openness to prevail in the community of the Net surfers [11]. In this respect, the solutions suggested by Stuart Lynn to put an end to these criticisms testify implicitly to their relevance. Indeed, it proposes neither more nor less than to give up this principle of transparency while pleading for a reform of the ICANN which would make it possible in particular at its management committee to be able to deliberate into private.

Representativeness

Rhetoric of the representativeness of ICANN also occupies a central place in the process of the legitimisation of ICANN. It is indeed, one of the four great principles of the contract between the DoC and ICANN.

In order to evaluate the degree of representativeness of ICANN, the simplest way is to consult the composition of its management committee which holds only the decision-making power. One will be satisfied here to indicate that one of the major difficulties within this management committee which includes 19 members, relates to the question of the election of the 9 representatives of the Net community which is still not regulated and causes increasingly violent controversy.

In fact, the search for representativeness of ICANN appears illusory insofar as nobody is really able to define a non-controversial list of the actors having a legitimate say on the stakes of the DNS.

Consensus

The invocation of the consensual character of ICANN decisions appears finally as the ultimate argument it has to legitimise its decisions. This argument appears in an implicit way in the contract between the DoC and ICANN, which calls upon the implementation of a bottom up coordination structure. This is the argument most frequently used this organization to legitimise its action.

This observation, however, leads us to raise the following question: are the stakeholders recognised by ICANN really likely to reach a consensus?

The search for consensus within the community of Net surfers is an old tradition, which rests on two essential parameters. First of all, the community of technicians who designed and developed the Internet is relatively small and homogeneous. The primarily technical character of the decisions to be taken and the technically weak stakeholders reduced the risk of the expression of irreconcilable points of view.

It goes without saying that these two major factors in the development of consensus are today increasingly difficult to reconcile because of the increasingly wide range of Net surfers. In addition, the highly strategic and political character of the management of the DNS makes any idea of consensus between the stakeholders completely unrealistic. This is why it would be not only be illusory but also paralysing for such a struggling organization to want to base its decisions on a true consensus.

In the last analysis, the recourse to the concepts of transparency, representativeness and consensus in the democratic speeches of legitimisation of ICANN do not stand up to analysis. The current president of the ICANN, Stuart Lynn, is also the first to recognize it. Obviously conscious of the weak democratic legitimacy of the ICANN, Stuart Lynn tries finally a strategic ploy as the principle founder of this organization in his last report on the reform of ICANN, that of the effectiveness.

3.2. An untraceable effectiveness

Paradoxically up to then, the recourse to the argument of the effectiveness as talk of legitimisation of ICANN was seldomly proposed in its preparatory documents.

But that is not very surprising. Indeed, the principle of the substitution of the public sector by the private sector with the reason for the absence of effectiveness of the first compared to the performances of the second, seems to be the subject of a real consensus in the United States! One could thus expect that the critics of ICANN recommend, instead of this private company, the creation of a public organization again having the totality of its prerogatives. However, it of it is nothing. It is enough to convince some that consult the site Icannwatch [12] which gathers the wildest criticisms and arguments against ICANN, to realize that they aim to reduce the activities of this organization to the bare minimum by making it deviate as little as possible from its technical missions. If it is never a question of calling into question the statute of the private company of ICANN, it is quite simply because the assumption which would consist in substituting a public organization to it is considered to be even more calamitous. The governments before are very much perceived as being inefficient in the management of the Internet.

To sacrifice the democratic legitimacy of ICANN on the furnace bridge of the god effectiveness is one thing. To define this would only be in broad outline, which could be well be the criteria of evaluation of the aforementioned effectiveness. Indeed, that means the recourse to this concept in the case of an organization whose missions are at the same time technical and political? Is it a question of evaluating ICANN according to its degree of conformity with the declaration of general policy of the United States government? Is it still a question of measuring its capacity to answer expectations of its principal backers? Does it have to be evaluated mainly according to its capacity to act in the name of "the general interest"? Whereas the concept of effectiveness returns to a purely instrumental logic, the missions assigned to ICANN fit very clearly in a political logic. This is why it seems to us that the recourse to the concept of effectiveness to legitimise the creation of an organization such as ICANN is not founded.

Conclusion: and if the ICANN did not exist?

Set up in the name of the search for an untraceable effectiveness, the major problem posed by ICANN is finally its lack of responsibility. ICANN is indeed a private organization ensuring the implementation of missions of public policy whose members only have to account to their principal backers being, of course, the United States government. Taking note of the absence of democratic legitimacy of the concomitant ICANN to an apparent consensus on the need to submit to the interests of the States in the governance of the Internet, Lawrence Lessig concludes in one from his many articles on this subject, by the following reflection: "In a critical sense, we are not democrats any more. Cyberspace has shown us this, and it should push us to figure out why."[13].

Failing to take up such a challenge, the report of the weak legitimacy of the ICANN should at least prevent us from making the saving in a more commonplace interrogation on the reform, even the suppression, of such an organization. To remove ICANN? Maybe, but to replace it by what?

*Note:
This document is the text of an oral communication pronounced by the author on April 5, 2002 within the one day old framework of study on "the internationalisation of communication" organized by the House of the Social sciences of the University Paris-North. The original title of the communication is: "L'ICANN au prisme de la gouvernance "

[ 1 ] United States Department of Commerce (National Telecommunications and Information Administration), Management of Internet Names and Addresses: Statement of Policy, June 5, 1998.
http://www.icann.org/general/white-paper-05jun98.htm
[ 2 ] Memorandum of Understanding (Soft) Between the U.S. Department of Commerce and Internet Corporation for Assigned Names and Numbers, 25 November 1998.
http://www.icann.org/general/icann-slackness-25nov98.htm
[ 3 ] ICANN, Articles of Incorporation, November 21, 1998.
http://www.icann.org/general/articles.htm
[ 4 ] ICANN, Toward has Statement of the ICANN Mission, March 10, 2002.
http://www.icann.org/general/toward-mission-statement-07mar02.htm
[ 5 ] Michael Froomkin, "Wrong turn in Cyberspace: using ICANN to road around the APA and the constitution ", Duke Law Newspaper, vol. 50:17, 2000, p.109.
http://www.law.miami.edu/~froomkin/articles/icann.pdf
[ 6 ] Idem, p.111.
[ 7 ] The letter of Esther Dyson is available on the site of the ICANN to the following address:
http://wwwicann.org/chairman-response.htm
[ 8 ] Stuart Lynn, President' S Carry forward: ICANN puts for reform, February 24, 2002.
http://www.icann.org/general/lynn-reform-proposal-24feb02.htm
[ 9 ] Commission of the European Communities, the organization and the management of the Internet: International stakes and Europeans 1998 - April 2000, (COM(2000)202), 7 2000, p.105.
http://europa.eu.int/ISPO/eif/InternetPoliciesSite/InternetGovernance/Main..html
[ 10 ] Bylaws for Internet Corporation for Assigned Names and Numbers. Have Amended and Restated one 29 October 1999 and Amended Through 12 February 2002.
http://www.icann.org/general/bylaws.htm
[ 11 ] Jonathan Weinberg, "ICANN and the problem of legitimacy", Duke Law Newspaper, Vol.50:187, 2000, p.212.
http://www.law.wayne.edu/weinberg/legitimacy.PDF
[ 12 ] http://www.icannwatch.org
[ 13 ] Lawrence Lessig, "Governance", presentation submitted in front of the New York New media Association, June 10, 1998, p.4.
http://lessig.org/content/articles/works/Ny_q_d1.pdf.