Cone of Silence
ICANN or Internet democracy is failing
We take for granted a lot of the inventions of the late 20th century. We are naturally under the assumption that things we use everyday which are so handy and so useful will always be the way they are, and that the technological improvements underway will only make them better. Even the Internet, which has become so much a part of modern life for many people, has fallen prey to such assumptions.
While many people who use the Internet will have heard about this process and the organisation involved - ICANN, to which the whole process has become synonymous - the truth of the matter is that for the vast majority it is something relatively unknown. Indeed, there's been a "cone of silence" over the issue, and for those involved that's just the way they like it.
In order to try and break this cone of silence and to better understand what is really at stake, what will be looked at is the origin and evolution of the process and the organisation it has created, ICANN. Its first moves and the corresponding negative reaction that gave the whole process a stillborn start will be examined, along with ways in which attempts have been made to rescue the process. This will be followed by a more in-depth look at those for and against ICANN and the process, along with some observations as to how and why the silent complicity that surrounds the issue exists.
In the end, it will be shown how the issue is not just one involving the transformation of the Internet from a government body to a private one, but strikes at the very heart of democracy in the digital age. It also affects the emergence of a new form of civic discourse, one that transcends the limits of physical space. In fact, it's something which will profoundly change our lives, and unless more attention is paid to what is actually going on behind the scenes, a future will be built for us that will run counter to many of our hopes and expectations.
The origin and evolution of ICANN
For many, ICANN (the Internet Corporation for Assigned Names and Numbers) was established in the most mysterious of ways. What is more, they see a grand disaster being set up by an organisation with tenuous legitimacy and experience in Internet-related matters. In order to understand what exactly is at stake, we have to go to the very beginning - not merely the birth of ICANN, but the structural framework upon which it was conceived.
ICANN is an organisation, established in the form of a private non-profit corporation and supposedly managed by an international board, that was expressly formed to take over the responsibility for duties now performed under US government contract by the Internet Assigned Numbers Authority (IANA) and other entities. The transition is expected to last about a year, during which time the Initial Board of ICANN will create a permanent governance structure with members and member-elected directors. In addition to overseeing technical standards, the group is supposed to devise and administer a new plan for managing the top-level domains: .com, .org., and .net. At issue is the Domain Name System (DNS) which governs the routing of World Wide Web pages, electronic mail and other communications over the Internet. (The DNS is a hierarchical architecture to keep the number of root level lookups for the Internet at a minimum.) The ownership/control and allocation of the IP numbers of the Internet, the port numbers, the protocol process, and the scaling of these systems are all issues that are to be dealt with by the new organisation.
The supposed need for a transition was formulated by the US government last year through what has come to be known as the International Forum on the White Paper (IWFP). The Commerce Department's Green Paper/White Paper process was initiated with primary purpose of turning to ecommerce as the policy for the Internet. However, so to make it appear more broad-based, it was also announced that the "need" for a transition was because "broad segments" of Internet users were deeply unsatisfied with the process conducted by the IANA, which was subsequently criticised as being closed and unfair. Also, conflicts between Network Solutions (NSI), the company which had been in charge of administering the DNS, and the on-line community had given rise to what many have termed the "DNS wars".
It was on the basis of this that the a new, more responsible organisation was to be established. Some observers see ICANN as the brainchild of just one man: Jon Postel, the director of the IANA. The irony of the situation, it has been argued, is that some of the most critical network functions done by Postel actually had no authority in law. Moreover, the IANA functions had no institutional basis. Thus, as the argument goes, what Postel did was on the basis of nothing more than informally agreed upon custom. Despite this supposed lack of legitimacy, Postel worked on articles of incorporation for the new organisation. Although reactions to some of his drafts were largely negative466, Postel still continued to enjoy support of a wide spectrum of the Internet community, especially the technical insiders. Shortly before his untimely death, he hammered out the final framework for what was to be called ICANN.
There is some debate, however, about this interpretation of events. Although Postel did much of the work to bring about ICANN, some counter that Postel was not the sole author and may not have had that much to do with the authoring of the ICANN proposal. According to one source, a lawyer named Joe Sims claims to have written some of the Postal drafts. When a reporter tried in Geneva to ask Postel about some of the details of the draft and its consequences he was not willing to answer them. "It is unlikely that so important a document would have been left to Postel especially when his experience was not in the by-laws or corporate field and when so much was at stake," remarked Jay Hauben, an editor of the Amateur Computerist. He goes on to mention that the only clue given by Esther Dyson, who eventually became chaiperson of the new organisation, about the origins of ICANN is that she was contacted by a person from IBM before she spoke with Postel about it.
"What is ironic is that a story about ICANN being a one person creation occurred only after that person had died," adds Hauben. "Moreover everything Postel did, he did under contracts with the US government subject to US government oversight and direction. Postel was mainly under contract to ARPA." Jake Feinler, who worked at the NIC, relates: "Jon and I were both government contractors, so of course followed the directions of our contracting officers. He was mainly under contract to ARPA, whereas the NIC was mainly under contract to DCA. BBN was another key contractor. For the most part we all worked as a team... ."467
Therefore, contrary to those who see the birth of ICANN as a one man affair, Postel actually had authority from the US government to do what he was doing with regard to carrying out the functions of IANA. However, a question can be raised as to whether Postel was under the impression the US government had the right to and was directing him to create ICANN.468
Whether or not Postel was the sole creator of ICANN and had the authority to do whatever he did, one thing is for certain: ICANN is being portrayed as the first legally-constituted, international governing body for the Internet. Indeed, at the outset, some considered that ICANN would be nothing more than a process designed to provide a formalised mechanism for the execution of the IANA functions. In retrospect, this was mere wishful thinking. Many have since speculated how history might have been different if Postel had not died so unexpectedly.469
All during the Fall of 1998 controversy raged over the future of the IANA. Proposals were made by Ronda Hauben, by the Boston Working Group, the Open Source Root Consortium and by the IANA itself. The IANA's proposal to create ICANN was particularly controversial because the two US government contractors - the IANA and NSI - had split over it. It began to appear as if the US Congress was going to investigate Postel himself because of this split and the method of choosing the ICANN interim board. Then Postel suddenly died.
No sooner had Postel been buried and eulogies about him circulated throughout the Internet, controversy over ICANN re-erupted. The problem right away had to do with the different views of what ICANN represented: for some it was to privatise" key aspects of the Internet, the DNS and control of the root server of the Internet; for others, it was to establish a new regime whereby social-technical issues such as scalability were to be resolved; and still others continued to fight against any private entity being created.
For members of the interim board of ICANN, they see their work as a clear mandate for privatising the Internet. The optimism with which the chairperson of ICANN, Esther Dyson, approaches the privatisation of the Internet is akin to the supposed benefits of telecom liberalisation, most of which are unfounded. According to Dyson, "in every market I know where telecom has been privatised and rendered competitive, prices have gone down. And generally, service has even improved!" As far as she is concerned, this goes not only for the US but for the UK, Germany, the Czech Republic, Hungary, and Russia.470
The assumption that "competition" and so-called "market forces" bring better service is a grand myth of telecom liberalisation, second to that of cheaper prices. As Ronda Hauben, co-author of Netizens: On the History and Impact of Usenet and the Internet points out, it is basic research which is responsible for advanced communications technology. In the US, for instance, basic research was funded by government setting the rates to provide for the research that went on at Bell Labs. Conversely, private companies have repeatedly demonstrated a lack of vision and even aversion to new technology unless it has somehow already proven itself to be a worthwhile and profitable investment. As a result, most companies won't support basic research unless profits are high and immediate. Meanwhile, old technology is kept in place for as long as possible at high prices.
This process can be clearly seen in the evolution of the Internet itself. In its early days, big business was approached with the idea of funding its development but they refused, for it was not considered to be a worthwhile (i.e., profitable) project. Likewise, in 1977, DEC was convinced that PCs would never become a mainstream consumer item. Apart from stifling technological innovations, what many people fear is the real meaning behind the privatisation of the Internet: an offer to private sector corporations competition in selling root level gTLDs. To this extent, they see ICANN embroiled in a conflict of interest. One of the primary purposes of ICANN is to make policy and recommendations for how to increase the number of gTLDs. Those presently proposing this structure have a commercial self-interest in the issues, and thus a conflict of interest in being involved in proposing or setting public policy regarding the future of the Internet.
"The history of the domain name system (DNS) reform controversy is repeating itself," notes one commentator. "The Commerce Department must make sure that this second occurrence is not a tragedy." What he and many others feel is that the problem with the NSI is now being repeated under ICANN. What is especially worrying is that profits are being made on a government contract for what should have been a simple administrative function - giving out domain names, like giving out license plates for cars. In the case of ICANN, not only is the profit motive lingering in the background, but so too is the potential to grab the central points of control of the Internet from a legitimate and responsible entity (i.e., a public governmental entity with responsibility and obligations and means of punishing abuses) and putting them into the hands of an entity with no means of accountability, no means of knowing who is doing what, and no means of punishing criminal activity.
In debating the legitimacy of ICANN, supporters often point to the fact that the Internet community has been attempting for years to terminate NSI's commercial monopoly on .com, .net and, .org registrations. Consequently, through ICANN the community has been attempting to establish new sorts of DNS oversight.
Opponents of ICANN see the situation in another light. They see ICANN as merely a replacement for the NSI - with the exception that it has a much broader base of technical and economic power. Thus, rather than the Internet community attempting to initiate some sort of change, they see the whole process has being hijacked by a small group of people who, at the instigation of the US government, have been trying to get themselves a piece of the NSI pie. In other words, ICANN is not particularly interested in identifying or solving any of the problems that exist, such as the scalability of the Internet.
"The real problem that the DNS wars show is that is that the U.S. government doesn't seem to be supporting the needed scientific research about how to provide for the scaling of the Internet," explains Hauben. "The U.S. government has initiated and is directing this process with no regard for the concerns and interests of the people on-line or not yet on-line."
People are still debating on what exactly ICANN is, whether it is an interest group or a regulatory body. One things is clear: many feel that ICANN should be nothing more than a body that sets policy for the development and use of domain name space, the assignment of IP numbers, and the assignment of port numbers to new protocols. These are considerable powers in itself, especially when we recall that the first allocations of IPv6 numbers are expected this year.
With the growing criticism surrounding ICANN, along with numerous lawsuits related to domain name disputes already launched against the new organisation, not to mention complaints that reform plans were drafted behind closed doors without public input, the White House quickly halted its operations and ordered the group to realign its membership structure, hold open meetings, publish minutes, and set up a process for appealing decisions. Accordingly, ICANN came out with a number of "by-laws" designed to satisfy specific structural concerns noted by the government. These changes included financial accountability; a fully transparent decision-making process, with minutes of each ICANN Board, Supporting Organisation or committee meeting to be publicly posted within 21 days following every meeting; the creation of a Conflicts of Interest policy of all ICANN institutions, including the Supporting Organisations; a globally representative governance structure; and respect for a nation's sovereign control over its individual Top Level Domain.
While some see this as an effort on the part of the US government to keep the process as fair and transparent as possible, others see this move as mere whitewash. They argue that the US government still went ahead with its de facto recognition of ICANN anyway, only asking it to clean up its act a bit. Furthermore, the memorandum of understanding between the US government and ICANN calls for a period of "design and testing" with a 50-50 split of responsibility, but in subsequent events the US government did not play any obvious or helpful role.
Thus, although ICANN has been officially receiving parental supervision from the National Telecommunications and Information Administration (NTIA), pending a show of its ability to muster strong enough consensus support from the Internet Community, dissatisfaction with the organisation is still strong. According to Jim Dixon, telecommunications director of EuroISPA, a European ISP trade group based in Brussels, "there is widespread mistrust of ICANN's board."
This mistrust is based on a number of factors. Many feel that ICANN is rushing through the process without any ethical considerations or social obligations, squelching discussion and dissent along the way. As far as the Computer Professionals for Social Responsibility (CPSR) is concerned, the problem as much more rudimentary: simply, the approach of ICANN is unilateral, unaccountable, and non- consensus. The foremost complaint against ICANN is its lack of transparency. Furthermore, the fact that many decisions are made in secret has many worried. Indeed, since its inception late last year, ICANN has been widely criticised for being secretive and unaccountable.
In a way, this kind of behaviour is nothing new, and is something that preceded ICANN. Postel's creation of the organisation was, for the most part, unilateral. Similarly, ICANN-nominated interim Board members were never discussed nor confirmed by any public process whatsoever. What is more, ICANN was incorporated in California at the unilateral direction of the IANA.
ICANN itself, meanwhile, have defended their policy of closed meetings by saying they are more like a corporate than a government board, and that corporations typically hold board meetings in private. Moreover, ICANN's interim president and chief executive, Mike Roberts, said his group is responsive to criticism and that important policy proposals are submitted for public scrutiny and comment. "We are incredibly open for a private, non-profit organisation," claims Roberts.
Dyson went further, stressing that ICANN will be a public entity - and not just the US public. To this extent, the board had announced a series of "open" meetings throughout the world where members of the Internet community and others can speak directly to ICANN's interim board and management. "We have an international board, we will have an international membership, and we are an international organisation," says Dyson.
Hauben disagrees. "ICANN is not in any way an International [sic!] but something created by the U.S. government to empower those obligations that the U.S. government currently holds." What is more, she argues that the activities of a small set of people who can afford to globe trot around the world to participate in trying to grab what belongs to the public and claim they have the right to make decisions for the Internet community is no way representative of a global and public entity. On this point, even the European Commission is in agreement.471 Indeed, concern has also been raised by an observer from Namimbia about the US government giving away the authority to administer country code domains to a private entity.
Closely related to the lack of transparency is what many have come to regard as the abandonment of open structures. For most, the establishment and early operation of ICANN has been done in a way that is totally antithetical to the time honoured open and democratic processes of IETF working groups. Not surprisingly, this was one of the first criticisms of ICANN that Dyson had to face.
Consequently, in the letter transmitting the bylaws as formally adopted by ICANN to the Commerce Department, Dyson acknowledged that the bylaws "will have to be changed to reflect the work of the Initial Board and to create the permanent governance structure of ICANN. We will carefully consider any and all suggestions for improvement as we move forward in this process. Nobody should operate under the illusion that any issue has been resolved 'once and for all.' Similarly, nobody should feel that issues that are important to them and have not been addressed to their satisfaction cannot be revisited. The process is just beginning."
Despite this pronouncement, critics like Hauben have complained that issues important to her have not been addressed to her satisfaction. She points out that while the Harvard Berkman Institute conducts serious discussions about how to "vote" for "membership" in the new ICANN organisation, other issues, such as increasing the say of those on-line in what is happening with regard to what the US government is mandating, are not being discussed. "Instead, there is a cherade [sic!] of how the Internet should be 'governed' by this US created and run private corporation staffed by people 'voted for' by some form of 'membership' that has come from the Internet." "This is the very opposite of not only the grassroots process that has given birth to and helped to build the Internet," adds Hauben, "but also to the kind of grassroots democracy that is needed to continue to make it possible for the Internet to grow and flourish."
Along with the abandonment of open structures, ICANN is often seen as over-extending their authority in a number of areas. This was clearly apparent at the very beginning when Dyson had indicated that aside from the issues ICANN was mandated for there were many others, including e-commerce and privacy, with which she would find it attractive to become involved.
The ways in which ICANN goes about over-extending their authority, however, is not always so obvious. For example, while ICANN claims to be a membership organisation of a non-profit corporate entity, the membership list is based at an isi.edu domain. This is a site at the University of Southern California, despite the fact that ICANN is not an "edu" (i.e., educational) entity. What this clearly demonstrates is that ICANN is moving to take over and make private all that has been publicly held as part of the IANA - which includes the isi.edu domain as well as other aspects. Again, this all has a lot to do with not only the attitudes of individual board members but the structure and theoretical framework upon which ICANN was conceived. In essence, the form being created for ICANN was fundamentally inappropriate for the task that it was being created for.
In addition to this, it must be remembered that the US government is keen on maintaining a certain amount of control. This not only has to do with technology, but has been an integral part of US foreign policy since the end of the Cold War. This is a view not only shared by observers like Hauben, who is convinced that "the U.S. government, despite its disclaimers will maintain both control and ultimately liability for whatever mess it is planning," but also by certain governments as well. For the European Union especially, this is an important factor, for "there are certain issues [...] still not fully dealt with [by ICANN], such as the improvement of safeguards against extra-territorial application of US law and public policies."472
As with the other complaints it has received, ICANN has been made aware of this public displeasure over the way it over-extends its authority. And like the way in which it responded to other complaints, when the board had not simply turned a deaf ear to criticism, it exhibited behaviour which proves old habits not only die hard, they are innately ingrained.
A case in point was the recent ICANN board meeting in Singapore, which was to lay foundations for its own operation as well as domain name policy. At this meeting general issues included membership criteria, a call for open board meetings, and ensuring a fair international balance. In the area of domain names, the board moved forward toward creating a subordinate group called the Domain Name Supporting Organisation (DNSO). Strangely, it also made policy rulings that one would expect would have been left open until the DNSO could meet and handle the matters itself. In the end, what this shows is how very little has changed in the way ICANN does things. One reason why ICANN feels comfortable in over-extending its authority in such a way is because it feels it's not accountable to anyone. This lack of accountability is still prevalent among board members even after ICANN came under NTIA supervision in November.
Meanwhile, what draws criticism from many quarters is that a business-based "self governance" model or "private self regulation model" as a modus operandi for ICANN is essentially setting up a system for abuse. "The fundamental problem is that they are not engaged in two-way communication," observes Gordon Cook, author and publisher of The Cook Report on Internet. As a result, a line of responsibility that hitherto existed between the IANA and the on-line community is being severed.
The need to ensure such a line of responsibility continues to exist was brought up during the Berkman Institute meeting at the end of January. A person from China noted that if ICANN was to balance the distribution of scarce resources, then checks and balances would be needed, much like the present political system in the US where there is a President (the executive branch), Congress (the legislative branch), and a Supreme Court (the judicial branch). Indeed, although the American regulatory framework which has tried to keep corporate behaviour in line has been effectively shattered by the onslaught of a neo-liberalist political agenda, checks and balances still do exist. For example, the FBI checks on government officials who are responsible for administering regulatory bodies and if they abuse their obligations they can be subject to criminal prosecution. How this translates into practice, of course, is another story.
Nevertheless, with the Internet a trail of responsibility of sorts did exist. The IANA was under DARPA; thus, DARPA was responsible for what went on in the IANA.473 Hence, there was a line of responsibility backed up by penalties for abuse. "This is all the opposite of what is happening with the privatizing of the DNS," notes Hauben, "and throwing it to the corporate interests who are the so called 'market forces'."
While all these arguments and observations pertaining to the secretive, undemocratic, and even unconstitutional behaviour of ICANN and its members have been made repeatedly, what irks most people is the smug attitude of ICANN board members and their blatant disregard for public opinion. For instance, on the issue of transparency and secrecy, board members still meet in private despite protests. A classic example of the contempt board members hold toward the public is the following from ICANN president Mike Roberts: "some of those people think the management should check with the public every time they make a decision, which is crazy. That's flat-out crazy."474
But what about what Dyson said previously, that ICANN "will carefully consider any and all suggestions for improvement" and that "nobody should feel that issues that are important to them and have not been addressed to their satisfaction cannot be revisited."? Obviously, such contradictions doesn't deter Roberts: "I'm not very warm and fuzzy about the opinions of a bunch of self-appointed critics out there," he adds. "They create a context of their own, they create their own standards and then criticize us against those standards.... I am responsive to criticisms that we don't live up to the standards set out in the White Paper [that mandated ICANN]."
Some agree with this. "Regardless of my own desire for more openness in ICANN's processes, I think he and others at the Berkman Center have behaved in an honest and forthright manner, trying to include as many people in the discussions as possible," admitted one observer on the Netizen mailing list. "I've listened to the Real Audio feed from at least three fora where Ronda Hauben has participated (two hosted by BCIS), and in each instance she was given ample time to state her case. She has been treated fairly, but she is not fair enough to admit it."
In this particular case, however, those defending Hauben see the whole debate differently. They maintain that the silencing of critics has nothing to do with the time allotted nor the styles of the speeches made at the various meetings. Rather, it has to do with blurring the focus of some of the more critical attacks. Hence, at the Berkman Center meeting at the end of January, where the content of what Hauben was presenting was the case for a public and scientific oversight of the Internet, the ultimate purpose was not to deprive her of the right to speak, but to somehow penalize her so others would be cowed and wouldn't make the same criticism.
In face of such accusations and growing criticism, ICANN has had to rely on the services of a professional spin doctor, mostly to address charges of secrecy and inaccessibility. This in itself was a cause for severe criticism. "I think it's a bad idea and silly waste of money," said Dixon. "They should open up their [board] meetings and hold them in public rather than hire a PR firm to spin their decisions." Cook was more scathing: "this is the normal PR approach to putting a friendly face on a dictator or a carcinogen."
Roberts defended the move, stating that ICANN is a world-wide organisation that gets world-wide press coverage and thus needs professional help. Yet critics say the move is merely cosmetic and that the corporation should institute democratic decision-making processes. "The PR firm now stands between them and the Internet community," notes Dixon. "It polishes their pronouncements and puts them out. It's just a familiar means of continuing the same kind of failed, bankrupt effort at communication that's not a meaningful two-way dialog, but merely a series of pronouncements."
While a professional spin doctor has been busy taking care of ICANN's defensive strategy, lately there seems to have appeared what can be referred to as an offensive strategy in support of ICANN. This strategy comes as ICANN teeters on the brink of legitimacy.
This offensive strategy has taken the form of scare tactics based on an increased fear of "cyberterroism". In the beginning of March a top Pentagon official cautioned the US Congress about the "very real threat" of cyberterrorists who are more likely to hit commercial targets than military ones. This followed an unconfirmed report by Reuters about hackers seizing control of a UK military satellite.
By ushering in a fear of cyberterrorists, ICANN's role is already being semi-legitamised. Also, a sense of urgency has been added, in where public opinion is coerced into believing that some form of control over the Internet is needed - and needed quickly. Secrecy is likewise justified; consequently, the open structures of the Internet is no longer being regarded as an advantage, and should thus be discarded.
The blatant contempt of ICANN board members, coupled with their lack of transparency and the over-extension of their authority, has many wondering what the ulterior motives for the organisation really is. For many, the problem with Dyson as Chairperson of the Interim Board of Directors of ICANN is that she personifies the US government's effort to create a private corporate entity that they control which, in turn, controls the Internet. Subsequently, the communication that the Internet makes possible among people is under attack by the likes of Dyson and ICANN who want to convert the new media into a place for buying and selling, and for safe "transactions". In conjunction with this, is concern over the problem of scaling the Internet. According to the Office of Inspector General's Report for February 7, 1997, the Internet needs to have its scaling overseen by those with the kind of scientific knowledge that built the Internet.
Yet, instead of solving the problem of scaling the Internet, ICANN has been more concerned with determining who gains control of its various functions. What is more, they are involving themselves with such issues as the transfer of valuable and controlling assets of the Internet to a private entity, despite the fact that the Memorandum of Understanding with the NTIA in November 1998 didn't provide any authority to transfer any such assets (it only provided authority of the US Department of Commerce to make contracts).
Many believe the hidden agenda behind ICANN to be not just as a means for the administration of critical technical functions, but as a vantage point from which interested parties can determine how the Internet should be governed by using it to make the rules under which the Internet would operate. This includes the DNS and other Internet functions.
Within this context, it seems ICANN is more concerned with first grabbing the functions needed to scale the Internet rather than solve the problems at hand. For Cook, the question is not what ICANN is up to; for him, that much is already clear and quite obvious. Rather, it comes down to simply this: "The Golden Egg - Will ICANN Kill the Goose or Just Steal It?"
Saving the process
With widespread discontent over the formation of ICANN, the policies it has thus far pursued, and the attitudes of its members, attempts have been made to keep the transition under some sort of control. At the recent meeting in Singapore, ways to save the process were explored. What has come to be known the CENTR proposal (or document) was one of the outcomes of this attempt to save and even realign the process.
Shortly before the March meeting in Singapore, critics of ICANN had coalesced around a proposal called the Paris Draft, with the Open Root Source Consortium (ORSC) being one of the main drafters of this proposal. Meanwhile, large commercial interests rallied around a proposal called the BMW (not to be confused with a famous trademark). In the end, members of both sides met and reached a sort of compromise, creating "consensus principles" which was later called the CENTR document.
Supporters of the CENTR document argue that it's a common document, agreed by all participants in the previous day's DNSO meeting. In fact, they go so far as to regard the document as the "Singapore Draft". Whatever name is applied to it, the ultimate aim of the document was to confront some of the grievances shared by many over the way ICANN has been conducting its business.
Foremost among them was a call for open meetings. As Dixon aptly observed, ICANN is "making some very important decisions and have a great public trust.... The only thing they can do to make the people trust them is to conduct their meetings in public." Although ICANN responded to this by considering an open membership model, some opponents grumble that this is still not enough, for all the important decisions will be locked up before the membership would even have a chance to meet.
In addition to this, opponents see other problems. For some, what started out as a presentation of the CENTR compromise proposal at the Singapore meeting quickly devolved into an attempt to accept the BMW draft as the basis for the DNSO. For others, the CENTR compromise is structurally flawed, for it's just as elitist as ICANN. They argue that most Internet users have not been able to (or could not afford to) participate in the meetings taking place, so the CENTR document is, in effect, a document of a very small and privileged set of people.
Along these lines, criticism has been levelled at the DNSO itself. Many feel the structure of DNSO ensures heavy representation for narrow, corporate interests. As a result, by their representation in the leadership of the DNSO, these interests would outweigh the interests of ordinary domain-name holders and non-profits. As if adding to fuel to the fire, proposals put forward by the World Intellectual Property Organisation (WIPO) to restructure the way Internet domain names in .com, .net, and .org are assigned and adjudicated have been brought to the fore. As one observer put it, "it is like having an auto dealer be the regulatory agent for the automobile manufactures. He can only make decisions in his own self interest."
It quickly became obvious that small businesses, non-profit organisations, and individuals would derive no benefit from the WIPO proposal because they simply can't go through the expense of registering their name as a trademark. But more importantly, however, are some deeply embedded flaws within the proposal which A. Michael Froomkin, law professor at the University of Miami, points out in a detailed report. These flaws include bias in favour of trademark holders, a failure to protect fundamental free-speech interests including parody and criticism of corporations, and zero privacy.
According to Froomkin, the only way in which the whole process can be saved is through a simpler reform plan. This would include compulsory advance payment before registration of a domain name in order to reduce speculative registration; penalties for false contact details, including de-registering domains with fake contact information; special rules to penalise large-scale domain speculation; trust courts to continue to clarify relevant law; an understanding that rapid changes in technology may make domain names less important; and, finally, create differentiated commercial and non- commercial top-level domains.
The campaign for and against ICANN
With battles lines drawn, it's time to take a more in-depth look at those who support ICANN and those who not only oppose it, but the privatization of the Internet in general.
The campaign in support for ICANN is, by and large, more low-key than those protesting against the organisation. Their main point of focus is that there is actually nothing wrong with ICANN or the transition process. Accordingly, several people from the ISOC see nothing basically at stake in what ICANN is doing. As far as they are concerned, the issues the organisation are dealing with are just boring technical functions. Hence, there's no reason for anyone to be concerned with what is being done with ICANN.
ICANN has received heavy backing from important representatives of the founding Internet technical community, as well as from some large corporations such as IBM and MCI/WorldCom. Upon taking a closer look at some of this latter support going to ICANN, the picture of a corporate power play becomes evident. For instance, according to ICANN's own web site, the following have "contributed" financial resources to the organisation:
Compaq Computer Corporation, $25,000
MCI Worldcom, $25,000
Netscape Communications Corporation, $15,000
Paul D. Stauffer, $1,000
While this may seem harmless enough, closer inspection reveals some startling facts. For instance, UUNET is owned by, and part of, MCI Worldcom. Thus, the figure for MCI Worldcom is actually $50,000 and not $25,000. Moreover, IBM people have been on MCI Worldcom's Board of directors. What is more, in the privatisation of the NSF Backbone, IBM and MCI worked together on the project, with MCI ending up with a great benefit as a result. Taking this into account, the MCI Worldcom/IBM investment in ICANN comes out to be $75,000.
It would be wrong at this point to conclude that those who oppose ICANN are simply the opposite, that is, anti-corporatist activists and people with a deep social conscious who see the organisation as nothing more than the latest example of intransigent neo-liberalism. Indeed, ICANN has faced opposition from all sectors, including a large numbers of experts who had been debating the domain-name question for over a year. This includes many Internet Service Providers and companies in the business of registering domain names.
At the same time, however, it's easy to blame the likes of Dyson et al. for the way ICANN has been acting and the pro-business agenda it has been pushing. It must be remembered that often people in such positions are not actually the ones pulling the strings, but are tangled-up puppets themselves. One just has to look at the conceptual foundations for creating ICANN in the first place, the White Paper issued by the US government (IWFP). It begins: "On July 1, 1997, as part of the Clinton Administration's 'Framework for Global Electronic Commerce' the President directed the Secretary of Commerce to privatise the domain name system (DNS) in a manner that increases competition...."[author's emphasis].
Thus, the political objectives of ICANN are quite clear. The political rationale for ICANN and the privatisation of the Internet has nothing to do with technology or communications. Rather, it has to do with fulfilling neo-liberalism's political agenda of providing economic growth and low unemployment at all costs. The objectives that have been put forth by Magaziner and others are consistent with what Clinton and Gore's objectives are for stimulating the US (and world) economy by "opening up" markets and "creating competition". From this point of view, with the euphoric promises associated with e-commerce coupled with the phenomenal expansion of the Internet's user base, turning over the Internet to corporate control seems like a logical step. Naturally, whether or not those who voted for Clinton wanted the Internet to be the vehicle for this is debatable. Unfortunately, neo-liberalism's dewy-eyed optimism, much like that of the digerati, often isolates from the real world those that espouse its virtues.
But as the row over ICANN has shown, not everyone is so dewy-eyed and optimistic. At the Berkman Institute meeting at the end of January, it was commonly felt that ICANN was getting the "crown jewels" of the Internet. Even John Zittrain475, director of Harvard University's Berkman Center for Internet and Society, admitted as much.
For many, ICANN has become the latest, and perhaps, biggest government give-away in terms of corporate welfare. Basically, central points of control of the Internet is being handed over to a private entity - one that it's creating. In turn, this private entity is being given control over IP numbers (at present, around 4.3 billion, of which 2 billion are allocated).476 Meanwhile, control over the root server system and other aspects of the network gives it additional power.
In order to try and expand the level of discourse over these and other issues involving ICANN, attempts have been made to broadcast the debate to those not already involved. A formal and broad-based protest has been called against ICANN, the purpose of which is to "bring ICANN out of the shadows" and to end its policy of conducting board meetings behind closed doors. Known as "the grey ribbon protest", supporters have been encouraged to display a grey ribbon on their websites in order to draw public attention to the issue. This protest wasn't limited to just electronic media: grey ribbons were worn by some participants during the recent ICANN meeting in Singapore.
Of all the individuals involved in the campaign against ICANN, none has been more vociferous than Ronda Hauben. Having done in-depth research on the history and impact of the Internet, she is well aware of the stakes involved. As she sees it, the Internet was developed and has grown and flourished through opposing procedures. It is a democratic process where all are welcomed to speak, where those who disagree are invited to participate, and to voice their concerns along with those who agree, where those who can make a single contribution are as welcome as those with the time to continually contribute.477 Moreover, the processes for discussion on key issues regarding the development of the Internet have been historically carried out on-line. Hence, the Internet as a medium of on-line communication - as opposed to a new marketing medium - is at the very heart of what was being built. Consequently, she is vehemently opposed to what she regards as the shameless commercial exploitation of the Internet. What is more, she holds the US government directly responsible for the faulty process.
Hauben's main bone of contention is with the corporate status of the new organisation. As far as she is concerned, its board of directors will have power of an unimaginable kind over all of the Internet. In addition to this, the present structure is open to abuse. To illustrate this point, she uses the recent scandal involving the Salt Lake City bid to host the Olympic games. The Olympics Committee scandal clearly reveals the dangers of non-transparent organisations that act as if they are unaccountable to the general public, and the kind of criminal activity that can come as a result. The difference between the Olympic Committee and ICANN is that with the latter the essential functions of the Internet are at stake.
"The whole concept of ICANN is contrary to any public interest concerns and even to most commercial interest concerns," warns Hauben. The entire process involving ICANN, therefore, is one in which self interest is totally dominant, which runs counter the spirit and energy that gave birth to the Internet.
Some might argue that this may be going a little too far, that the process is not as corrupt as Hauben and others make it out to be. For instance wasn't the US government, through the NTIA late last year, looking out for the public interest by putting ICANN under its supervision?
It's undeniable that the NTIA responded swiftly to growing discontent over ICANN. On the other hand, it wasn't so much a matter of genuine concern as of political expediency. Neo-liberalism differs from other political philosophies in that it attempts to co-opt opposition - whether by hook or by crook - so as to give the impression of true democracy based on civic discourse. However, as the CDA and NTM (the New Transatlantic Marketplace) issues demonstrated, when faced with growing opposition political leaders will adhere to the rule of law or public pressure, only to push through their agenda in a reconstituted form (e.g., CDA II and TEP respectively) - one that is more palatable for public consumption.
It's this fraudulent use of public opinion that substantiates Hauben's claim that what ICANN, and hence the US government, is doing through the process is actually illegitimate and in some cases outright illegal. In effect, this explains why ICANN has been so secretive: "Obviously this is an important battle," Hauben observes, "and that the forces behind the creation and development of ICANN hide so carefully shows the illegitimacy of what they are doing."
Not only has Hauben been active in trying to make people aware of what she sees are the illegal actions of ICANN, but she has taken an active part in the process itself, raising issues and pointing out inconstancies to the board. In addition to this, she has even formulated a counter-proposal to ICANN which was submitted to Magaziner and the NTIA. In her words, "it was for a different kind of form, than the corporate form." She adds that "a corporate membership form is not appropriate[...] with regard to giving control over vital controlling functions of the Internet [...] It's a set up for illegitimate activity, to put the problem mildly."
Aside from Hauben, another prominent critic of ICANN and its policies is Gordon Cook of The Cook Report. Unlike Hauben, who opposes the privatization of the Internet478 in principle, arguing that there is a continuing need for scientific direction and research to make the Internet scale and grow, and that that this requires government support of science and continuing government role in Internet matters, Cook doesn't actually oppose the privatization of the Internet per se. Rather, he is more concerned about how it is being done and for what reason.
While making the same observations as Hauben over how and what the "morally bankrupt ICANN" has been doing, Cook has gone a bit further and delved into the tricky question of why. What he ends up concluding is that ICANN is not so much the creation of something new as much as the preservation of something old. It's a reaction to what he terms the "IP insurgency".
The IP insurgency is, basically, the advance of Internet technology to the point of upsetting the balance of power in the world of telecommunications. This is a profound threat not only to business interests that seek monopoly market power, but also those whose livelihood depends on social and political control of the masses.
As computing power increases and bandwidth restraints are overcome, coupled with the innovations made in the field of mobile and insular technology, fixed line digital infrastructure has been relegated to the background. So much so, observes Cooks, that "suddenly in 1998, with the impact of the TCP/IP insurgency about to change the face of a multi-trillion dollar world wide telecommunications industry, the stakes were very real."
Consequently, what seems to lie at the crux of the privatisation of the Internet is not the use of the technology as a new communications medium. Instead, the US government appears more interested in using Internet technology as a means to promote the spread of deregulated US phone companies. In essence, the Internet is seen as a cheap way of making money off voice telephony, despite the fact that it will destroy the Internet as a new communications medium. "Thus, the old is trying to resurrect itself and take over the new," writes Cook.
The ultimate purpose of ICANN, therefore, is a means by which large, American based (or owned) telecoms can forestall their demise in the face of the IP insurgency. In the process of institutionalising the IANA functions they are trying to form ICANN into an international regulatory governing body for the Internet - one that they can indeed use to protect their own interests. As Cook surmises, "if they can't win on technical merit, ICANN may be the vehicle for their self-preservation."
Yet even if major telecom interests are unable to gain absolute control of ICANN, the way in which they would be able to attain a certain amount of influence to forestall or even short-circuit progress is being done by way of a strategem that is purely American in character: not through the use of pen or sword, but the gavel. As Cook eloquently puts it: "letting the lawyers in the door would be giving them carte blanche to destroy IETF culture." As a result, as the process moves along its present course, "nothing would suit the agenda of the huge legacy telecom empires better than a world in which their lawyers are able to tell the engineers of the Internet what they can and cannot do."
This goes a long way to explain not only the battles being waged with ICANN, but why Central and Eastern European telecom giants (such as MATÁV in Hungary, which is part owned by Ameritech and Deutsche Telekom) pursue policies which implicitly restrict access and stunt the development of on-line communities. What we are witnessing, in effect, is a reactionary, "counter insurgency" movement by established telecom interests.
What Cook and many others realise, however, is that this IP counter insurgency is bound to fail in the long run. The reason for this - even if ICANN would triumph in pushing through its hidden agenda - is because unlike traditional telecommunications technology, there is no central point of location for the Internet.479
Still, this doesn't mean there's nothing to worry about. Although a telecom-led counter-insurgency is doomed to failure, what is at stake is the ability of making the Internet a means by which to "level the playing field" so to speak. It's quite apparent that at present the Internet is not a level playing field: the high cost of access (especially in regions like Central and Eastern Europe), coupled with the educational background and financial resources needed to be able to use the technology effectively, has rendered the use of computer mediated communications an elitist, First World activity. Nonetheless, many of these problems can be overcome in due course; however, if ICANN pushes through its agenda, the present barriers that exist between the haves and have-nots will become solidified.
While controversy rages over ICANN's very existence, it's difficult to decipher who exactly is to blame. Some argue that the five IANA advisory council folks (Roberts, Farber, Cerf, Bradner, and Landweber), people who epitomise the Internet community, have actually failed in their ethical obligation they have as computer scientists. Indeed, they have helped to form ICANN and forged alliances with the large corporate forces. Dyson, meanwhile, who has been put at the head of it all (that is, to privatise the Internet essential functions), has been singled out as the one pushing forth a globalist, corporate agenda, since she is also out to help certain venture capitalists privatise public assets in Central and Eastern Europe.
Yet the whole transition process is a complex issue, not one simply between "good" and "evil". An implacable rancour remains between ICANN supporters and Network Solutions, the company that holds the (soon to end) monopoly on the .com domain and that was hitherto the nemesis of the small-business forces. Thus, the controversy over ICANN can't be levelled to simply a split between corporatists and anarchists. Because the whole situation is rather complex, with no clear demarcation of "good" and "bad" guys (don't forget, Postel was highly respected right up to the time of his death even though some felt he was the one personally responsible for the creation of ICANN), it's hard for people not involved to focus on the issue at hand when so many contradictions abound. Some have even argued that it's exactly this lack of clear-cut divisions which is being exploited by those favouring ICANN. In this way, silent complicity among the majority of users and non-users alike is being cultivated. Thus, while the debate rages over the heads of ordinary people, a form of self-censorship protects many from the burden of having to sift through truths, half-truths, and lies.
For this reason, it can be seen why the issues at stake are purposely being muddled by the powers that be. At the Berkman Institute in January, the meeting was fraught with contradictions and inconsistencies, namely that of doing government functions outside of any accountability by government. This issue had been repeatedly brought up by those from the audience and even a speaker on the final panel. Hauben summed up the meeting in this way: "In general of what these respondents said was that there was nothing at issue in the transfer to ICANN of Internet essential functions, assets, policy making etc. That these were just boring tasks. In this way they threw up confusing examples to spread sand in the eyes of anyone trying to figure out what the issues were."
As a result, there is almost no public discourse. The lack of public debate compares starkly to when the US government attempted to push through the CDA in its original form. Then, everyone, including big business was against it; however, now that big business is a part of the problem, discourse has suddenly dwindled. "There is a battle being waged today," observes Hauben, "one that is of great importance to the future of society, but most people have no idea it is taking place."
This suits governments and other interests just fine. In Europe, the European Commission's (EC) request for action on the new IANA calls for "the need for the attention of the private sector to be drawn to this matter."480
There is distinctly no mention of the public sector. Likewise, "the European Commission has called a number of consultative meetings. As a result of one of these meetings, the EC Panel of Participants (EC-PoP) was established, consisting of a European group of stakeholder representatives." In this case, the term "stakeholder" is deliberately vague. Hence, it seems in Europe governments are just as secretive as ICANN, leaving little room for public input. This is a totally different approach to how the Commission searched out public input on its Green Paper on Convergence in the telecom sector last year. In conjunction with this, there is the feeling that the process must be rushed through as soon as possible. According to the EC, their panel of "experts" have concluded that "delays in incorporating the new IANA could create lasting imbalances with respect to the required international and competitive equilibrium."
Others, see this rush in a different light. As far as Cook is concerned, the IP Insurgency is now so close to total triumph in undermining the old telecom order that immediate action must be taken in order to forestall the demise of the large telecoms. This goes a long way to explaining why governments and telecom interests alike are so concerned with rushing through the process as fast as possible. Either way, the apparent rush is at odds with the intended aim of establishing ICANN through a public consultancy process, which takes time to elicit a wide range of responses.
Not only is discourse limited in the public sphere, but within the realms of the Internet as well. Surprisingly, little mention has been made about ICANN's activities, despite the fact that it involves the future of the Internet. Even on some of the mailing lists where Dyson throws in her two cents worth along with promoting digerati corporate philosophy, there has been little mention of ICANN. On the On-line Europe list, for example, the only significant amount of information provided was when she forwarded an article entitled "ICANN asks Commerce Department to begin DNS transition" to which she simply added "what I've been up to lately...."481
Ironically, it seems the closer ICANN comes toward legitimacy and as the debates become more heated, mailing lists are swamped by other information deflecting the topic away from ICANN. Naturally, the war in Yugoslavia has exasperated this condition. In the case of On-line Europe, there has been a substantial increase in traffic on myriad issues, yet there was no mention at all about NSI's recent courtroom triumph, this despite the fact that previously disgruntled users wrote frequently about the DNS wars.
Not only is it odd that there has been little on-line debate about the issue, but even conspiracy theorists seem to have faded to the background in spite of the fact that there is ample material available, such as the sudden death of John Postel right after the creation of ICANN. The only one that has thus far come close is the following from Bob Allisat:
"The Big Boys unleash their once upon a time free wheeling cyber anarchist cowboys now erstwhile lap dog shareholders and Vice Presidents of same corporations (emphasis on vice) who also become alarmed at the potential loss of revenue and power they all face should the rambunctious, raucous and revolutionary New Guard become successful. Said a-hole net heavy shills of THE BOARD OF DIRECTORS begin pinching previously unsullied dear oldbie bearded friends cyber-ass ever more painfully into silence and abeyance, subsequently forcing teams of hitman attorneys, high priced lobby call boys and girls upon their ancient buddy and, once the guy croaks from all the massive pressure thereafter wheel free forcing enyone [sic!] they were ever even remotely affiliated with to adopt their rather unsettling plans for world re-domination despite their own better anarcho-intellectual instincts."482
In the end, what both the on-line and off-line worlds are suffering from is information overload and overkill. With the issues not clearly understood and the lines dividing various interests blurred, it's hard for people to become passionate about what is going on. Furthermore, it seems to be something over which they have no control over anyway. With so many other problems before them, such as the war in Yugoslavia and economic hardships lurking around the corner, the best that most people can do is lend a passing interest to what is going on.
The entire transition process involving ICANN is in many ways a reflection of Internet democracy. Sadly, the circumstances in which ICANN was created, coupled with the attitudes and reactions of its board members, shows that democratic processes exist in name only. Lack of openness and transparency are the major hurdles the new organisation will need to overcome if it is somehow to emerge from the process with a shred of dignity and - above all - true legitimacy.
The fact that some form of opposition does exist is an indication that all is not lost - at least not yet. Some form of discourse has appeared that questions the true motives of ICANN's board members and the process in general. The discontent people have expressed was enough for the US government to step in to make sure the transition is as smooth and fair as possible.
Unfortunately, this has not gone far enough. What is more, there are many more people - both on-line and off-line - who are either unaware of what is going on or, because of the sheer complexity of the issues before them, are unable or even unwilling to take part.
As a result, it is here that Internet democracy ultimately fails. What should have been the glorious birth of on-line democracy and civic discourse on a truly global scale has been wasted. The need to rush through the process quickly, along with the fact that only an elite minority of both on-line and off-line communities are making decisions about the future of the Internet, is antithesis to the actual spirit of democracy. Simply voting on-line and obtaining statistical information has not much to do with democracy; rather, thorough consultation and wide participation is the key.
Because of the silent complicity of the majority which, in some ways, has been cultivated by those wanting to push the process forward quickly, democracy will have suffered a severe setback no matter what the eventual outcome of the transition process will be. To be sure, if ICANN is able to maintain the present course that its board members hope to establish, it could very well mean the end to the Internet as we know it. Additional Links and References
- Are the "technical insiders" Bilderbergers/Illuminati? (26.04.2000 09:52)
- lack of control (26.05.1999 07:50)
- Reply to Mr. Wilkinson's comments (26.05.1999 07:28)
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