Who Can Watch the Watchdog?


The GAO Report on ICANN is Issued

On Friday, July 7, 2000 the US General Accounting Office (GAO-ICANN) posted their report of their investigation of ICANN. The GAO-ICANN report was requested by Senator Judd Gregg of the US Senate Committee Appropriations in a House-Senate conference report in October, 1999. The GAO was asked to review the relationship between the U.S. Department of Commerce (DOC) and the Internet Corporation for Assigned Names and Numbers (ICANN) and report back about to the U.S. Congress about the legality of the activities of ICANN and of the DOC's activities with ICANN. The report is an interesting report, both in what it does and what it doesn't do.

One of the essential issues the GAO raises is whether the U.S. government has the authority to transfer government property or functions to a private non profit corporation. This is an important question in the view of the U.S. government plan to transfer key assets of the Internet infrastructure to a private corporation. The GAO Report notes that the Department of Commerce "states that no government functions or property have been transferred" under its agreements with ICANN.

The GAO is supposedly an oversight body over the Department of Commerce. To report what the Department says and to leave that as the official statement of the situation is a breakdown of the independent role that an oversight body must have from the subject of its investigation. The GAO claims to have reviewed government documents as part of their process. However, a crucial document that they fail to mention is the Report from the Office of Inspector General of the National Science Foundation (OIG-NSF) which was issued in February 1997.

During the interview I had with the GAO, I asked if they knew of this document. They said they did. As opposed to the GAO report, the OIG-NSF report identifies the public nature of the Internet's infrastructure. It notes that because the Internet is so crucial in the daily activities of the public, government must retain a responsible role to protect that the Internet will be continually available to the public. The OIG-NSF report also cites the factual history of the public administration of the IP numbers and domain names of the Internet, and states that the "public administration of this unique public resource should continue". (OIG-NSF, pg 8)

Instead of any reference to the factual history or government obligation with regard to the Internet's infrastructure, the GAO-ICANN report claims that it is unclear whether the "transition" of the domain name system and root server system "will involve the transfer of government property to a private entity." (pg 26)

And the Report claims an inability to know whether there is "government property" involved in the transfer of the management of the DNS to ICANN. Instead the GAO states that it is not the intentions of the Department of Commerce to transfer government property to ICANN.

There is a difference between wondering if there is "government" property to be transferred from public oversight, as opposed to whether there is a public interest requiring the protection of the domain name system, IP numbers and protocol standards process.

Such a public interest is a general public interest, involving the public in the US and around the world. The U.S. government considered this obligation when it was administering the domain name functions as a public administration. But with the transfer to a private entity, the need to support the public's right to access to the Internet's is being challenged by those with a commercial self interest. The importance of considering the public interest regarding the Internet's infrastructure is an issue that crosses national boundaries, while the commercial self interest and bickering which is the basis for the creation of ICANN poses a barrier to the ability of the Internet to be protected as an international public treasure.

In this context, there is an interesting discussion in the GAO-ICANN report about whether the U.S. Department of Commerce is the appropriate entity to be involved with the administration of ICANN and of the Internet. The discussion by the GAO was limited to whether the Department of Commerce or State Department was the appropriate entity to represent the U.S. government in its role of developing ICANN.

The OIG-NSF Report, however, had recommended the creation of a new scientific and public research commission to oversee and administer the Internet's infrastructure and to provide for the scaling of the Internet's infrastructure.

Such an administration must determine how to be an international administration, as the Internet is international. The starting point for such an endeavor, however, is not a commercially based private entity like ICANN, but a public and scientific entity like the one that was proposed in the OIG-NSF report.

The GAO-ICANN Report didn't discuss this recommendation.

Also, the GAO Report failed to recognize that there are procedures for input and determining consensus that have grown up within the Internet community, such as the RFC procedure. Yet the interviewers talking with me said they were familiar with the RFC procedure.

While the GAO Report on ICANN noted the concern of many who they interviewed that there be continued U.S. government oversight over ICANN until an appropriate international mechanism for oversight can be created, the Report fears that there will be international objection to maintaining U.S. government responsibility even if no appropriate international mechanism has been created.

While the Report fails to take up the hard questions, a careful reading of it will show the serious nature of the problem that the world is faced with regarding ICANN, if a government oversight body like the GAO is not able to do the needed factual and legal investigation to determine ICANN's legitimacy.

Who will be able to counter the vested interests who have pressured for the creation and development of ICANN? That is the important question and one that the GAO Report is not able to answer unfortunately.

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