<nettime> NTIA Filing by Computer Professionals for Social Responsibility

[Andy Oram <andyo@oreilly.com>]

The history of the domain name system (DNS) reform controversy is
repeating itself. The Commerce Department must make sure that this second
occurrence is not a tragedy. 

Computer Professionals for Social Responsibility (CPSR) recommends that
the Commerce Department should reject the unilateral, unaccountable, and
non-consensus approach of IANA -- styled now as the Internet Corporation
for Assigned Names and Numbers (ICANN) -- in favor of the proposal of the
Open Root Source Consortium (ORSC). Only in this way can the values of
openness, Internet self-governance, and balance among all Internet
stakeholders (including users) be achieved in the formation of what Rep.
Chip Pickering has appropriately called "the constitution for the
Internet." 

The purpose of forming a non-profit corporation to take over the IANA and
related root server functions, which CPSR has fully supported, is to
establish a mechanism for transferring the last formal involvement of the
U.S. government with administration of the Internet. The Commerce
Department's Green Paper/White Paper process was initiated because broad
segments of Internet users were deeply unsatisfied with the process
conducted by IANA, which was criticized as closed, unfair, and resulting
in an unaccountable organization. A contrasting process -- open, fair,
balanced, and dedicated in creating an accountable organization -- was
begun by Green Paper/White Paper and shepherded by the International Forum
on the White Paper (IFWP). If it is to retain the support of the Internet
community and foreign governments, the Commerce Department must insist
that this open process, and the values it represents, be continued.

Harvard Law Professor Lawrence Lessig made these same points at CPSR's
One Planet, One Net conference last Saturday, in a speech that is
available on the Web at http://cyber.law.harvard.edu/works/lessig/cpsr.pdf

The IANA proposal for the new domain name corporation did not adequately
follow the open, balanced process envisioned by the Green Paper/White
Paper. IANA acted essentially in a unilateral manner, negotiating with
Network Solutions and the Commerce Department instead of allowing the wide
range of stakeholders in the IFWP to approve their document. Among other
things, the structure of the ICANN differs in important respects from the
IFWP consensus, the ICANN-nominated interim Board members were never
discussed or confirmed by any public process whatsoever, and the ICANN was
incorporated in California at the unilateral direction of IANA. Although
IANA claims it acted to reflect what it terms "the IFWP consensus," the
reality is that the IANA proposal represents little more than an effort by
the existing individuals and organizations responsible for DNS
administration to extend their influence into the new era of open Internet
self-governance that the Green Paper/White Paper process was intended to
inaugurate. 

It is critical for the U.S. government to use its leverage to ensure that
the new corporation follows the core values of openness, fairness, and
accountability. These values are demanded not just by U.S. participants,
but by members of the public from around the world who have expressed
their concern with domain name administration. The choices we make on DNS
will provide a model for future administrative issues on the Internet.
Although we commend IANA for submitting drafts for public review, the
final IANA proposal is very weak in the critical areas of openness,
accountability and balance required for healthy Internet self-governance. 

CPSR believes that the proposal from the Open Root Server Confederation is
much more in keeping with the White Paper goals and reflects the broadest
possible coalition of those who have participated in discussions around
domain names. While CPSR does not feel it is appropriate for us to pick
and choose parts of each proposal and submit the hodgepodge as our own
proposal, we suggest simply that the Commerce Department adopt the spirit
of the ORSC proposal and use it as a model for formation of the "new
corporation," while continuing to solicit input from many sectors. We will
also mention in this comment some of the key points we wish to see
enacted. 

CPSR is not ignoring the work of other groups and individuals, such as the
Boston Working Group, which have made thoughtful submissions on this
complex subject. We are concentrating on the ORSC proposal because it has
tried to be a unifying and synthesizing force, which is just what the
process of setting up a new corporation needs. 

Initial Board
-------------

The key decision at the beginning of the new corporation's history is the
choice of the initial Board. We reject the IANA strategy of picking a
slate. We also note that initial Board members should evince a history of
following the many complex DNS issues, whereas many of the IANA choices
are made for supposed "neutrality" and do not demonstrate sufficient
background to handle the intense politicking and technical hair-splitting
that is sure to beset them when they begin their deliberations. 

A broader input for the initial Board is required. Voting is unfeasible
given the amorphous state of global participation in the IFWP. But
certainly the Commerce Department can identify the most respected
individuals and organizations from the various factions that have arisen,
including Internet users and public interest advocates, and put together a
Board where every significant faction has some representation. At the very
least, whether or not proportional representation is required, a minimum
representation of all stakeholder interests is necessary in order for the
new corporation's interim Board to command the respect of the Internet
community necessary to forge a consensus on the substantive policy issues
left unsettled by all the current proposals. Including a good number of
public-interest, non-commercial members will help to ensure that the
corporation represents the values of openness and fairness. 

Membership
----------

After the selection of the initial Board, the other key determinant of the
core values expressed in the White Paper is a provision for membership in
the new corporation. No proposal has completely solved this problem, but
the ORSC makes a step in the right direction. CPSR values the
participation of small stakeholders, such as non-profit domain names
holders and Internet users. A low barrier to membership will help to
preserve openness, fairness, and accountability. On the other hand, there
should be safeguards to prevent capture of the corporation by large,
well-funded organizations, perhaps subverting democracy by stuffing the
membership. 

Role of supporting organizations
--------------------------------

CPSR supports the proposal of the Boston Group and the ORSC that
supporting organizations not select Board members. The reason for this
choice is that supporting organizations are expected to represent
communities of technical experts. The Board's purview, however, is policy
decisions rather than technical ones. To give the supporting organizations
seats on the Board, as the IANA proposal does, would be to risk
politicizing supporting organizations and weakening their competence to
advise the Board technically. It would also place too much control in the
hands of a few organizations responsible for technical administration, to
the detriment of the vastly wider communities of domain holders and
Internet users. 

Accountability
--------------

The ORSC proposal addresses a key deficiency of the IANA/ICANN approach,
namely that the ICANN Board and interim Board would be accountable only to
themselves.  This is a matter of some seriousness, as without the U.S.
government to act as ultimate arbiter, there must be some mechanism for
those dissatisfied with policy decisions of the new corporation to air
grievances.  The ORSC proposal incorporates hearing procedures and
financial accountability clauses related to business planning, budgeting
and fee structure.  CPSR believes these sort of accountability mechanisms
are crucial to the success of the new corporation. 

Guarantees of free speech
-------------------------

The concern of the Electronic Frontier Foundation for free speech is
salutary. At present, the structure of the Internet facilitates the spread
of ideas from any originator to any recipient. However, it is possible
that governments or large Internet providers will try to skew the system
to facilitate censorship or the tracking of users. The corporation should
be set up to ensure as much as possible that it does not create a
structure for content control. 

Conclusion
----------

If the Commerce Department accedes to the IANA/ICANN proposal, it will
make a charade out of the forward-looking principles of the Green
Paper/White Paper process.  The values of openness, fairness, balance, and
accountability are inherent in Internet self-governance, but these values
are scarce, if not missing entirely, from the IANA/ICANN approach.
Furthermore, as a participant in the Green Paper/White Paper and IFWP
processes, CPSR resents IANA's self-proclaimed, unilateral assertion that
it has either the legitimacy or authority to fashion a new corporation, on
its own, to control the important issue of DNS reform.  If, as many
believe, DNS is just the first of many issues of Internet policy that the
new corporation will b required to address, the US government must ensure
that the fundamental and publicly announced principles for the transition
to private sector Internet DNS administration are respected.  The ORSC
proposal comes closest to meeting these principles, and should be used as
the model for formation of the new corporation. 

(CPSR will put this document on our Web site at
http://www.cpsr.org/cpsr/nii/cyber-rights/web/dns-ntia-newcorp.html.
Questions can be sent to Andrew Oram, andyo@cpsr.org.)


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