Consultation on ICANN Reform
What is ICANN?
The Internet Corporation for Assigned Names and Numbers (ICANN) is a not-for-profit private sector California corporation that manages the technical co-ordination of the Internet's naming and addressing system, including the domain name system (DNS). The DNS consists of both country code top level domains (ccTLDs) such as ".ca" for Canada, and generic top level domains (gTLDs) which are international in scope, such as ".com", ".net" and ".info".
Before the creation of ICANN, these technical functions were run by private-sector contractors on behalf of the US Department of Commerce. With the growth of the Internet into a global, commercial infrastructure, the US initiated a public consultation on the future management of these functions and decided in favour of privatization. The US entrusted ICANN with day-to-day control over these functions, reducing its own role to an overseer through a contract with ICANN and while still maintaining control of the Internet's primary "root" server which establishes global interoperability of the DNS.
Reflecting the history of the private sector, largely volunteer, bottom-up development of standards for the Internet, ICANN was structured with three supporting organizations reporting to its Board of Directors: the Domain Name Supporting Organization, the Address Supporting Organization and the Protocol Supporting Organization. These supporting organizations review and develop technical policy recommendations in their respective areas of expertise.
ICANN is also supported by a Governmental Advisory Committee (GAC) which meets in conjunction with ICANN meetings. About 30 governments regularly attend, representing over 90% of Internet users worldwide. The GAC's role is to provide high level advice to ICANN on issues of public policy, international treaties and national laws. Consistent with the objective of privatization, the GAC's role is strictly advisory-it does not participate in ICANN's decision-making. Industry Canada officials have attended every ICANN meeting, and have been active participants in the GAC, contributing to the development of GAC positions on numerous issues.
In particular, Canada was heavily involved in drafting the GAC's Principles for Delegation and Administration of Country Code Top Level Domains, which is a framework for relations among administrators of ccTLDs, the respective government and ICANN. Canada became the first country in the world to implement these principles when the ".ca" top level domain was re-delegated from the University of British Columbia to the Canadian Internet Registration Authority (CIRA) in December 2000.
ICANN Reform Process
At the ICANN Board of Directors retreat held over the weekend of February 23, 2002, President Stuart Lynn proposed a series of structural reforms for ICANN. These proposals, which represent a significant shift in the management of the Internet were the subject of considerable discussion at meetings of the GAC and other ICANN constituents. In response to comments from stakeholders, ICANN formed the Evolution and Reform Committee (ERC) which released a series of recommendations on May 31, 2002 in ICANN: A Blueprint for Reform.
At the recent ICANN and GAC meetings in Bucharest, Romania held from June 24-26, 2002, the GAC considered the recommendations of the Blueprint and released the Statement on ICANN Reform in response. The GAC Statement can be found at http://www.icann.org/committees/gac/statement-on-reform-26jun02.htm.
In preparation for the next GAC meeting in Shanghai from October 27-31, 2002, Industry Canada is seeking public input on the proposed Canadian position on ICANN Reform. The proposed Canadian positions are set out below.
1. Purpose and Scope of ICANN
ICANN's core functions relate to the technical coordination of the Internet's naming and addressing systems. These core functions support the Internet's global interoperability and open standards which have fostered innovation, entrepreneurship, e-commerce and the dissemination of and access to the greatest diversity of information in more languages and at lower cost than any other means of communication.
These functions therefore ensure the continued stable operations of an international public resource of increasing economic and social importance. Because of their fundamentally technical nature, these core functions are best administered by an independent expert authority. Canada has consistently expressed support for having these functions performed by a private-sector not-for-profit organization.
Clarity of mandate and mission will be essential to isolate those functions for which ICANN is responsible, and those for which it is not, and to contain those issues that give rise to public policy concerns. ICANN's mission does not extend to global Internet governance.
The suggested Canadian position is that responsibility for the establishment of policy in areas such as privacy, consumer issues and competition resides with governments and intergovernmental organizations. ICANN should address those issues only to the extent that they arise from activities within its mandate. It is in this context that advice or guidance from governments may be required from time to time.
Accordingly, ICANN should strive to contain its policy functions to:
- matters which directly arise from and are necessary for the coordination of technical functions of the Internet Domain Name System (DNS); and
- matters for which it is the only or most appropriate body to address the issue at hand.
Where the ICANN Board determines that a policy matter does not meet these criteria, it should consider whether the matter would best be addressed by another authority, and if so, seek to refer the matter to that authority through the appropriate channels. ICANN should avoid mandate creep into policy areas that do not meet the criteria identified above because this breeds controversy and is a drain on its scarce resources. For example, intellectual property issues should generally be addressed by the World Intellectual Property Organization (WIPO); and digital divide issues are being addressed by the appropriate UN agencies.
Note that in the 1998 White Paper, ICANN policymaking was to be guided by a set of principles: preserving stability; promoting competition; relying where possible on private-sector, bottom-up, participatory mechanisms that reflect the functional and geographic diversity of the Internet; development of efficient dispute resolution alternatives (for the gTLD registries); and promoting accountability in management (for all registries). These principles remain valid within the focused scope of responsibilities foreseen by this paper.
2. ICANN's Stakeholders
ICANN's stakeholders fall into two broad categories: affiliates and other stakeholders. Affiliates are those stakeholders who are expected to sign contracts with ICANN. Affiliates include gTLD registrars and registries, RIRs, Root Server Operators and ccTLDs. Other stakeholders include users, business interests, ISPs and others who have an interest in ICANN's functions.
It is the suggested Canadian position that both affiliates and other stakeholders should establish their own fora and provide recommendations to the ICANN Board. The fora and the general public should also be able to participate in consultations emanating from other affiliates/stakeholders and the ICANN Board. In addition, governments also have an interest in policy recommendations and should be involved in the consultation process.
3. Policy Making: Roles of stakeholders and the Board
Accordingly, efficient, effective and transparent processes that enable representation from all stakeholders should be hallmarks of the organization. ICANN's constituent bodies should develop policy recommendations in their respective areas of expertise for approval by the ICANN Board. The ICANN Board should also be empowered to issue its policy proposals for comment. In both cases, an appropriate consultation mechanism should be established to allow input from all stakeholders.
When a constituent body provides a recommendation to the Board, ICANN Staff should manage a consultation process, with a view to achieving consensus, subject to a fixed period of time depending on the issue (for example, 45 to 120 days). Once the consultation period has expired, a recommendation would be sent to the Board within a reasonable time frame (i.e. determined by the Board). In the commercial environment in which the Internet now operates, it is not realistic to expect that "consensus" will emerge on all policy issues. Indeed, where different or conflicting policy interests are present, consensus is likely only on those issues for which there is a clearly identifiable best technical solution. Therefore if consensus is not achieved, ICANN Staff would then report to the Board all the findings of its of consultation. The Board could either make a decision or send the recommendation back to constituent groups for further study.
The Board should take into account advice from the GAC with respect to broad public policy concerns such as competition, intellectual property and consumer protection issues such as privacy.
It is the suggested Canadian position that an Ombudsman/Public Participation Coordinator should be created in the ICANN staff to ensure that processes are followed and to provide recourse in response to complaints.
With regard to the make-up of the Board, it is the suggested Canadian position that government appointees should not sit on the Board of Directors. However, Canada suggests that the Chair of the GAC sit as an ex officio non-voting member of the Board.
The Chair of the GAC would be the only non-voting director. The other twelve directors would be voting directors. Having the Chair of the GAC as a voting member may unduly constrain the Chair. For example, the Chair may be put in an awkward situation where there is no consensus within the GAC on a particular issue and the Chair is expected to vote. As an ex officio director, the Chair could play an important role by bringing information to the Board regarding issues which have been deliberated by the GAC. Since it is not reasonable to expect that one person can represent the interests of all governments represented in the GAC and vote on their behalf, the role of the Chair would be to provide information and shed light on the many issues which come before the Board.
One director should be elected or appointed from each of ICANN's five affiliate groups, as outlined above (ccTLDs, gTLD registrars and registries, RIRs and Root Server Operators). The Chair of the proposed Technical Committee (see ICANN: A Blueprint for Reform) and the President/CEO of ICANN would also be voting directors.
The At-Large Study Committee's proposal to elect at-large directors online, perhaps with domain name holders as the electorate, is worthy of consideration. However, many concerns have been raised regarding the feasibility of online elections. If online elections are not currently feasible, the ICANN Board should report back periodically-at least annually-on any change in the status of their feasibilty. In the interim, the establishment of a Nominating Committee is an acceptable solution for nominating the five remaining directors.
In the longer term, Canada is supportive of five directors being at-large directors elected by domain name holders in on-line elections.
Although there is a concern that seats will be "captured" with online elections, the combination of having a Nominating Committee and regional representation should diminish the likelihood of capture. As for having domain name holders as the electorate, this electorate would be broadly based and would represent both users and business interests. Domain name ownership is a reasonable "threshold" for validating voters.
5. Relationship between ICANN and the ccTLDs
This is an important issue since establishing stable relationships with ccTLD operators is one of the keys to ICANN's legitimacy and to the eventual transfer of responsibility for the "A-root" server from the US Government to ICANN.
It is the suggested Canadian position that ICANN should enter into one of two types of agreements with ccTLDs. In the first model there is a relationship with the relevant government and in the second model, there is none.
Where there is a relationship with the relevant government, the agreement should be modeled after the GAC Principles for the Delegation and Administration of Country Code Top Level Domains (i.e. the "triangular agreement"). This would involve a series of "communications" (including anything from correspondence to legislation) between ICANN, the delegee and the relevant government. Canada, Australia, the US and Hong Kong have each developed a "triangular" arrangement for re-delegation. Japan has a similar arrangement for re-delegation involving four parties.
Where there is no relationship with the government, agreements should focus on the status quo to ensure the stability and interoperability of the Internet (a very narrow contract focused on matters addressed in section 10 of the GAC Principles for the Delegation and Administration of Country Code Top Level Domains). In the latter situation, ICANN can do little more than undertake to maintain technical stability in the link between the ccTLD and the Internet, while recognizing that sovereign states have authority over entities within their territory (i.e. ICANN acknowledges that governments are ultimately responsible for their respective ccTLDs).
It should be clear that nothing in these status quo agreements would inhibit governments from asserting authority should they choose to do so, subject to applicable domestic laws and processes. In other words, the onus would be on the government in question to establish an appropriate relationship with the ccTLD if it wishes to do so-ICANN would not have jurisdiction to achieve this. This acknowledgment of government authority could be stated in a contract or in a policy statement issued by ICANN. It is Canada's understanding that ccTLDs would probably prefer the latter. As for ccTLD re-delegation requests, ICANN could state in a contract or policy statement that re-delegation requests will be addressed in concert with the relevant government.
Canada recognizes that there may be a need for arbitration to resolve disputes between ccTLDs and ICANN, and supports some kind of arbitration mechanism. For example, arbitrators with technical expertise, such as members of the Root Server System Advisory Committee (RSSAC) could become arbitrators for disputes over technical issues. The GAC could be identified as a body to advise on policy or re-delegation disputes.
6. Role of governments
It is the suggested Canadian position that ICANN be administered by an independent expert authority. However, since some of ICANN's functions give rise to public policy issues, there is a need to identify the most appropriate means for governments to exercise their public policy authority and to provide guidance where this is required.
Specifically, Canada sees the role of governments as threefold:
- to show clear support for the organization and support its independence as an expert technical body;
- to provide input such as governments are currently doing through the GAC; and
- determine the most appropriate role for governments, including determining what "reserve power" (see below) could be allocated.
With regard to item number 1, Canada believes that outreach is a key element in garnering support for ICANN and ensuring its legitimacy and stability. Canada hopes that governments will commit to supporting ICANN and to having its functions carried out by a private sector body. As for item number 2, the GAC should continue to provide advice to the ICANN Board, as it has done in the past. For example, the GAC has provided advice on ".info", ccTLD re-delegation and now, on ICANN reform. Item number 3 is addressed below.
As it currently stands, the United States is the only government that has a direct link to ICANN through its Memorandum of Understanding (MOU) with the Department of Commerce (DOC). The fact that only the United States government has control of this important public resource is a matter of concern for many countries in the GAC. This concern was expressed as far back as 1998 with regard to the US Government white paper Management of Internet Names and Addresses. Enabling more international government policy input is a means to alleviate this concern.
It should be noted that the US has exercised its oversight on ICANN in a non-interventionist manner that respects the concept of an independent expert authority. Canada recognizes and applauds this approach. However, we also recognize the concern of other governments.
It is the suggested Canadian position that work be undertaken to develop a process by which broader participation could be exercised through a reserve power.
7. ICANN Funding
In retrospect, it appears that many of ICANN's difficulties arose because it was created with no source of funding.
Consistent with its mandate and operational independence, ICANN should benefit from a stable, broadly-based source of funding. It is Canada's preliminary view that this is more appropriately derived from some sort of "user pays" system which should be implemented as soon as possible. Contributions should come from registrars and registries in the gTLDs as well as from ccTLDs, perhaps taking into account the number of domain name registrations. Canada would like to note that it is appreciative of the steps taken by registrars in the gTLDs to increase their funding to ICANN so that it remains a private-sector driven organization.
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