David R. Johnson and Susan P. Crawford[1]
February 26, 2002

ICANN's legitimacy is under attack from several directions, including from its own management.  Some perceive mission creep.  Some are more concerned about lack of participation by many relevant stakeholders. Some suggest that too much time is dedicated to "process" or seat-claiming on a Names Council that doesn't act to facilitate the development of meaningful policies. Others express the view that ICANN staff has created too many centralized policies or that too much Board-level activity occurs behind closed doors. Some note that, even if it were to focus strictly on a narrowly defined mission, ICANN would need more secure funding and more support from ccTLDs and governments. There does appear to be substantial support, among many with varying viewpoints, that the ICANN experiment needs now to move into a new phase.

Stuart Lynn, President of ICANN, has issued a paper about ICANN's future. He suggests that ICANN doesn't have enough money or enough power. He suggests that governments play the role of representing the "public interest" in ICANN (thus obviating the need for any At Large elections and providing additional funding) and intimates that the Board should be authorized to act directly to resolve disputes (making decisions even when no consensus among affected parties has emerged). But his paper doesn't mention the existence of contracts between the registries/registrars and ICANN that reflect the basic bargain that gave rise to ICANN -- a promise by registries and registrars to follow future ICANN policies only to the extent that they deal with limited subjects and reflect a documented consensus among affected parties. These contracts give ICANN its only powers, aside from those de facto delegated by the U.S. Department of Commerce by deferring to ICANN's recommendations regarding what new TLDs to add to the root zone file. It appears that Mr. Lynn's proposal overlooks the most fundamental characteristics of the organization he seeks to reform.

Mr. Lynn may not have been focused on the limited mission and consensus policy process set forth in ICANNís contracts. But registries and registrars are very focused on ICANN's power to affect their businesses. Because Mr. Lynn's reform proposal would require dramatic changes to the contracts that have been signed, its prospects turn on the willingness of the registries and registrars to accept a wholly new regulatory regime. It's the registries' and registrars' move.

No doubt, ICANN needs some more money. It's less clear whether ICANN needs more power. In any case, registries and registrars, who foot most of the bill and will be bound by ICANNís rules, now must decide whether they will accede to the proposed ICANN 2.0. We suggest that they should do so only if ICANN's restructuring includes a re-stated, focused mission, a reaffirmation of the consensus policy regime, and an agreement to subject Board decisions to the scrutiny of the Independent Review Panel. If a Board peopled by governmental appointees simply decides what it thinks is best, on any topic, we will have created a world government unconstrained by due process, equal protection, a takings clause, or other predictable political checks and balances. There is no reason for the registries and registrars to go along with the proposed new regime. In contrast, thoughtful registries and registrars might well want to help ICANN create a better forum for the development of consensus policies. After all, that's the deal they signed up for in the first place.

The following is a roadmap for consideration of these issues and a set of suggestions for immediate next steps.

1.  Restate the Mission.

Decisions regarding many interrelated governance issues will flow from a clear statement of what ICANN's task is. Some may feel that ICANN's mission is to "protect consumers" or "foster competition" or assure the utility of the semantics chosen for top-level domains. But broad statements of mission only increase pressures on ICANN's resources and diminish its perceived legitimacy. Many of the calls for more At Large participation stem from fears that the ICANN Board will face increasing pressures (or temptations) to use the chokepoint represented by the root zone file to pursue increasingly adventuresome policy initiatives. So ICANN's top priority must be to put to rest concerns that ICANN will use whatever power it has (to control access to a domain name or IP address block) to support regulatory rules about how an Internet identifier may be used.

There is wide agreement that ICANN's central task is to avoid the creation of conflicting names in a globally unique root (and to coordinate allocation of IP address blocks). That's easy. ICANN needs to keep a unique record and avoid conflicting entries. A harder task may be deciding how quickly to open up to new entries in that book. But surely that task can be managed by figuring out whether there will be an adverse technical impact on the net, and tying any restriction to such demonstrable concerns. If no one can show why a new top level domain will threaten the interoperability of the net, the decision about whether to create that TLD should be left to any minimally financially and technically qualified party, with the protection of an appropriate escrow agreement to mitigate effects from failure of the new entrant in the marketplace.

ICANN's other core task is to implement, when needed, global consensus policies that relate directly to the registration of domain names and to the allocation of addresses. Many feel that everything else should be left to local decisionmaking (by businesses, which must compete in the market, or by local governments, which retain the right to make laws applicable to those over whom they have jurisdiction).

For example, the UDRP can be understood as an existing global consensus policy that addresses "bad actors" (hold-up artists) in the context of the registration of names. And contractual obligations governing the whois function can be understood as making the registration of names an accountable act. Some would argue for changes to some of these policies. But few would say they are topics entirely outside of ICANNís core mission. (We discuss the importance of the process by which policies are made by ICANN below.)

ICANN's overarching task is to provide an effective forum for discussion of these narrow issues. We suggest that public debate (at ICANN meetings and in online forums) be focused on whether ICANN's Articles of Incorporation should be amended to prohibit ICANN from establishing policies concerning subjects other than the following:

  1. issues for which central and coordinated resolution is necessary to assure stable interoperability of the domain name system;
  2. issues for which central and coordinated resolution is necessary to assure the safety and integrity of registration data;
  3. issues for which central and coordinated resolution is necessary to assure the resolution of disputes regarding the registration of particular domain names (as opposed to the use of such domain names) by particular parties; and
  4. issues for which central and coordinated resolution is necessary to assure the availability (directly, or upon an appropriate showing of need) of accurate WHOIS data.
Such a clear statement of mission would include some challenging tasks -- assurance of the stable and secure operation of the root zone servers, enforcement of escrow requirements, and so forth. But it would also clearly exclude consideration of policies applicable to systems that are not part of the domain name system. It would exclude consideration of policies about the content of web pages or other messages sent over the net. It would make clear that ICANNís role is not to resolve conflicts among irreconcilable views but rather to allow decentralized and local decision-making when various constituencies or localities disagree. It would clarify that ICANN should establish globally uniform policies only on issues where most people or entities that are affected by those policies agree they are needed. And it would avoid involving ICANN in increasingly subjective decisionmaking in areas outside its expertise and as to which it might not be able to claim legitimate authority.

A limited mission will help Mr. Lynn with his funding problem. If your work is narrow, you need fewer staff. If the rules ICANN makes are limited in scope and voluntarily complied with, it will run less risk of getting involved in litigation. If ICANN's task is limited, it might be easier to carry it out online (thus avoiding the need for costly international meetings).

It's not even clear to us that ICANN necessarily should be responsible for operation of the root servers. This is a large portion of the proposed work for the new ICANN that is causing Mr. Lynn to seek a hugely expanded budget. And the kind of organization needed to assure the continued safe operation of the root servers might look very different from the kind of organization needed to provide a forum for designing global policies. If the root servers are as vital as Mr. Lynn states, and if their safe operation is truly in jeopardy, their continued functioning should perhaps be the proper province of governments.

Mr. Lynn's vision of ICANN's mission is blurred. ICANN needs to stay focused on its core tasks: avoiding conflicting names and addresses, and implementing consensus policies when they are necessary.

2. Reaffirm the Consensus Policy Regime -- and Make It Work.

Two fundamental limits will prevent abuse of ICANN's claimed powers. First, it must only address certain subjects. Second, it must only impose mandatory rules under certain conditions: notably, when those substantially affected by the rules agree to go along (or donít object vigorously or rationally).

After establishing its narrow mission, ICANN's next priority should be to decide how it can function most effectively and what the role of the Board should be. The original answer to the question of ICANN's source of power, an answer present in the origins of ICANN and critical to its legitimacy, is that policies on narrow topics should be made when and only when most of those affected by such policies agree that they are necessary (or, at least, acceptable).

Mr. Lynn intimates that ICANN moves too slowly and that the Board should be released from the shackles of the consensus policy regime in order to act on its own. (He says: "I have come to the conclusion that the original concept of a purely private sector body, based on consensus and consent, has been shown to be impractical;" and he suggests that ICANN's mission does not include embodying "some idealized (and never-before-realized) model of process or procedure.") But he's missing the key point: ICANN must be restructured so as to work towards consensus more effectively. That's the goal itself: Deciding when global, mandatory rules are necessary and legitimate. Seizing more power to make that decision centrally doesn't serve ICANN's core mission of preserving decentralized decision-making and diversity.

Under the express terms of contracts between ICANN and the gTLD registries and registrars, any mandatory ICANN policy must be the result of consensus as demonstrated by a written report documenting (a) the extent of agreement among impacted groups, (b) the outreach process used to obtain the views of groups likely to be impacted, and (c) the nature and intensity of reasoned support and opposition to the proposed policy. Under the express terms of all the contracts that give ICANN its power, the role of any cross-constituency council (and the Board itself) is not to act as a legislature but instead to facilitate and evaluate the results of the consensus policy development process.

Mr. Lynn ignores these contracts. He says: "The driving notion at the time of ICANN's creation was consensus; it is clear to me that the driving notion today, with the renewed focus precipitated by the events of 9/11, must be effectiveness." No appeal to expediency or fear can change the fact that the essential deal underlying ICANN's formation was the consensus policy regime. From the perspective of a registry or registrar, that is the only deal that makes sense. Why would anyone agree to follow the unpredictable dictates of a private entity that purports to serve the public interest but is unconstrained by democratic elections, due process, requirements to provide equal protection, or any other predictable limits on its power? What possible incentives do the current registries and registrars have to amend their deal?

ICANN can only impose its policies on those who agree to be bound by its rules. This fits the very nature of the Internet. There is no real possibility of creating a new kind of global "sovereignty" in California non-profit clothing. Lynn is right that ICANN's mission cannot be to create a new form of global democracy. No matter how open and transparent the process used to create the ICANN Board and even the ICANN At Large Membership itself, those bodies could not credibly claim to be "representative" of those affected by and/or required to follow ICANN's rules. Indeed, the set of affected parties will vary from rule to rule, and the nature and size of the impacted group will evolve as participation in the Internet develops. We cannot realistically expect everyone with some stake in the domain name system to join ICANN and participate actively. Nor is there any good reason to believe that the tiny percentage of potential stakeholders who did join and vote would be "representative" of those who are affected.

In contrast, the consensus policy regime now embedded in ICANNís contracts powerfully supports ICANN's legitimacy: if most of those affected by a rule agree that it will improve things, and intense opposition is absent or irrational or limited to those who do not bear the costs of the policy in question, then those required to implement the rule should agree, by contract, to do so.

Ironically, the one area of ICANNís decision-making as to which a call for "consensus" has slowed progress dramatically is the establishment of new TLDs. Yet the entry by ICANN into contracts with new registries is not the kind of question on which consensus is required. It is one thing for a registry to agree to follow the communityís wishes (assuming these are supported by a consensus among affected parties, including registries). It is quite another thing for ICANN to open new territory by allowing a new registry to sign on to this contractual standard-setting regime. The concept of consensus limits ICANN's power to impose rules on those with whom it already has a contract. It does not apply to the entry into new contracts that fit the basic mold. ICANN's governing principle in this setting should be to encourage new competition by anyone with the minimum technical and financial qualifications to enter the business.

It is shocking that Mr. Lynn's paper, written on behalf of an organization the founding documents of which pledge it to maximize competition, says nothing at all about opening up the name space to new entrants. Assuming equitable treatment for all who sign up to the basic "consensus policy" regime, ICANN should be free, indeed required, to open many new competing TLDs -- even if existing registries object and even if intellectual property interests are not fully satisfied. Expanding the name space is part of the core mission for which ICANN was established.

ICANN should not be judged a failure on the grounds that it hasn't developed more policies. Remember, the absence of consensus is not inaction. It is decentralized, localized decision-making. ICANN's inability to make a harmonized rule on any given issue is not, in itself, a problem. If ICANN actually operated the Internet, then it would need the power to make sure that things don't break. But ICANN doesn't actually operate anything. And questions regarding its mission and powers all go to an issue ("when do we need and when should we support some global rules") that by definition requires broad agreement among those who established ICANN in the first place.

It will be easier for non-participating ccTLDs to resist an ICANN that claims increased legislative power. It will be harder for those ccTLDs to resist an ICANN that offers a forum for development of policies only on issues as to which most affected parties agree that global policies are needed. It will be easier for governments to defer to ICANN's decisions when they are supported by the affected parties, rather than imposed from above as a result of claimed authority for a self-appointed Board to govern a unique but essential resource (access to entry into the root zone file).

It might even be less expensive to function under this regime than the one Mr. Lynn proposes. If most people are willing to go along with new policies, there will be less risk of litigation. A voluntary, contract-based regime has to be less adversarial than a top-down regulatory regime.

To the extent ICANN worries about antitrust concerns, governments will continue to exist to enforce their antitrust laws, and a "thin" ICANN policy regime will be less likely to violate those very laws. Mr. Lynn's proposal is arguably anti-competitive on its face to the extent it suggests entry into the market by new registries would be conditioned on their agreement to a uniform set of edicts promulgated in the future by the Board. Under the existing consensus policy regime, a new TLD can offer diverse terms of service and policies -- and can argue that new global consensus policies should not be applied to it.

The alternatives to continued focus on the consensus policy process are not appealing. Simple assertion of power over a scarce resource will raise many difficult questions regarding the source of that power (e.g., whether the U.S. government was authorized to or should delegate such power, either by transfer of assets or by deciding to defer always and only to ICANN recommendations regarding what should be in the root zone file). Even if many governments were to agree to support Mr. Lynn's "restructured" ICANN, the resulting assertion of power would be based on force, not consent of the governed. And there would be a serious risk that many Internet participants would "route around" such claimed authority -- thereby breaking the edge-to-edge connectivity the preservation of which was a central reason for ICANNís creation.

Emphasis on consensus policy development, taken together with the limited mission suggested above, will take a great deal of the pressure off decisions about who gets how many seats on the Board. If the Board's key function is to identify false claims of consensus (rather than to count heads and build voting coalitions within the Board), it will be more important to get a variety of different voices on the Board than to ensure that any particular group has any particular number of seats.

Greater assurance that ICANN really is developing consensus policies, rather than merely claiming the existence of broad consensus for policies the Board itself has decided to adopt (or the staff has chosen to impose), can be achieved by prompt establishment of the Independent Review Panel that is itself required by ICANN's contracts and contemplated by its bylaws. The Board would retain its ultimate decisionmaking power. But the availability of a neutral forum for review of claims that ICANN had exceeded its core mission would reduce both suspicions about ICANN's legitimacy and resistance to participation in its processes. Mr. Lynn has suggested the creation of an "ombudsman," and we think that is a fine idea. Whatever the function of the "ombudsman," however, he/she would not supplant the need for an Independent Review Panel, the constitutional court that must review challenged consensus policies before they can be imposed on registries and registrars. Current contracts provide that ICANN's policies are not binding unless and until an IRP is created. Why would any registry or registrar waive this clause?

ICANN 2.0 can achieve legitimacy if it (1) makes decisions to impose new rules, pursuant to its contracts, only when consensus among affected parties has been demonstrated, and (2) makes all other decisions (such as when to recommend addition of new TLDs to the root) solely on the basis of minimum criteria necessary to maximize competition and opportunities for diversity. If Mr. Lynn is frustrated by current processes, we suggest that the following reforms:

Most ICANN reforms have suffered from a desire to hold the Board above the fray, to invite in outsiders who have not been involved in advocacy. Perhaps it is time to contemplate a truly engaged Board that has to work together to hammer out a deal among all concerned (not just within the Board) if any new centralized policies are to be imposed. This would likely be very different from a Board composed of government delegates and self-selecting insiders.

3. Restructure the Board and ICANN's SOs to Facilitate Consensus Building and Keep ICANN Alive.

Right now, few believe the DNSO is working. Some people want more "efficiency," and others are worried about the lack of diversity in the groups that seem to be producing all the "work." A radical restructuring of ICANN's mechanisms for policy-development appears to be called for. Mr. Lynn has suggested that we move to "policy councils" providing advice to the Board. A better plan would permit a mixture of self-forming interest groups and standing constituencies to work through a cross-constituency (or cross-Supporting Organization) body in facilitating the development of real consensus. If all groups report directly to the Board, weíll end up with top down, legislative decision-making -- which is what ICANN was established to avoid.

As for Board seats, Mr. Lynn apparently feels that ICANN might be reconceived as a sort of public-private partnership, with greater support (potentially including funding) from governments and greater governmental involvement on the Board. This would be much easier to sell in connection with a clear restatement of a limited mission and reaffirmation of the consensus policy process for development of any mandatory rules. Concerns with the role of governments on the Board are focused on the real-world risk that government appointees will not be content with a limited mission and will want to expand ICANN's role in the world (in a way that is reported on favorably back home). Government appointees may not necessarily make ICANN more "effective." And a self-perpetuating Board (two-thirds of Mr. Lynn's proposed Board will be approved by the Board) may be ineffective because it has no claim to legitimacy and is isolated from new ideas.

Substantial Board representation should clearly be available to reflect the views of those who are contractually bound by or very likely directly impacted by ICANNís policies. Mr. Lynn's suggestion that the entire existing DNSO be allocated a single seat on a new Board appears highly unrealistic. But the composition of the Board matters much less if the role of the Board is to recognize the existence of real consensus, subject to review of that determination by an IRP, rather than to make decisions directly as if it were a legislative body.

The methods for selection of Board members should reflect both ICANN's overall goals and the proposed role of the Board. What ICANN needs is greater constructive participation by those willing to do the work and able to contribute expertise. A renewal of ICANN's commitment to the process of developing documented consensus could spur more constructive involvement by all concerned. The particular methods adopted for selection of Board members will be much less important and much less controversial the more carefully and narrowly ICANN's mission is defined and the more institutional structures are in place to help assure that ICANN will not stray from that core mission.

4. Find Funding So That ICANN Can Do Its Work.

Right now, as Mr. Lynn makes clear, ICANN does not have the budget to do even the things that most agree it should be doing. It has no contracts with the root server operators. It has moved very slowly with respect to revision of the UDRP. (That slowness, however, may stem more from actual disagreements than lack of funding.)

By narrowing its mission and streamlining its operations, ICANN may become a more attractive funding recipient. Perhaps, through offering a slim contract to the ccTLD community (one that embodies the consensus policy regime to determine when global policies are needed), ICANN can attract additional, secure funding from the ccTLD community.

5. Create a Marketing Package.

In addition to taking bold steps to restate its mission and align its structures with that mission, ICANN will need to communicate convincingly with its community. While many have different ideas about what specifically should be done, there is widespread agreement that it is time for a "soft reboot."

Here are additional tasks that could be taken up right away and that would help to convince the broader ICANN community that meaningful change is underway (and that, accordingly, they should continue to support ICANN and contribute constructively to its core mission):

[1]This article was written in our personal capacities, and does not necessarily reflect the views of any client of Wilmer, Cutler & Pickering.   You can reach us at djohnson@wilmer.com and scrawford@wilmer.com.


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