From the ICANNWatch Archives

We began ICANNWatch in June, 1999.  In between that date and the re-structuring of the ICANNWatch site in March, 2001, we had collected a pretty fair sampling of essays and articles about ICANN.  Here are some of them, organized into categories:

• General
• ICANN and 'Consensus' Governance
• ICANN, Trademarks, and the Uniform Dispute Resolution Process
• ICANN Elections and Related Matters
• Managing the Domain Space

General

• The Idea of ICANN.  David R. Johnson and Susan P. Crawford.  Posted 2-12-01.
  ICANN was to be open, voluntary, standards-based, decentralized and built on cooperation. If we take these core ideas seriously, David Johnson and Susan Crawford suggest, we may be able to come up with solutions to the questions about ICANN's structure and organization now being debated in the DNSO working group and elsewhere.
   
• The Fable of the Names.  Anonymous.  Posted 6-12-00.
  A telling fable about the plight of a strange and un-named kingdom that begins naming everything.
   
• Governing Cyberspace, or Where is James Madison When we Need Him?.  David Post.  Posted 6-09-99.
  The pending reorganization of the Internet's domain name system (DNS) has the potential to become cyberspace's own "constitutional moment." Over the last several months, the shadowy outlines of a new kind of constitutional structure for cyberspace, centered around ICANN, have begun to emerge. The consequences of these developments for the Internet's future could not be more profound.
   
• Wrong Turn in Cyberspace:  Using ICANN to Route Around the APA and the Constitution.  [PDF version here.]  Michael Froomkin.  Posted 10-24-00.
   
• This 168-page legal article makes the case that the Department of Commerce's use of ICANN either violates the U.S. Constitution or the Administrative Procedures Act. Here's part of the abstract:

  This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U.S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers (ICANN), a formally private nonprofit California corporation. DoC then signed contracts with ICANN in order to clothe it with most of the U.S. government's power over the DNS, and convinced other parties to recognize ICANN's authority. ICANN then took regulatory actions that the U.S. Department of Commerce was unable or unwilling to make itself, including the imposition on all registrants of Internet addresses of an idiosyncratic set of arbitration rules and procedures that benefit third-party trademark holders.

  Prof. Froomkin then argues that the use of ICANN to regulate in the stead of an executive agency violates fundamental values and policies designed to ensure democratic control over the use of government power, and sets a precedent that risks being expanded into other regulatory activities. He argues that DoC's use of ICANN to make rules either violates the APA's requirement for notice and comment in rulemaking and judicial review, or it violates the Constitution's nondelegation doctrine. Professor Froomkin reviews possible alternatives to ICANN, and ultimately proposes a decentralized structure in which the namespace of the DNS is spread out over a transnational group of "policy partners" with DoC.
   

• Review of the Domain Name Supporting Organizations.  Jon Weinberg.  Posted 11-11-00.
  Prof. Jonathan Weinberg offers an anlysis of the (dis)function of the DNSO and especially the Names Council. He argues that the Names Council has been incapable of meaningful policy development, and as a result has played little role in ICANN policy making. It has responded to the problematic nature of "consensus" in the domain name area by making its decisions on such a high level of generality as to elide any real conflict. It has then left the vast bulk of the questions before it to ICANN staff. The Names Council, further, is anything but representative; its underlying constituency-based structure is skewed in favor of organized commercial interests, and is ultimately incoherent.
   
• ICANN and Internet Governance.  Milton Mueller. Posted 1-20-00.
  An interesting and important article by Milton Mueller on the entire ICANN process. (This essay is in PDF format.  You will need Adobe Acrobat to view this PDF file.)
   
• Of Governments and Governance.  Michael Froomkin.  Posted 6-28-99.
  Has the commercialization of cyberspace overwhelmed the ad hoc governance structures that created the Internet? On the second anniversary of the Clinton Administration's "Framework for Global Electronic Commerce" (the "Magaziner Report"), Professor Michael Froomkin takes stock.
   
• ICANN and Independent Review.  David Post. Posted 8-9-99.
  ICANNWatch Co-Editor David Post writes:  "I believe that the formation of an Independent Review Panel of some kind to serve as a counterweight and check on the powers exercised by the ICANN Board of Directors is of critical significance. It is not the only way to reassure the Internet community that ICANN will not act in a manner that is contrary to the best interests of that community, but it is an important and possibly indispensable piece of that most important puzzle."
   
• Can ICANN be Challenged on Antitrust Grounds.  Jamie Love.  Posted 3-31-00.
  ICANN's proposed restrictions on use of famous names raises questions about antitrust actions involving private sector "self governance" organizations.
   
• And finally, Tony Rutkowki's classic ICANN Organization Chart -- in Powerpoint format, and as an Image file.

  ICANN and 'Consensus' Governance

• Elusive Consensus.  David Farber, Michael Froomkin, and David Post.  Posted 7-21-99.
  ICANNWatch Co-editors Farber, Froomkin, and Post suggest that "...this notion that ICANN 'is nothing more than the reflection of community consensus' continues to defy common sense. How ICANN interprets 'consensus,' and how it thinks such a consensus is uncovered, is deeply mysterious (and of the greatest importance)."
   
• ICANN and the Consensus of the Internet Community.  David Post.  Posted 8-20-99.
  In her testimony before the House Commerce Committee, ICANN Chairwoman Esther Dyson said that ICANN is nothing more, and nothing less, than an institution embodying and reflecting the "consensus of the Internet community." ...it would be a good thing if ICANN truly were built along those lines; if someone or something is to manage a resource as critical as the Internet's naming/numbering system, the most constructive (and the least dangerous) thing it can be is an institution that truly reflected and implemented consensus among the global community of Internet users
   
• What's Wrong With ICANN?  And How to Fix It.  David R. Johnson and Susan P. Crawford.  Posted 8-13-00.
  The first in a three-part series from David Johnson and Susan Crawford, suggesting that ICANN should be restructured and decentralized. One benefit, they argue, is that some decisions will no longer need to be made by consensus. Another, they suggest, is that we'll get more done on the right subjects...and less on the other ones.
   
• Why Consensus Matters:  The Theory Underlying ICANN's Mandate to Set Policy for the Domain Name System.  David R. Johnson and Susan P. Crawford.  Posted 8-23-00.
  Johnson & Crawford return with a sequel, discussing the difference between consensus and majority rule, and why the former is the appropriate mode for ICANN decisions. Other ICANNWatch essays on the subject of consensus that might  be worth a look include David Post's ICANN and the Consensus of the Internet Community (Aug, 1999) and our joint essay Elusive Consensus (July 1999).
   
• What ICANN Consensus Should Look Like.  David R. Johnson and Susan P. Crawford.  Posted 9-5-00.
  The third in a three-part series of articles exploring the nature of ICANN as an institution that evolves policy standards based on consensus and enforces them by contract, and the important differences between consensus and representational democracy.  This third piece describes what an ICANN Consensus Report, of the type contemplated by the contracts that give ICANN its powers, should look like.  Their conclusion: Here's the conclusion: "Like all open, transparent and emergent processes, developing and documenting a consensus-based policy will take a great deal of tedious effort. But the process used to get to that result should not be bogged down in arcane, rigid procedural rules. Consensus is the result of a rich, searching conversation with all concerned. Where consensus truly exists, it should be easy to document. Such conversations (even when they result in failure to reach consensus) are necessary to ICANN's continued credibility."
   

  ICANN, Trademarks, and the Uniform Dispute Resolution Policy

• Juries and the UDRP.  David Post.  Posted 9-06-00.
  The institution of the jury seems to have gotten lost in the shuffle in the design of ICANN's Uniform Dispute Resolution Policy (UDRP). That, the author suggests, is unfortunate, for it is one way that the entire process might obtain a kind of legitimacy that it does not now have.
   
• Commentary on WIPO's Report on Management of Internet Names and Addresses.  Michael Froomkin.  Posted 6-6-99.
  The U.S. Department of Commerce-commisioned report by the World Intellectual Property Organization [WIPO] on "The Management of Internet Names And Addresses: Intellectual Property Issues" comes in for some praise, and much criticism, in this essay by ICANN Watch Co-Editor (and member of the WIPO "Panel of Experts").
   
• Letter to ICANN Board.  Michael Froomkin and David Post.  Posted 2-11-00.
  ICANNWatch Co-Editors Michael Froomkin and David Post sent a letter to the ICANN Board outlining problems of bias under the Uniform Dispute Resolution Policy, and outlining some possible solutions.
   
• The UDRP Provides Disputable Resolution Incentives.  John Berryhill.  Posted 4-4-00.
  John Berryhill critiques the incentive system discussed by Professors Post and Froomkin in their letter on monitoring the selection of domain name arbitration providers.

ICANN Elections and Related Matters

• Civil Society and the ICANN Elections (DRAFT).  The Internet Democracy Project.  7-01-00.
  This is only a draft...but it is already clear that this document from the Internet Democracy Project will deserve to be at the center of any reasoned debate in the ICANN elections. (Let's hope it is widely translated.) Topics covered include: the democratic deficit, the need for greater transparency, the problem of the Board's relationship with the staff, ICANN's continuing function creep, whether ICANN should respect privacy values, and the need to avoid artificial scarcity and centralization. Yes, it packs a lot into a small space!
   
• Beware the ICANN Board Squatters.  Michael Froomkin.  Posted 10-27-00.
  ICANN has just announced that the 9 original self-selected "interim" Board members have caucused and picked four of their number to remain on the Board for the forseeable future. Michael Froomkin calls on these four ICANN Board Squatters to do the honorable thing: resign.  In his follow-up article, Replacing the ICANN  Board Squatters, posted 11-9-00, Prof. Froomkin writes:  "Suppose the ICANN Board Squatters resign, then what? It's a very fair question, especially as ICANN in its various public statements has misleadingly framed the question as a false choice between the Board Squatters and empty chairs. The answer, I think, is to have elections as soon as reasonably possible after a short period in which voters are given a second chance to navigate the ICANN registration gauntlet. Since even with the best will in the world that will take some time, in the interim we have no choice but to follow the procedures in the ICANN by-laws, and have the ICANN Board appoint four replacements. Those replacements would serve only until replaced by elected Board Members. Admittedly, there are some difficult questions about how the Board would select the temporary directors, but these are surmountable. The best interim solution would be to have the five elected at-large directors propose four names for the full Board's approval."

Managing the Domain Space

• The Great Internet Giveaway?  David Post.  Posted 3-2-00.
  David Post writes about ICANN's expected announcement on Top Level Domains at the Cairo meeting, and the need for ICANN to broaden its horizons when in comes to the Domain Name System.
   
• Beware of Monopolies Proposing to Open Up Markets:  An Analysis of Network Solution's Proposal for New Top Level Domains. Milton Mueller.  Posted 4-28-00.
  Prof. Mueller suggests that NSI's proposal will only slow down the long-needed addition of new top-level domains. (This essay is in PDF format; you will need Adobe Acrobat in order to read this document.)