| ||At Large Membership and Civil Society Participation in ICANN||
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:
Idea of ICANN. David R. Johnson and Susan P. Crawford.
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.
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.
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.
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.
of the Domain Name Supporting Organizations. Jon Weinberg.
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.
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
Acrobat to view this PDF file.)
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.
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."
ICANN be Challenged on Antitrust Grounds. Jamie Love. Posted
ICANN's proposed restrictions on use of famous names
raises questions about antitrust actions involving private sector "self
And finally, Tony Rutkowki's classic ICANN
Organization Chart -- in Powerpoint
format, and as an Image
ICANN and 'Consensus' Governance
Consensus. David Farber, Michael Froomkin, and David Post.
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)."
and the Consensus of the Internet Community. David Post.
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
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.
Consensus Matters: The Theory Underlying ICANN's Mandate to Set Policy
for the Domain Name System. David R. Johnson and Susan P. Crawford.
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
Consensus (July 1999).
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:
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
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.
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").
to ICANN Board. Michael Froomkin and David Post. Posted
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.
UDRP Provides Disputable Resolution Incentives. John Berryhill.
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
Society and the ICANN Elections (DRAFT). The Internet Democracy
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!
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."
the Domain Space