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ICANN For Beginners
Causes of ICANN
Formation of ICANN
ICANN's First Two Years
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Causes of ICANN
Despite being famously decentralized and un-hierarchical, the Internet
relies on an underlying centralized hierarchy built into the domain name
system (DNS). Domain names (such as “www.icannwatch.org”) are the unique
identifiers that people depend on to route e-mail, find web pages, and
connect to other Internet resources. The need to enforce uniqueness, that
is, to prevent two people from attempting to use the exact same domain
name, creates a need for some sort of body to monitor or allocate naming.
However, control over the DNS confers substantial power over the Internet.
Whoever controls the DNS decides what new families of “top-level” domain
names can exist (e.g., new suffixes like .xxx or .union) and how names
and essential routing numbers will be assigned to websites and other Internet
When the Internet was small, the DNS was run by a combination of volunteers,
the National Science Foundation (NSF), and U.S. government civilian and
military contractors and grant recipients. As the paymaster for these contractors,
the U.S. government became the de facto ruler of the DNS. The Internet’s
exponential growth placed strains on the somewhat ad hoc system for managing
the DNS, and what had been primarily technical issues became political,
legal, and economic problems that attracted high-level official attention.
In particular, as attractive domain names in .com began to become scarce,
disputes over attractive names became increasingly common, and pressure
mounted for the creation of new “top-level” domain suffixes such as .shop
or .web. Although technically trivial to implement, the proposals ran into
intense counter-pressure from intellectual property rights holders who
already faced mounting problems with cybersquatters—speculators who registered
domain names corresponding to trademarks and held them for profit. Meanwhile,
other governments, notably the European Union, began to express understandable
concern about the United States’ control of a critical element of a global
communication and commercial resource on which they foresaw their economies
and societies becoming ever-more dependent.
Formation of ICANN
ICANN is formally a private nonprofit California corporation created, in
response to a summoning by U.S. government officials.
In June 1998, the US Department of Commerce (DoC) and an interagency
task force headed by Presidential Senior Adviser Ira Magaziner responded
to concerns about the DNS system with the Statement
of Policy on the Privatization of Internet Domain Name System, known
as the DNS White
Paper. Embracing the rhetoric of privatization, the DNS White
Paper called for the creation of a private nonprofit corporation to take
over the DNS and institute various reforms.
Shortly thereafter, an international group, after meeting in secret,
incorporated ICANN as a private nonprofit California corporation.
After some negotiation, DoC lent ICANN much of its authority over management
of the DNS.
ICANN's First Two Years
In its first two years of life, ICANN has made a number of decisions with
potentially long-term effects.
ICANN pushed Network Solutions, Inc. (NSI), the monopoly registry and dominant
registrar, to allow more competition
among registrars. Most people seem to think this was a good thing.
ICANN also instituted mandatory arbitration of trademark claims. ICANN’s
Dispute Resolution Policy” (UDRP) requires every registrant in .com,
.org, or .net to agree to arbitration before ICANN-selected arbitration
providers if any trademark owners anywhere in the world feel aggrieved
by their registration of a term similar to that trademark. The UDRP
is very controversial -- trademark holders argue it does not go far enough;
civil liberties groups argue that the design of the system violates basic
norms of due process, and that the arbitrators are not acting fairly enough.
Contrary to its early promises that half of its Board of Directors would
be elected from an at-large membership, ICANN announced
had no members, and
only 5 of 18 instead of 9 of 18 directors would be elected at large, and
the initial self-selected directors would stay in office and
ICANN would conduct
a study to determine whether there should be any member elected directors
Most recently, ICANN identified seven
new gTLDs that it plans to recommend be added to the root. It
also rejected 35 other applications. The selection process was very
controversial, and some of the losing applicants are protesting.
Democratic theory suggests that the absence of accountability tends to
breed arbitrariness and self-dealing. In addition to avoiding governmental
accountability mechanisms, ICANN lacks much of the accountability normally
found in corporations and in nonprofits. Ordinary corporations have shareholders
and competitors. ICANN does not because it is nonprofit and has a unique
relationship with the Department of Commerce. Many nonprofit organizations
have members who can challenge corporate misbehavior. ICANN has taken steps
to ensure that its “members” are denied such legal redress under California
law. All but the wealthiest nonprofits are constrained by needing to raise
funds; ICANN faced such constraints in its early days, but it has now leveraged
its control over the legacy root into promises of contributions from the
registrars that have agreed to accept ICANN’s authority over them in exchange
for the ability to sell registrations in .com, .org and .net, and from
NSI, the dominant registrar and monopoly .com/.org/.net registry, which
agreed to pay $2.25 million to ICANN this year as part of agreements hammered
out with DoC and ICANN.
The result is a body that, to date, has been subject to minimal accountability.
Only DoC (and, in one special set of cases, NSI or registrars) currently
has the power to hold ICANN accountable. NSI currently has no incentive
to use its limited power, and DoC has nothing to complain of so long as
ICANN is executing the instructions set out in the White Paper. The accountability
gap will get worse if DoC gives full control of the DNS to ICANN. But it
should be noted that opinions may differ as to whether DoC could legally
give away its interest in DNS to ICANN without an act of Congress. It is
likewise unclear what precisely “giving away control” would consist of
beyond DoC’s interest in its contracts with the maintainer of the root,
since the most important part of anyone’s “control” over the root is publishing
data that other parties, many of whom are independent of the government,
choose to rely on.
Much of the above is adapted from, A. Michael Froomkin,
Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution,
50 Duke Law Journal 17 (2000). © A. Michael Froomkin 2000, 2001
Milton Mueller (1999), "ICANN
and Internet Governance : Sorting through the debris of 'self-regulation'"
Milton Muller (2001), Rough
Justice: An Analysis of ICANN's Uniform Dispute Resolution Policy
Kathleen E. Fuller, Duke Law & Technology Review, ICANN
USEFUL ICANN LINKS
Major subsidiary bodies under ICANN
Other interested international and regional organizations