IP: ICANN -- two comments/questions

[Dave Farber <farber () cis upenn edu>]

I think these two comments represent a reasonable set of questions to  ICANN and its present directions. They bear 
answers from the Board.

Dave

 From NSI ( from the full document: -- http://www.netsol.com/policy/icann299/.


"26 February 1999 
Initial Board of Directors
Internet Corporation for Assigned Names and Numbers

With sincere respect for your personal commitment of time and energy to this difficult and dynamic problem, NSI urges 
you to use the Singapore meeting to reaffirm that ICANN does not aspire to become a global regulatory agency, but, 
instead intends to establish an open, bottom up standard setting forum whose policies are sensitive to markets and 
become effective because they are accepted in voluntary, bilateral contracts that bind all competing registries. "

To: "'Dave Farber'" <farber () cis upenn edu>
Subject: Fenello comments
Date: Sun, 28 Feb 1999 02:50:34 -0500

"We are looking for a globally and functionally representative organization,
operated on the basis of sound and transparent processes that protect
against capture by self-interested factions, and that provides robust,
professional management.  The new entity's processes need to be fair, open,
and pro-competitive.  And the new entity needs to have a mechanism for
evolving to reflect changes in the constituency of Internet stakeholders."
Becky Burr on the White Paper,
<http://www.ntia.doc.gov/ntiahome/press/dnsburr.htm>
http://www.ntia.doc.gov/ntiahome/press/dnsburr.htm


Comments on ICANN's Guidelines for
Accreditation of Internet Domain Name Registrars


After years of debate, after three proposals from Dr. Jon Postel, after the
IAHC proposal for the gTLD-MoU, and after the U.S. Government intervened
with the Green and White Paper processes, ICANN was given conditional
approval to assume the responsibilities of the so-called NewCo.  The
conditions surrounding this approval were laid out in the MoU between ICANN
and the Commerce Department, a document designed to ensure that ICANN lived
up to the letter and the spirit of the White Paper.

This author believes that this process has gone seriously astray, as ICANN
has ignored the vision as laid out by the White Paper, and in the process,
ignored the MoU with Commerce and the wishes of the Internet community.

As evidence of these comments, I hereby submit this analysis of these Draft
Guidelines for the Accreditation of Internet Domain Name Registrars:

The Issue of Control

When all is said and done, the fight over the Domain Name System is really a
fight over the control of Internet resources.  And no-where is this more
apparent than in these draft guidelines.  

Today, whenever a domain name is issued, a delegation of authority occurs --
a delegation of authority that occurs at every level of the domain name
system.  When the IANA delegates a Top Level Domain (TLD) to a registry,
that registry gains control over that zone file.  In turn, when a registry
delegates a Second Level Domain (SLD) to a registrant, that registrant gains
control over that zone file.  For example, the French registry has control
over all sub-delegations of domain names under .fr, and America Online has
control over all sub-delegations of domain names under aol.com.

These draft guidelines would drastically change these relationships.  By
circumventing the registry-registrar-registrant relationship, ICANN is in
effect, claiming control over the entire name space.  And this control is
not to be confused with benevolent or legitimate control, for these
guidelines allow ICANN to establish the following unilateral and excessive
precedents without any due process or community input:
- Establish a tax for all netizens worldwide.
- Establish a privacy policy for all netizens worldwide.
- Establish a trademark policy for all netizens worldwide. 
- Establish ICANN as the ultimate owner of all Intellectual Property in the
Domain Name System.
- Establish an entirely new channel for issuing domain names, one that is
not yet formed, and consequently, not in a position to offer any organized
resistance to any inappropriate policies as proposed under these draft
guidelines.

Due Process

The biggest shortcoming of these draft guidelines is not inherent in any of
the policies -- the biggest shortcoming has to do with process.

First, these guidelines have been developed by an interim board, unelected
and unaccountable to anyone.  This in fact was one of the major objections
to selecting ICANN as NewCo from the members of the Boston Working Group and
the members of Open Root Server Confederation.  This in fact was one of the
major reasons that the Commerce Department required an MoU with ICANN, to
ensure that this interim board lived up to the letter and the spirit of the
White Paper.

Second, these guidelines have been developed behind closed doors, without
any opportunity to comment on their formation.  And even though we now have
a small window of opportunity to comment before the next ICANN board
meeting, we do not know what rules will be used to address concerns such as
these.  Again, no process has been defined for moving forward.

Third, these guidelines far exceed their stated purpose.  The most
distasteful aspects of this draft are the precedents it sets with regard to
business models, taxation, limitations on diversity, ownership of
intellectual property, etc.  The appropriate vehicle to address these
questions, according to the White Paper, is the DNSO.

Free Markets and Cultural Diversity

When we look at the existing policies these draft guidelines will impact, we
find much diversity.  Today, we have hundreds of resellers who act just like
registrars, without any formal licensing process, and without any formal
approval process.  All of these resellers have unique policies, and the
market decides which ones will be successful.

Similarly, we have many different policies with regard to trademarks.  Some
ccTLDs have a formal review process, others require that a company must be
duly licensed in their jurisdiction before a domain name will be issued.  A
similar level of diversity can be found with regard to privacy.

Whenever we attempt to create rules that apply to the entire Internet, the
result will be to limit diversity in the market place.  In turn, consumers
will have less options, and more decisions will be made from on high.  The
more restrictive the policies, the greater this impact on diversity.  Since
these guidelines are very restrictive, they will result in a large decrease
in diversity.

In my opinion, this would be one of the worst decisions of our time.  After
all, the Internet is the Internet because of its diversity, not in spite of
it. 

Concerns over Capture

In many ways, these draft guidelines are a reflection of the debate that has
been raging over Internet governance.  On one side, we have the large,
established organizations who want to control this newest frontier.  On the
other, we have those who prefer using free markets to drive innovation,
service, diversity and quality.

When we frame the debate in these terms, we find that the ICANN board is
actively pursuing a strategy consistent with the goal of the large,
established organizations.  Presumably, they want to control this new
frontier to protect their current position.  The implications of this are
that this board is already captured by these interests.

We are seeing a very similar pattern emerge in the DNSO formation process,
as well.  The large, established organizations are refusing to acknowledge
that a domain name holder is a legitimate stakeholder in domain name issues.
They are not negotiating in good faith, and in fact, appear to be using
every trick in the book in an attempt to capture control over the DNSO.

Finally, in an effort to resolve loose ends quickly, the Commerce Department
is prematurely plowing ahead with their plans to transfer assets and
authority to ICANN.  Specifically, I'm referring to the recently revised
NIST Solicitation to award a sole source contract to ICANN for the existing
IANA functions.  While the administration of the root zone is specifically
excluded from this offering, it says nothing about the allocation of IP
address blocks, which are at least an order of magnitude more valuable than
domain names.

Conclusion

The stated purpose of these draft guidelines is to qualify prospective
registrars who will bring competition to the existing Network Solutions
monopoly in .com, .net, and .org.  These draft guidelines go well beyond
their stated purpose.  

They establish ICANN as the owner of the entire name space in the Domain
Name System.  They define a business model that features strict control over
the distribution of domain names, one that gives ICANN the arbitrary
authority to assess taxes without any due process.  They define a new
channel of distribution that would circumvent many of the relationships that
exist today.  Finally, they establish global standards that severely limit
the choice and diversity available to netizens worldwide. 

These policies are simply not appropriate, and should not even be considered
until a duly formed DNSO is operational.

Respectfully,

Jay Fenello
President, Iperdome, Inc. 
404-943-0524 http://www.iperdome.com <http://www.iperdome.com>