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[Comment-Dnso] Love: Cmte on Commerce statement (fwd
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Subject: [UA-CPI] cr> Consumer Project on Technology's ICANN testimony
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Date: Wed, 21 Jul 1999 15:44:29 -0400 (EDT)
From: Cyber Rights <cyber-rights@cpsr.org>
To: cyber-rights@cpsr.org
Subject: cr> Consumer Project on Technology's ICANN testimony
Statement of James Love
Director
Consumer Project on Technology
Before the
Committee on Commerce
U.S. House of Representatives
on
ICANN and Internet Governance
July 22, 1999
My name is James Love. I am the Director of the Consumer
Project on Technology (CPT), an organization created by Ralph
Nader in 1995. I am involved in a number of issues related to
electronic commerce, intellectual property rights, software,
computers, telecommunications, and the Internet. The CPT web
page is http://www.cptech.org. CPT is a non-profit organization.
We have no financial relations with any company or non-profit
entities that are involved in domain registration.
I am here today to discuss proposals for the Internet
Corporation for Assigned Names and Numbers (ICANN), as well as
our concerns about the role of Network Solutions, Inc. (NSI) in
the management of internet domains.
On June 11, 1999, Ralph Nader and I wrote to Esther Dyson,
the Chair of ICANN, asking a series of questions about its
mission, the degree to which ICANN could or would use its control
over IP addresses or domain names to set policy on trademarks or
other (unrelated) issues, the source and scope of authority to
levy fees on the use of internet domains, what those funds can be
used for, and the role of the interim board in making substantive
policy decisions. Ms Dyson wrote back on June 15, 1999, in a
letter that began with a rather lengthy "scene-setting"
discussion about the efforts of NSI to protect its monopoly, and
then offered often incomplete answers to the questions we raised.
We have subsequently engaged in a number of discussions with
persons representing ICANN, NSI and other persons who are
interested in issues relating to the management of domain name
registrations and other Internet governance issues.
There is a sense among some that the controversy over ICANN
is about NSI and NSI's attempts to retain its monopoly over the
.com, .org, .net and .edu domains. For certain interests, this
is indeed the key issue. However, our concerns over ICANN are
much broader, and go to more basic questions of how key internet
resources are managed and controlled. Before discussing ICANN,
however, I would like to make a few comments about NSI, to make
it clear that our concerns about ICANN should not be misread as a
defense of the NSI monopoly.
In our view, NSI is a government contractor performing a
service for owners of particular domains. We do not believe that
it is appropriate for NSI to assert ownership or control over the
.com, .net, .org or .edu top level domains. Nor do we think it
appropriate for any top level domains to be "owned" by a private
firm. The prices for domain registration are excessive. We are
alarmed that NSI is making claims that it "owns" certain
databases that are essential for the operation of the network.
We are concerned that NSI is using the profits from its current
monopoly to lobby the government to extend its monopoly. We are
concerned about these and many other issues, and we want the NSI
contract for .com, .net, .org and .edu to be subject to periodic
competitive bids.
That said, we remain very interested in the fundamental
issues about ICANN itself. What is ICANN? Who will control the
board of directors? What will be the legally binding limits of
ICANN's power? What recourse do people have if they are unhappy
with ICANN's actions or policies?
As I have said elsewhere, we don't view ICANN as a
substitute for NSI, but rather as a potential substitute for the
Department of Commerce, or more generally, as a substitute for
governments. ICANN is poised to control key internet resources,
and to impose private forms of taxation and regulation on the
Internet. However, it will not be accountable in the same ways
that governments are. Some persons perceive this as a positive
feature, while others view the lack of accountability as a
serious problem.
The July 1, 1999 Presidential Directive on Electronic
Commerce directed the Secretary of Commerce:
to support efforts to make the governance of the domain
name system private and competitive and to create a
contractually based self-regulatory regime that deals
with potential conflicts between domain name usage and
trademark laws on a global basis.
For many persons, this Directive, and the subsequent
Commerce Department's Statement of Policy on the Management of
Internet Names and Addresses (the "White Paper"), were highly
technical matters that did not appear to have broader practical
significance. However, as the ICANN proposal has become better
understood, there are concerns about the scope of issues that may
be addressed by ICANN, the many limitations and problems of the
"self-regulatory" and governance structures that are based upon
private contracts, and the uncertainly over how ICANN itself will
be governed.
What exactly is ICANN, and why does anyone who is not in the
domain registration business care? ICANN seeks to control
Internet domains, IP numbers and root servers that are essential
for anyone who wants to be connected to the Internet. David Post
refers to this as "life-or-death power" over the Internet. The
Australian competition authorities referred to it has the "God
power" for the Internet.
What exactly will ICANN do with this power? In her June 15,
1999 letter to Ralph and Myself, Esther Dyson said:
The White Paper articulates no Internet governance role
for ICANN, and the Initial Board shares that (negative)
view. Therefore, ICANN does not "aspire to address"
any Internet governance issues; in effect, it governs
the plumbing, not the people. It has a very limited
mandate to administer certain (largely technical)
aspects of the Internet infrastructure in general and
the Domain Name System in particular.
However, this statement is far too modest. As Professor
Froomkin and David Post have pointed out, ICANN has already
proposed mandatory contract terms for firms that register (and
own) domains, making substantive and non-trivial policy regarding
the use of trademarks and personal privacy. ICANN has also
proposed a mandatory fee of $1 per domain to finance its
activities, and some persons associated with ICANN are
considering asking for a fee on IP numbers, in order to cut down
on the current hoarding of IP numbers.
I asked ICANN what else it could do, in terms of putting
conditions on domain registrations or spending the mandatory fees
it collects. To put this in a positive light, for me, I asked,
if the ICANN board of directors could legally require .com
domains to post privacy policies on their home pages, or use the
money from the $1 fee to fund the use of computers in Russian
libraries. The purpose of this inquiry was to get a better idea
of the limits of ICANN's authority.
I was told that, yes, if the ICANN board wanted, it could do
both of these things. But Ms Dyson did not think that this would
ever happen. At best, less than half the ICANN board members
will be elected from the general public. An equal number of
board members will come from business consistences that are
"stakeholders" in various Internet and ecommerce functions, such
as the companies involved in domain registration. The ICANN
President, who is an employee of ICANN, is given a vote on the
board. Pro-consumer measures like requiring the .com domains to
post privacy policies would never receive board support, Ms Dyson
reckoned.
Indeed, it isn't clear if there will be any meaningful
consumer representation in ICANN. Board meetings are held in
places like Berlin, Santiago, and Singapore, in fancy hotels, and
it is difficult to participate in such events without corporate
sponsors who can pay the travel expenses.
And, having been told that it will be impossible to get
support for pro-consumer policies, one wonders about policies
that are supported by big ecommerce firms. Could ICANN become a
mechanism to promote intrusive schemes for surveillance of
copyright on the Internet, for example? If not today, what about
10 years from now when ICANN will be run by an entirely different
board of directors elected by a different group of
"stakeholders?"
Our guess is that if ICANN succeeds, it will become a magnet
for policy making on a wide range of issues. ICANN will have
power, money and a dynamic staff. If it can "solve" trademark
disputes, will it be surprising if ICANN is later asked to
"solve" the SPAM problem? Or to set standards for digital
signatures, or any number of ecommerce issues that benefit from
harmonization? Indeed, ICANN has recently been asked to address
new and novel issues that are associated with Internet searching
and navigation services, raising even now the possibility of
engaging ICANN in important content areas.
In fact, persons associated with ICANN are already setting
their sights on issues far beyond IP numbers and domain names.
One of the arguments for ICANN is that it will be quick and non-
bureaucratic, and thus able to move faster than government
agencies to solve new problems. This may indeed be true. But who
will ICANN really be accountable to? What are the differences
between "self governance" and government?
One model that has apparently been rejected is for the ICANN
board to be elected directly by the people who use the Internet.
If this is too hard to manage, given the difficulty of figuring
out who is real and who is virtual, ICANN's board could be
elected directly by domain owners, who are a known group. (A
modern day version of letting property owners vote, albeit a
system where people who own lots of property can vote more than
once.)
Instead, ICANN (and the White Paper) proposes a structure
that elects some board members from the general public, under a
system that has yet to be announced, and gives seats on the board
to groups like the "Address Supporting Organization," the "Domain
Name Supporting Organization" or "The Protocol Supporting
Organization." Later on ICANN can and probably will add
additional "Supporting Organizations," each with seats on the
ICANN board of directors. The idea that this is "self"
governance depends entirely upon who is considered "self."
Many of the current discussions regarding ICANN concern the
nature of contractual agreements between ICANN and the
organizations, like NSI, that manage domain registrations. These
contracts are held out as models for governance. The problems
with this approach are many. For one thing, consumers are not
part of this bargaining process. Neither are new entrants part
of the process, thus giving too much power to established firms.
There is also a question regarding bargaining power, as
ICANN becomes more firmly in control of the "plumbing" of the
Internet. Contracts that may be negotiated today will likely
become "take it or leave it" propositions in the future, if
indeed this is not the case already.
It would be helpful if the government could begin to
identify the range of issues and decisions that it expects ICANN
to resolve, even in the short run, and then consider whether
ICANN is truly the appropriate body to be making the decisions.
Many of our concerns about ICANN would be mitigated somewhat
if there was some plan for future accountability, some way to
rein ICANN in if it goes crazy.
We asked Esther Dyson if ICANN would be willing to enter
into a charter with the US government or with an international
intergovernmental organization (existing or new) that limited
ICANN's powers in ways that were legally binding. Ms Dyson said
that was not acceptable. While ICANN did not want to be
accountable to any government or governments. ICANN is happy to
receive the US government backing to get control over key
Internet resources, it just doesn't want to ever look back once
it gets those resources.
As someone who works for a non-profit organization, I am not
moved by the suggestion that ICANN is seriously constrained by
its Articles of Incorporation or bylaws. The ICANN Articles of
Incorporation are very brief and don't say much, and the bylaws,
which are pretty general to begin with, can be changed by a 2/3
vote of the board of directors.
We asked NSI if it was in favor of ICANN having some type of
government charter that limited ICANN's powers. David Johnson, a
lawyer representing NSI, said no. NSI apparently prefers to deal
with an ICANN that has no official charter. What NSI does want
is greater bargaining power with ICANN. And as noted, NSI wants
very badly to become the "owner" of .com, .net and .org top level
domains, at least at the registry level.
I asked NSI how consumers would be protected from over
charging for registry services. NSI said that if .org was over
priced, we could register a different top level domain. This of
course is a ridiculous remedy. CPT has spent enormous resources
to create our web pages, and the value and usefulness of the web
page is based upon the internal and external hyperlinks to the
web page content. We are in a "lock-in" situation where it would
be extremely costly and inconvenient to abandon www.cptech.org.
NSI also suggested that if it was required to charge
everyone the same price, it would not gouge consumers, because it
wanted to sell more domains, or that prices would be moderated by
competition between top level domains. We don't find this
persuasive, given the importance and economic value of the top
level domains currently managed by NSI. NSI is clearly opposed
to the idea that the contract for the registry would be re-bid,
but this would be our preferred solution, to have periodic
competition for the registry services.
It does appear that NSI, through its management of
approximately three quarters of registered domains, has too much
power. Both the government and ICANN seem to need cooperation
from NSI to accomplish a smooth transition from the current
monopoly to a competitive system. This raises questions in our
mind about the wisdom of permitting any single firm to control so
much of the critical infrastructure resources. We have suggested
it might be appropriate to have redundancy at the registry level,
so that a contractor would not become so essential that it could
make it impossible to re-bid a contract (arguably the position we
are in today). It is not at all clear that ICANN will have the
authority to solve this problem as a purely private party.
We would very much like to see the Department of Commerce
become more pro-active on the issue of new top level domains, to
address the contrived scarcity of domain name space. We
recognize there is growing international interest in
participation in these policy decisions, and we urge the
Department of Commerce to identify suitable forums for discussing
these issues, including the creation of new special purpose
agreements among interested countries on this topic. Policy
makers, whoever they are, should explore mechanisms for putting
restrictions on the registration of the same name in different
top level domains, in order to truly expand the availability of
the name space (as opposed to creating a situation where persons
simply register all available top level domains.)
With respect to ICANN, we are opposed to ICANN's current
proposal to take control of key Internet resources without any
clear understanding of the limits of ICANN's powers and without
any ongoing oversight by government bodies.
The concerns that we have discussed regarding ICANN are not
about its present leadership, or about any particular policy
decision that ICANN has undertaken. We are concerned about ICANN
as an institution, and about the ramifications of current
proposals for the future of democracy in cyberspace.
Finally, I would like to thank the Commerce Committee for
holding this important hearing.
--
James Love, Director, Consumer Project on Technology
I can be reached at love@cptech.org, by telephone 202.387.8030,
by fax at 202.234.5176. CPT web page is http://www.cptech.org
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