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ICANN between technical mandate and political challenges
Telecommunications Policy 24 (2000) 553}563
ICANN between technical mandate and political challenges Wolfgang KleinwaK chter Department for Information and Media Sciences, University of Aarhus, Nordre Ringgade 1, 8000 Athus C, Denmark
Abstract In October 1998, the `Internet Corporation for the Assigned Numbers and Namesa (ICANN), a global non-for-pro"t private organisation responsible for the governance of the Internet, was established under Californian Law. The new corporation will be fully operational until October 2000. ICANN represents the global public Internet Community as well as the private industry involved in electronic commerce and has the mandate to coordinate and control the technical protocols of the Internet, the Internet address space, the Internet domain name system (DNS) and the Internet root server system. The article describes the "rst steps ICANN took after its incorporation and the con#icts the Corporation faced when it made technical decisions that had political implications. It discusses also the need for the development of new governance systems in the information age. 2000 Published by Elsevier Science Ltd. Keywords: ICANN; Internet governance; Domain name system (DNS)
1. Introduction On October 2, 1998 the `Internet Corporation for Assignment of Names and Numbersa (ICANN) was incorporated as a `Non-for-Pro"t Private Corporationa under Californian law. ICANN is responsible for the Internet domain names, the address space and the Internet protocols as well as the root server system, the backbone of the net of the networks. Until October 1, 2000, ICANN will be fully operational as an unique global institution representing both the public Internet Community at large, which will grow probably up to 500 million members in the year 2003, as well the private industry and the business world, which expect to make more than one trillion US Dollar in e-commerce over the Internet in "ve years from now. Although ICANN is
E-mail address: [email protected] (W. KleinwaK chter). See www.icann.org. See the "nal Conclusions of the `Global Business Dialogue on electronic Commercea (GBDe), Paris, 13 September 1999, in www.gbd.or, see also the OECD, www.oecd.org. 0308-5961/00/$ - see front matter 2000 Published by Elsevier Science Ltd. PII: S 0 3 0 8 - 5 9 6 1 ( 0 0 ) 0 0 0 3 7 - 9
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responsible for one of the key global issues of the 21st century, its constitution, structure and membership does not "t into similar political and organisational schemes which have been established to manage global phenomena in the past. ICANN is neither an intergovernmental treaty organisation (IGO), nor a classical non-governmental organisation with individual or institutional members (NGO). It is also not a typical pro"t-oriented transnational corporation (TNC). ICANN is a `new typea of global organisation without any precedent, representing di!erent types of stakeholders from all over the world, and is organised in a somewhat confusing and mixed way with both elected bodies and nominated representatives, with numerous committees, councils, constituencies and supporting organisations. ICANN creates an unusual triangle where the `Business Worlda and the `Internet Communitya are equally represented in the highest decision-making body on the top while governments as the third global player have only an `advisorya function. ICANN is organised as a `hierarchical networka, which is partly top-down and partly bottomup * without any direct involvement of either national governments or intergovernmental organisations. Its main body is a `Board of Directorsa which consists of 19 members. Nine Board Directors are elected by three supporting organisations (SOs), nine Board Directors are elected by the at large membership (ALM). The 19th member of the Board is the corporation's CEO who is selected by the elected members of the Board. The three supporting organisations are responsible for policy making in the "eld of Internet domain names (DNSO), addresses (ASO) and protocols (PSO). Each of the three SOs has a `Councila as the highest body. The council is the policy-making body and has also the right to delegate the three directors to the ICANN Board. The three SO-Councils are elected by the `Constituenciesa of the SOs. The largest SO, the DNSO, has seven constituencies, representing Business Domain Name Holders, ISPs, Trademark owners, Registrars, gTLDs and ccTLDs and Non-Commercial Domain Name Holders. The ASO is constituted by three `Regional Internet Registriesa (RIRs, for Europe RIPE NCC, for Asia APNIC and for North America ARIN). The RIRs for Africa (AFRINIC) and Latin America (LACNIC) will join as soon as they are established. The PSO is comprised of four professional standard-setting bodies (the Internet Engineering Task Force (IETF), the World Wide Web Consortium (W3C), the European Telecommunication Standards Institute (ETSI) and the Standardisation Division of the International Telecommunication Union (ITU-T). The ALM is still unstructured. ICANN membership is open for everybody with an own e-mail and a postal address and who is older than 16 years of age. To de"ne the ICANN membership and to specify the rights and duties of the `netizensa in a global world which is uni"ed by the Internet is an unprecedented task, it is an adventurous entering into `unknown territorya. No existing model from traditional membership organisations can be applied directly. It is quite natural and understandable that the constitution of the ALM and the de"nition of their rights and duties does not take place without frictions. The original idea, that the ICANN members, which have to register before they can participate in elections, should elect an `ALM Councila of 18 persons which would than elect the ALM Directors was withdrawn after a hot debate on the `prosa and `consa for direct vs. indirect elections. One group argued that the establishment of an ALM Council between the Board and the membership would be a guarantee for the professional quality of the board directors and consistent with the principles of the `representative democracya. Other stressed that such a Council would be open for `capturea by small single issue groups and in
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contrast with the traditional bottom-up culture and direct democracy approaches of the Internet Community. The launching of a global on-line election campaign for "nding the governors of an organisation which is responsible for the technical backbone of the global information society has far reaching consequences and consequently would have to be done in a manner where risks are under control. Recognising this, it was decided at the Cairo Board Meeting (March 2000) to slow down the introduction of the ALM election and to subdivide the process into two phases with an evaluation period in between. The "rst "ve directors will be elected until October 2000 by direct elections in the "ve ICANN regions (North America, Europe, Asia/Paci"c, Africa, Latin America/Caribbean). In the light of the experiences of this direct elections and after a following study period of about six months the ICANN Board will decide in May 2001 on the election procedure for the other four ALM Directors and about a general election system for the At Large Membership. Not only the issue of membership and election have provoked the discussion as to whether ICANN is only a `technical bodya responsible for the practical management of some technical resources, or if the new corporation is actually a highly political organisation. While the legal mandate of ICANN, described in Article 2 of its bylaws, give the corporation indeed only a `technical mandatea, ICANN's decisions concerning the management of the technical key resources of the Internet will have nevertheless substantial political, economic, cultural and social implications. ICANN's bylaws describe the private corporation as a `nonpro"t public bene"t corporationa which `is not organised for the private gain of any persona. It is organised under `Californian Nonpro"t Public Bene"t Corporation Law for charitable and public purposesa and will be operated `exclusively for charitable, educational and scienti"c purposesa. In recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organisation, the Corporation, according to the Articles of Incorporation shall pursue the charitable and public purposes of lessening the burden of government and promoting the global public interest in the operational stability of the Internet by E coordinating and assigning Internet technical parameters as needed to maintain universal connectivity on the Internet; E performing and overseeing functions related to the coordination of the Internet Protocol (IP) address space; E performing and overseeing functions related to the coordination of the Internet domain name system (DNS), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; E overseeing operation of the authoritative Internet DNS root server system and E engaging in any other lawful activity in furtherance of items 1}4.
see: http://www.icann.org/at-large/at-lage.htm. Articles of Incorporation of ICANN as revised November 21, 1998, Paragraph 1, in: www.icann.org/general/ articles.html. Articles of Incorporation of ICANN as revised November 21, 1998, Paragraph 3, in: www.icann.org/general/ articles.html.
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Although this `constitutional mandatea is a primarily technical task, it will be nearly impossible for ICANN to avoid political con#icts. Con#icts will appear both as inherent elements of technical decisions as well as a consequence of ICANN's mere existence and its responsibility for the key assets of the Internet. The global character of the Internet calls for a global system of governance. National governments and intergovernmental organisations are recognising more and more that they are unable to manage all the new phenomena surrounding the global use of the Internet by traditional law and policy making. To avoid a `responsibility holea a new mixture of governmental and non-governmental governance systems has to be developed. Whether ICANN wants it or not, as the "rst and at the moment only `new global Internet corporationa it cannot escape from political responsibility. ICANN is at the crossroads of all these new challenges and discussions. Whether ICANN will be only a `pacemakera for other `new corporationsa dealing with global Internet problems * from content regulation to cybercrime * or whether ICANN itself will broaden its mandate and will become something like the `United Nations of the Information Agea is highly speculative in these early years of the new Internet century. But while this general problem of the further development (or interpretation) of the existing mandate of ICANN is a more theoretical and hypothetical one, very concrete political con#icts will emerge even if ICANN restricts itself to a very narrow interpretation of its technical mandate. This can be seen in particular in the following four areas.
2. Recognition of registrars One of the main driving forces behind the launching of ICANN was the need to demonopolise the registration business of domain names. The DNS system was introduced at a time, when the registration of .edu domains outnumbered the .com domains and registration was free of cost. Based on a contract with the US Department of Commerce (DOC), Network Solutions Inc. (NSI) in Herndon, Virginia got a de facto monopoly from the US Government for the registration of domain names in the generic top-level domain name space (gTLDs). When the US Government stopped its "nancial support of the Internet via the National Science Foundation (NSF), NSI started to charge for registration in the .com, .org and .net domain name space (35 $US per year). The introduction of a fee coincided with the beginning of the .com-boom. While in the beginning there were only a couple of thousand .com registrations, the .com registration exploded in the second-half of the 1990s and reached more than six million registrations by early 2000. Registration of domain names became `big businessa with hundreds of millions US dollars at stake. Against this background, it was very understandable that the call for de-monopolisation of the registration business became stronger and stronger towards the middle of the 1990 s. A "rst e!ort to introduce competition into the registration business, undertaken by an `International Ad Hoc Committeea (IAHC) in 1997, failed. At this time, the basic idea was to establish under the umbrella of the
The IAHC was composed by the Internet Engineering Task Force (IETF), the Internet Society (ISOC), the Internet Assigned Numbers Association (IANA), the World Intellectual Property Organisation (WIPO), the International Telecommunication Union (ITU), and the International Trademark Association (INTA).
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Geneva-based ITU, an intergovernmental organisation of the United Nations system, a private non-for-pro"t `Council of Registrarsa (CORE), registered under Swiss Law, and to introduce seven new gTLDs. CORE would have been under the control of a `Policy Advisory Committeea (PAC) and a `Policy Oversight Committeea (POC), in which national governments would have a "nal say. The approach was watered down both by the US government, which was against an Internet corporation under Swiss Law, and by parts of the private industry sector which feared that an ITU involvement will lead sooner or later to more governmental control over the Internet and to a slowing down of standard setting procedures. Only three months after the gTLD-MoU was signed by nearly 100 governments, institutions and other organisations in Geneva, the US Government proposed in the Clinton/Gore Global e-Commerce Paper an alternative approach. The US government argued in favour of a non-for-pro"t private corporation under the US law and without any governmental involvement. This proposal paved the way for the incorporation of ICANN in October 1998. The ICANN approach gives the right to recognise registrars for gTLDs to the ICANN Board of Directors. While the formal `recognitiona of a registrar is a technical procedure, the issue is a highly economic and political one. `Licensinga of companies for a business that tends to explode in the years ahead is without any doubt a certain kind of `competition policya. Furthermore, registrars have to accept a number of non-technical conditions when they apply for recognition by the ICANN Board, including the acceptance of ICANN's Uniform Dispute Resolution Policy (UDRP). A "rst big con#ict began when ICANN pushed NSI to ask for registration under the ICANN rules. NSI, while recognising the need for demonopolisation and competition in the registration business, rejected several times to move under the ICANN umbrella. NSI wanted to keep as much as possible of its market share and the dominant position as the global player in the registration business. Only after a strong involvement of the US Department of Commerce (DOC) was NSI pushed into a complex contractual framework between NSI, ICANN and the DOC which gives NSI still a lot of privileges both to their registrar and their registry business. Until May 2000 ICANN has recognised 124 registrars for the registration of gTLDs in all parts of the world. While ICANN can argue that the recognition of registrars is a purely technical procedure, it has to be aware of the economic consequences of such `recognitiona, and will be unavoidably pulled into policy issues if con#icts arise between competitors, recognised by the ICANN Board of Directors.
See: Final Report of the International Ad Hoc Committee: Recommendations for Administration and Management of gTLDs, Geneva, February 4, 1997, Establishment of a Memorandum of Understanding of the Generic Top Level Domain Name Space of the INTERNET Domain Name System (gTLOD-MoU), Geneva, February 28, 1997, 80 Organizations Sign MoU to Restructure the Internet, Press Release ITU/97-8, Geneva, May 1, 1997. See: William J. Clinton/Al Gore Jr., A Framework for Global Electronic Commerce, The White House, Washington, July 1, 1997, p. 16, RFC on the Registration and Administration of Internet Domain Names, Washington, July 1, 1997, in: www.ntia.doc.gov/ntiahome/domain. Approved Agreements among ICANN, the US Department of Commerce, and Network Solutions, Inc., in: http://www.icann.org/nsi/nsi-agreements.htm. See: Registrar Accreditation: An Overview, in: http://www.icann.org/registrars/accreditation.htm.
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3. Uniform dispute resolution policy A second main reason for the launching of ICANN was the need to create a system for the settlement of disputes between trademark holders and domain name holders. Registration of domain names was handled on the basis of the principle `"rst come, "rst serveda, used by the ITU in its early days for the registration of frequencies. The rather simple and liberal practice of domain name registration produced, inter alia, some side-e!ects such as `cybersquattinga. Individuals registered brand names and tried to make a special business out of selling the registered domain name directly to the trademark owner (or its competitor), or by misusing the brandname for their own business activities, creating consumer confusion by riding under a wrong #ag. While trademark owners called for an extension of the copyright and trademark system to the Internet, a wider part of the Internet Community was opposed such an extension. Freedom of expression and free speech, they argued, includes the right to freely choose a domain name. If an individual named Je! McDonald uses his own personal name he should not be brought to court by the McDonalds company and punished for trademark infringement. Furthermore, critics of the McDonald company should have the right to use the branded and trademarked name also in domain names for critical evaluation of the practice of the company as part of their right to the freedom of expression. The settlement of the fast growing number of domain name con#icts by courts became more and more di$cult, time consuming and expensive, in particular, when the con#icting parties were under di!erent jurisdictions. ICANN was assigned the task of looking for a solution. Based on an extensive report by the World Intellectual Property Organisation (WIPO), the ICANN Board of directors developed a `Uniform Dispute Resolution Policya which allows con#icting parties, regardless of the jurisdiction in which they operate, to settle their con#icts online as an alternative option for con#ict settlement by courts. The UDRP focuses on a `behaviour in bad faitha in the gTLD space. Cases will be handled on-line. Decisions will be posted on the Web. The whole procedure is fast (not more than two months) and cheap (not more than 2000 $US). Con#icting parties can approach specially recognised `UDRP Service Providersa. Such a provider has to
Final Report of the WIPO Internet Domain Name Process, Geneva, April 30, 1999, in: http://ecommerce. wipo.int/domins/processhome.html. Uniform Domain Name Dispute Resolution Policy, in: http://www.icann.org/udrp/udrp.htm. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from re#ecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, a$liation, or endorsement of your web site or location or of a product or service on your web site or location., see: http://www.icann.org/udrp/ udrp-policy-24oct99.htm.
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manage a list of quali"ed `Panellista on their Website. Panellists must demonstrate their special quali"cation on the Web. A panel can consist of one or three panellists. The con#icting parties are free to choose their panellists. If they are not satis"ed with the result, each party has a right to go to a court. The function of ICANN's Board of Directors is to licence the UDRP Service Providers. ICANN has to guarantee that UDRP Service Providers and their `Panellistsa meets the quality standard and neutrality for the implementation of such a UDR Policy. Until the end of May 2000, ICANN has licensed four UDRP Service Providers (with about 500 panellists from all over the world). Nearly 700 cases have been brought to the UDRP between December 1999, when the UDRP started, and May 2000. While each con#icting party has the right after the end of an UDRP procedure to go to a traditional court, the majority of the "rst cases led to a solution that was accepted by both sides. Also in this area, ICANN can argue that the licensing of UDRP service providers is a `technical taska and does not include policy. But UDRP service providers are de facto global on-line courts and their panellist operate as on-line judges. Licensing courts and judges is obviously much more than a `technical processa. And the policy of ICANN's UDRP experiences leading to a model for other con#ict resolution, including for e-Commerce con#icts between businesses and consumers, should not be underestimated.
4. Recognition of ccTLD When Jan Postel, the father of the domain name system, introduced the country code top-level domain names (ccTLDs) he made it clear from the start that no policy should be involved. The Internet community, he said, is not in a position to de"ne what a country is or recognise a territory or another geographical unit as a `countrya. Postel used the ISO 3166 code which is based on a United Nations register on 243 `recognised territoriesa and asked individuals or academic institutions to overtake the responsibility for the management of the ccTLD. No governments have been involved in the de"nition of ccTLDs and the operations of the relevant registrars started without any legal foundations in the `territoriesa. By following the ISO list he added the two-letter code to all the `recognised territoriesa, regardless of whether this has been a full member of the United Nations system like Germany (.de), China (.cn) or Mexico (.mx) but also to `territoriesa like the British `Isle of Man (.im) or small Paci"c Islands like Tonga (.to), Tuvalu (.tv) or Nouie (.nu). The ccTLDs have a natural monopoly in their countries. As long as there was only a limited number of registered domain names, nobody saw a problem. But when the number of registered domain names grew beyond a critical mass, governments began to investigate the practice and the legal basis for a ccTLD registrar. In Germany for instance, where the number of registrations in the .de domain crossed the two million line in March 2000, no paragraph can be found in the highly developed German legal system * from the Telecommunication Law to the Multimedia Law * which regulates speci"cally the German ccTLD. Neither the see: http://www.icann.org/udrp/udrp.htm. ISI 3166-1: The Code list, in: http://www.din.de/gremien/nas/nabd/iso3166ma/codlstp1.html.
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German government nor the DENIC Corporation, responsible for the .de domain, see this as a big problem. There is a friendly bilateral relationship and while the government does not interfere in the registration business, DENIC carefully respects the general laws. The situation can be di!erent, if a government is dissatis"ed with the practice of the registration in a given country and wants to change the registrar. What might happen when such a government decides to change the registrar or calls for another code? It is not unrealistic to imagine a situation in which the government of Iraq or Serbia or North Korea is dissatis"ed with the policy of the national ccTLD registrar and wants to have a new registrar; or that the prime minister of a corrupt government wants to give the right of pro"table ccTLD management to his brother-in-law. While ICANN, according to its technical mandate, has no special right to decide who should be the registrar in any given country it can block the registration of a new ccTLD registrar. ICANN has to secure the development of a stable and robust functioning of the Internet which includes stability also for the ccTLD system. To clarify the legal relationship between national governments, ccTLD registrars and ICANN the `Governmental Advisory Committeea (GAC) has developed a system of contractual relationship between the three parties. According to the proposed drafts, a change of responsibility over ccTLD registration would require both the support of the `relevant administrationa, the `national Internet communitya and the recognition of ICANN. The GAC draft was presented during the ICANN Board meeting in Cairo (March 2000) but was criticised from di!erent corners. One group feared that the contracts would give governments too much power, others saw ICANN's role with regard to the ccTLDs as too strong. The US based `Internet Rights Coalitiona rejected any approach which would refer to the any involvement of governments. `country code top-level domains in the Internet DNS are not the subject of sovereignty or international lawa argues Tony Rutkowski. The clari"cation of the relationship between governments, registrars and ICANN is obviously also not a primarily `technical processa. It is high policy and could lead also to a power struggle between ICANN's Board of Directors and the national governments represented in the GAC. 5. Introduction of new gTLDs The fact that there are only seven gTLDs has no technical explanation. Jan Postel de"ned the gTLDs according to the needs in the late 1980s. While .edu (for educational institutions), .mil (for the military) and .gov (for governmental institutions) should be used in the US only, .int was reserved for intergovernmental treaty organisations. Only .com, .org and .net were open for everybody. Later Postel worked in favour of the de"nition of up to 150 new gTLDs, according to the growing needs for new domain names. Technically, there can be as many gTLDs as ccTLDs.
Principles fuK r the delegation and administration of country code domains, in: http://www.noie.gov.au/projects/international/DNS/gac/index.htm. There is no more basis for claiming that States have `sovereigntya over the use of these Internet DNS symbols and databases than over the use of symbols by a private publisher of maps or information directories. States simply do not, and have never had such rights under international law. Indeed, to hold otherwise would violate fundamental tenets of human rights to receive and impart informationa, in: Internet Rights Coalition Brief on International Legal Issues, Los Angeles, Nov. 1999, http://www.wia.org/icann/IRC}GAC}brief.htm.
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During the negotiations of the IAHC there was discussion about starting with a limited number of new gTLDs (the proposal included seven new gTLDs such as .shop, .arts, .sport and .rec) and to broaden the gTLD space further step-by-step in the light of the experiences with the "rst original seven gTLDs. The proposal was blocked, mainly by trademark owners who feared a new wave of misuses of brand names. In 1998, US President Clinton's Internet adviser, Ira Magaziner, argued for "ve new gTLDs but said that the new corporation should make "nal decisions on this. When ICANN was established, its Board of Directors looked "rst to WIPO. WIPO included the question of new gTLDs in its extensive reports on Dispute Settlement over gTLDs. Chapter 5 of the WIPO report, which was released in April 1999, recommended a step-by-step process for the introduction of a limited number of new gTLDs under the condition that a universal dispute resolution policy for con#icts with trademark owners is already in place. ICANN's Board of Directors asked the DNSO in May 1999 to develop a concrete proposal. The DNSO established a special working group that presented its report in March 2000. The WG reached a `rough consensusa and recommended a phased process, starting with the introduction of six to ten new gTLDs, followed by an evaluation period. The WG proposes also that the ICANN Board should consider whether some gTLDs should be `chartereda with use being restricted to certain preconditions. The report became the subject of controversial discussions. The trademark owners called for a special `lista of brandnames which should be excluded from registration in new gTLDs. Such a list, elaborated by WIPO, should be recognised by the ICANN Board. Consumer organisations, on the other hand called for special gTLDs for non-commercial use such as .sucks. And the GAC recommended that `the possibility of expanding the domain name space, the addition of new gTLDs should be done thoughtfully and through a consensus-based process. New gTLDs for speci"c uses, as well as for more generic, or &open' registration, should be fully considereda. This con#ict around new gTLDs is not only a technical one. Technically, as already stressed, there can be hundreds of new gTLDs. The decision about a new gTLD, its special name, its charter, etc, is both a highly economic and a sensitive political issue. A new gTLD can create new identities in cyberspace. And individuals and institutions which come together around a chartered gTLD could develop into constituencies which could lead to nation-like virtual communities. Like in the other areas, the ICANN Board of Directors cannot avoid being pulled into political con#icts and must adopt a political position. 6. Conclusions The global information society of the 21st century will be based to a high degree on the Internet. More and more of our daily activities * from business to education, from entertainment to
Report (Part One) of Working Group C (New gTLDs) Presented to Names Council, March 21, 2000, in: http://www.icann.org/dnso/wgc-report-21mar00.htm. A critical analysis can be found by Milton Mueller, Beware of Monopolies Proposing to Open Up Markets, in: http://www.icannwatch.org/archives/essays/cochetti}proposal}critique.pdf. GAC Communique, Cairo, March 8, 2000, in: http://www.noie.gov.au/gac/gac5com.htm.
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administration, from shopping to banking * will be done via the Internet. Fundamental political, economic, cultural and social issues * from privacy and freedom of expression to security and taxation, from consumer and data protection to cultural identity and national sovereignty * are challenged by the Internet. It is expected that until the year 2009 there will be more connected PCs than cabled TVs in the world. When will the number of `netizensa cross the one billion line? A new explosion of Internet use is already lurking around the next corner when the Internet meets the Mobile Phone. Although the ICANN board directors and ICANN sta! are permanently and correctly repeating, that ICANN's function will be only a technical one and that the corporation will not be a `world government for the Interneta, ICANN cannot escape from its political responsibility. The Internet is the backbone, the material basis for the global information society. Decisions concerning the Internet will open channels or close avenues for economic and social development. Lawrence Lessig, professor at the Berkman Center for Internet and Society at the Harvard Law School at Cambridge is correct in arguing that in the new global Internet-based world the `code is the lawa. Protocols, addresses and domain names are interwoven with political, economic and social processes. The standard for an IPv6 protocol will be decisive for the possibility to protect individual data, decisions on gTLDs will have consequences for freedom of speech and consumer rights, recognition of registrars will channel cash #ow and licensing of UDRP service providers will have consequences for the judiciary on the national and the international level. The question is not whether ICANN wants to play a more political role or not, the question is that newly arising global issues need a new system of governance and somebody has to be in charge. Private industry, mainly via the Global Business Dialogue on e-Commerce (GBDe), is in favour of a global industry-led and market-driven self-regulatory system. The GBDe pushes national governments to avoid the introduction of what they call `patchwork legislationa for regulating Internet-related issues. Consumer and citizens organisations are getting more and more active to try to counterbalance one-sided activities by the global industry and national governments. Protest action against the WTO or World Bank activities in the streets of Seattle, Davos or Washington are the expression of a still new and unstructured `third global powera next to industies and governments. Some experts propose that a new system of co-regulation should be introduced which would de"ne core responsibilities for governments, industry and the public. While such a combination of complementary regulatory systems sounds useful, no answer has been given as to how such a trilateral relationship would be de"ned in detail, and who in a con#ict situation will top such a co-regulatory system. But with more Internet-related problems the call for a functioning governance system without `gapsa will become louder, regardless whether governmental or non-governmental actors constitute such a system. It is obvious that we are living in a period of transition. The `information revolutiona has led to a `social evolutiona which will lead to a new quality of political life. Four-hundred years ago, after the beginning of the industrial revolution, the "rst `new industrialistsa realised that a governance
See `Challenge to the Network: Internet for Development 1999a and `World Telecommunication Development Report 1999a, International Telecommunication Union, Geneva, October 1999, see in: www.itu.org. Lawrence Lessing, Code and other Laws of the Cyberspace, Harvard University, in: http://code-is-law.org/.
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system, based on kingdoms with an absolutist monarch did not satisfy the new needs of the industrial age. The "rst `compromisea at this time was the introduction of a `constitutional monarchya. The constitutional monarchy was to a certain degree a `co-regulatory systema. While the king and the feudal institutions still had some concrete power inherited by birth, new institutions, which derived their power from elections, were established. At this time nobody wanted to abolish the kingdoms, but the need for more stable rules which would function independently from the king lead to the "rst constitution. Only later did Montesquieu, Rousseau and others develop a more detailed elaborate system of governance with concepts such as `division of powera and the `social contracta. And only in 1789 was the king killed in a revolution, which paved the way for our present system of representative democracies. With globalisation a system, based on the sovereign nation state, when it is confronted with global challenges, shows its weaknesses and de"ciencies. The call for a co-regulatory system attempts to combine the positive values of stable governmental regulation within and among nation states with the new #exibility needed to meet the challenges of globalisation in the information age. Such a new mixed governance system will be probably much more complex than we can imagine today. The nation state will certainly not disappear within the next 100 years, but maybe its function will change. Why not have a global governance system with national governments which govern `citizensa and subject oriented non-governmental `governmentsa which govern `netizensa? To de"ne which areas of life of an individual will fall under `citizenshipa and under `netizenshipa and how to organise a multidimensional co-existence between di!erent governance bodies needs more than one Montesquieu and one Rousseau. We are only in the beginning of the emergence of the global knowledge-based information society and nobody can predict the future. But ICANN's "rst steps into an unknown territory can lead to some experiences which could pave the way for such a new system of governance.
ICANN between technical mandate and political challenges Wolfgang KleinwaK chter Department for Information and Media Sciences, University of Aarhus, Nordre Ringgade 1, 8000 Athus C, Denmark
Abstract In October 1998, the `Internet Corporation for the Assigned Numbers and Namesa (ICANN), a global non-for-pro"t private organisation responsible for the governance of the Internet, was established under Californian Law. The new corporation will be fully operational until October 2000. ICANN represents the global public Internet Community as well as the private industry involved in electronic commerce and has the mandate to coordinate and control the technical protocols of the Internet, the Internet address space, the Internet domain name system (DNS) and the Internet root server system. The article describes the "rst steps ICANN took after its incorporation and the con#icts the Corporation faced when it made technical decisions that had political implications. It discusses also the need for the development of new governance systems in the information age. 2000 Published by Elsevier Science Ltd. Keywords: ICANN; Internet governance; Domain name system (DNS)
1. Introduction On October 2, 1998 the `Internet Corporation for Assignment of Names and Numbersa (ICANN) was incorporated as a `Non-for-Pro"t Private Corporationa under Californian law. ICANN is responsible for the Internet domain names, the address space and the Internet protocols as well as the root server system, the backbone of the net of the networks. Until October 1, 2000, ICANN will be fully operational as an unique global institution representing both the public Internet Community at large, which will grow probably up to 500 million members in the year 2003, as well the private industry and the business world, which expect to make more than one trillion US Dollar in e-commerce over the Internet in "ve years from now. Although ICANN is
E-mail address: [email protected] (W. KleinwaK chter). See www.icann.org. See the "nal Conclusions of the `Global Business Dialogue on electronic Commercea (GBDe), Paris, 13 September 1999, in www.gbd.or, see also the OECD, www.oecd.org. 0308-5961/00/$ - see front matter 2000 Published by Elsevier Science Ltd. PII: S 0 3 0 8 - 5 9 6 1 ( 0 0 ) 0 0 0 3 7 - 9
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responsible for one of the key global issues of the 21st century, its constitution, structure and membership does not "t into similar political and organisational schemes which have been established to manage global phenomena in the past. ICANN is neither an intergovernmental treaty organisation (IGO), nor a classical non-governmental organisation with individual or institutional members (NGO). It is also not a typical pro"t-oriented transnational corporation (TNC). ICANN is a `new typea of global organisation without any precedent, representing di!erent types of stakeholders from all over the world, and is organised in a somewhat confusing and mixed way with both elected bodies and nominated representatives, with numerous committees, councils, constituencies and supporting organisations. ICANN creates an unusual triangle where the `Business Worlda and the `Internet Communitya are equally represented in the highest decision-making body on the top while governments as the third global player have only an `advisorya function. ICANN is organised as a `hierarchical networka, which is partly top-down and partly bottomup * without any direct involvement of either national governments or intergovernmental organisations. Its main body is a `Board of Directorsa which consists of 19 members. Nine Board Directors are elected by three supporting organisations (SOs), nine Board Directors are elected by the at large membership (ALM). The 19th member of the Board is the corporation's CEO who is selected by the elected members of the Board. The three supporting organisations are responsible for policy making in the "eld of Internet domain names (DNSO), addresses (ASO) and protocols (PSO). Each of the three SOs has a `Councila as the highest body. The council is the policy-making body and has also the right to delegate the three directors to the ICANN Board. The three SO-Councils are elected by the `Constituenciesa of the SOs. The largest SO, the DNSO, has seven constituencies, representing Business Domain Name Holders, ISPs, Trademark owners, Registrars, gTLDs and ccTLDs and Non-Commercial Domain Name Holders. The ASO is constituted by three `Regional Internet Registriesa (RIRs, for Europe RIPE NCC, for Asia APNIC and for North America ARIN). The RIRs for Africa (AFRINIC) and Latin America (LACNIC) will join as soon as they are established. The PSO is comprised of four professional standard-setting bodies (the Internet Engineering Task Force (IETF), the World Wide Web Consortium (W3C), the European Telecommunication Standards Institute (ETSI) and the Standardisation Division of the International Telecommunication Union (ITU-T). The ALM is still unstructured. ICANN membership is open for everybody with an own e-mail and a postal address and who is older than 16 years of age. To de"ne the ICANN membership and to specify the rights and duties of the `netizensa in a global world which is uni"ed by the Internet is an unprecedented task, it is an adventurous entering into `unknown territorya. No existing model from traditional membership organisations can be applied directly. It is quite natural and understandable that the constitution of the ALM and the de"nition of their rights and duties does not take place without frictions. The original idea, that the ICANN members, which have to register before they can participate in elections, should elect an `ALM Councila of 18 persons which would than elect the ALM Directors was withdrawn after a hot debate on the `prosa and `consa for direct vs. indirect elections. One group argued that the establishment of an ALM Council between the Board and the membership would be a guarantee for the professional quality of the board directors and consistent with the principles of the `representative democracya. Other stressed that such a Council would be open for `capturea by small single issue groups and in
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contrast with the traditional bottom-up culture and direct democracy approaches of the Internet Community. The launching of a global on-line election campaign for "nding the governors of an organisation which is responsible for the technical backbone of the global information society has far reaching consequences and consequently would have to be done in a manner where risks are under control. Recognising this, it was decided at the Cairo Board Meeting (March 2000) to slow down the introduction of the ALM election and to subdivide the process into two phases with an evaluation period in between. The "rst "ve directors will be elected until October 2000 by direct elections in the "ve ICANN regions (North America, Europe, Asia/Paci"c, Africa, Latin America/Caribbean). In the light of the experiences of this direct elections and after a following study period of about six months the ICANN Board will decide in May 2001 on the election procedure for the other four ALM Directors and about a general election system for the At Large Membership. Not only the issue of membership and election have provoked the discussion as to whether ICANN is only a `technical bodya responsible for the practical management of some technical resources, or if the new corporation is actually a highly political organisation. While the legal mandate of ICANN, described in Article 2 of its bylaws, give the corporation indeed only a `technical mandatea, ICANN's decisions concerning the management of the technical key resources of the Internet will have nevertheless substantial political, economic, cultural and social implications. ICANN's bylaws describe the private corporation as a `nonpro"t public bene"t corporationa which `is not organised for the private gain of any persona. It is organised under `Californian Nonpro"t Public Bene"t Corporation Law for charitable and public purposesa and will be operated `exclusively for charitable, educational and scienti"c purposesa. In recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organisation, the Corporation, according to the Articles of Incorporation shall pursue the charitable and public purposes of lessening the burden of government and promoting the global public interest in the operational stability of the Internet by E coordinating and assigning Internet technical parameters as needed to maintain universal connectivity on the Internet; E performing and overseeing functions related to the coordination of the Internet Protocol (IP) address space; E performing and overseeing functions related to the coordination of the Internet domain name system (DNS), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; E overseeing operation of the authoritative Internet DNS root server system and E engaging in any other lawful activity in furtherance of items 1}4.
see: http://www.icann.org/at-large/at-lage.htm. Articles of Incorporation of ICANN as revised November 21, 1998, Paragraph 1, in: www.icann.org/general/ articles.html. Articles of Incorporation of ICANN as revised November 21, 1998, Paragraph 3, in: www.icann.org/general/ articles.html.
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Although this `constitutional mandatea is a primarily technical task, it will be nearly impossible for ICANN to avoid political con#icts. Con#icts will appear both as inherent elements of technical decisions as well as a consequence of ICANN's mere existence and its responsibility for the key assets of the Internet. The global character of the Internet calls for a global system of governance. National governments and intergovernmental organisations are recognising more and more that they are unable to manage all the new phenomena surrounding the global use of the Internet by traditional law and policy making. To avoid a `responsibility holea a new mixture of governmental and non-governmental governance systems has to be developed. Whether ICANN wants it or not, as the "rst and at the moment only `new global Internet corporationa it cannot escape from political responsibility. ICANN is at the crossroads of all these new challenges and discussions. Whether ICANN will be only a `pacemakera for other `new corporationsa dealing with global Internet problems * from content regulation to cybercrime * or whether ICANN itself will broaden its mandate and will become something like the `United Nations of the Information Agea is highly speculative in these early years of the new Internet century. But while this general problem of the further development (or interpretation) of the existing mandate of ICANN is a more theoretical and hypothetical one, very concrete political con#icts will emerge even if ICANN restricts itself to a very narrow interpretation of its technical mandate. This can be seen in particular in the following four areas.
2. Recognition of registrars One of the main driving forces behind the launching of ICANN was the need to demonopolise the registration business of domain names. The DNS system was introduced at a time, when the registration of .edu domains outnumbered the .com domains and registration was free of cost. Based on a contract with the US Department of Commerce (DOC), Network Solutions Inc. (NSI) in Herndon, Virginia got a de facto monopoly from the US Government for the registration of domain names in the generic top-level domain name space (gTLDs). When the US Government stopped its "nancial support of the Internet via the National Science Foundation (NSF), NSI started to charge for registration in the .com, .org and .net domain name space (35 $US per year). The introduction of a fee coincided with the beginning of the .com-boom. While in the beginning there were only a couple of thousand .com registrations, the .com registration exploded in the second-half of the 1990s and reached more than six million registrations by early 2000. Registration of domain names became `big businessa with hundreds of millions US dollars at stake. Against this background, it was very understandable that the call for de-monopolisation of the registration business became stronger and stronger towards the middle of the 1990 s. A "rst e!ort to introduce competition into the registration business, undertaken by an `International Ad Hoc Committeea (IAHC) in 1997, failed. At this time, the basic idea was to establish under the umbrella of the
The IAHC was composed by the Internet Engineering Task Force (IETF), the Internet Society (ISOC), the Internet Assigned Numbers Association (IANA), the World Intellectual Property Organisation (WIPO), the International Telecommunication Union (ITU), and the International Trademark Association (INTA).
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Geneva-based ITU, an intergovernmental organisation of the United Nations system, a private non-for-pro"t `Council of Registrarsa (CORE), registered under Swiss Law, and to introduce seven new gTLDs. CORE would have been under the control of a `Policy Advisory Committeea (PAC) and a `Policy Oversight Committeea (POC), in which national governments would have a "nal say. The approach was watered down both by the US government, which was against an Internet corporation under Swiss Law, and by parts of the private industry sector which feared that an ITU involvement will lead sooner or later to more governmental control over the Internet and to a slowing down of standard setting procedures. Only three months after the gTLD-MoU was signed by nearly 100 governments, institutions and other organisations in Geneva, the US Government proposed in the Clinton/Gore Global e-Commerce Paper an alternative approach. The US government argued in favour of a non-for-pro"t private corporation under the US law and without any governmental involvement. This proposal paved the way for the incorporation of ICANN in October 1998. The ICANN approach gives the right to recognise registrars for gTLDs to the ICANN Board of Directors. While the formal `recognitiona of a registrar is a technical procedure, the issue is a highly economic and political one. `Licensinga of companies for a business that tends to explode in the years ahead is without any doubt a certain kind of `competition policya. Furthermore, registrars have to accept a number of non-technical conditions when they apply for recognition by the ICANN Board, including the acceptance of ICANN's Uniform Dispute Resolution Policy (UDRP). A "rst big con#ict began when ICANN pushed NSI to ask for registration under the ICANN rules. NSI, while recognising the need for demonopolisation and competition in the registration business, rejected several times to move under the ICANN umbrella. NSI wanted to keep as much as possible of its market share and the dominant position as the global player in the registration business. Only after a strong involvement of the US Department of Commerce (DOC) was NSI pushed into a complex contractual framework between NSI, ICANN and the DOC which gives NSI still a lot of privileges both to their registrar and their registry business. Until May 2000 ICANN has recognised 124 registrars for the registration of gTLDs in all parts of the world. While ICANN can argue that the recognition of registrars is a purely technical procedure, it has to be aware of the economic consequences of such `recognitiona, and will be unavoidably pulled into policy issues if con#icts arise between competitors, recognised by the ICANN Board of Directors.
See: Final Report of the International Ad Hoc Committee: Recommendations for Administration and Management of gTLDs, Geneva, February 4, 1997, Establishment of a Memorandum of Understanding of the Generic Top Level Domain Name Space of the INTERNET Domain Name System (gTLOD-MoU), Geneva, February 28, 1997, 80 Organizations Sign MoU to Restructure the Internet, Press Release ITU/97-8, Geneva, May 1, 1997. See: William J. Clinton/Al Gore Jr., A Framework for Global Electronic Commerce, The White House, Washington, July 1, 1997, p. 16, RFC on the Registration and Administration of Internet Domain Names, Washington, July 1, 1997, in: www.ntia.doc.gov/ntiahome/domain. Approved Agreements among ICANN, the US Department of Commerce, and Network Solutions, Inc., in: http://www.icann.org/nsi/nsi-agreements.htm. See: Registrar Accreditation: An Overview, in: http://www.icann.org/registrars/accreditation.htm.
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3. Uniform dispute resolution policy A second main reason for the launching of ICANN was the need to create a system for the settlement of disputes between trademark holders and domain name holders. Registration of domain names was handled on the basis of the principle `"rst come, "rst serveda, used by the ITU in its early days for the registration of frequencies. The rather simple and liberal practice of domain name registration produced, inter alia, some side-e!ects such as `cybersquattinga. Individuals registered brand names and tried to make a special business out of selling the registered domain name directly to the trademark owner (or its competitor), or by misusing the brandname for their own business activities, creating consumer confusion by riding under a wrong #ag. While trademark owners called for an extension of the copyright and trademark system to the Internet, a wider part of the Internet Community was opposed such an extension. Freedom of expression and free speech, they argued, includes the right to freely choose a domain name. If an individual named Je! McDonald uses his own personal name he should not be brought to court by the McDonalds company and punished for trademark infringement. Furthermore, critics of the McDonald company should have the right to use the branded and trademarked name also in domain names for critical evaluation of the practice of the company as part of their right to the freedom of expression. The settlement of the fast growing number of domain name con#icts by courts became more and more di$cult, time consuming and expensive, in particular, when the con#icting parties were under di!erent jurisdictions. ICANN was assigned the task of looking for a solution. Based on an extensive report by the World Intellectual Property Organisation (WIPO), the ICANN Board of directors developed a `Uniform Dispute Resolution Policya which allows con#icting parties, regardless of the jurisdiction in which they operate, to settle their con#icts online as an alternative option for con#ict settlement by courts. The UDRP focuses on a `behaviour in bad faitha in the gTLD space. Cases will be handled on-line. Decisions will be posted on the Web. The whole procedure is fast (not more than two months) and cheap (not more than 2000 $US). Con#icting parties can approach specially recognised `UDRP Service Providersa. Such a provider has to
Final Report of the WIPO Internet Domain Name Process, Geneva, April 30, 1999, in: http://ecommerce. wipo.int/domins/processhome.html. Uniform Domain Name Dispute Resolution Policy, in: http://www.icann.org/udrp/udrp.htm. Evidence of Registration and Use in Bad Faith. For the purposes of Paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith: (i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or (ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from re#ecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or (iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, a$liation, or endorsement of your web site or location or of a product or service on your web site or location., see: http://www.icann.org/udrp/ udrp-policy-24oct99.htm.
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manage a list of quali"ed `Panellista on their Website. Panellists must demonstrate their special quali"cation on the Web. A panel can consist of one or three panellists. The con#icting parties are free to choose their panellists. If they are not satis"ed with the result, each party has a right to go to a court. The function of ICANN's Board of Directors is to licence the UDRP Service Providers. ICANN has to guarantee that UDRP Service Providers and their `Panellistsa meets the quality standard and neutrality for the implementation of such a UDR Policy. Until the end of May 2000, ICANN has licensed four UDRP Service Providers (with about 500 panellists from all over the world). Nearly 700 cases have been brought to the UDRP between December 1999, when the UDRP started, and May 2000. While each con#icting party has the right after the end of an UDRP procedure to go to a traditional court, the majority of the "rst cases led to a solution that was accepted by both sides. Also in this area, ICANN can argue that the licensing of UDRP service providers is a `technical taska and does not include policy. But UDRP service providers are de facto global on-line courts and their panellist operate as on-line judges. Licensing courts and judges is obviously much more than a `technical processa. And the policy of ICANN's UDRP experiences leading to a model for other con#ict resolution, including for e-Commerce con#icts between businesses and consumers, should not be underestimated.
4. Recognition of ccTLD When Jan Postel, the father of the domain name system, introduced the country code top-level domain names (ccTLDs) he made it clear from the start that no policy should be involved. The Internet community, he said, is not in a position to de"ne what a country is or recognise a territory or another geographical unit as a `countrya. Postel used the ISO 3166 code which is based on a United Nations register on 243 `recognised territoriesa and asked individuals or academic institutions to overtake the responsibility for the management of the ccTLD. No governments have been involved in the de"nition of ccTLDs and the operations of the relevant registrars started without any legal foundations in the `territoriesa. By following the ISO list he added the two-letter code to all the `recognised territoriesa, regardless of whether this has been a full member of the United Nations system like Germany (.de), China (.cn) or Mexico (.mx) but also to `territoriesa like the British `Isle of Man (.im) or small Paci"c Islands like Tonga (.to), Tuvalu (.tv) or Nouie (.nu). The ccTLDs have a natural monopoly in their countries. As long as there was only a limited number of registered domain names, nobody saw a problem. But when the number of registered domain names grew beyond a critical mass, governments began to investigate the practice and the legal basis for a ccTLD registrar. In Germany for instance, where the number of registrations in the .de domain crossed the two million line in March 2000, no paragraph can be found in the highly developed German legal system * from the Telecommunication Law to the Multimedia Law * which regulates speci"cally the German ccTLD. Neither the see: http://www.icann.org/udrp/udrp.htm. ISI 3166-1: The Code list, in: http://www.din.de/gremien/nas/nabd/iso3166ma/codlstp1.html.
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German government nor the DENIC Corporation, responsible for the .de domain, see this as a big problem. There is a friendly bilateral relationship and while the government does not interfere in the registration business, DENIC carefully respects the general laws. The situation can be di!erent, if a government is dissatis"ed with the practice of the registration in a given country and wants to change the registrar. What might happen when such a government decides to change the registrar or calls for another code? It is not unrealistic to imagine a situation in which the government of Iraq or Serbia or North Korea is dissatis"ed with the policy of the national ccTLD registrar and wants to have a new registrar; or that the prime minister of a corrupt government wants to give the right of pro"table ccTLD management to his brother-in-law. While ICANN, according to its technical mandate, has no special right to decide who should be the registrar in any given country it can block the registration of a new ccTLD registrar. ICANN has to secure the development of a stable and robust functioning of the Internet which includes stability also for the ccTLD system. To clarify the legal relationship between national governments, ccTLD registrars and ICANN the `Governmental Advisory Committeea (GAC) has developed a system of contractual relationship between the three parties. According to the proposed drafts, a change of responsibility over ccTLD registration would require both the support of the `relevant administrationa, the `national Internet communitya and the recognition of ICANN. The GAC draft was presented during the ICANN Board meeting in Cairo (March 2000) but was criticised from di!erent corners. One group feared that the contracts would give governments too much power, others saw ICANN's role with regard to the ccTLDs as too strong. The US based `Internet Rights Coalitiona rejected any approach which would refer to the any involvement of governments. `country code top-level domains in the Internet DNS are not the subject of sovereignty or international lawa argues Tony Rutkowski. The clari"cation of the relationship between governments, registrars and ICANN is obviously also not a primarily `technical processa. It is high policy and could lead also to a power struggle between ICANN's Board of Directors and the national governments represented in the GAC. 5. Introduction of new gTLDs The fact that there are only seven gTLDs has no technical explanation. Jan Postel de"ned the gTLDs according to the needs in the late 1980s. While .edu (for educational institutions), .mil (for the military) and .gov (for governmental institutions) should be used in the US only, .int was reserved for intergovernmental treaty organisations. Only .com, .org and .net were open for everybody. Later Postel worked in favour of the de"nition of up to 150 new gTLDs, according to the growing needs for new domain names. Technically, there can be as many gTLDs as ccTLDs.
Principles fuK r the delegation and administration of country code domains, in: http://www.noie.gov.au/projects/international/DNS/gac/index.htm. There is no more basis for claiming that States have `sovereigntya over the use of these Internet DNS symbols and databases than over the use of symbols by a private publisher of maps or information directories. States simply do not, and have never had such rights under international law. Indeed, to hold otherwise would violate fundamental tenets of human rights to receive and impart informationa, in: Internet Rights Coalition Brief on International Legal Issues, Los Angeles, Nov. 1999, http://www.wia.org/icann/IRC}GAC}brief.htm.
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During the negotiations of the IAHC there was discussion about starting with a limited number of new gTLDs (the proposal included seven new gTLDs such as .shop, .arts, .sport and .rec) and to broaden the gTLD space further step-by-step in the light of the experiences with the "rst original seven gTLDs. The proposal was blocked, mainly by trademark owners who feared a new wave of misuses of brand names. In 1998, US President Clinton's Internet adviser, Ira Magaziner, argued for "ve new gTLDs but said that the new corporation should make "nal decisions on this. When ICANN was established, its Board of Directors looked "rst to WIPO. WIPO included the question of new gTLDs in its extensive reports on Dispute Settlement over gTLDs. Chapter 5 of the WIPO report, which was released in April 1999, recommended a step-by-step process for the introduction of a limited number of new gTLDs under the condition that a universal dispute resolution policy for con#icts with trademark owners is already in place. ICANN's Board of Directors asked the DNSO in May 1999 to develop a concrete proposal. The DNSO established a special working group that presented its report in March 2000. The WG reached a `rough consensusa and recommended a phased process, starting with the introduction of six to ten new gTLDs, followed by an evaluation period. The WG proposes also that the ICANN Board should consider whether some gTLDs should be `chartereda with use being restricted to certain preconditions. The report became the subject of controversial discussions. The trademark owners called for a special `lista of brandnames which should be excluded from registration in new gTLDs. Such a list, elaborated by WIPO, should be recognised by the ICANN Board. Consumer organisations, on the other hand called for special gTLDs for non-commercial use such as .sucks. And the GAC recommended that `the possibility of expanding the domain name space, the addition of new gTLDs should be done thoughtfully and through a consensus-based process. New gTLDs for speci"c uses, as well as for more generic, or &open' registration, should be fully considereda. This con#ict around new gTLDs is not only a technical one. Technically, as already stressed, there can be hundreds of new gTLDs. The decision about a new gTLD, its special name, its charter, etc, is both a highly economic and a sensitive political issue. A new gTLD can create new identities in cyberspace. And individuals and institutions which come together around a chartered gTLD could develop into constituencies which could lead to nation-like virtual communities. Like in the other areas, the ICANN Board of Directors cannot avoid being pulled into political con#icts and must adopt a political position. 6. Conclusions The global information society of the 21st century will be based to a high degree on the Internet. More and more of our daily activities * from business to education, from entertainment to
Report (Part One) of Working Group C (New gTLDs) Presented to Names Council, March 21, 2000, in: http://www.icann.org/dnso/wgc-report-21mar00.htm. A critical analysis can be found by Milton Mueller, Beware of Monopolies Proposing to Open Up Markets, in: http://www.icannwatch.org/archives/essays/cochetti}proposal}critique.pdf. GAC Communique, Cairo, March 8, 2000, in: http://www.noie.gov.au/gac/gac5com.htm.
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administration, from shopping to banking * will be done via the Internet. Fundamental political, economic, cultural and social issues * from privacy and freedom of expression to security and taxation, from consumer and data protection to cultural identity and national sovereignty * are challenged by the Internet. It is expected that until the year 2009 there will be more connected PCs than cabled TVs in the world. When will the number of `netizensa cross the one billion line? A new explosion of Internet use is already lurking around the next corner when the Internet meets the Mobile Phone. Although the ICANN board directors and ICANN sta! are permanently and correctly repeating, that ICANN's function will be only a technical one and that the corporation will not be a `world government for the Interneta, ICANN cannot escape from its political responsibility. The Internet is the backbone, the material basis for the global information society. Decisions concerning the Internet will open channels or close avenues for economic and social development. Lawrence Lessig, professor at the Berkman Center for Internet and Society at the Harvard Law School at Cambridge is correct in arguing that in the new global Internet-based world the `code is the lawa. Protocols, addresses and domain names are interwoven with political, economic and social processes. The standard for an IPv6 protocol will be decisive for the possibility to protect individual data, decisions on gTLDs will have consequences for freedom of speech and consumer rights, recognition of registrars will channel cash #ow and licensing of UDRP service providers will have consequences for the judiciary on the national and the international level. The question is not whether ICANN wants to play a more political role or not, the question is that newly arising global issues need a new system of governance and somebody has to be in charge. Private industry, mainly via the Global Business Dialogue on e-Commerce (GBDe), is in favour of a global industry-led and market-driven self-regulatory system. The GBDe pushes national governments to avoid the introduction of what they call `patchwork legislationa for regulating Internet-related issues. Consumer and citizens organisations are getting more and more active to try to counterbalance one-sided activities by the global industry and national governments. Protest action against the WTO or World Bank activities in the streets of Seattle, Davos or Washington are the expression of a still new and unstructured `third global powera next to industies and governments. Some experts propose that a new system of co-regulation should be introduced which would de"ne core responsibilities for governments, industry and the public. While such a combination of complementary regulatory systems sounds useful, no answer has been given as to how such a trilateral relationship would be de"ned in detail, and who in a con#ict situation will top such a co-regulatory system. But with more Internet-related problems the call for a functioning governance system without `gapsa will become louder, regardless whether governmental or non-governmental actors constitute such a system. It is obvious that we are living in a period of transition. The `information revolutiona has led to a `social evolutiona which will lead to a new quality of political life. Four-hundred years ago, after the beginning of the industrial revolution, the "rst `new industrialistsa realised that a governance
See `Challenge to the Network: Internet for Development 1999a and `World Telecommunication Development Report 1999a, International Telecommunication Union, Geneva, October 1999, see in: www.itu.org. Lawrence Lessing, Code and other Laws of the Cyberspace, Harvard University, in: http://code-is-law.org/.
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system, based on kingdoms with an absolutist monarch did not satisfy the new needs of the industrial age. The "rst `compromisea at this time was the introduction of a `constitutional monarchya. The constitutional monarchy was to a certain degree a `co-regulatory systema. While the king and the feudal institutions still had some concrete power inherited by birth, new institutions, which derived their power from elections, were established. At this time nobody wanted to abolish the kingdoms, but the need for more stable rules which would function independently from the king lead to the "rst constitution. Only later did Montesquieu, Rousseau and others develop a more detailed elaborate system of governance with concepts such as `division of powera and the `social contracta. And only in 1789 was the king killed in a revolution, which paved the way for our present system of representative democracies. With globalisation a system, based on the sovereign nation state, when it is confronted with global challenges, shows its weaknesses and de"ciencies. The call for a co-regulatory system attempts to combine the positive values of stable governmental regulation within and among nation states with the new #exibility needed to meet the challenges of globalisation in the information age. Such a new mixed governance system will be probably much more complex than we can imagine today. The nation state will certainly not disappear within the next 100 years, but maybe its function will change. Why not have a global governance system with national governments which govern `citizensa and subject oriented non-governmental `governmentsa which govern `netizensa? To de"ne which areas of life of an individual will fall under `citizenshipa and under `netizenshipa and how to organise a multidimensional co-existence between di!erent governance bodies needs more than one Montesquieu and one Rousseau. We are only in the beginning of the emergence of the global knowledge-based information society and nobody can predict the future. But ICANN's "rst steps into an unknown territory can lead to some experiences which could pave the way for such a new system of governance.