**Response to the National Telecommunications and Information
Administration\'s Notice of Inquiry on the Management of the Domain Name
and Addressing System**

By the Center for Democracy & Technology

Contents:

1.  Preface

2.  ICANN approaches the next step in its evolution in a global
    environment that has changed dramatically since its inception:

3.  ICANN has made important progress on competition and stability, but
    still falls short on representation and bottom-up management:

4.  NTIA may need to study the impact of the changed global environment
    on the ICANN process and consider new milestones for ICANN autonomy:

5.  NTIA should consider lessening the impact of its involvement in
    ICANN, while upholding its vow to preserve DNS security and
    stability:

**Preface:**

The Center for Democracy & Technology (CDT) is a Washington-based
nonprofit organization that works to promote democratic values and
constitutional liberties in the digital age. CDT works with public
interest groups, technology companies, individuals, regulators and
lawmakers to support rules and structures that preserve the essentially
democratizing nature of the Internet.

From the outset of the global Internet governance debate, which began in
earnest with the establishment of the Internet Corporation for Assigned
Names and Numbers (ICANN) in 1998, CDT has played an active role.
Working through the ICANN process, CDT has advocated for changes to make
the organization more transparent and representative. Outside of ICANN,
through its Global Internet Policy Initiative, CDT has worked on the
ground in developing nations to promote the creation of legal and
regulatory structures that support open Internet development. CDT is
actively committed to bringing together voices from industry, civil
society and governments to address the unique issues posed by this
global medium.

**ICANN approaches the next step in its evolution in a global
environment that has changed dramatically since its inception:**

The Internet\'s evolution from an academic experiment to a global engine
for free speech, political organization and commerce has occurred at a
pace and on a scale that no one \-- not even its most ardent early
proponents \-- could have foreseen. Driven by historic leaps in
technical innovation and fostered by a light-touch regulatory
environment, the Internet is now an essential tool for governments,
companies and most importantly, individuals, throughout the world.

More than nine years ago, the US Government began the process of
transitioning the Internet\'s core functions to private sector
oversight. It was an unprecedented, forward-thinking decision that was
critical in encouraging broader global acceptance of the medium. The
nongovernmental body that emerged from that process \-- the Internet
Corporation for Assigned Names and Numbers (ICANN) \-- has been an
effective, if flawed, steward of the Domain Name System (DNS) that lies
at the heart of all Internet communication.

Initially, the US Government intended to maintain its special oversight
role over ICANN for the first two years of the organization\'s existence
\-- in theory, long enough for the fledgling nonprofit company to
establish stable control over the DNS and to develop a robust, bottom-up
and transparent decision-making process that represented the needs of
all Internet users. It is clear now that the original timetable
established for ICANN was overly ambitious. Nine years later, questions
remain about how well ICANN has met those initial goals, and the US
Government retains an increasingly controversial oversight role in the
ICANN process.

The latest MOU with ICANN expires in September, and as part of the
process of renewing that agreement, the National Telecommunications and
Information Administration (NTIA), which oversees ICANN directly, has
solicited public comments on how well ICANN has met the goals laid out
for it in the MOU and the 1998 DNS White Paper. Specifically, NTIA asks
whether ICANN has made enough progress to assume full, unsupervised
control over the DNS. As NTIA notes in its notice of inquiry, the MOU
identifies a series of milestones that ICANN was required to meet before
severing its ties to the US Government.

These are important questions, and the NTIA is to be commended for
initiating this discussion in advance of reinstating its agreement with
ICANN. As recent experiences in the two-year World Summit on the
Information Society (WSIS) demonstrate, issues of Internet Governance
have grown increasingly contentious, and could eventually become
destabilizing, as nations that oppose US Government involvement consider
the use of alternative addressing systems that could undercut the
Internet\'s value as a global, interconnected medium. A detente of sorts
was reached in November 2005 when world leaders agreed to leave the
current governance structure untouched and to convene an Internet
Governance Forum (IGF) to discuss lingering issues. Still, many nations
remain dissatisfied with the status quo, and are likely to remain so as
long as the US Government retains a special role in Internet oversight.

Meanwhile, the stakes in the Internet governance debate have increased
dramatically since ICANN was first conceived. Although the concerns
raised by members of the international community about the US
Government\'s disproportionate control over the DNS management were
legitimate, many of the alternatives those nations proposed during the
WSIS process were troubling. None of the governments involved in the
discussion pushed for ICANN to become a truly independent,
nongovernmental entity, as was originally conceived. Rather, most
nations opposed to US involvement in the ICANN process supported various
iterations of a proposal that called for replacing light-touch NTIA
oversight with control of ICANN by a massive global bureaucracy akin to
(and possibly a part of) the United Nations\' International
Telecommunications Union (ITU). Such bodies are fundamentally unsuited
to the task of managing ICANN or of operating any governance process
intended to have a bottom-up management structure.

Although we in the public interest community remain concerned with US
involvement in ICANN, it is difficult to imagine how replacing the US
government with an even more complex, slower moving, international
bureaucracy would be an improvement. With a few important exceptions,
NTIA has been a responsible steward for ICANN, taking a largely
hands-off approach that has benefited the global Internet community.
Clearly, an ICANN process free of direct government control is
preferable to the current structure, but if the only viable options for
the ICANN are continued US Government oversight or international
control, many of in the Internet community will find themselves in the
unfortunate position of supporting the status quo.

To that end, it may be useful to discuss whether the goals and
milestones established nearly a decade ago for ICANN on its path to full
autonomy remain adequate in the face of a drastically different global
environment. Certainly the goals of fostering stability, competition,
representation and private, bottom-up coordination remain as relevant
today as they were eight years ago, but in light of recent developments
it is important for the Internet community to at least ask whether
reaching all of those milestones (something ICANN has yet to accomplish)
would be sufficient cause to cut the tether between ICANN and the US
Government.

Once a tool for enhancing communication, the Internet has become an
essential underpinning to free expression, democratic organization and
commerce. The first obligation for those in control of its core
functions must be to \"do no harm.\" At the same time, global pressures
are such that simply clinging to existing structures may no longer be a
viable option. The very stability of the global Internet may depend on
addressing these issues in a way that both respects the needs of the
international community, and preserves the light-touch regulatory
environment essential to the Internet\'s continued evolution.

**ICANN has made important progress on competition and stability, but
still falls short on representation and bottom-up management:**

Since its inception, ICANN has been a lightning rod of legitimate
criticism, as well as a convenient scapegoat for people dissatisfied
with aspects of the Internet beyond the control of any single management
body. Many of those criticisms have been well earned. ICANN has yet to
achieve the procedural transparency, and more importantly the broad
involvement of Internet users essential to its bid for global
legitimacy. On the issue of representation specifically, ICANN has taken
notable steps backward, hastily abandoning direct public representation
after an abortive experiment with global elections.

But for all of its flaws, it is equally important to note the things
ICANN has done well. ICANN\'s first mission was to introduce competition
to a domain name market that was under the control of a
government-sanctioned monopoly at the time of its creation. ICANN has
made remarkable strides in introducing competition to the wholesale and
retail domain name markets. Buyers of Internet addresses can choose from
among hundreds of retail registrars selling addresses in dozens of
top-level Internet domains like .com, .info and .biz \-- all operated by
different wholesale registries. As options for consumers have increased,
prices have plummeted, and address sellers have broadened their service
offerings in order to woo consumers in the competitive market. As part
of its mission to increase competition, ICANN has introduced several new
generic top-level Internet domains, further increasing the options
available to consumers. Although there is some debate over the process
ICANN used to create those domains, it must be noted that the domains
were introduced to the DNS in a way that respected and preserved its
underlying stability.

Preserving the stability of the DNS is another of ICANN\'s charter
responsibilities, and here too, the organization has an impressive track
record. The DNS under ICANN oversight has resisted both internal
failures and external attacks. Much of that stability can be attributed
to the ingenious design of the Internet\'s addressing system and to the
extensive investments in security and redundancy made by the companies
and organizations that operate the Internet\'s infrastructure, but
credit too is owed to ICANN, which has made stability its top priority
in recent years. It is ICANN\'s track record in preserving DNS stability
that makes so many in the Internet community reticent to consider major
changes to global Internet management. Any future changes to Internet
management must be made in a way that preserves the strong framework for
global DNS stability established by ICANN.

While ICANN has made commendable progress in fostering competition and
preserving DNS stability, the same cannot be said for the important
goals of facilitating broad user representation and developing a system
of private, bottom-up coordination.

ICANN\'s failings are most apparent in the areas of representation and
transparency. Under its original charter ICANN was intended to have a
board divided equally between Internet \"stakeholders\" (Internet
companies, standards-setting bodies, etc) and \"at-large\" members
elected to represent the broad Internet community. Although those
Internet stakeholders have always had a place at the ICANN table, the
at-large representation has never materialized in a meaningful way.
ICANN experimented with global at large elections in 2000, allowing
Internet users from five regions of the world to elect one
representative each to the 19-member board of directors. While still far
short of the 50-50 mix envisioned in ICANN\'s founding documents, it was
a strong step toward representation. But in 2002, ICANN inexplicably
voted to end public elections altogether and restructure its board
makeup permanently. Now, the ICANN board includes no elected
representatives, and ICANN\'s poorly coordinated efforts to develop an
\"at-large constituency\" to represent Internet users have yielded
little success.

Achieving representation would address many of the underlying concerns
about ICANN. At a core level, a representative ICANN would be more
responsive and accessible to ordinary Internet users. Also, regular
elections would give Internet stakeholders around the world an outlet to
redress their grievances with ICANN and play an active, definable role
in the process. The current international tension over ICANN may never
have reached its current level, had ICANN early on committed to
establishing a meaningful system of global representation.

Equally troubling is that ICANN has made little effort and even less
progress toward improving the transparency of its decision-making
processes. Too much deliberation on important issues still takes place
behind closed doors and on private phone calls. ICANN\'s non-appointed,
full-time staff is still perceived as wielding too much influence in
setting ICANN policy. Absent real representation, this lack of
transparency has dealt a serious blow to ICANN\'s efforts to establish a
truly bottom-up coordination structure. Most people outside the ICANN
structure and even some that are ostensibly participating in the
\"bottom-up coordination\" remain perplexed as to how ICANN reaches its
decisions and which stakeholder groups maintain the real influence with
decision makers.

Regardless of any other issues, no serious consideration of cutting the
ties between ICANN and NTIA should begin until 1) the organization has
demonstrated that it can operate in an open and transparent manner and
2) meaningful structures have been put in place to ensure that ordinary
Internet users assume and retain an appropriate role in the ICANN
decision-making process.

**NTIA may need to study the impact of the changed global environment on
the ICANN process and consider new milestones for ICANN autonomy:**

It has become commonplace in the ICANN debate for defenders of the
status quo to simply point out the ways in which ICANN has failed to
meet its obligations under the MOU as a tactic to head off any debate
about altering the organization\'s oversight. Given the extent of the
work that remains to be done in establishing appropriate representation
and transparency, it is reasonable to assume that ICANN won\'t
accomplish all of its tasks anytime in the near future. But while
members of the US Internet community may have determined that
maintaining the status quo is the best of all the flawed alternatives
currently available, it is still important \-- for the sake of having a
meaningful debate \-- to ask whether those tasks should remain the only
prerequisites for creating an autonomous ICANN.

To be clear, all of the existing milestones remain relevant. An
autonomous ICANN would need minimally to preserve DNS stability,
encourage competition, provide appropriate representation for all
stakeholders and operate in a transparent, bottom-up manner. Future
agreements with ICANN should be written with the aim of urging ICANN to
continue striving to meet those fundamental requirements. But none of
those accomplishments will be of any value if ICANN is cut free from its
existing US government tethers only to be recaptured by other
governments.

If the ultimate goal for ICANN remains that it evolve into an
autonomous, nongovernmental body with a representative, bottom-up
management structure, it is important to examine the potential threats
such an organization could face in the current geopolitical environment.
The recently concluded World Summit on the Information Society (WSIS)
demonstrated that there is considerable interest among governments in
playing a more active role in Internet governance. For supporters of a
nongovernmental management structure, replacing US Government oversight
with that of a intergovernmental bureaucracy would solve nothing. Under
the current, imperfect structure, ICANN is protected from external
capture by its contractual bonds with the US Government, but it remains
unclear how an autonomous ICANN would fare upon dissolution of those
agreements.

It may be worthwhile for NTIA to commission an expert panel to study the
issues associated with freeing ICANN from US oversight and to propose
mechanisms to ensure that a potentially autonomous ICANN would be able
remain autonomous upon release from its contractual obligations. And
while capture is the most serious issue not addressed by the existing
set of tasks and milestones, it may also be worthwhile for such a panel
to engage in a broader examination of what new considerations should be
taken into account as NTIA and ICANN prepare for the future. Such a
study may suggest important new milestones for ICANN and one that helps
preserve the continued stability of DNS management.

**NTIA should consider lessening the impact of its involvement in ICANN,
while upholding its vow to preserve DNS security and stability:**

The days of Internet governance debates taking place in an
America-centric academic vacuum have long since passed. Heightened
international scrutiny of the process is testament to the growth and
transformative power of the Internet, and is to be welcomed, but it has
also dramatically raised the stakes of these sorts of discussions.
Although there are clear arguments to be made that ICANN is not ready to
stand on its own, the US Government cannot afford to ignore the mounting
concerns raised of those who feel the time has come for the United
States to relinquish its special role in global Internet governance.

Even as NTIA gauges the progress ICANN has made toward the milestones
established in the MOU, and examines what other issues it may need to
consider as it explores the possibility of relinquishing its contractual
ties, the agency should also consider what steps it can take to lessen
its own impact on the ICANN process. As noted above, NTIA has done a
mostly laudable job of not interfering with ICANN\'s decision-making
process, but its record is not unblemished. Members of the world
Internet community were rightly outraged when the NTIA sent a letter
pressuring ICANN to delay the creation of a new \".xxx\" Internet domain
intended for use by adult content providers. To those critical of the
current structure, that episode provided the clearest illustration yet
of the inherent inequity of US Government oversight.

ICANN may not be ready to stand on its own, but that should not prevent
the NTIA from looking into ways in which it may be able to contractually
lessen its involvement in the ICANN process, without severing its ties
completely. A good-faith plan to reduce the already limited amount of
NTIA involvement in ICANN\'s activities would demonstrate to the world
that the United States is serious about promoting non-governmental,
bottom-up control of the DNS.

Finding the right balance in this discussion is likely to be as
difficult as it is necessary. The US Government has rightly affirmed
that it will not take any action that could have the effect of upsetting
the security and stability of the DNS, but that should not be
interpreted into a strategy of obstinately defending a flawed status
quo. We must find ways to make ICANN stronger and more independent, even
as we ensure that it be allowed to continue its mission free of
unnecessary government interference.