ICANN : Towards Domain Name Administration in
the public interest
Jerry Berman, Executive Director
Alan B. Davidson, Associate Director
Center for Democracy and Technology
House Committee on Energy and Commerce
Subcommittee on Telecommunications
February 8, 2000
"ICANN's New gTLD Decisions:
Towards Domain Name Management in the Public Interest"
Testimony of the Center for Democracy
Subcommittee on Telecommunications
February 8, 2000
The Internet's great promise to promote speech, commerce, and civic discourse
relies largely on its open, decentralized nature. Within this architecture,
the centralized administration of the Internet Corporation for Assigned
Names and Numbers (ICANN) is a double-edged sword that presents both the
possibility of bottom-up Internet self-governance and the threat of unchecked
policy-making by a powerful new central authority. ICANN's recent move
to create new global Top Level Domains (gTLDs) is a welcome step towards
openness and competition. But the process ICANN used to select those gTLDs
was flawed and demonstrates the need for ICANN to take steps to ensure
greater transparency, representation, and legitimacy.
The Center for Democracy and Technology (CDT) welcomes this opportunity
to testify before the Subcommittee on this issue of importance to both
competition and free expression online. CDT is a non-profit, public interest
organization dedicated to promoting civil liberties and democratic values
on the Internet. We have participated in ICANN as advocates for open and
representative governance mechanisms that protect basic human rights,
the interests of Internet users, and the public voice.
We wish to make four main points in our testimony:
· ICANN's decisions, and particularly
its selection of new gTLDs, raise issues of broad public concern -
While ICANN purports to be a purely technical coordination body, it has
the potential to exert a great deal of control over the Internet, and
many of its "technical" decisions have broader policy implications. The
selection of new gTLDs - particularly in the manner exercised by ICANN
- impacts free expression and the competitive landscape of the Internet.
ICANN is not equipped to make policy decisions, and does not even apparently
want to. But the gTLD selection process suggests that ICANN could be engaged
in broader policy-based decisions than its mission or mandate should allow.
· The ICANN Board and governance
structure that made the gTLD selection is not appropriately representative
of the public voice - A starting point for evaluating the gTLD decision
is asking: Is the group that made this decision appropriately structured
and representative? The Directors that made the gTLD selection did not
include any of the elected members of ICANN's Board, and there is an ongoing
controversy within ICANN about the appropriate structure and selection
of the Board. Despite efforts to make ICANN inclusive, non-commercial
interests continue to be underrepresented in its deliberations - casting
doubt on the legitimacy of the gTLD decision.
· ICANN's process for selecting
new gTLDs was flawed. - A $50,000 non-refundable application fee and
stringent criteria created a high barrier for non-commercial applicants
and skewed the applicant pool towards large organizations. The "testbed"
concept for creating a small number of initial domains, while not without
its merits, also led to the uneven application of vague criteria in order
to reduce the number of applicants from those who passed more objective
criteria. ICANN has produced little support for its final decisions -
decisions that appeared arbitrary. The appeals process is unsatisfying
and post-selection transparency of the important final contract negotiations
· Nevertheless, on balance a rollback
of the gTLD decision is not in the consumer interest. ICANN should reform
its selection process and governance model, and Congress and the Commerce
Department should exercise oversight in this reform. - While the selection
process was flawed, new gTLDs are needed. CDT believes that on balance
the consumer interest in rapid deployment of new gTLDs, and the violence
done to the global interest in ICANN by U.S. intervention, are not outweighed
by the benefit of the Commerce Department's reconsidering the entire gTLD
decision. Rather, Commerce and the U.S. Congress should insist on a more
objective process for gTLD selection moving forward, and on reform of
ICANN's structure and mission moving forward to make it appropriately
ICANN's founding documents held out the vision of a new form of international,
non-governmental, bottom-up, consensus-driven, self-organizing structure
for key Internet functions. The promise of that vision was to promote
openness, good governance, and competition on a global network. Today,
that promise is threatened. As the gTLD selection process demonstrates,
serious reform is needed to limit the injection of policy-making into
ICANN's technical coordination functions, reassert the bottom-up consensus
nature of ICANN's deliberations, and ensure that the public voice is appropriately
represented in ICANN's decisions.
The Center for Democracy and Technology is a 501(c)(3) non-profit, public
interest organization dedicated to promoting civil liberties and democratic
values on the Internet. Our core goals include ensuring that principles
of fundamental human rights and the U.S. Constitution's protections extend
to the Internet and other new media. CDT co-authored ICANN's Global
Elections: On the Internet, For the Internet, a March 2000 study
of ICANN's elections. CDT also serves in the secretariat for the "NGO
and Academic ICANN Study" (NAIS), a collaboration of international researchers
and advocates studying ICANN's governance and At-Large Membership structure.
1. ICANN's decisions, and particularly
its selection of new gTLDs, raise issues of broad public concern.
Should the public and policymakers care about ICANN and its new gTLD
decisions? The answer today is yes.
There are two competing visions of ICANN. In one, ICANN is a new world
government for the Net - using its control over central domain name and
IP address functions as a way to make policy for the Internet globally.
In the second, ICANN is a purely technical body, making boring decisions
on straightforward technical issues of minimal day-to-day interest to
the public - like a corporate board or a technical standards group.
In reality, ICANN is somewhere in between and is likely to require public
attention for at least some time to come. There are at least two important
reasons why ICANN is of public concern:
· ICANN's has the
potential for broad policy-making - On the decentralized
global Internet there are few gatekeepers and a great deal of openness
- features that have contributed to expression, competition, and innovation
online. In this decentralized world ICANN oversees a crucial centralized
function - the coordination of unique names and addresses. In this role,
ICANN has the potential to exercise a great deal of control over Internet
activities. For example, ICANN has already required that all domain registrars
impose a uniform policy for resolving trademark disputes. Without a check
on its authority, ICANN could seek to impose other requirements or even
content regulations. While the current ICANN Board has shown an admirable
lack of interest in such policy-making, a more powerful future ICANN might
not be so restrained, particularly without any checks on its authority.
· Even ICANN's narrow
technical decisions have broader policy impacts - "Technical"
decisions often have broader impact. Expanding the gTLD space, choosing
which registry is recognized for a country code, or even selecting a method
for recognizing when new country-code domains get assigned (as .ps was
recently assigned to Palestine), for example, all have broader political
and social implications.
The Consumer and Free Expression Interest in New gTLDs
Today, access to the domain name system is access to the Internet. Domain
names are the signposts in cyberspace that help make content available
and visible on the Internet. (For further explanation, see CDT's overview
Your Place in Cyberspace: A Guide to the Domain Name System.) The
domain name system may ultimately be replaced by other methods of locating
content online. But for the time being, a useful and compelling domain
name is seen by many as an essential prerequisite to having content widely
published and viewed online.
There is an increasing consumer interest in creating new gTLDs. The current
gTLD name spaces, and the .com space in particular, are highly congested.
The most desirable names are auctioned off in secondary markets for large
sums of money. It is increasingly difficult to find descriptive and meaningful
new names. Moreover, the lack of differentiation in gTLDs creates trademark
and intellectual property problems: there is no easy way for United AirLines
and United Van Lines to both own united.com.
ICANN's decisions about new gTLDs can have other implications for free
expression. If, in choosing among otherwise equal proposals, ICANN were
to create a new gTLD .democrats but refuse to create .gop,
or added .catholic but refused to add .islam, it would
be making content-based choices that could have a broad impact on what
speech is favored online.
In addition, CDT has some concern that the creation of "restricted" domains
that require registrants to meet certain criteria - such as .edu or the
new .museum - risks creating a class of gatekeepers who control access
to the name space. Today, access to open gTLDs like .com and .org does
not require any proof of a business model or professional license. This
easy access to the Internet supports innovation and expression. Who should
decide who is a legitimate business, union, or human rights group? CDT
has called for a diversity of both open and restricted gTLDs, and will
monitor the impact of restricted domains on speech.
There is increasing evidence of an artificial scarcity in gTLDs.
It is now widely acknowledged that it is technically feasible to add many
new gTLDs to the root - perhaps thousands or even hundred of thousands.
Limiting the number of gTLDs without objective technical criteria creates
unnecessary congestion; potentially discriminates against the speech of
non-commercial publishers or small businesses who cannot compete for the
most desirable spaces; and places ICANN in the role of gatekeeper over
speech online by deciding which gTLDs to create and under what circumstances.
There are many legitimate concerns that call for a slower deployment
of new gTLDs. Some have expressed concern about stability of the Internet
given a lack of experience in adding many new gTLDs. Trademark holders
have also raised concerns about their ability to police their marks in
a multitude of new spaces.
CDT believes that these concerns support the notion of a phased "proof
of concept" rollout of new gTLDs. However, we believe that the consumer
interest will be best served by a rapid introduction of the first set
of new TLDs - followed quickly by a larger number of domains.
The phased "proof of concept" adopted by ICANN, however, creates a major
problem: Because ICANN could add many new gTLDs, but has chosen to
add just a few, it has forced itself to make policy-based and possibly
arbitrary decisions among legitimate candidates.
In this environment, it is most important that gTLDs be allocated through
a process that is widely perceived as fair, that is based on objective
criteria, fair application of those criteria, and open and transparent
decision-making. There are many reasons to believe ICANN's first selection
process for new gTLDs has been highly flawed.
3. The ICANN Board and governance structure
that made the gTLD selection is not appropriately representative of the
A starting point for evaluating the gTLD decision
is asking: Is the group that made this decision appropriately structured
and representative? The governance of ICANN itself is an issue of ongoing
debate. Despite efforts to make ICANN inclusive, there are many indications
that ICANN has failed to be appropriately representative of all the interests
affected by its decisions - casting doubt on the legitimacy of the gTLD
ICANN organization underrepresents many interests.
Members of the Internet user community and advocates for user interests
have often been under-represented in ICANN. ICANN's physical meetings,
where many major decisions are made, occur all over the world, pursuing
an admirable goal of global inclusiveness. However, the expenses associated
with physical attendance at such meetings place it out of reach for many
NGOs and public interest advocates.
CDT's own experience has been that the ICANN community is receptive to
thoughtful input and advocacy, but that it requires a concerted and ongoing
effort to be effective. In our case, that effort has only been possible
through the support of the Markle Foundation, which early on committed
to support efforts to improve the public voice in ICANN. We have received
further support from the Ford Foundation as well. These grants provided
CDT with the ability to attend and follow ICANN activities, which many
other potentially interested organizations in the educational, civil liberties,
or library communities cannot do.
ICANN's bottom-up structures offer imperfect avenues for public participation.
While ICANN explicitly provides representation to a number of commercial
interests, it fails to properly represent the millions of individuals
that own Internet domain names or have an interest in ICANN's decisions.
The main outlet for individual participation-the General Assembly of the
Domain Names Supporting Organization-appears increasingly ineffective.
Non-commercial organizations have a constituency, the Non-Commercial Constituency,
but it is only one of seven groups making up one of the three supporting
ICANN's Board of Directors fails to adequately represent the
In the absence of other structures for representation, the main outlet
for public input is the nine At-Large Directors of the Board. These nine
directors are to be elected from within a broad At-Large membership, but
there has been a great deal of debate about the election mechanism and
even the existence of the At-Large Directors. To date only five of the
nine At-Large directors have been elected (the seats were otherwise filled
with appointed directors), and even those five were not seated in time
for the gTLD decision in November.
CDT, along with Common Cause and the Carter Center, has strongly advocated
for broadly representative and fair mechanisms to fill all nine At-Large
seats as quickly as possible. Last March CDT and Common Cause prepared
a study of ICANN's election system, concluding that the proposed "indirect
election" would not adequately represent the public's voice. ICANN agreed
to hold more democratic direct elections (held last October), but only
for five of the nine At-Large Directors, to be followed by a study of
the election process. CDT is currently engaged in an international research
effort, the NGO and Academic ICANN Study (NAIS), examining last year's
election, and in June will offer its suggestions to ICANN regarding future
selection of Directors.
In the meantime, serious questions remain about adequate public representation
on the current board, and the future of the public voice in selecting
the Directors who will make decisions about additional gTLDs.
ICANN has shifted away from bottom-up coordination.
ICANN's founding conceptual documents, the Green and White Papers, called
for "private bottom-up coordination" as the governance model for ICANN.
Despite early attempts at consensus-based decision-making, authority in
ICANN increasingly rests at the top, with the Corporation's nineteen-member
Board of Directors. The Supporting Organizations have proven to have limited
roles in policy generation and consensus-building. Increasingly, final
ICANN policies are generated by ICANN staff and Board members. As a result
the Board has moved away from the consensus-based, bottom-up practices
which were originally a critical element of its conception.
4. ICANN's process for selecting new
gTLDs was flawed.
CDT has not taken a position on the merits of
any particular gTLD or registry operator chosen by ICANN. Our focus has
been on the process ICANN has used to select these domains and the potential
rules it may impose on the use of domains. A different, better process
might have yielded very similar results.
We note also that ICANN and its staff undertook this final selection
in a very compressed period at the end of a years-long debate about the
addition of new gTLDs. They did so in the face of tensions between at
least three competing goals: an open, inclusive, and fair process; rapid
completion of that process, with less than two months between the submission
of proposals and the selection by the Board; and a "proof of concept"
goal of a small number of finalists. These often irreconcilable goals
led to many of the problems with the process.
ICANN staff made substantial efforts to conduct an open and accountable
process in the face of these constraints, including the publication of
hundreds of pages of applications and the creation of forums to discuss
the proposals. Still, it is important to recognize features of the selection
process that were flawed, that had anti-consumer and anti-competitive
impacts, and that should not be repeated.
Initial Criteria - ICANN took the helpful step of publishing
a set of criteria it would use in judging applications. In general, the
substantive areas of the criteria reflected objective goals that had support
within much of the ICANN user community. However, the criteria themselves
were vaguely worded and their ultimate application was poorly understood.
Most importantly, they were not purely technical in nature - reflecting
policy goals as much as technical needs - and were not precise enough
to be purely objective in their application.
High Application Fee - ICANN required a $50,000 non-refundable
application fee for all gTLD applicants. This high fee was a clear barrier
to entry for many potential non-commercial applicants and biased the applicant
pool in favor of large organizations that could risk the fee. This issue
was raised by CDT at the Yokohama ICANN Board meeting, and the Board specifically
refused to offer any form of lower application fees for non-profit or
non-commercial proposals. Additionally, it appeared that the selection
process would weed out applications without sophisticated business plans,
legal counsel and technical expertise. These important qualifications
for a strong application required access to large resources. Given the
very short timeframe of the application period, non-commercial applicants
were therefore put at an even greater disadvantage.
Legitimacy of the Board - As noted above, policy-making at ICANN
is still hampered by institutional challenges regarding its legitimacy
and decision-making mechanisms. ICANN took the unorthodox step of seating
newly elected At-Large Directors after the gTLD decision was
made (even though in previous years new Board members had been seated
at the beginning of meetings.) The argument that new Directors would not
be sufficiently up to speed on the new gTLD decision is specious. The
entire ICANN community was highly focused on the gTLD debate, the new
Board members showed in public appearances that they were highly versed
in the issue, and each of them had gone through an intense campaign in
the Fall answering numerous questions that likely made them more expert
on the nuances of the gTLD issue than many sitting Board members.
Evaluation of Applicants - The ICANN staff attempted, with the
help of outside consultants, to apply its criteria to the 47 applications
received. The published Staff Report provided a useful guide to this evaluation,
but was published just days before the Marina Del Rey meeting with little
opportunity for public comment or debate. There was little time for public
presentation by each of the applicants, or for each applicant to answer
questions or misconceptions about their submissions. But beyond that,
the staff report indicated that about half (23) of the applicants had
met their objective criteria for technical competence and economic viability.
Having met the objective threshold, the Board was left with only the somewhat
arbitrary application of other criteria to narrow the number of applications
to the desired low number.
Final Selection Arbitrary - With a high number of objectively
qualified applicants, and a commitment to a low number of final gTLDs,
the final decision by the Board at Marina Del Rey was dominated by the
arbitrary application of its remaining criteria as well as other new criteria
- many of which had little to do with technical standards. Instead, Directors
referenced conceptions about the "sound" of names, the democratic nature
of the applicants, or the promotion of free expression - criteria to which
CDT is sympathetic, but some of which were highly subjective and unforeseen
Reporting and Post-selection Accountability - There is currently
a lack of any serious objective mechanism for evaluating or appealing
the Board's decision. While CDT is not in a position to judge the merits
of their arguments, the eight petitions for reconsideration filed by applicants
after the Board meeting (see http://www.icann.org/reconsideration
) raise concerns. Moreover, the final contractual negotiations between
ICANN and the selected applicants are likely to include rules of great
interest to the user community - yet are occurring with little transparency.
Taken as a whole, the process for selecting new gTLDs contained serious
flaws that at the very least need to be corrected before another round
of selections. Importantly, the process shows how the line between a "purely
technical coordination body" and a "policy-making body" is easily crossed
by ICANN. The selection made by ICANN was not a standards-making process
or a technical decision. Even ICANN's "objective" criteria were based
on social values like economic viability and diversity (values which CDT
supports, but which represent policy choices nonetheless.) Once it applied
these "objective" criteria, the ICANN Board did not hesitate to engage
in other policy-making approaches as well.
5. Moving Forward: Suggestions for
Reforming ICANN and the gTLD Process
The flaws in ICANN's process for allocating new gTLDs, as outlined above,
are highly troubling. They point to a need for reform in both the ways
the ICANN makes decisions about gTLDs, and ICANN's entire structure.
CDT still believes that Internet users have an interest in the vision
spelled out in the White Paper - in the creation of a non-governmental,
international coordination body, based on bottom-up self-governance, to
administer central naming and numbering functions online. Were the Commerce
Department to substantially revisit and change ICANN's decisions on the
new gTLDs, the global community would likely question the existence and
utility of ICANN. We also believe that there is a dominant consumer interest
in rapid rollout of new domains, which would be dramatically slowed by
an APA-based rule-making on gTLDs by Commerce. Therefore, on balance,
we do not support a major effort to roll back ICANN's decision on the
initial domains, but rather would favor rapid creation of the new domains
followed coupled with an investigation into the processes ICANN used to
Among our specific suggestions:
· ICANN must reform the method and process
it uses for selecting the next round of new gTLDs. A logical step would
be to publish an objective and specific set of criteria, and apply it
in a more open and transparent way with greater opportunities for public
comment. ICANN should stay away from policy-oriented criteria, and attempt
to promote criteria based on technical merit and stability. Applicants
that meet the criteria should be given the opportunity to participate
in new gTLDs.
· Barriers to diversity should be mitigated.
In particular, the $50,000 fee should be reduced or waived for non-commercial
or non-profit entrants.
· A study of the method of selecting domains
should be set in motion. In addition, careful consideration should be
given to the potential openness, competitiveness, and free speech implications
of creating a large number of "chartered" or restricted domains that establish
gatekeepers on access to domain names.
ICANN's governance itself is implicated in the gTLD process. Among the
major structural reforms ICANN should pursue include:
· Limited mission - Steps must be taken to
structurally limit the mission of ICANN to technical management and coordination.
Clear by-laws and charter limitations should be created to delineate "powers
reserved to the users" - much as the Bill of Rights and other constitutional
limitations limit the power of the government under the U.S. system.
· Empower the public voice in ICANN - The
internal study underway of ICANN's At-Large membership and elections should
be a vehicle for ensuring that the public voice finds appropriate ways
to be heard in ICANN's decision-making processes.
· Expanded review process and bottom-up governance
- ICANN should build internal review processes that produce faith in the
ability to appeal decisions of the Board, and continue to pursue the consensus-based
While we do not believe the Commerce Department and Congress should intervene
in the initial selection decision, they have a role in this reform. Just
like any national government, the U.S. has an interest in making sure
that the needs of its Internet users and businesses are protected in ICANN.
While the U.S. must be sensitive to the global character of ICANN, it
cannot ignore that at least for the time being it retains a backstop role
of final oversight over the current root system. It should exercise that
oversight judiciously, but to the end of improving ICANN for all Internet
users. It is only by restoring the public voice in ICANN, limiting its
mission, and returning to first principles of bottom-up governance that
ICANN will be able fulfill its vision of a new international self-regulatory
body that promotes openness and expression online.
House Rule XI, Clause 2(g)(4) Disclosure: Neither Jerry Berman, Alan
Davidson, nor CDT has received any federal grant, contract, or subcontract
in the current or preceding two fiscal years.