Global Ideal, National Reality. (ICANN)
| Autor | Jonathan Blavin and Jeremy Kutner |
| Cargo | Harvard Law School |
Global Ideal, National Reality
By
Jonathan Blavin and Jeremy Kutner
In early June 2000, a European coalition of companies and nonprofit groups that administer 30 country code domains in Europe voted to refuse to pay ICANN the nearly $1 million in bills they owed to the organization.(1) While some of the members objected to the way ICANN levees fees without any formal legal agreements, others feared that ICANN might ultimately desire to take away their ability to register domain names in the ccTLDs they had authority over, giving control of the domains back to governments or indeed, remove ccTLDs altogether. Several small countries that initially sold the rights to their ccTLDs to private registrar companies are demanding the return of their domains(2) . Willie Black, who runs a British nonprofit organization that registers domain names in the .uk domain, articulated the increasingly nationalist perceptions engulfing ICANN: “This is seen by us to be a domain name tax by a U.S. corporation on our sovereign top-level domains.”(3) Are ccTLDs an extension of state sovereignty, or are they merely remnants of a, now outdated, system created by Jon Postel to ease administration?
Wasn’t the Internet supposed to create a borderless universe where remnants of nationalism have no place? This global ideal seems to have been slowly displaced by a nationalist reality. Martin Irvine, director of the Communication, Culture, and Technology Program at Georgetown University, describes this phenomenon as global localization: “Globalization, in one manifestation, is global localization; political groups use the Net to promote local interests and identity politics rooted in very historic place-governed issues like race, nation, territory, and language.”(4) Though it is a major force behind globalization, the Internet also creates new methods of information expression and dissemination for nationalist movements; web pages for Scottish, Basque, and Quebeois movements are prevalent on the Internet.
The Internet is the clearest example of an artificial construct,(5) in both senses. More important, perhaps, is that the Internet is the phenomenon most likely to increase our understanding of other peoples and cultures, and globalize the world. It can transport us from our current national reality to a possible future global reality. Barriers to entry are constantly being removed, and more and more people want to have a say in how it is designed, and how it is run. It has few set rules, and its architecture, being artificial, can be changed, sometimes more painfully than others. It is relatively new, only 5 years old in its modern commercial form at least, and already it has changed a huge amount. Elements of its control have passed from organization to organization as the worldwide Internet community has mushroomed.
However, the Internet began life under the control of the US Government. Since then, it has grown into an essential part of people’s lives all over the world, important for governments and corporations, as well as a major part of the worldwide ‘new economy’. Given the amount of private communication and information on the net, many people want to get involved in its governance. The US Government had noticed this, and ‘given away’, under temporary supervision, control of the Domain Name System (DNS) to a new private non-profit company, ICANN. It should, perhaps, be noted in defense of the oft chided US that it was under no obligation to give away control of the Internet. It did, after all, fund its creation, and the vast majority of sites are still American
ICANN does not see its role in terms of Internet governance, or running the Internet. It sees itself as dealing mainly with technical issues, with policy-making only becoming relevant when a purely technical solution does not solve the problem. Why, then, does it need to have such an open and worldwide membership? The IETF(6) does not seem to need it. The answer, possibly, is that while the IETF just makes purely technical decisions, on, for example, the TCP/IP protocol, this is a long way from what ICANN does. ICANN’s job is the most visible job on the Internet. It controls the DNS. As such, it seems to have the final decision over who gets to use the name www.sony.com, or even www.prozac.com, or indeed any other set of letters and numbers. This is because the Internet has been set up as requiring one authoritative root server. This will eventually be under the control of ICANN. Thus, in theory at least(7) , if someone wants to use www.blowupbritain.com for IRA propaganda, ICANN can restrict people’s access to the site, by redirecting them to another site when that address is entered in the address bar. This is an important, and political, power.
People around the world can see this and see that ICANN, for all its technical rhetoric, actually needs to make political decisions, or at least decisions that have political repercussions, and demonstrate an inherent political stance. For example, the UDRP could have taken the view that first come, first served, was a totally justified way of running the DNS. However, it did not. Instead, it took the view that trademark owners had a right to use their name as their web address, and not have to pay a fortune to do so. Whether this is good policy or not is another debate, but the point to recognize is that this is a political decision. Once this is recognized, the question is how these ‘political’ decisions are made, and whether the decision-makers are accountable to the Internet community as a whole, whose are the interests they act in and indeed, whether they should be accountable.
More important is the fact that ICANN is, essentially, an Internet start-up, and people are interested in things on the Internet that look small and unimportant because of the idea that they will grow and evolve, and it is worth investing at an early stage. People and states see that ICANN has a huge potential to become involved in Internet governance, and they want to get in on the ground floor.
Also, because of this potential, and even because of ‘political decisions’ ICANN has already made (e.g. the .ps ccTLD), people and states want some role to play in, and some way to control, this nascent organization. So, is there a democratic deficit within ICANN, or does the current structure allow all the representation that is needed? Should ICANN have any representation, given that it is overseeing one of the fastest-moving aspects of modern life? Indeed, can the current structure realistically be improved?
This paper will look at the role that national identity and nationalism play and have played in the development of ICANN and ICANN policy. We will start with a brief history of ICANN’s relationship to the US Government, showing briefly how it started as a government project, but now purports to be on the verge of independence. Second we will look at the current status of the ccTLDs. Third, we will address the At-Large elections and the use of geographic regions for voting. Finally, we will conclude with a proposal for blending the global ideal of ICANN with accountable national representation through a reformulation of the role of the Governmental Advisory Committee.
The Birth of ICANN and the US Government
The Internet started life as a US Department of Defense project, and was subsequently contracted out by the US Government to the academic community. Indeed, the relics of these days are still with us, .gov, .mil and .edu belong solely to US governmental, military and educational institutions. Since then, it has grown into an essential part of people’s lives all over the world, important for Governments and corporations, as well as a major part of the worldwide ‘new economy’. Given the amount of private communication and information on the net, many people want to get involved in its governance. The US Government has responded to the international interest and sense of ownership of the Internet by ‘giving away’, under temporary supervision of the DoC, control of the Domain Name System (DNS) to ICANN. Ira Magaziner, a senior White House policy advisor, articulated the administration’s perspective in the spring of 1998: “What we believe is the ideal kind of coordinating structure of the Internet is not to have an inter-governmental organization, but to have a number of nonprofit international groups that have specific charters.”(8) From these policy objectives emerged ICANN. It should be noted, in defense of the oft-chided US, that it was under no obligation to give away control of the Internet. It did, after all, fund its creation.
As a Department of Commerce “spin-off,” many critics naturally view ICANN as a “quasi-governmental” organization covertly controlled by the US Government. ICANN is still under a memorandum of understanding on continuing “policy authority” with the US DoC.(9) Within this policy framework, the US Government, now(10) for an indefinite period, has some element of control over ICANN, even though this was supposed to end September 2000. For all intents and purposes, this means that the DoC could continue to dictate to ICANN through...
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