CYBERLAW CLASS 7 ICANN and Internet Governance September 18, 2002

What is ICANN?

ICANN is the nonprofit group that oversees basic technical matters related to the Internet, including the system for managing and allocating domain names (e.g. Nonprofit California corporation, Coalition of various constituents of the Internet community – individuals and organizations, entrepreneurs and educators, corporate enterprises and non-profit advocacy groups.

HISTORY OF ICANN ICANN was formed in October, 1998 (in response to a DOC White Paper) to oversee a select range of Internet technical management functions currently managed by the U.S. Government, or by its contractors and volunteers on an ad hoc basis. This informal structure represented the spirit and culture of the research community in which the Internet was developed. However, the growing international and commercial importance of the Internet has necessitated the creation of a technical management and policy development body that is more formalized in structure, more transparent, more accountable, and more fully reflective of the diversity of the world's Internet communities.

ICANN’S OBJECTIVES It is ICANN's objective to operate as an open, transparent, and consensus- based body that is broadly representative of the diverse stakeholder communities of the global Internet.

ICANN’S FUNDING ICANN is funded through the many registries and registrars that comprise the global domain name and Internet addressing systems.

ICANN FUNCTIONS IP Address Space Allocation Protocol Parameter Assignment Domain Name System Management Root Server System Management

STRUCTURE OF ICANN Board of Directors 3 Supporting Organizations Policy/Advisory Committees Small Staff (16)

ICANN’S 3 SUPPORTING ORGANIZATIONS DNSO : Domain Name Supporting Organization ASO: Address Supporting Organization PSO: Protocol Supporting Organization (See ICANN Amended Bylaws Art. VI) Each Supporting Organization has organized itself and defined its own rules. Each is representative of its own unique, specialized constituencies – and each incorporates processes that involve substantial public comment and discussion.

ASO Concerned with issues relating to the allocation of Internet Protocol (IP) Addresses The ASO consists of the three Regional Internet Registries (RIRs) -- the organizations that allocate IP addresses in their respective regions: American Registry for Internet Numbers (ARIN) Asia-Pacific Network Information Centre (APNIC) RIPE Network Coordination Centre (RIPE NCC) Network Coordination Centre (RIPE NCC)Network Coordination Centre (RIPE NCC)

DNSO The DNSO is an advisory body that advises the ICANN Board of Directors on policy issues relating to the Domain Name System. The DNSO consists of a General Assembly, a Names Council, and seven Constituency Groups. DNSO names 3 directors to ICANN Board

PSO The PSO is an advisory body that will advise the ICANN Board of Directors on policy issues relating to protocol parameter numbers, which let computers exchange information and manage communications over the Internet. PSO names three Directors to the ICANN Board. 4 standards development organization (Internet Engineering Task Force (IETF), World Wide Web Consortiium (W3C), International Telecommunications Union (ITU), European Telecommunications Standards Institute (ETSI)

3 ADVISORY COMMITTEES GAC (Government Advisory Committee) Domain Name Root Server Advisory Committee At-Large Membership Study Committee

ICANN BOARD 19 directors 9 of the directors are at-large (and 5 of these selected by a vote in October 2000 of Internet users worldwide) Lessig was an unsuccessful candidate! NOTE: ICANN SAID ORIGINALLYT THAT 9 would be selected from at-large 9 of the directors are selected by ICANN’s 3 Supporting Organizations (3 each) Directors serve 3 year terms

ICANN DIRECTORS Chairman: Vint Cerf Vice Chair: Alejandro Pisanty Amadeu Abril I Abril Karl Auerbach Robert Blokzijl Ivan Moura Campos Lyman Chapin Jonathan Cohen Frank Fitzsimmons Masanobu Kato Hans Kraaijenbrink Sang-Hyon Kyong M. Stuart Lynn (Pres. & CEO) Andy Mueller-Maguhn Jun Mujrai Nii Quaynor Helmut Schink Linda Wilson

ICANN and CORPORATE LAW Is ICANN ignoring its obligations under the California Corporations Code? Rights of “members” of California Corporations

WHO IS A MEMBER? Section 5056 of the California Corporations Code normally defines who is a "member" of ICANN: [emphasis added] (a) "Member" means any person who, pursuant to a specific provision of a corporation's articles or bylaws, has the right to vote for the election of a director or directors or on a disposition of all or substantially all of the assets of a corporation or on a merger or on a dissolution... ICANN’S Bylaws say members are not members!

ELECTION OR SELECTION? [ICANN] shall not have members as defined in the California Nonprofit Public Benefit Corporation Law ("CNPBCL"), notwithstanding the use of the term "Member" in these bylaws, in a selection plan adopted by Board resolution, or in any other action of the Board. Instead, the Corporation shall allow individuals (described in these bylaws as "Members") to participate in the activities of the Corporation as described in this Article II and in a selection plan adopted by Board resolution, and only to the extent set forth in this Article II and in a selection plan adopted by Board resolution.

Criticism Democratic theory suggests that the absence of accountability tends to breed arbitrariness and self- dealing. In addition to avoiding governmental accountability mechanisms, ICANN lacks much of the accountability normally found in corporations and in nonprofits.

AT LARGE STUDY COMMITTEE Vote of 5 ICANN directors by a self-selected At Large constituency was interim solution ICANN is studying how to appropriately provide for input and influence into ICANN policy deliberations and actions by the general Internet community. ICANN's Board has chartered the At Large Study Committee to forge a consensus on the best method for appropriately providing input and influence into ICANN policy deliberations and actions by the general Internet community.

REPORT OF ALSC (Nov. 2001) Recommend that individual domain name holders should be members of new At-Large Supporting Organization. At-large members should select 6 directors to the ICANN Board View ICANN as reflecting interests of 3 groups: developers, providers and users Why not permit address holders to be at- large members?

CONSENSUS DECISION MAKING ICANN bodies make decisions by consensus Is this a good way to make decisions? Would voting be better? Should Roberts Rules of Order or some other rules of parliamentary procedure be used for electronic discussions?

OPENNESS ICANN Says: ICANN SEEKS PUBLIC INPUT BEFORE, DURING AND AFTER ITS CONSENSUS-BASED DECISION MAKING PROCESS Board Meetings now open to the public in person and via realtime webcast All decisions of substance are preceded by prior notice and a full opportunity for public comment

OPENNESS ICANN has been criticized for failing to operate with openness, transparency, and accountability. Many of its decisions and discussions are secret and are not made by recorded vote. Should all decisions and discussions be made public? Actions by staff? By Directors? Concerning litigation? Personnel issues?

DOES A LAW FIRM DOMINATE/CONTROL ICANN? Jones, Day, Reavis & Pogue – ICANN’S law firm since beginning Dominant Creditor if ICANN Partner, Louis Touton, left Jones, Day to become ICANN’S Vice-President, Secretary, and General Counsel Is this relationship proper?

ICANN FINANCIAL PRACTICES: PROPER? Karl Auerbach claims: Money flows through ICANN at a prodigious rate, mainly into the pockets of its expensive law firm and its overpaid President/CEO. ICANN must adopt clear and solid business practices.

ccTLDs withdrawal from DNSO

IS ICANN THE GOVERFNMENT OF THE INTERNET? ICANN says: (in its Fact Sheet): As a technical coordinating body, ICANN's mandate is not to "run the Internet." Rather, it is to oversee the management of only those specific technical managerial and policy development tasks that require central coordination: the assignment of the Internet's unique name and number identifiers.

IS ICANN THE GOVERFNMENT OF THE INTERNET? ICANN also says: ICANN has no statutory or other governmental power: its authority is entirely a consequence of voluntary contracts and compliance with its consensus policies by the global Internet community. It has no power to force any individual or entity to do anything; its "authority" is nothing more than the reflection of the willingness of the members of the Internet community to use ICANN as a consensus development vehicle. It can’t tax anyone

REVIEW OF ICANN DECISIONS ICANN's bylaws provide for the establishment of an independent review process by which contested actions of the ICANN Board may be subjected to independent third-party review. At Cairo mtg in 2000, ICANN Board adopted Independent Review Policy that is to result in formation of 9 member Independent Review Panel To be nominated by Independent Review Nominating Committee (6 members) and subject to confirmation by ICANN board. Committee is appointed by ICANN’s Supporting Organization for 3 yr terms.

ACCOUNTABILITY? To whom, if anyone, is ICANN accountable?

Stuart Lynn: The President’s Report (Feb. 2002)

Lynn’s criticisms Icann as an “incomplete experiment” Needs to become a well-balanced public- private partnership More participation by critical entities Too much process – criticizes global Internet elections for at-large directors Too little funding What are his recommendations?

Lynn’s recommendations Board of Trustees Policy Councils End stranglehold of process

GETTING INVOLVED IN ICANN The best way to get involved is to join one or more of the groups (constituencies, working groups, policy forums, committees, etc.) that interest you and contribute to their online discussions. Attend ICANN meetings e.g.

Recent Developments in Auerbach suit July 29, 2002: ruling by LA Superior Court hat ICANN must provide Auerbach with access to financial and confidential records but courts will determine what information Auerbach can release to the public, and he must inspect documents at ICANN’s Marina del Rey HQ.