[wg-review] Well-considered remarks

["babybows.com" <webmaster@babybows.com>]

This is a very well written document, and should be of value to many members
of the Review Working Group.  It is reproduced from
http://www.biztld.net/cdtresponse.html

ICANN : Towards Domain Name Administration in the public interest

As requested by Representative Pickering,
April 6, 2001
Response by Leah Gallegos
to:

Testimony of
Jerry Berman, Executive Director
Alan B. Davidson, Associate Director

Center for Democracy and Technology
http://www.cdt.org

Before the
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"

Dear Representative Pickering:
Thank you for inviting me to respond to the Center for Democracy and
Technology testimony of February 8, 2001.
In order to respond in an organized manner, I have decided to follow the
actual written testimony on a section by section basis. My comments will be
enclosed in brackets [ ] and italicized. For the most part, Mr. Davidson and
I agree. There are, however, some areas in which I would like to elaborate
and some where we disagree.
Summary
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 is minimal.
· 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 representative.
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.
[The UDRP is horribly flawed .
1. There is no avenue for non-trademark holders to file a complaint. It is
designed strictly for the Trademark Lobby and large multi-national
corporations to obtain domain names they did not have the foresight to
register when they had the opportunity to do so. Further, it allows these
interests to restrain fair use of domain names.
2. Free speech has been curtailed as a result of the UDRP and the courts
have now begun to use these flawed decisions to deny it. While it has been
determined that names like <anynamesucks.com> do not constitute free speech
in some cases, others have ruled that it does. There is inconsistency and
bias throughout. Does a name infer free speech or does it not?
3. What is a bad faith registration? If Irving B. Matthews, CPA registers
ibm.com or ibm.biz, does that mean a bad faith registration? It seems so in
many decisions involving acronyms and other names. Who has the rights to
Ford, Acme, Amex, clue, Barcelona and a host of others? Does a trademark
holder "own" words? Does anyone own language? Is it proper to allow a claim
to words such as "easy" in any form and to deny their use to others? This is
currently one such claim. Another is a claim to "my" - any use of the word!
4. There is no appeals process, yet the complainant may supplement comments
for a fee with one arbitration forum. The respondent may not. Either side
may go to court, of course, but in most cases, the respondent does not have
the resources to do so, and the complainant knows this. Many respondents
simply give up, especially individuals. There is nothing to prevent a loop.
A respondent went to court and won. The complainant then filed a UDRP claim.
The UDRP does not have to honor a court judgment and ICANN accepted the
claim. In case of a UDRP loss, the complainant could go back to court, and
so on. There is nothing to stop the cycle, so a trademark holder with deep
pockets could easily bully a respondent into giving up a legitimately held
domain.
5. Forum shopping is standard. WIPO has most applications because of its
obvious bias. In my opinion, WIPO should not be a provider at all, given its
mission as advocate for the IP industry.
6. Respondents have no choice in which arbitration provider is used. In
order to have any voice at all, he must choose a three member panel and pay
for it. For most respondents, this is prohibitive. We must consider that
most complaints are filed by established businesses against individuals or
very small businesses. Many complaints are simply intimidation and theft by
fiat, since they know the respondents many times simply cannot afford
representation or the three member panel choice.
There are many other areas of the UDRP that cry for reform. I am one of a
great many who feel it needs total reform and that WIPO should be only an
advisor for one interest group. There must be advisors from all
stakeholders.
It seems that the large commercial interests have little or no understanding
of the DNS, or do not wish to recognize its hierarchal structure. Since
there can be only one unique character string (name) at each level,
trademarks do not fit the model at all. A domain name is just a locator for
a numerical address.
One solution may be to absolve trademark holders from the responsibility of
policing their marks within the domain name system. Without that
requirement, there would be no need for such a dispute resolution process.
In addition, the ACPA language is so over broad, that it invites abuse -
abuse that is already apparent.
The term "cybersquatter" was meant to refer to those who would deliberately
register a known trademark and then attempt to extort the trademark holder
for large sums of money or sell it to a known competitor to direct customers
away from it. Instead, it has been used to refer to domain name holders who
have not used a name at all for the web or who wish to enter the secondary
market - a perfectly legal activity. While it has been determined that free
speech does not apply to a domain name in itself, the ACPA and UDRP allow a
determination that one is a cybersquatter for registering a domain name.
There is a great disparity here. Remember, a domain name is a locator, even
though it uses what appears to be common language.
I feel that the ACPA language requires change to a narrowly defined criteria
and definition of "cybersquatter."
The Lanham Act was written to protect consumers and has now been perverted
to protect trademark holders against both small business and consumers. It
is resulting in restrained trade and free speech.]
· 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 ccTLDs are not at all happy with proposed actions by ICANN. Tri-lateral
contracts, involving governments in contracts where delegations belong to
individuals or corporations within a country, forcing gTLD status on a
ccTLD... These are areas where ICANN imposes broad policy and it should not.
ccTLDs are and should be autonomous. In my opinion, I do not see why any of
them should be forced into contracts at all. ICANN provides little or no
services to them and there is little or no cost involved to maintain an
entry in the rootzone. ICANN could, if necessary charge a nominal fee for
making contact or nameserver changes, but this fee should be no more than a
nominal administrative charge of five or ten dollars. If it is automated,
there should be no fee at all. It is in the public interest to have a
"whois" database for TLDs, but even this is a minimal cost.
ICANN should not be engaged in policy making for any TLDs beyond those held
by the DoC. Aside from basic technical requirements that ensure viability of
a TLD (nameservers), ICANN should stand aside. Business models, dispute
policies, payment policies, restrictions, charters should not be within
their purview These are business decisions or decisions within the realm of
national sovereignty.]
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.
[Congestion has occurred due to the delay of introduction of TLDs to the USG
root. It has created a perceived shortage of names and fostered speculation.
If existing TLDs had been entered into the root years ago, the situation
would have been very different today. While further delay will exacerbate
the problem, imprudent decision now will have serious negative impact
later.]
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.
[There is no reason to refuse to enter a TLD into the root.. All candidates
with demonstrable technical capabilities should have been included, and
should be included in the future.]
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.
[I disagree that there is a problem with creation of "chartered" TLDs. To
the contrary, chartered or "restricted" TLDS should be desirable. It allows
for consumers to search within categories and can provide an indication that
they will find a bone fide organization, business, profession or individual
within a specified TLD. However, for this to work well in practice there
must be a multitude of TLDs available. And this is the point, is it not?
ICANN/DoC have been reluctant to provide them and impose such measures that
it is nearly impossible to do so for the vast majority of the world].
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.
[The fallacy of lack of experience is acutely apparent. There are TLDs such
as .WEB and many others that prove it. There are also companies, such as
Diebold Inc., that have been deploying "new" services successfully for many
years.
Other roots have been adding TLDS frequently with no problems and DoC has
added ccTLDs in droves over the last decade, and during the most explosive
growth period for the Internet. If failure or success is a criteria, it
should be dropped, since the market will determine that issue.
As for Trademark concerns, let us consider having 500 TLDs (they exist
today) and then determine whether Trademarks have a place in the DNS. If, as
I mentioned earlier, Trademark holders were absolved of having to police
their marks in the DNS, the purpose of alleviating the scarcity of names
would be accomplished. The trademark issue has become so over blown and
powerful that it threatens to overshadow any advantage in introducing new
gTLDs. What is the point if trademark holders get first choice before any
other entity has a chance in every TLD? It makes no sense at all. With
hundreds of TLDs, it is almost humorous. One possible solution would be to
relegate Trademark holders to a .TMK or .REG for protection of their marks.
However, to say they have first choice in all new gTLDs is ludicrous.]
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.
[I disagree strongly that there is need for "proof of concept" since it has
already been accomplished by several TLDs, including .BIZ, .WEB, .ONLINE,
ccTLDs and many others. It makes much more sense to introduce as many as
possible (really simple) immediately, with one caveat. There should be no
duplication in THE NAME SPACE.
I have always advocated that DoC should simply include all known viable TLDs
in their root, just as the other major roots include the DoC TLDs and ccTLDs
in theirs. This is a common reciprocal arrangement. It provides a singular
name space and enhances the stability of the Internet by providing a
multiple system of networks for load balancing and avoidance of a single
point of failure.
What is generally not understood is that while THE name space is absolutely
singular, root systems are not. There can and will be many roots. There is
no way to prevent this occurrence. It is in the best interests of the global
community for ICANN/DoC to recognize the phenomenon and cooperate with it.
The alternative is apparent. ICANN refuses to acknowledge the existence of
pre-existing roots and TLDs and then simply duplicates them. The potential
result is chaotic with much of the innovation in new systems occurring
outside of the US where our national law would have no effect in any case.
Cooperation, on the other hand, would tend to bring these disparate groups
to the table.
This attitude and practice blatantly breaks the agreement with DoC (the
ICANN-DOC MOU) and also the APA that ICANN was designed to avoid. Since the
situation is not going to disappear, and will rear its head frequently, it
is my considered opinion that ICANN/DoC move to cooperate with all existing
entities rather than ignore them. One can choose to ignore warnings of an
impending hurricane, but it will still make landfall. Once you feel the
wind, it's too late to plan. In fact, once DoC introduces a collider and the
registry for that collider is open to the public, the damage may be
irreversible.
We still have a chance to deal with impending chaos, but time is very short.
No amount of US legislation will prevent the global problem. No one country
can "rule"the Internet and certainly no single corporation can do so. ICANN
could go a long way to mitigate the situation, but it must bereformed and
focused in task in order to accomplish the task.]
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.
[ICANN made decisions based on business models, financials, ethics,
mnemonics, and other arbitrary criteria that should not be within its
purview. In addition, it relied on the sometimes grossly erroneous reports
by staff to render decisions without a thorough personal understanding by
board members of each proposal. Staff ran the show.]
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 public interest.

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 decision.
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 organizations.
[The General Assembly has literally no voice in ICANN policy making
decisions. Recommendations made at the Melbourne meetings were ignored. In
addition, the board meeting was called to order a half hour early with no
visible notification to the public (I attended via webcast) and important
issues were discussed prior to the public's attendance at that meeting.
Furthermore, the agenda did not include discussed items and public
statements had been made that no decisions would be made regarding the
gTLDs. The board then proceeded to resolve that final decisions would be
made without further review and contracts would be negotiated and signed as
well. At 9:00 am, the Chairman announced that he was leaving early to catch
a flight to
the US and he left at 10:00 am. In addition, when there was an announcement
by a local barrister that legal action had been instituted against ICANN,
board members laughed openly and encouraged the audience then in attendance
to laugh as well. Professional, open and transparent? No.
As a typical example of ICANN's closed door procedures and exclusion of the
majority of stakeholders, the ICANN/Verisign agreement was amended and
approved within a twenty-four hour time frame with no allowance for input
from the DNSO. As should be expected, this action has not been well-received
by stakeholders. The GA, rightfully, feels disenfranchised and ,in fact, is
disenfranchised. There was an inadequate time frame allowed for the entire
process. Instead, negotiations were handled without public input for months
and Verisign was permitted to dictate revisions to the original agreement
and completely avoid the APA. The perception globally is negative. ICANN/DoC
could have avoided the negativity with openness and consideration for the
Internet's users. It did not.
With regard to new TLDs, if ICANN were to listen to stakeholders more, the
resulting TLDs would be more likely to serve the public than those selected.
It should be noted that one of the major objections to IOD's application was
that it would run both registry and registrar for a period of time. Hans
Kraaijenbrink was adamant in his objection to this stating , "IOD goes
against everything we ve worked on the last two years they join registrar
and registry, and they have a high price."
An excerpt from a General Assembly post states:
> I still think that to be able to run (and now without time
> constraints and/or other future limitations) the Registry and the
> Registrar for the major generic TLD *is* giving to VeriSign
> unfair competitive edge. As I said, the matter may now be moot,
> but IMHO we have just witnessed the formalization of a change in
> policy by ICANN.
I do not see a problem with a registry/registrar model, especially for a
start-up registry. Our initial model is one such. It is in the best
interests of the registry to bring on registrars, but there should be a
"breaking in" period prior to adding such models. IOD's plan was practical
and prudent. It allows development cost recovery in the initial months and a
phase in of participating registrars. Jumping into an shared registration
system (SRS) with no beta testing is detrimental to users. The objection to
IOD's price is disingenuous since it is the exact price charged by Verisign.
There was little consistency on the part of the ICANN BoD in the selection
of new TLDs. There was obvious bias, Directors participated with definite
conflicts of interest and did not recuse themselves until after that
participation. In addition, there was not a legal quorum for the final
votes. And this is in addition to the entire flawed process leading to the
final selections. ]
ICANN's Board of Directors fails to adequately represent the public voice.
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.
[ICANN has posted a notice on its website: "At large Membership" with a
closed sign. There have been numerous statements and signs that there is no
intention of having an "at-large" membership. One board member stated to
Karl Auerbach (Melbourne BoD meeting) that board members who where there
before him (Mr. Auerbach) saw no need for an at-large membership and were
opposed to it. The white paper and MOU are being systematically ignored.]
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.
[In my testimony on February 8, I stated that one major change should be the
election of the board. Most have been "squatting" for over two years when
they should have had an election within two months.]
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.

[The board is captured by special interests and even the elections for the
at-large were tainted by ICANN's selection of candidates rather than
completely open nominations by the at-large. community. It is anything but
bottom up, open and transparent.]
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.
[ Perhaps it would not have. ICANN should not have accepted applications for
existing TLDs. While CDT does not single out any applicant, it also does not
take into consideration that many applications were for pre-existing TLDs.
This should never have occurred. In addition, there is no reason why
existing TLDs should have to be under contract to ICANN in order to be
included in the root. Furthermore, the $50,000 fee is outrageous and
unnecessary. It was arbitrarily chosen at the last moment and is designed to
include litigation that ICANN knew would come as a result of its flawed
plans. Why should losers fund ICANN's defense against them and also fund
implementation of the winners of this lottery?
In addition, the application questions themselves precluded applications by
any entity that did not agree with sunrise or UDRP. ICANN states it was not
a criteria, but the intimidation was there and all applicants for gTLDs who
were selected had agreed to these terms. Another requirement was no
involvement with other roots or having registrations. That also precluded
application by all pre-existing TLDs. At first there was concern that .WEB
registrants would be cancelled.
We have been criticized for not applying to ICANN. Our response is that
application for us would have been a waste of money that could be better
spent for customer service, development and infrastructure, for one thing.
For another, we feel that our existence as a viable business and registry
should be sufficient as proof of concept. As many of the ccTLDs have no
contract with ICANN and do not adhere to ICANN policies and rules, we have a
viable business and should not be compelled to suddenly contract with ICANN
for our existence or inclusion in the USG root. Had ICANN not selected .BIZ
for award to a competitor, we would not have been placed in this position.
Having done so, ICANN has indicated to the world that co-opting another's
business product is okay as is duplication in the name space. One obvious
result is New.net's introduction of 17 colliders out of the 20 TLDs they
launched. They insist that since no one "owns" a TLD, they have every right
to make those business decisions. They are correct, of course. There is
nothing to stop them and the precedent has been set by ICANN. Neither
New.net nor ICANN is considering the chaos this arbitrary decision is
causing in the DNS. As time progresses, it will become more obvious. We are
witnessing the tip of the iceberg.
No amount of legislation will prevent the fracture and will certainly not
cure it. Only reversing the precedent by preventing DoC from allowing it to
occur in the USG root can assist in the global effort to maintain a stable,
collision-free name space. It must be the responsibility of the caretaker of
the largest market share to set the pace for the rest of the world. That
caretaker is the U S government that assigned the task to the Department of
Commerce. A wise president once said "The buck stops here." So it does.
ICANN's burying it's head in the sand is not the answer. It must take
responsibility for the result of its actions and take the initiative to
mitigate its stubborn refusal to cooperate. However, in the end, it is the U
S Government that has the final authority to mitigate this problem since
ICANN has shown it is not inclined to do so.]
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.
[Because both DoC and ICANN have been reluctant for many years to move
forward with new gTLDs and because of lack of cooperation with existing
entities, scarcity and pubic pressure were factors in ICANN's actions.
However, there was no reason to accelerate this process to the detriment of
all concerned or to avoid an open and transparent process. Had there been an
elected board, a full at-large contingent and cooperation, very little of
the controversy would have reared its head. In view of the white paper and
MOU, it is more important to have a fair and open process than to meet an
unreasonable time constraint.]

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.
[There was inadequate notification to the public in all areas. Only those
who were familiar with the ICANN website could find them. The majority of
the public does not even know what ICANN is. It is the duty of ICANN to
publicize their processes in order to invite the widest possible discussion.
At the very least, all domain name holders should be notified via e-mail.
The website should be re-designed to allow the public to find all documents
and correspondence easily. Instead, much is buried and requires a
sophisticated search to find anything.]
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.
[Again, the application criteria was intimidating at the very least and
strayed quite far from technical issues. As for the user community, there
was a great deal of concern regarding that criteria and some of it was
expressed on the ICANN message boards. It was not objective and some have
said it went as far as to restrain trade. ]
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.
[I covered this earlier. The fee excluded not only non-commercial
applicants, but small businesses as well. It was also meant to fund ICANN's
litigation expenses against the very applicants who paid it, and to fund
other ICANN activities. No small business could afford the requirements of
the ICANN process. So once again, we are faced with big business ruling the
Internet to the detriment and exclusion of the average user and small
business.
There is truly no reason to exclude the smallest organization or business
from entering the TLD market. The public will determine the success or
failure of any registry. While there should be contingencies for failure in
place, there is simply no good reason to exclude any entity that can make a
TLD "live" and accept registrations. Many ccTLDs do not have sophisticated
systems in place, and they are not necessary. Registries will evolve over
time.]
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.
[It is true that the public and especially the at-large community was irate
at the decision of the board to exclude the elected directors from decision
making for the new TLDs. The attitude of the remaining directors toward the
newly elected directors at the Melbourne meeting was indicative of the
disdain toward the at-large community. The Chairman cut them off almost
every time they spoke. I felt it was an embarrassing display. There were
many comments made on the ICANN forums, the domain-policy mail list
maintained by NSI and many other mail list forums. The at-large community
was generally incensed that their elected Directors had no input in these
decisions. ICANN should have either delayed the selections for the next
quarterly meeting or seated the elected Directors prior to the MDR meeting.]
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.
[There was almost no time to deliberate the staff report, which was, itself
erroneous and sorely lacking. Each applicant had only three minutes to
respond and no face to face meetings to discuss errors or omissions. For
$50,000, there should have been a great deal more consideration afforded
them. The desired low number was also reached arbitrarily with no legitimate
reason for so doing. If 23 applicants met criteria, there should have been
no reason to exclude them, other than duplication, of course. However, other
choices for TLD strings could have been made.]
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
review criteria.
[After attending the meeting via webcast, I replayed the meeting several
times attempting to find some reasonable explanation for the process used to
select TLDs. I concluded there was none. It was subjective and unreasonable
for the most part. Indeed, the only reasonable decision was concerning not
awarding .WEB to Afilias because Vint Cerf felt "discomfort" with awarding
it to anyone other than the existing registry (Image Online Design). Of
course a new category was pulled out of a hat in order to hold .WEB "in
reserve." Director Kraaijenbrink actually raised his voice rather loudly in
his opposition to this proposal, making it clear that the board was well
aware of the duplication and the existence of registrations. He was
insistent that this did not matter, indicating that ICANN was above it all
and should award .WEB to Afilias. Of course, the ARNI .BIZ duplication and
the existence of its functional registry was ignored. The iii TLD was
dismissed because of its "sound." Diebold Inc, a profitable $2 billion
public corporation, had their application dismissed in the last round
because of "a lack of financial commitment." Bias abounded and arrogance
toward the rest of the community was obvious.]
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.
[With the decision of the board in Melbourne, there is no transparency or
further review by the public. At that time, there were still important
documents not posted, yet the board empowered itself to complete
negotiations and execute the contracts. Again, it had been announced that no
decisions regarding the TLDs would be made in Melbourne because there was
still a great deal of negotiating to do. It was suddenly reversed in that
early unscheduled half hour discussion. The media was taken by surprise, as
were the attendees. In addition, recommendations by the Names Council were
ignored.]
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 create gTLDs.
[I disagree that having a Rulemaking on questionable practices is not in the
best interests of the public. It is the avoidance of the APA that has led to
many of the problems we see to date. However, I see no reason for it to be
prolonged, nor do I see any substantial reason for retarding the completion
of contracts for those TLDs that are not being challenged. I am naturally
opposed to DoC entering a duplicate .BIZ into the root and would like to
think that the legality and inadvisability of such a move would be
considered. Our Petition for Rulemaking stands, of course, and we hope it
will be honored by the DoC. I would truly hate to think that our government
practice includes taking a business product from a small business and
handing it to a competitor for a fee, thus damaging the business. The lack
of protection under trademark law does not preclude IP rights in that
product. ICANN was wrong in accepting applications for existing TLDs and DoC
will be wrong in entering duplicates into the root for any TLD. ]
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.
[There is no reason for a $50,000 fee except to fill ICANN's treasury. If
applications are limited to basic technical criteria, $1,000 is sufficient.
The fees to be paid to ICANN are excessive as well, and should be seriously
reviewed. In addition, if ICANN were reasonably structured and salaries
reduced to appropriate levels, all fees could be reasonable.
I also see no reason to exclude "chartered" TLDs. There are many areas where
"gatekeepers" are advisable, such as .KIDS, .XXX, .MUSEUMS, .CLUB, .UNION,
.REALESTATE... Others such as .INFO, .WEB, ETC need no gatekeepers. There is
room for both. If there is a multitude of TLDs, there will be no barrier to
free speech, commercial activity or a pressing need for intrusive IP
interference for average users. It is not the nature of the TLDs that is
causing the problem. It is the restriction in introduction of TLDs and
duplication in the name space that is the problem. It is not difficult to
solve these problems, but it will necessitate ICANN reform.]
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.
[It is my hope that the sentiments voiced at the Melbourne meeting will not
hold true and that the at-large membership will be restored quickly. Without
this input from the Internet community, ICANN will set itself up as a world
Internet governing body that is not in the interests of anyone but a very
small, select group of special interests. ICANN has done a great deal of
harm and must now turn things around to benefit the community. I believe it
can be accomplished, but will require continual oversight. In addition,
ICANN must be held to a narrow mandate as stated by the CDT.]
· 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
governance model.
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.

[I believe that the Department of Commerce should definitely intervene in
the initial selection decision. Not just regarding .BIZ, but others as well.
The Sarnoff application for iii and the Diebold application, should not have
been discarded and there were other arbitrary decisions as well. If these
decisions stand, the precedent for further arbitrary decisions is set. It is
important to prevent arbitrary actions by ICANN. I also believe that
Congress, in its oversight capacity, should intervene with the Department of
Commerce to ensure that the APA is observed and the best interests of the
entire Internet community are met. It is especially important, in my opinion
to ensure that the terms of the green and white papers and the MOU are
adhered to. Thus far, they are being greatly offended. Entities are being
harmed and the stability of the Internet is about to be injured. Cooperation
among all stakeholders is the most desirable method, of course, and can be
accomplished. However, ICANN/DoC must show a willingness to do so.
I think that one critical factor has been overlooked completely. It is the
TLDs that are critical to the Domain Name System. Roots are simply the
method of bringing those TLDs to the public in a comprehensive manner. TLDs
can be accessed by anyone at any time, but would have to constantly change
computer settings to do so and would have to know where to "point." This is
where the rootzones come into play. Exclusion of TLDs by the DoC simply
makes it more difficult for users to access them. It does not mean they will
disappear or that they are invalid. It does, however, mean that there should
be a concentrated effort to not only include all known operational TLDs, but
assist in the effort to cooperate and strive to attempt provide a
collision-free name space.
I would invite the participation of ICANN/DoC to participate in the efforts
of TLD holders world-wide to cooperate in this effort. To that end the Top
Level Domain Association (TLDA) was recently incorporated as a trade
association. It is now in its formation stage and an initial board has been
seated. Membership will be comprised of TLD holders and will strive toward
cooperation on a global scale. ALL TLD holders will be able to join,
including the Department of Commerce (which can appoint ICANN as its
representative if it so chooses). The association will not be affiliated
with any root, and will remain autonomous.]
Thank you again, Representative Pickering for the opportunity to express my
views of the current situation regarding ICANN and the introduction of new
TLDs to the USG root.
Sincerely,
Leah Gallegos
AtlanticRoot Network, Inc.
ldg@biztld.net
http://www.biztld.net
March 6, 2001



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