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The Trials And Tribulations Of ICANN
ICANN Approval Of New Fee Sparks Controversy
The Internet Corporation for Assigned Names and Numbers signed off at its July meeting on two critical issues. But in approving criteria for the creation of new generic top-level domain names (gTLDs) and finalizing procedures for the election of five new at-large board members, ICANN's board took steps that some argue could undermine the ability of individuals and non-commercial interests to participate in both activities.
At its meeting in Yokohama, Japan last month, the board set a non-refundable application fee of $50,000 for those who want to operate or sponsor a new top level domain name (TLD). Critics say such a steep fee will prevent non-profit groups and others from applying.
In approving rules for the election of five of ICANN's at-large board members, the board called for a study that could lead to the elimination of such board members. Critics of such a move say it would alter the balance envisioned when ICANN was created between the nine board members elected from ICANN's three supporting organizations and those from the at-large membership.
"It seems eternal vigilance is needed," said Alan Davidson, staff counsel for the Center for Democracy and Technology. "Even the most fundamental assumptions about the structure of ICANN seems at risk at every turn, and that is a little disappointing."
Others, particularly some in the business community, say the unexpectedly large number of people worldwide who applied to be at-large members, and are thus eligible to vote in the election, raises questions about the quality of candidates that might be elected and requires a re-examination of the process following the elections.
"There is really no way to say that the (at-large) membership reflects users at large," said Diane Cabell, a lawyer and fellow at Harvard Law School's Berkman Center for Internet and Society. "The at-large membership may or may not produce a set of directors that are competent and capable of making good decisions. Those are real and valid questions."
Moving Ahead
Among the most anticipated moves the ICANN board formally set in motion in Yokohama was the creation of new TLDs, the categories of Internet addresses that help users identify sites on the Web, such as .com, .net and .org. For example, a company could apply to operate a new category such as ".biz" that other businesses may want to use for their Web sites.
Based on criteria approved in Yokohama, ICANN began accepting proposals for new TLDs on Aug. 1 and will continue accepting them until Oct. 1. ICANN plans to announce its selections on Nov. 20 and hopes to conclude contracts with those selected by the end of the year.
But while many say the introduction of new TLDs is long overdue, some have expressed concern that the board imposed an unfair barrier in the $50,000 non-refundable application fee.
"If you don’t get picked, it's hard not to feel fleeced," said Jonathan Zittrain, an assistant professor at Harvard Law School and the Berkman Center's co-director. "Clearly, it's going to be a clamp on the number of applications."
CDT and others called on ICANN in Yokohama to waive the fee for qualified non-profits or at least provide a discount, a proposal ICANN rejected.
"We wanted basically to try to make this cost neutral…to cover the cost of the process, rather than subsidize ICANN or be subsidized by it," said ICANN Chairwoman Esther Dyson.
Dyson and other ICANN officials defend the fee, saying it is necessary to conduct a thorough technical, operational and financial analysis of those who want to operate a new TLD.
"Running a worldwide new TLD registry is just as complex for non-commercial as commercial" interests, said ICANN President Mike Roberts.
Some question whether the fee is high enough. Information Technology Association of America President Harris Miller said "it's too little," adding that ICANN must ensure that once a new TLD is established and thousands of people come to rely on it, it will not fail.
"I think it's a reasonable tollgate for people to go through," said Miller, who has been nominated to be a candidate for one of the five at-large board seats. "Otherwise, if you make the prices of entry so ridiculously low that anyone can do it, you're running a high risk that anyone selected won't have the financial stability to remain viable."
Electing A Board
When it was launched, ICANN envisioned a 19-member board made up of nine members from the supporting organizations and nine at-large members with the organization's president serving as an ex-officio member.
The members from the supporting organizations, which provide the board with advice on Internet domain name, address and protocol issues, were elected last fall. Five of the at-large elections will be elected during a global on-line election Oct. 1-10. Whether the other four at-large members are elected remains to be seen.
Conducting a global election via the Internet is a grand experiment that so far has attracted far more support than most predicted. More than 158,000 people worldwide signed up to be at-large members — more than 30 times the minimum number ICANN set for conducting the election. Japan, where there were aggressive outreach efforts, topped the list with 38,931 registrations, China came in second with 33,670 and Germany in third place with 20,475.
It's this membership that will elect the at-large board members. ICANN established a nominating committee that has proposed 18 candidates for the five seats, one each elected from five regions (Europe, North America, Latin America, Africa and Asia-Pacific) around the world. Those not nominated can run if they receive the support of at lease 2 percent of at-large members in each region. There is a cap of seven candidates for each seat.
ICANN was caught off-guard by the heave response. The computer system that took online registrations was only equipped to handle 10,000 registrations. The rush of registrations overloaded the system and kept some for registering.
Among the lessons ICANN has learned so far is that it's "very, very difficult to anticipate interest," said ICANN senior adviser and Chief Financial Officer Andrew McLaughlin, who has been coordinating the elections. In addition, he said ICANN should re-examine the idea of a "free, open-ended membership" given that the number of those who registered far exceeded ICANN's budget for the process.
"It can't be free to anyone in the world if the budget is $200,000," he said.
Bylaw Battle
While ICANN may have to re-examine the at-large membership, there also may be a battle over the future of the at-large board members.
The board rankled some when it proposed a change in ICANN's bylaws that would have removed the provision providing for nine at-large members and instead called for the board to make a determination on the need for at-large board members following a study. ICANN officials said this was part of a compromise put forth at the group's last meeting in Cairo this past March. Others said this was not their understanding of the compromise.
"I think the idea of having a public voice play an important role in…(Internet) governance is important," said Don Simon, Common Cause general counsel. Until it's demonstrated that it's not feasible to do so, I think the organization should continue on the basis of its structure since its inception, which is that there is going to be a significant part of the board that on some at-large basis represents the interests of" Internet users.
After sparking much outcry, ICANN backed off the change. Instead, the board left in place the provision calling for nine at-large members but called for a study following the election of the first five members that would evaluate the at-large membership.
"Everything should be questioned, especially since anything that exists tends to persist," Dyson said. "I don't see a huge change here, honestly, but some of the questions are now more explicit."
The board could still eliminate the at-large board members, but Simon and others say it would have been more difficult for those who favor such representation on the board to persuade ICANN to add such members back once they were gone.
Simon and others claim there is a persistent wing on the board and among some ICANN activists that question the need for the at-large members and will continue to pursue its elimination.
When asked whether business interests would favor a reduction in the number of at-large members, Marilyn Cade, director of Internet and electronic commerce issues in AT&T's law and government affairs division, said her primary concern is ensuring the election of high-quality board members willing to take on a very challenging task.
"A lot of groups questioned whether we were really ready to elect all nine board members because we didn’t have a tested process," Cade said. "I think the board made a good decision…It gives us a chance to see how the election goes and to see how the new board members get incorporated into the process."
 | - by Juliana Gruenwald |
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