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ICANN Battles Doubts About Transparency
by William New
Three years after its creation, the Internet Corporation for Assigned Names and Numbers (ICANN) is working vigorously to counter persistent charges that its activities are not open enough to scrutiny and that it lacks representation of non-commercial interests in its dealings as coordinator of the Internet's domain-name system.
The allegations, which have dogged ICANN for years in various forms, are being addressed directly by Stuart Lynn, an academic with a resume reaching back to the precursor of the Internet who assumed the organization's presidency earlier this year. "We're the most open and transparent organization I've ever seen," Lynn said in an interview last week. But that does not mean some people will not find reason to criticize it, he said.
The many faces of the global Internet community with a stake in ICANN decision-making were represented in the hallways and conference rooms of ICANN's mid-November annual board meeting in Marina del Rey, Calif. Many of them had questions about ICANN's conduct.
At Loggerheads Over Accountability
ICANN was formed in 1998 in a "memorandum of understanding" with the Commerce Department. ICANN's bylaws state that "the corporation and its subordinate entities shall operate to the maximum extent feasible in an open and transparent manner, and consistent with procedures designed to ensure fairness."
ICANN was designed to be a "bottom-up" organization, driven by its various constituents -- the people and organizations interested in the domain-name system. A primary concern of some in the Internet community is that ICANN has become unaccountable to the public.
"ICANN is transparent to those few who get invited into the confidence of the ICANN staff," said Michael Froomkin, a University of Miami law professor and an editor of the watchdog Web site ICANNWatch. "Over time, it has become increasingly clear that the ICANN staff considers the opinion of a small group of insiders to be practically the only ones that matter, and that the busy members of the board must either agree with this or feel they must rely on the staff."
ICANNWatch "exists in large part to document the ways in which this claim of openness is false," Froomkin said. "Indeed, if ICANN were the body it claims to be, there would be little need for an ICANNWatch."
One concern is that board members are conducting important business in private. Lynn said that while members may eat meals together, those sessions do not constitute formal meetings. "A meeting is something formally arranged, with agendas and actions," Lynn said. However, at the meals, work issues do arise, he said.
The board does hold private conference calls but does not do so for major decisions and reports results afterward, Lynn said. "We're not going to take any major policy decisions" in private, he said. "Of course, for some people, what color pencils we use are major policy matters."
Speculation also exists that constituents with deeper pockets, such as businesses, have too much ICANN influence. Since its inception, ICANN has faced the need to become financially self-sufficient, and it has had to get creative. But Lynn denied the commercial interests have inroads.
"The people who work with ICANN, the people who grew up with the Internet, we're very dedicated," Lynn said, contrasting the body's structure with that of a government treaty organization like the International Telecommunication Union. "The reason we're involved in ICANN is we believe in the way the Internet was developed."
Please Sir, Might I Have More Information?
ICANN has an extensive Web site on which it posts information about its activities and those of its constituents. But some observers have complained that it is difficult to find documents and information quickly. An independent Web site called ICANNBlog has gained popularity as a way to track changes on the ICANN site.
Lynn said he would like to improve the Web site as funding becomes available. He also would like to provide document translation and simultaneous translation at board meetings.
English is the official language of ICANN. Some non-native English speakers at the November conference said they fear English speakers are trying to "colonize" the Internet by failing to make it translatable into non-Roman-based languages (such as Arabic or Chinese). But Lynn said, "The transition [to multilingual domains] is an extraordinarily difficult problem."
At the November conference, the American Civil Liberties Union criticized ICANN for limiting the distribution of written material to groups or individuals who paid thousands of dollars. But Lynn said the restriction was only on distributing commercial promotional documents, not on disseminating other information.
A report on public participation in ICANN by the At-Large Study Committee (ALSC) is perhaps the most controversial topic at ICANN at the moment. Finalized days before the November board meeting, it recommends cutting the number of elected board directors from the at-large Internet-user community from nine to six, out of a total of 19 directors. It also recommends limiting voting to domain-name owners.
The terms of the five directors elected in ICANN's only at-large election, held in fall 2000, will expire in fall 2002. A new election is supposed to be held at that time. Meanwhile, the board will consider the report at its next meeting in Accra, Ghana, in March. Lynn said if problems with the report arise in Ghana, the deadline might be missed.
Tensions Rise Over Access To Records
An increasingly sour debate also has arisen over the ability of Karl Auerbach, an outspoken at-large ICANN board member elected one year ago, to access the financial records of the organization. Lynn said Auerbach could access the records because under California law, directors have a right of access to all records, but he said that right is "not unfettered."
According to Lynn, California case law on access has limited what board members can do with records. Lynn declined to talk further about the details of the matter.
Auerbach, a California intellectual property attorney, said in an interview that California law gives every director "absolute right" to review all documents of the corporation. He argued that ICANN should give him the documents in electronic form and let him decide what he does with them. "They can sue me if they don't like what I do with it," he said.
Auerbach said he has no intention of disclosing the documents, but that if he found evidence of criminal behavior, he would to have take a case to the appropriate court. He said he would respect confidential business information and would give ICANN a seven-day notice before taking any action with the records.
Cindy Cohn, legal director at the San Francisco-based Electronic Frontier Foundation, said Auerbach could be "personally liable if the corporate records are not properly kept, so he not only has a 'right' to the records. I would say that he has an affirmative obligation to review them and be aware of what is contained in them."
"It's an attempt to muzzle directors," Auerbach said. "ICANN doesn't want directors to exercise independent judgment. We as directors look at that information to determine what management is doing. They're placing the fox in charge of the henhouse."
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