Re: [ga] DOC Notice of Inquiry, Notice of Public Meeting re: ICANN

[Danny Younger <dannyyounger@xxxxxxxxx>]

Chris, 

Thanks for the contribution.  For your reference, I
have posted below the preliminary thoughts that Milton
Mueller has expressed on the governance list:

Initial Discussion Points on the NTIA proceeding

The numbered points below correspond to the numbers in
the NTIA Notice of Inquiry (NOI). 

1.	The 1998 White Paper articulated the following four
principles to guide DNS policy: stability;
competition; private, bottom-up coordination; and
representation. Are these principles still relevant?

This is probably the most important area to
concentrate comments ? the level of principle. 
I would suggest that three of the four principles
(stability, competition, and representation) are still
relevant. Serious questions, however, arise around the
principle of private, bottom-up coordination. In the
original understanding at ICANN's creation, the
special USG oversight role was supposed to end after
two years. It never did. Last year, the USG asserted
for the first time a principle that it will always
retain a unilateral oversight role. This new principle
deviates from the White Paper principles. We know from
the WGIG Report and the Tunis Agenda that many in the
international community do not approve of this. 

The pre-eminent position of the USG has enormous
consequences for ICANN's accountability. The White
Paper strategy was to "internationalize via 
privatization." ICANN would be made globally
accountable and representative by relying on private,
multi-stakeholder mechanisms for policy making while
avoiding intergovernmental mechanisms. The term
"privatization" is not popular among many in civil
society but one must understand that in many respects
it is easier for civil society and governments to hold
ICANN accountable if it is a private, nonprofit
corporation than if it is an 
international treaty organization or
quasi-governmental entity. Private nonprofit corps are

subject to all kinds of regulations regarding
disclosure of financial information, etc. and 
cannot be shielded by powerful states such as the USG.

The USG and international community must to come to
grips with the contradiction between the principle of
"internationalization via privatization" and 
the privileged position of one national government.
Civil society and/or IGC comments should highlight 
this contradiction. 

The NTIA Notice of Inquiry speaks repeatedly of a
"transition" to a "privatized DNS." 
We should ask, "What is the end state of this
transition" and make specific and practical 
proposals to find a way out of the contradictions of
the US position. There are basically 4 options:

a.	Status quo. Leave things as they are. Unacceptable.

b.	Amelioration. Accept US control but take concrete
steps to minimize and neutralize it; e.g., proposing
that the U.S. issue a formal commitment 
not to make arbitrary changes, such as CS requested in
the Sept. 2005 WSIS Prepcom.

c.	De-nationalization. End U.S. oversight, make ICANN
a private corp. under a specific national law
(California public benefit corporation law is quite
good, by the way) and thus subject to all the normal
legal checks that can be applied to corporations, such
as antitrust law, contract law, etc. There are other
details, such as a host country agreement that would
exempt ICANN from being bound by certain national
policies. There might also be a call for certain
procedural safeguards and personnel changes needed to
make this option secure.

d.	Internationalization. Involve more governments in
ICANN's supervision via a 
formal intergovernmental agreement. The degree of
internationalization can be arranged on a spectrum
ranging from the weakest (a very narrow DNS 
root-centered agreement, or an international body that
managed a competitive bid process to award the IANA
contract) to stronger, wider-scope forms of 
involvement (e.g., a framework convention). 

We need to agree on the basic outlines of one of these
options. IGP has a paper from 6 months ago basically
advocating #3. Some elements of #4 or even #2 could be
acceptable. 

2.	Has ICANN achieved sufficient progress in
accomplishing the tasks set out for it in the MoU?

This question gets one involved in the details of the
tasks set for ICANN by the NTIA. 
Strategically, I suggest that we not get too involved
in this. If we do anything here, we should criticize
ICANN?s failure to develop a new TLD process and its 
bias against privacy in its handling of the Whois
issue. The Whois bias can again be related to the 
USG?s unilateral oversight, showing how US policy
toward privacy is foisted on the global community
through its control of ICANN, and belying US claims of
neutral stewardship.  

3.	Are these core tasks and milestones still relevant
to facilitate this transition and 
meet the goals outlined in the DNS White Paper and the
U.S. Principles on the Internet's Domain Name and
Addressing System?  Should new or revised
tasks/methods be considered in order for the
transition to occur?  And on what time frame and by
what method should a transition occur?

This item opens up discussion not only of the MoU
substance, but the process of oversight as well. Here
I think we should be ready with a specific 
timetable for change, based on elaboration of one of
the four options discussed above. If our proposals
involve any new tasks, such as a competitive bid
process for IANA, it might go here. 

4.	Are stakeholder groups involved effectively? Are
there additional stakeholder groups?

CS actors from developing countries may wish to
address this issue. I would not presume 
to speak for them so will await comments. 

>From an ICANN-veteran perspective, the major issue
revolves around the role of the At Large (ALAC). ALAC
is supposed to represent the individual Internet user
and domain name registrants. Its proposed structure
under the "reformed" ICANN is not workable. 
IGP partners, especially Klein and Mueller, have
always advocated a return to direct elections as a way
of solving the collective action problem. 

This section might also provide a way to discuss the
issue of governments and the changing role of the GAC
in ICANN. We could argue that governments are 
not involved properly ? instead of participating as
equals in the development of policy they are trying 
for an after the fact veto, which is destructive. 

5.	Are ICANN SOs doing their job and functioning
properly?

For a broader civil society constituency I think this
is a minor issue and need not be addressed. If it is
addressed, we could make all the usual and obvious 
arguments about the biased constituency structure of
the GNSO. Others with more information about the 
address SO and the country code SO might have
something to say here.

6.	Automation of request processing for root zone
changes.

This is one of the most promising areas where NTIA
actually seems likely to introduce a 
meaningful change. Automated request processing
basically reduces the power of the root 
administrator and allows ccTLDs and presumably other
registries to modify the root zone file on their own.
We should support this idea.  

7.	How can information exchange, collaboration and
enhanced cooperation among these organizations be
achieved as called for by the WSIS?

Participate in good faith in the IGF. Here is a chance
to elaborate the proper vision for the 
Forum, where cross-cutting issues are considered and
international and intergovernmental 
organizations are subjected to independent assessment.



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