NGO and Academic ICANN Study

NAIS Response to the ALSC with regard to the concept of Domain Name Holders

October 2001

 

We welcome the opportunity, as members of the NAIS (NGO and Academic ICANN Study) team, to provide comments on the Interim Report of the At-Large Study Committee (ALSC), published shortly before ICANN's September meeting in Montevideo.

In this response, we address one key element of the ALSC draft recommendations: whether the membership of ICANN should be limited to Domain Name Holders.

Our own study, outlining recommendations for how ICANN should proceed to best incorporate the public voice into its decision-making processes, was published at the same time as the ALSC study and is available on the Web at http://www.naisproject.org/report/final/.

In our view, the public voice � and more importantly, the structural mechanisms that implement this voice � are essential prerequisites for ICANN's authority and legitimacy. The need for a strong public voice is embedded in the historical process that led to ICANN's creation. It is only through this established prerequisite that the U.S. government sanctioned the creation of ICANN � and the delegation to ICANN of the management of key Internet functions � in the first place.

The NAIS team and the ALSC are in agreement on one key overriding point: ICANN must provide some important voice for the Internet user in ICANN's processes of internal governance.

We are also in agreement on two important subsidiary points. We agree that the At-Large Membership should be structured to facilitate participation in the ICANN decision making process. And we agree that direct elections are the best mechanism for the At-Large Membership to select At-Large Directors.

We are pleased that there are these areas of consensus between the two reports. We very much appreciate and support the recommendations of the ALSC regarding the need for a participatory membership and for direct elections.

But we also disagree on several key points.

First, we believe the number of At-Large directors should continue to be the same as the aggregate number of supporting organization directors, and should not be reduced from nine to six, as the ALSC recommends.

Second, we recommend that membership be open to any user of the Internet with an email address, and not, as the ALSC recommends, only to holders of domain names.

Third, we question whether a membership fee imposed in addition to the requirement of holding a domain name would impose such a financial barrier to participation in ICANN as to be an unreasonably exclusionary.

In our view, the ALSC approach on these issues fails to command the degree of "consensus" within ICANN that the ALSC draft report claims for it, particularly on the question of reducing the number of At-Large Directors from nine to six. Serious questions have been raised as well with the idea of limiting At-Large Membership to domain name holders and with the reduction of At-Large board seats. We believe that these questions need to be resolved before any claim of consensus can credibly be made.

For this reason, any resolution presented to the Board at the Los Angeles meeting should not try to "lock in" any parts of the ALSC report which are not based on consensus � such as the recommendations for reducing the number of At-Large seats from nine to six, or limiting membership to domain name holders. For the Board to adopt any such positions now would short circuit the need for much more discussion of these very controversial recommendations made by the ALSC.

The ALSC's domain name limitation

The ALSC recommends that the universe of potential At-Large members be limited to "individual domain name holders", as opposed to some broader set of those who "use" the Internet. While the criterion of domain name ownership may be attractive as an apparently simple means for limiting the number of potential voters, it is an inappropriate standard for a variety of political and practical reasons.

  1. The DNH approach excludes too many interested individuals from the At Large Membership.

    The ALSC's main conceptual argument for limiting ICANN membership to domain name holders is that only these individuals "have a strong and tangible vested interest in ICANN activities, not just the Internet in general". Indeed, every domain name owner has to sign a contract with his registrar that binds him directly to ICANN's UDRP. He therefore does have an "interest" in ICANN, because ICANN defines his ownership of that one part of cyberspace.

    But it is not clear why the ALSC chooses to limit the universe of interested parties to domain name holders only. What about Internet users who have had their domain name taken away via the UDRP? What about users who cannot get the domain name they wish, because it is already taken? What about users who cannot afford to register a domain name (particularly in developing countries)? What about users of the Internet for whom a domain name is impractical because bandwidth in Africa, for instance, makes only email-use feasible?

    In reality, even the basic individual Internet user � i.e., one who uses only e-mail or simply surfs the web � is no less directly impacted by ICANN's decisions than is a domain name holder. If ICANN makes policies that negatively impact the Internet's stability, or that fail to address the monopolistic practices of registries, or that retard the development of new name spaces in the issuance of new gTLD's, the simple e-mail or web user is also directly affected by those bad decisions, and should therefore have a voice in the processes by which these decisions are made.

    There is no doubt, as well, that interested individuals will be excluded from membership in ICANN simply by the financial barrier the ALSC proposal would erect. As we note above, the ALSC proposes not only to require domain name ownership, but to impose a membership fee in addition to that. In Africa, for instance, the retail purchase price of a new domain name is at least $15 per year. But a university professor in parts of Africa may earn as little as $120 per month for a permanent post. The costs of participation in the ALSC model would, as a practical matter, be an insurmountable barrier in Africa, and in many other parts of the world.

    For these reasons, domain name ownership as a criterion for membership in ICANN is a radically under-inclusive standard, in that it excludes many who should be included in ICANN membership because they have a direct and legitimate interest in the work of ICANN, and ICANN decisions have a direct impact on them, even if they do not own or cannot afford a domain name. ICANN's own Membership Advisory Committee recommended in its final Report "If membership fees should be assessed in the future, they shall reflect the economic differences of the various geographic regions." The ALSC Draft Report does not address this critical point at all.

  2. The DNH approach includes too many business interests in the At Large Membership.

    But the domain name standard is over-inclusive as well. Current statistics indicate that 80 percent of domain name owners world-wide are commercial enterprises. Individuals, of course, have the right to register dot-com domains, but they are vastly outnumbered by corporate entities which do so. Thus, under the ALSC's membership proposal, the vast majority of eligible members will functionally be corporations, not individuals.

    Even if corporations are "represented" through designated individuals listed as their "administrative contact," those individuals will be functioning essentially as corporate agents in their capacity as ICANN members.

    This approach will turn the At-Large Membership into yet another forum for corporate interests, which are already well represented � indeed, over-represented --in the supporting organization structure. Corporate and business domain name holders are already eligible to participate in ICANN through the business constituency, for instance, in the DNSO. It is a clear distortion of what the At-Large Membership is supposed to be � a forum for the expression of the views of individual users of the Internet� to allow the At Large to become another forum dominated by commercial interests. The MAC Final report clearly stated in its introduction that "the At-Large Membership should primarily represent those individuals and organizations that are not represented by the Supporting Organizations (SOs)." By limiting the At-Large membership to Domain Name Holders, the distinction between members of the At-Large and of the Supporting Organizations becomes far less clear and unbalanced towards the interests of Domain Name owners, not the entire scope of the Internet users.

    While corporate perspectives may not be monolithic, they do tend to embrace certain consistent values. If the At Large is comprised largely of corporate interests, that view would be positioned to capture every At-Large seat, thereby depressing the diversity of views that should ideally be represented through the At-Large.

  3. The DNH approach does not account for ccTLD registration anomalies.

    A further problem with a membership based on domain name registration is that the registration practices for country code domains varies widely. In Germany, for instance, an individual may register any name, and as many names, as he or she wishes in .de, but in France and the Netherlands individuals' registrations are significantly curtailed. Until recently, individuals were not permitted to register for .jp names in Japan. And in other regions, these types of limitations are even more profound.

    Creating a domain name standard for membership will thus filter participation in ICANN elections based on national policies governing registration . In the example above, Germany would be advantaged over France, solely on the basis of the ccTLD registration policy. There is simply no principled reason to do so, and national manipulation of these policies can create unfair advantages for some countries in the ability to control ICANN elections.

  4. The DNH approach does not solve the authentication problems.

    The ALSC further argues that using an existing structure � the DNS and the registrar system � is more practical than reliance on a hybrid e-mail/postal system for defining and authenticating potential members as real persons, because the number of potential voters would thus be limited.

    But this approach would require that an "At-Large Membership Contact," which the ALSC defines as "a new term to be incorporated into the domain name registration procedures," be designated for each domain name. Via the registrar, the registrant who then chooses to become an "At-Large Member" would be required to pay an annual fee.

    In practice, this would mean that ICANN would need to amend all its contracts with registrars to include such a field, that the registrar would be required to handle the administration for collecting the fee, and that the registrar would be responsible for verifying that the identity of the individual domain name holder is correct.

    All this depends on large-scale changes in the registrar structure, as well as a reliance on an untested technical protocol for "registration information and fee collection." Collecting this information with any degree of accuracy or security is a daunting task, as anomalies in the existing Whois records show. As we found in our report, "to provide false administrative contact information is trivial and hard to detect." [p. 126].

    In fact, for this reason, the DNS system is a poor choice of means to serve the purpose of voter authentication. The only usual prerequisite for registration is a functional email address and a payment. There is nothing in the system as it currently functions which authenticates the registrant.

    Further, we question the wisdom of placing a key element of the board electoral process � the registration of voters � under the control of any single group in ICANN that is highly affected by the decisions and policies of the board. Great care would have to be taken in order to ensure that the requirement that all voters be filtered through the domain name registrars does not give registrars an opportunity to exercise undue influence over the actions of voters or their access to vote.

    The "registrar partnership" element of the ALSC plan does have merit, if adapted to a more inclusive approach to membership eligibility. Instead of contracting with registrars to undertake authentication based upon domain name ownership, ICANN could instead contract with geographically based "At-Large associations or chapters" that would distribute Personal Identification Numbers (PINs) by local snail mail. This would be less complex and more secure than a risky experiment with the DNS, which is neither a practical improvement over the snail-mail system nor acceptable on legitimacy terms.

Conclusion

We hope the ALSC will address the concerns stated above in continuing the work on its recommendations. We are similarly addressing concerns that have been raised about the proposals set forth in the final NAIS report, and are examining proposals to "cap" membership as a way of limiting the pressure on ICANN's budget in supporting an At-Large Membership, proposals to supplement the postal/PIN authentication system with less expensive alternatives, and alternative funding sources as a means of supplementing ICANN's current revenues in order to support the costs of the At-Large Membership in more sustainable ways.

We plan to deliver these proposals along with its implementation plan in the next ICANN Meeting in Marina Del Ray.

We look forward to a continuing exchange with the members of the ALSC and the ICANN community on all of these issues.




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