1.1.2 The Management of the Root Is a Public Trust

In the first analysis, it is important to take account of ICANN's overall mission, which is to manage the domain name system (DNS) and ultimately, the root server system. The DNS is a fundamental operational attribute of the Internet. The operation of the root server system is at the core of the Internet-in an important sense, it is the Internet. In this regard, the role of ICANN in managing the DNS and the root server system is central to the good functioning of the Internet.

This reality makes ICANN's success tremendously important to the worldwide public at large. As the Internet has become more pervasive, more international, more accessible and more multi-faceted, it has taken on the character of a global public resource. The "custody" and "trusteeship" of that resource-the management of the policies that determine the functionality of the resource-certainly take on the characteristic of serving a public or quasi-public role.

Indeed, it is ultimately the public at large that has the greatest stake in those policies, because it is the public that is the end user and beneficiary of the Internet. The accessibility and functionality of the Internet hold an inherent public interest because of the increasingly pervasive utilization of the Internet in a broad set of applications-commercial, governmental, educational and interpersonal -that cut across the spectrum of daily global life. Public participation within ICANN is thus a prerequisite to ensure that the "public interest" is taken into account when implementing its mission.

ICANN itself has recognized and affirmed this view. In its recent policy paper ICP-3, "A Unique Authoritative Root for the DNS" (July 9, 2001) , ICANN commits itself to "a single, authoritative public root" for the DNS and "to the management of that unique root in the public interest..."

ICP-3 notes that the Internet requires "the existence of a globally unique public name space." It is noteworthy that ICANN refers to the DNS as "a global public name space," since the requirements for the legitimate governance of a "global public" good are distinctly different from those for a "national public" good, or a "global private" good.

In particular, descriptions of the DNS as "global" and "public," and references to ICANN as a "public trust" to manage the "authoritative public root," have direct implications for the way ICANN itself should be administered.

Under the current architecture of the Internet, some form of central coordination is necessary because the DNS requires a single authority to coordinate the assignment of globally unique parameter values.

This "single authority" rests in the organization that has the authority over the "Authoritative-Root Server." The question then is: what makes the root server "the" authoritative root server, and where does this authority come from? Moreover, what does it imply if this authority should be exercised by a "global public trust"?

In the early days of the Internet, no one outside the small cadre of engineers that was developing the Internet cared very much about the answers to these questions. The coordination functions were basically performed by IANA under the guidance of Jon Postel. IANA's authority and legitimacy to manage the A-Root were not frequently challenged, and this authority and legitimacy derived primarily from the Internet community's shared history and trust in Jon Postel.

With the exponential growth and globalization of the Internet that began in the early 1990s, however, the prerequisites for having the authority-and thus the legitimacy -to exercise power over the A-Root have changed drastically, because control of the root potentially confers substantial economic and political power.

The root determines which top-level domains (TLDs) are visible to the vast majority of Internet users. The power to add, or not to add, TLDs to the legacy root has implications for intellectual property rights, consumer choice, competition, the ease of political discourse, and e-commerce generally. It even has implications for nation-building and international law.

It is not simply a matter of theoretical concern that ICANN be-and be perceived to be-legitimate. It is a matter of essential practical consequence as well. If ICANN lacks legitimacy, Internet users can simply choose not to use the ICANN root server. Governments, Internet service providers, or major institutional users could establish a consortium of alternative root servers outside of ICANN's control. If more and more users decided not to direct their queries in the direction of the legacy root, the contents of the ICANN-controlled root would become increasingly irrelevant.

Therefore, unlike IANA, ICANN's authority can be exercised only if it is perceived as legitimate by all stakeholders or, in other words, by the global Internet community. This fundamental fact has been recognized by ICANN, which said in its ICP-3 paper that where central coordination of the Internet is necessary, "it should be performed by an organization dedicated to serving the public interest." Thus, according to ICP-3, ICANN needs to continue the work of IANA "in a more formalized and globally representative framework, to ensure the views of all the Internet's stakeholders are taken into account in carrying out the public trust."

The question that logically follows is: What should a more "globally representative framework" for ICANN look like?

ICP-3 further states that the guiding principle for the management of the unique root by ICANN should be in "the public interest according to policies developed through community processes," which require "participation of affected stakeholders." ICP-3 cites the White Paper, which itself mandated that the management of "the Internet root server system should be vested in a single organization that is representative of Internet users around the globe."

Hence, ICP-3 states:

In linking the formation of ICANN to the global Internet community, the White Paper established a public trust that required that the DNS be administered in the public interest as the unique-rooted, authoritative database for domain names that provides a stable addressing system for use by the global Internet community. The commitment to a unique and authoritative root is a key part of the broader public trust-to carry out the Internet's central coordination functions for the public good-that is ICANN's reason for existing.
ICANN was founded as a not-for-profit public-benefit organization, accountable to the Internet community. Longstanding Internet principles also require that the policies guiding the coordinated functions be established openly based on community deliberation and input. For these reasons ICANN's structure is representative of the geographic and functional diversity of the Internet, and relies to the extent possible on private-sector, bottom-up methods. [emphasis added]

Creating a well-functioning, representative and participatory At-Large-Membership is necessary to implement the principles of ICP-3-to foster community deliberation, to be accountable to the community and to develop a structure that provides meaningful participation and representation to "millions of people collaborating worldwide."

Without a broad, participatory and representative At-Large-Membership, ICANN will not gain or hold legitimacy, and its long-term survival will be threatened.

1.1.1 Character: Private or Public?

1.1.3 Mission: Technical and/or Policy?