Internet Corporation for Assigned Names and Numbers

(ICANN)

Institutional overviews / 39
Jeanette Hofmann
WEBSITE: www.icann.org

Introduction HEADQUARTERS: Marina del Rey (CA), United States of America

FOUNDED: 1998
Objectives and main activities
ICANN is responsible, at the overall level, for the administration of UN STATUS: No formal status
three sets of unique identifier systems for the internet: domain names,
TYPE: Non-profit private corporation
numerical internet protocol (IP) addresses, and a third type that serves
to identify so-called port and parameter numbers.
The administration of the generic part of the domain name sys- ICANN implements regulatory policies through contracts with
tem (DNS)1 forms the core of ICANN’s activities. Country code top- the “rule takers”, i.e. businesses providing services related to internet
level domains (ccTLDs) are predominantly managed at the national names or number spaces. While all registries for generic TLDs (gTLDs)
level, while policies for the allocation of IP addresses are autono- and all large registrars have signed contracts, other organisations have
mously devised by the regional internet registries (RIRs).2 been more hesitant. Independent actors such as the RIRs and root
At the time of ICANN’s inception, the administration of the DNS server5 operators, as well as many ccTLD registries, reject the idea of
was regarded as primarily technical. More recently, however, ICANN delegating regional authority to a central entity which is ultimately
is seen as a regulatory body whose policies shape the market for the subject to California law and the authority of the US government. The
registration of domain names and set the conditions for creating new root server operators, in particular, have so far refused to enter con-
top-level domains (TLDs).3 Although technical and regulatory tasks tractual agreements with ICANN. Others such as the RIRs were able
may overlap, regulatory bodies require a different type of policy proc- to negotiate a memorandum of understanding that preserves sub-
ess and membership than do technical organisations. stantial policy responsibility with the Number Resource Organisation
(NRO),6 the organisation that represents the internet addressing com-
Legal/constitutional composition munity.7
ICANN was founded in 1998 as a California-based not-for-profit cor-
poration. Its mandate derives from two short-term contracts with Key members/participants and decision-making structures
the United States (US) government. The Internet Assigned Num- The MoU between the US government and ICANN mandates a bot-
bers Authority (IANA)4 oversees the global allocation of IP addresses, tom-up policy process that involves all stakeholders in the manage-
the root zone management of the DNS, and the assignment of tech- ment of the DNS and IP addresses, including users. Reflecting the
nical protocol parameters used in various internet protocols; IANA widespread anti-state spirit on the net during the 1990s, which was
can be likened to a global administrator of internet protocols. It is even shared by parts of the Clinton administration (1993-2001), the
operated by ICANN under a contract with the US government, the public interest was to be represented by individual users. Govern-
“IANA contract” (NTIA, 2006). The other contract between the US ments – with the significant exception of the US government – would
government and ICANN is a memorandum of understanding (MoU) be involved only in an advisory capacity. Accordingly, ICANN’s origi-
(NTIA, 1998) that specifies tasks for ICANN to accomplish as a pre- nal bylaws stipulated that nearly half of the seats on the Board of
condition for the privatisation of internet names and numbers ad- Directors would be filled through a process to represent individual
ministration. Privatisation in this context means the transition of users. The other half would represent the emerging service industry
currently public responsibilities to a private, not-for-profit entity. surrounding the DNS and IP address allocation. Supporting organi-
Since 1997, the US government has claimed supervision authority sations consisting of various stakeholder groups would be responsi-
over the management of the DNS and IP address allocation. At ble for policy development. Individual users would form an At-Large
present it is unclear when and what part of its regulatory authority Membership.
the US government intends to privatise. In the course of an organisational reform in 2002, ICANN sus-
pended the model of a balanced representation of the private sector
and civil society. Individual users’ representation on the Board is now
reduced to a single non-voting liaison. Figure 1 describes the struc-
1 More information is available from: <en.wikipedia.org/wiki/
Domain_Name_System> ture of ICANN and how the various entities are represented on the
2 A comprehensive definition of RIRs is available from: <en.wikipedia.org/wiki/
Regional_Internet_Registry>
3 TLDs are the domain names at the top of the DNS naming hierarchy. TLDs appear
in domain names as the string of letters following the last (rightmost) period. See 5 See <en.wikipedia.org/wiki/Root_servers>.
<www.pir.org/Glossary/Glossary.aspx> for a comprehensive definition of TLD, 6 <www.nro.net>.
gTLD and ccTLD. 7 More information about the stages of the negotiation between NRO and ICANN is
4 <www.iana.org>. available from: <www.nro.net/documents>.
 Fig. 1: ICANN structure

Ombudsman Advisory Liaisons (1)

Governmental Advisory Committee

President/CEO Board of Directors
Global Information Society Watch / 40

At-Large Advisory Committee

Security and Stability Advisory Committee

ICANN
staff Root Server System Advisory Committee

Technical Liaison Group

Address Generic Names Country Code

Supporting Supporting Names Supporting IETF
Organisation (2) Organisation (2) Organisation (2)

Policy Development Nominating Committee (8)

() indicates number of board seats.

President is an ex officio voting board member.

Source: Peake (2004)

Fig. 2: ICANN relations with other organisations

Internet Society Chartered by US Department of Commerce

Established 1992

Devolves management of DNS

through MOU to
Manages and
Chartered by and advises operates under
3-yr contract
ICANN
Internet
Not-for-profit corporation
Architecture Approves Internet Assigned Numbers under California State Law
Board appointment
(IAB)
Authority (IANA) Develops policies relating
of
Est. mid 1990s to ensure unique IP to the Domain Name System
Provides
address and DN allocations
oversight of
Internet
Engineering
Steering
Group Core registrar Allocates IP Develops policy
Manages (IESG) of standards is addresses to relating to
technical
output of

Internet Engineering Regional Internet Registries

Task Force (IETF) Allocate IP address space to global
regional operators for Country Code and
Global and decentralised
Generic Domain Names
collaboration for development
of IP standards

Source: London School of Economics (LSE) (2006)

The diagram provides a general overview of the relationship between ICANN and key global bodies responsible for developing internet technical
standards. It is not an exhaustive representation of all organisations active in the technical standards community. The graphical dimensions given to each
entity in the diagram do not reflect size or status.
Board of Directors. The Board consists of fifteen voting members, Civil society participates in ICANN through the At-Large Advi-
eight of which are chosen by a Nominating Committee and six by the sory Committee and the Non-Commercial User Constituency of the
supporting organisations. The number of non-voting liaison mem- Generic Names Supporting Organisation. All in all, civil society par-
bers can vary.8 ticipation in ICANN is rather low. Reasons for unsuccessful outreach
efforts may have to do with the very specific and not easily compre-
Relations with other international hensible mission of ICANN, and the low interest of most users in the
institutions and the multilateral system administration of the net’s infrastructure, but also with the disfran-
ICANN is a corporation subject to California law and reports to the US

Institutional overviews / 41
chisement of individual users. Individuals have no votes in any of
government. There are no formal relations between ICANN and other ICANN’s decision-making bodies. They can achieve policy goals in
international organisations. However, some intergovernmental bod- ICANN only indirectly through the Nominating Committee or through
ies such as the International Telecommunication Union (ITU) and the lobbying other constituencies and supporting organisations.
World Intellectual Property Organisation (WIPO) participate in the Gov-
ernmental Advisory Committee (GAC)9 of ICANN. The technical stand- Role and responsibilities in ICTs
ard-setting bodies10 also appoint one liaison to the ICANN Board of
Directors. As a consequence of its participation in the World Summit General orientation and responsibilities
on the Information Society (WSIS), ICANN pays more attention to towards ICT policies and actions
international organisations and actively supports their work where it ICANN’s communication services are based on addressing systems
touches upon ICANN’s ambit. However, ICANN forms an important that carry out two crucial functions. First, they provide users or their
node in the network of organisations responsible for the development communication devices with a unique identification; second, they pro-
and coordination of the internet infrastructure, as Figure 2 shows. vide information about the location of communication devices. The
allocation of such identifiers requires global coordination to ensure
Commitment to development
that addresses are assigned only once and also in an efficient man-
ICANN, together with its supporting organisations, is involved in
ner. The internet has two such identifier systems: IP addresses and
national capacity-building regarding operational functions related
domain names. ICANN is responsible for the overall coordination of
to IP addresses and the DNS. Examples are assistance in the opera-
these identifier systems. The term “coordination” refers to the fact
tion of ccTLD registries and the establishment of LACNIC and AfriNIC,
that the actual assignment of numbers and the delegation of names is
the regional registries for allocating IP addresses in the African and
carried out by registries which are linked to ICANN through contracts.
Latin American and Caribbean regions respectively.11 ICANN has
ICANN’s mission specifies three types of coordination related to
also established “regional presences” or liaisons in Africa, Asia, Latin
internet names and number spaces. ICANN:
America and the Middle East to strengthen its outreach and educa-
tional activities. 1. Coordinates the allocation and assignment of the three sets of
unique identifiers for the internet, which are
Commitment to gender equality
a. domain names (forming a system referred to as the DNS);
ICANN bylaws contain provisions for regional balance but not for gen-
der balance. The term gender does not appear in its bylaws. However, b. internet protocol (IP) addresses and autonomous sys-
due to the establishment of ICANN’s Nominating Committee four years tem (AS) numbers; and
ago, the number of women in decision-making positions has increased. c. protocol port and parameter numbers.

Southern actors and civil society participation 2. Coordinates the operation and evolution of the DNS root name
server system.
Developing countries are underrepresented in all of ICANN’s
stakeholder groups. ICANN meetings do not take place at UN loca- 3. Coordinates policy development reasonably and appropriately
tions, which makes them expensive to attend for governments from related to these technical functions (ICANN, 2006a).
developing countries. For civil society organisations, participation in
international meetings is generally difficult to finance. ICANN has no ICANN’s responsibilities and orientation in the overall field of ICT
budget for supporting participants from developing countries to at- policies were defined in the late 1990s and thus reflect a specific pe-
tend its meetings.12 Lack of capacity and competence is another rea- riod in the evolution of the internet following the privatisation of the
son why developing countries may not participate in ICANN or attend backbone, the central network that linked all the parts of the internet
meetings even when they take place in their regions. From a develop- together, and its opening to the general public in the mid 1990s.13
ing-country perspective, there might also be more pressing issues to The engineers who developed the DNS conceived domain names
attend to – such as access to the internet – than participating in ICANN. as arbitrary strings of characters without any direct relationship to
names or marks in the real world. Domain names were meant to be
“NOT natural language expressions” as Vint Cerf (2006) emphasised
8 The present composition of the ICANN Board of Directors is available from: again at the first Internet Governance Forum in Athens in 2006. As
<www.icann.org/general>. Jon Postel (1994) put it in a memo that explains the DNS: “Concerns
9 <server.gac.icann.org/web>. about ‘rights’ and ‘ownership’ of domains are inappropriate. It is ap-
10 ITU, European Telecommunications Standards Institute, World Wide Web propriate to be concerned about ‘responsibilities’ and ‘service’ to the
Consortium and Internet Architecture Board. community.” However, with the growth of the World Wide Web in
11 More information is available from: <www.iana.org/reports>.
12 Travel expenses are only borne for members of the Board of Directors and for 13 For a comprehensive account of the regulation of the internet infrastructure see
members of councils who have been appointed by the Nominating Committee. Mueller, 2002.
 1992, domain names became very popular and quickly turned into Specific responsibilities in relation to the WSIS
tradable goods. Equivalents to famous names and protected marks in ICANN participated in the WSIS, though without any specific respon-
the name space became subject to escalating speculation and prop- sibilities. However, internet governance and the private self-regula-
erty rights conflicts. An informal market for domain names was emerg- tory approach that ICANN represents evolved into one of the major
ing in the second half of the 1990s but there was no authority nor any controversies in the first phase of the Summit. For this reason, ICANN
rules to govern this new trade. The founding of ICANN in 1998 was attended the preparatory conferences, explaining its role, mission,
the response to this lack of regulation. guiding principles and organisational structure. ICANN also partici-
Global Information Society Watch / 42

The MoU specified the following tasks for ICANN to accomplish pated in the UN Working Group on Internet Governance and supported
in collaboration with the US government: it financially. In its own ambit, ICANN launched a temporary working
• Develop policies for the allocation of internet addresses (IP num- group on WSIS and organised several WSIS-related workshops at
bers) and the assignment of other technical parameters ICANN meetings.

• Develop a plan for the introduction of competition in domain name

registration services including an accrediting system for registrars
Description and analysis of ICT activities
• Develop standards for the operation of generic TLDs WSIS-related activities since the Tunis Summit
• Develop policies for the operation of root servers ICANN’s post-WSIS activities have focused on the Internet Govern-
• Develop a consensual mechanism for the delegation of new TLDs ance Forum. ICANN has participated in and allocated money in its
• Establish a uniform procedure for the resolution of property rights budget to financially support the Advisory Group that assisted the UN
conflicts over domain names secretary general in launching the first Forum meeting.16 ICANN also
co-organised several workshops at the first Forum meeting, which
• Develop a review process that allows members of the internet
dealt with building capacity for participation in internet coordination
community to appeal decisions by ICANN
and with multilingualism on the internet.
• Develop a process for affected parties to participate in the for- WSIS has clear repercussions for ICANN’s further orientation.
mulation of policies regarding the technical management of the Its strategic plan for 2006 to 2009 reflects the outcome of WSIS both
internet in terminology and concrete goals. It describes as future “challenges
• Develop membership mechanisms that “foster accountability to and opportunities” the development of appropriate structures and
and representation of the global and functional diversity of the processes for a “post-WSIS ICANN” as well as “an appropriate role”
internet and its users” (NTIA, 1998). for ICANN “in the broad group of international entities involved in
internet functions” (ICANN, 2006c). As a result of WSIS, ICANN takes
Competition, “private bottom-up coordination” and international
more notice of other international organisations related to informa-
representation were some of the founding principles issued by the
tion and communications technology (ICT) policies and may thus
US government that have shaped ICANN’s coordination tasks.
become more responsive to policy concerns outside its own mission.
Throughout its founding years, ICANN stressed the operational
The same might be said of other organisations, so that regulatory
or technical nature of its functions. More recently, its policy-making
competencies affecting the internet may in future interact on a more
activities have become so predominantly visible that they can no longer
regular basis.
be denied. For at least the “generic” part of the DNS, ICANN has evolved
On a concrete level, ICANN plans in the near future to:
into a regulatory agency with price-setting and service-related stand-
ards defining responsibilities. While the ccTLDs are typically admin- • Increase international participation in ICANN processes and of-
istrated and regulated at the national level, ICANN sets contract-based fer translation into other languages
policies for gTLDs such as “.com”, “.org” or “.net”.14 • Support regional capacity-building in the field of internet address-
However, ICANN’s self-governance approach differs in several ing and the DNS
respects from traditional regulatory mandates in the telecommunica-
• Improve and monitor ICANN’s overall operational performance
tion area. Most importantly, ICANN is not independent of either its
and that of its supporting organisations
“regulatees” or its supervisory agency. The regulated organisations –
registrars and registries – not only participate in ICANN’s policy-set- • Audit its own openness, transparency and inclusiveness
ting efforts as members of ICANN’s constituencies, they also contrib- • Deal in a systematic way with “end user issues” (complaint han-
ute significantly to ICANN’s budget.15 As a regulatory agency, ICANN dling regarding registration of domain names)
is thus interwoven with and accountable to several actors with di-
• Pursue the deployment of internationalised domain names (also
verse or even antagonistic interests, the most influential of which are
on the top level), and facilitate the introduction of new TLDs and
arguably the US government and the DNS service industry.
a consensual WHOIS policy (see below).

14 The allocation of domain names on the second level of ccTLDs is subject to

national regulation. However, the US government claims final authority over the
DNS root zone file and thus over what appears in the root (Peake, 2004).
15 Registries operate the database of top level domains. Registrars are responsible
for the registration of domain names. About USD 20 million of ICANN’s USD 34
million budget for the fiscal year 2006-2007 is expected to come from accredited
registrars. Registries for gTLDs are budgeted for roughly USD 15 million. The
address registries contribute USD 800,000, and the registries for ccTLDs account 16 With USD 200,000 according to the annual operating plan for the fiscal year
for USD 1.5 million (ICANN, 2006b). 2006-07.
Other ICT-related activities All operators of an ICANN-accredited TLD (i.e. .com, .net, .org, .info,
ICANN’s regulatory activities centre on the provision of services par- .biz, etc.) are required to comply with those guidelines in order to
ticularly in the generic but also partly in the country-code domain obtain approval for the registration of internationalised domain names.
name space. Examples of the regulation of existing services are the Tests for introducing internationalised TLDs are expected to be com-
Uniform Dispute-Resolution Policy (UDRP)17 and the WHOIS policy.18 pleted by the end of 2007.
The UDRP was introduced in 1999. It consists of an interna-
tional online arbitration process for settling conflicting claims to do- Stakeholder participation

Institutional overviews / 43
main names without resorting to national courts. The goal is to pro-
vide conflicting parties with a quick and low-cost resolution proce- Key areas in which participation of civil society,
dure. The scope of the UDRP is limited to domain names under gTLDs Southern countries and women is an issue
and a few ccTLDs. Furthermore, the UDRP only applies to claims made Diversity in participation is especially important in the area of name
by trademark owners to domain names which have been registered space regulation. DNS policy issues such as the introduction of inter-
and used in bad faith. Evaluations of the UDRP arbitration process nationalised domain names (IDN) or decisions on data protection di-
(Froomkin, 2002; Geist, 2002) point out a systemic bias towards the rectly affect users’ interests. Key decision-making bodies for DNS
complainants and thus a privileging of trademark-based claims over policy are currently the GNSO and the ICANN Board of Directors.
other rights. Another relevant area is the evolving structure of ICANN itself.
The WHOIS policy pertains to a database that contains contact ICANN is a prime example of new forms of multi-stakeholder or-
information of domain name registrants. For several years ICANN has ganisation, but also of the various problems inherent in these new
struggled to consensually define mandatory rules regarding essential types of consensus-building entities. As the continuous changes in
registrant data elements that must be made publicly available by reg- ICANN’s sub-structures and procedures show, the goal of fair rep-
istrars. Intellectual property organisations and some public authori- resentation and legitimate decision-making is very difficult to achieve
ties wish unrestricted access to the WHOIS database. However, the once the traditional UN principle of “one state, one vote” is dis-
publication of WHOIS information potentially conflicts with data pro- carded as a model.
tection laws, which vary widely across countries. A report by the Lon-
don School of Economics (LSE) estimates that volunteers in ICANN Actions taken to ensure effective participation of all stakeholders
have spent approximately 39,000 hours on this issue since the first A key element of ICANN’s governance model is the principle of bot-
task force was initiated in 2001 (LSE, 2006, p. 66). tom-up consensus building.
Examples of regulatory policies aimed at expanding or creating Stakeholders relevant to the field of DNS and IP address man-
new markets are the delegation of new TLDs and the introduction of agement are involved in ICANN through supporting organisations.
internationalised domain names (IDN). The 1998 MoU between the The ICANN bylaws identify the roles and responsibilities of the three
US government and ICANN already specified one of ICANN’s tasks as supporting organisations: the Address Supporting Organisation, Coun-
the consideration of a process for the introduction of new gTLDs. In try Code Names Supporting Organisation (ccNSO) and GNSO. They
various pilots and trials that took place in 2000, 2004 and 2005, ICANN are each responsible for policy development in their respective areas.
has to date delegated twelve new TLDs. However, there is still no The structure of the supporting organisations and their relationship
established standard procedure for the future introduction of new with ICANN differ considerably. The GNSO, responsible for gTLDs, is
gTLDs. The delegation of new TLDs has been a controversial issue for the largest and has the most differentiated structure. As Figure 3
more than a decade, with some stakeholders arguing vigorously in shows, the GNSO consists of six “constituencies”, which should rep-
favour of increasing the number of TLDs up to a technically feasible resent the diversity of interests involved in or affected by the manage-
figure per year, and other stakeholders more or less against any addi- ment of the domain name space. As the chart also shows, ICANN’s
tional TLDs. The supporting organisation for generic DNS issues in constituency structure over-represents business interests. The Non-
ICANN, the Generic Names Supporting Organisation (GNSO),19 has Commercial Users Constituency is the only group in the GNSO Coun-
now completed another policy development process, which endorses cil that articulates civil society interests.
the introduction of additional TLDs and recommends policy princi- As a result of ICANN’s reform, a Policy Development Process
ples for their selection and allocation (GNSO, 2006). (PDP) that covers issues in the purview of the GNSO and the ccNSO
The DNS is based on the ASCII character set, which supports has been established. The PDP is part of the ICANN bylaws (Annex A
only Latin alphabet domain names.20 In order to enable international and B) and specifies in detail the roles and responsibilities of the Board
use of the DNS, the Internet Engineering Task Force (IETF)21 has de- of Directors, the GNSO, the ccNSO and ICANN staff to ensure that
veloped a converting mechanism that allows for a translation of non- decision-making processes go forward within a given time, but also
ASCII character domain names into ASCII-based names. Based on that final decisions by the Board do indeed reflect the recommenda-
the technical specifications defined by the IETF (2003), ICANN de- tions of the supporting organisations. In contrast to DNS policies,
vised guidelines for the use of those standards at the registry level. policies regarding the allocation of IP addresses are more or less au-
tonomously developed by the Address Supporting Organisation.
17 See: <www.icann.org/udrp/udrp.htm>. Civil society groups have two channels in ICANN to influence the
18 See: <www.spacereg.com/dc_eurid_whois_policy.pdf>. policy process. The first channel is the At-Large Advisory Committee
19 See: <www.icann.org/committees>. (ALAC), which represents self-organising Regional At-Large Organi-
20 American standard code for information interchange (ASCII) is a code for
sations (RALOs). ALAC was originally designed for individual internet
representing Latin characters as numbers, with each letter assigned a number users. In future it might represent both organisations and individuals.
from 0 to 127. Unicode is an extension of ASCII. The task of the At-Large Membership is to offer advice on ICANN’s
21 <www.ietf.org>. regulatory activities. Unlike the other stakeholder groups in ICANN,
 Fig. 3: ICANN organisational structure

ICANN Board Government Advisory Committee

Appoints 8 members
15 voting
6 non-voting
At-Large Advisory Committee
Global Information Society Watch / 44

ICANN Staff
Nominating Covers all supporting Other Committees and Liaisons
Committee organisations

Elects 2 Elects 2 members

members Elects 2 members

GNSO Council
21 voting

Country Code Address

Names Supporting
Nominating Intellectual Business and Supporting
Registrars Organisation
Committee Property Commercial Organisation

Country 5 Regional
TLD Internet
GTLD Non-commercial Internet
Managers Registries
Registries Users Service Providers

ICANN supporting organisations

Source: LSE (2006)

The diagram gives an organisational overview of ICANN and its component parts with emphasis on the Generic Names Supporting Organisation and its
Constituencies. It is not an exhaustive picture of all component parts of ICANN. The GNSO Council consists of 21 voting members, with each
Constituency represented by three voting members. Registrar and gLTD Registry Constituencies are accorded double weighted votes in the Council.
The Nominating Committee appoints three members to the Council. The GNSO elects two directors to the ICANN Board (Seats 13 and 14).

ALAC no longer has decision-making authority.22 It is represented on entities for non-commercial organisations (“At-Large Structures”) and
the Board, as well in the GNSO, through non-voting liaisons. individuals who take an interest and want to participate in ICANN. At
The second channel of civil society participation is the Non-Com- present, all five RALOs are in the process of constituting themselves
mercial Users Constituency (NCUC),23 one of the six constituencies and negotiating a memorandum of understanding with ICANN.25
that together form the GNSO. NCUC constitutes a minority on the GNSO After WSIS, ICANN has strengthened its efforts to internationalise
Council, the organisation’s decision-making body. The fact that the GNSO participation. To facilitate multilingual communication, relevant docu-
Council uses a weighted voting system, which favours the registrars ments are to be translated into other languages. There are also plans to
and registries by giving their Council members two votes instead of offer simultaneous interpretation at ICANN meetings. In addition, ICANN
one, further marginalises civil society perspectives in the GNSO. has initiated outreach programmes designed to contribute to regional
ICANN’s bylaws (Article VI: Sections 3-5) include “diversity provi- capacity-building in the area of DNS and IP address management and
sions” for international representation. To ensure diversity, ICANN’s by- to increase participation from under-represented regions.
laws specify five geographic regions,24 all of which must be represented Among the post-WSIS regional outreach activities are the newly
by at least one member of the Board, the various councils, and the Nomi- established regional liaisons for each of ICANN’s five world regions,
nating Committee. There are no equivalent provisions to ensure gender the task of each being to form networks with and across all stake-
diversity. For the At-Large Membership, geographic representation will holders, including national governments. The goal is to promote par-
be achieved through the five RALOs, which are intended to be umbrella ticipation in ICANN but also to foster the emergence of regional DNS
service industries and of user groups. In addition, ICANN created the
22 ICANN’s original bylaws from 1998 provided that the At-Large Membership would
position of a general manager for public participation to foster active
select roughly half of ICANN’s Board seats. This provision was changed in 2002,
in the course of the reform of ICANN. participation by the various stakeholder groups.
23 <gnso.icann.org/non-commercial>.
24 Europe; Asia/Australia/Pacific; Latin America/Caribbean islands; Africa; and North 25 In December 2006, LAC RALO, the Latin America and the Caribbean Regional At-
America (Art. 6, Sect. 5). Large Organisation, signed a Memorandum of Understanding with ICANN.
 Until 2003, decision-making positions in ICANN were predomi- • The strengthening of incentives for reaching consensus across
nantly filled by the ICANN supporting organisations and their con- the various interest groups through abolishing weighted voting
stituencies. In 2003, ICANN created a Nominating Committee, which and raising the threshold for consensus on the GNSO Council
selects eight members of ICANN’s fifteen-member Board of Direc- from 66% to 75%.
tors, as well as a “portion” of the GNSO and ccNSO Councils and the
Interim ALAC. The purpose of the Nominating Committee is to broaden While a restructuring of the GNSO into three groups could well
the existing mix of geography, culture, skills, experience, and per- be a step forward to overcoming the antagonistic constellation in the
GNSO, it bears the risk of codifying once again the minority position

Institutional overviews / 45
spective as derived from ICANN’s supporting organisations. Due to
the work of the Nominating Committee, the share of “ICANN outsid- of civil society. By the same token, a membership fee might discrimi-
ers” in decision-making positions has significantly increased and nate non-commercial users, particularly from developing countries.
ICANN’s Board and councils show a slightly increased participation of It is thus important that any new consensus-fostering mechanism
women, not least from developing countries.26 Civil society has a gives adequate weight to civil society groups so that all views and
strong voice in the Nominating Committee, with five of its members interests are reflected in policy recommendations.
being selected by ALAC. Together with the representative of the Non- The WSIS Declaration calls for a multilateral, transparent and demo-
Commercial Users Constituency, civil society constitutes roughly a cratic management of the internet, with the full involvement of govern-
third of the voting members. ments, the private sector, civil society and international organisations.
The WSIS documents offer no further specification, however, about what
Effectiveness of efforts to increase stakeholder participation is meant by “democratic management of the internet”. ICANN has never
ICANN’s diversity provisions do ensure a degree of regional variety in described its processes as democratic, choosing instead to speak of
decision-making positions. Its travel reimbursement policy for Board “bottom-up consensus”. Considering that democracy is still primarily a
members and Nominating Committee appointees enables participa- national form of organisation, some core elements of which cannot eas-
tion from developing countries and from civil society organisations. ily be implemented in transnational environments, it seems understand-
However, on the level of general participation without decision-mak- able that ICANN avoids this term. However, the implementation of and,
ing responsibility, both regional and sectoral diversity is much more even more so, the compliance with bottom-up decision-making proc-
limited. The majority of attendees at ICANN meetings are from OECD esses turn out to be fairly ambitious goals, too. ICANN’s policy decisions
countries and related to the internet industry. ICANN does offer all over the past years reveal several examples where the Board of Directors
stakeholders opportunities to participate, but the actual influence on acted despite a lack of consensus in the GNSO or other parts of its con-
the policy process varies significantly among the different groups. In stituency.27 However, violations of constitutional decision-making pro-
particular, individuals and non-commercial internet users lack an ef- cedures eventually undermine the legitimacy of an organisation. Another
fective voice in policy matters. problem concerns the unequal distribution of power among ICANN’s
Fair representation and balance of interests is an issue espe- stakeholder groups. A full involvement of civil society in ICANN would
cially in ICANN’s most important supporting organisation, the GNSO. require a restructuring of its bottom-up consensus-building process.
The representativeness, transparency and effectiveness of GNSO op-
erations have recently been subject to an extensive evaluation con- Conclusions and recommendations
ducted by the LSE. The LSE review comes to the conclusion that the
current GNSO structure reflects a “snapshot of the interest groupings General conclusions
most active on generic names issues in the founding stages of ICANN ICANN is one of the prominent examples of multi-stakeholder coordi-
in the late 1990s” (LSE, 2006, p. 423). Its constituency structure lacks nation or “self-governance” in ICT. Eight years after its inception, a
the flexibility required to incorporate new stakeholders, and the indi- number of insights can be drawn from this new type of regulation.
vidual constituencies are not easy for newcomers to find and to join. Firstly, self-governance does not mean that governments disap-
The report also notes that the majority of constituencies suffer from pear. Even if the US government lives up to its promise and eventually
low participation and a lack of representativeness. Of the altogether privatises DNS regulation, government(s) will still keep some control
231 members of the GNSO, only a small fraction regularly participate. over the policy outcome. Private agencies cannot step outside the
This means that policy recommendations on vital issues such as the “shadow of hierarchy”. They must comply with national laws, but they
conditions of use of domain names in gTLDs are developed by quite a may also have to cope with political pressure, as ICANN had to in the
small number of people. battle over “triple X”, the proposed TLD that would have created a
The review recommends among many other things: virtual “red light district” on the internet. Despite political pressure
that brought the contract negotiations to a halt in May 2006, in Janu-
• Establishing a more flexible structure that is open and attractive
ary 2007 ICANN published a new draft contract.28
to new stakeholder groups by reducing the number of GNSO
constituencies from six to three (registration, business, and civil
society including the now separate At-Large Membership).
27 A current example concerns the renewal of contracts with the registries of gTLDs.
• The creation of a primary, fee-based membership in ICANN so A pro-competition, presumably user-friendly option would be to offer the registry
that it becomes actually possible to join the organisation and services for re-bids. While the GNSO is working on a policy recommendation, the
ICANN Board has indicated that it might decide on this matter beforehand.
choose a constituency according to individual preferences.
28 After the ICANN Board had principally approved of the application for “.xxx” in
2005, the Board voted in 2006 against the agreement with the ICM registry.
Following pressure from religious groups, governments intervened in the
negotiation process and asked to suspend it. Parts of the discussion on “.xxx”
26 Three of the four female Board members were chosen by the Nominating within the U.S. Department of Commerce are publicly available from:
Committee. The Nominating Committee has so far chosen eight Board members. <www.internetgovernance.org/pdf/xxx-foiapage.pdf>.
 The current public-private arrangement is problematic for two deliberation and some degree of accountability, transparency is at
reasons. The first concerns the US government’s unilateral control present regarded as a major source of legitimacy for private govern-
over the DNS infrastructure and ICANN’s activities. From a normative ance bodies. However, transparency can also turn into a source of de-
point of view, unilateral control over vital internet infrastructure re- legitimation. In the case of ICANN, transparency has led to a strong
sources is without a doubt less legitimate than an intergovernmental public awareness of its shortcomings.
regime. However, as debates throughout the WSIS have shown, it is
unclear how political responsibility for a global infrastructure can be Conclusions on performance
in relation to ICT role and responsibilities
Global Information Society Watch / 46

distributed in a more equitable manner without resorting to the UN

system. The much criticised unilateral control over the DNS may thus In 1998, when the first MoU between the US government and ICANN
persist because governments cannot agree on an alternative and more was agreed upon, the general expectation was that ICANN would ac-
legitimate solution. complish its tasks within two years. However, the road towards priva-
A second problem pertains to accountability. Multi-stakeholder tisation of DNS management has turned out to be more difficult to
arrangements under public supervision tend to blur the responsibility navigate than expected. While some of the tasks were indeed imple-
for policy decisions. Again, “.xxx” provides a good example. If the mented quickly, others are still on ICANN’s “to-do list”. In September
division of labour between the government and the private agency is 2006, the US government therefore amended the MoU for a seventh
not clear-cut, it is difficult for affected parties to determine who can time.29
be held accountable for policies. On the other hand, there are limits to In 1999, ICANN introduced competition for the registration of
the capacity of self-regulation. In the event of a privatisation of ICANN, domain names under gTLDs, established the Uniform Dispute Reso-
it will be vital to install reliable checks and balances to minimise the lution Policy to deal with the “cybersquatting” of domain names of
risk of abuses of regulatory authority. well-known organisations or products, and developed a participatory
A weak point of private multi-stakeholder organisations concerns structure for the internet industry (supporting organisations). In 2000,
issues of membership and representation. While national and inter- ICANN approved several new TLDs and began setting standards for
national organisations aggregate opinions and interests by means of the operation of gTLDs. But since then, ICANN has failed to develop a
representation, ICANN has been struggling for years to develop its general rules-based mechanism for the delegation of new TLDs. ICANN
own approach to inclusiveness and fair representation. The most con- has also failed to create a membership organisation that fosters “ac-
troversial issue has been the role of individual users. No doubt, ICANN countability to and representation of” the diversity of internet users.
intends to be inclusive and does recognise the legitimacy that derives ICANN’s self-governance structure proved able to create a new
from openness and broad participation. But ICANN equally fears nega- market for registration services, but it lacks the power to act against
tive consequences from weak organisational boundaries such as “cap- vested interests in this market and its own organisation. There is as
ture” or manipulation and a loss of control over the process of policy yet only marginal competition between TLDs, and the existing regis-
development. tries have successfully delayed the creation of a process for the regu-
Thus ICANN still has an ambivalent stance on civil society par- lar introduction of TLDs.
ticipation. This is demonstrated by the disenfranchisement of the At- ICANN’s overall acceptance depends on its problem-solving ca-
Large Membership after 2002 on the one hand and the substantial pacity, its inclusiveness and its ability to adequately reflect in its policy
organisational and financial support for the newly founded ALAC on decisions the existing diversity of opinions. However, ICANN oper-
the other. ICANN supports the development of a complex civil society ates under severe restrictions, and the room for altering its structure
structure in ICANN but at the same time denies civil society direct and performance may therefore be limited. The self-governance ap-
influence on the policy process. Like other multi-stakeholder organi- proach implies that policies need the consent of the “rule takers”. In
sations, ICANN faces the challenge of balancing potentially conflict- some cases, this leads to non-transparent decision-making processes
ing values such as inclusiveness, consensus-orientation and effec- and biased results at the expense of users’ interests.30
tiveness without having at their disposal the means and procedures ICANN’s current structure privileges the interests of one indus-
of governmental institutions. try sector over the interests of users and future businesses. The pri-
Compared to national or intergovernmental organisations, ICANN vatisation of DNS regulation would require as a minimum a more
is a remarkably open and transparent organisation. Debates about balanced representation, a more efficient policy development proc-
controversial issues such as the WHOIS database can be observed ess and stronger mechanisms of accountability.
on the internet. The meetings of most councils and task forces are
open, and recordings or minutes are released on the internet. Even
Conclusions on the adequacy
the ICANN Board of Directors has made efforts to become more trans-
of modalities and practices of participation
parent. Detailed minutes of Board meetings are published on the Under ICANN’s current structure, voting or decision-making rights
internet, and in the case of critical decisions, the individual votes of are unequally distributed. Some stakeholder groups such as the indi-
Board members are now published. Some directors even offer per- vidual users but also governments (though by their own choice) lack
sonal explanations for their votes. voting rights. Constituencies that have contractual relationships with
Thanks to this high degree of transparency, the pros and cons of
policy options in question are easier to understand and observers 29 More information is available from: <www.icann.org/general/agreements.htm>.
have the opportunity to develop informed opinions. What is more, 30 A recent example concerns the renewal of the contract for the TLD “.com”. The
transparency enables some degree of public control over the organi- draft contract as negotiated between ICANN and VeriSign evoked criticism from
sation’s performance. ICANN’s actions are closely monitored by a other stakeholders and was subsequently amended by the US government. More
information is available from: <www.ntia.doc.gov/ntiahome/domainname/
number of news services and blogs on the internet. Controversial
agreements/amend30_11292006.pdf> and <www.theregister.co.uk/2006/12/01/
policy decisions thus need to be justified. Because it enables public usg_approves_dotcom_contract>.
ICANN (registries and registrars) have more votes than those that do References
not. The method of differentiating political influence and allocating
Cerf, V. (2006). “Governance of the Internet: The Tasks Ahead”. Opening Remarks
voting rights according to a stakeholder’s share of the budget or simi-
at Internet Governance Forum [online]. Athens, Greece, 30 October - 2
lar criteria violates basic democratic principles and thus weakens the
November 2006. Available from: <www.icann.org/announcements/
legitimacy of ICANN. All stakeholders participating in the policy-mak- announcement-1-30oct06.htm>.
ing process should be granted voting rights, and power asymmetries
between constituencies should be avoided. Equal participation rights Froomkin, M. (2002). “ICANN’S Uniform Dispute Resolution Policy – Causes and
(Partial) Curses”. Brooklyn Law Review [online], 67(3), pp.605-718.

Institutional overviews / 47
for individual users, as originally intended, would create an incentive
Available from: <personal.law.miami.edu/~froomkin/articles/udrp.pdf]>.
for broader participation by civil society.
Geist, M. (2002). “An examination of the allegations of systematic unfairness in
Concrete recommendations the ICANN UDRP”. Brooklyn Journal of international law [online], 27,
for improving the modalities of participation pp.902-938. Available from: <www.michaelgeist.ca/content/blogcategory/70/
192/10/10/>.
• Non-commercial and individual user-related bodies in ICANN
(NCUC, ALAC) should be merged into one civil society member- GNSO (2006). Draft Final Report of the Generic Names Supporting Organisation’s
ship organisation. Regional chapters should be encouraged but Policy Development Process [online]. Available from: <gnso.icann.org/
not made mandatory. Hierarchical layers in the civil society body, drafts/GNSO-PDP-Dec05-FR-14Nov06.pdf>.
both regional or functional, should be avoided. ICANN (2006a) “ICANN Strategic Plan July 2007 - June 2010” [online]. Available
• The GNSO should be restructured along the lines of the recom- from: <www.icann.org/strategic-plan/
mendations of the GNSO evaluation. However, incentives for con- draft_stratplan_2007_2010_clean_final.pdf>.

sensus-building across the GNSO constituencies must include ICANN (2006b). “Proposed Budget: fiscal year 2006-2007” [online]. Available
civil society as a third stakeholder. from: <icann.org/announcements/proposed-budget-2006-07-cln.pdf>.

• The ICANN Board and ICANN management must ensure that ICANN (2006c). “ICANN Strategic Planning Process for the July 2007 - June 2010
policy recommendations made by supporting organisations and Strategic Plan” [online]. Available from: <www.icann.org/announcements/
councils are followed when explicitly required under the bylaws. announcement-13sep06.htm>.
In general, the ICANN Board and staff should respond more se-
IETF (2003). “Internationalized Domain Name (idn)” [online]. Available from:
riously to the public comments it invites on its policy proposals.
<www.ietf.org/html.charters/OLD/idn-charter.html>.
• In order to become more inclusive and attract new people across
LSE (2006). “A Review of the Generic Names Supporting Organisation (GNSO)”
all regions and stakeholder groups, ICANN should produce policy
[online]. Available from: <www.icann.org/announcements/gnso-review-
briefs on relevant but complex and controversial issues that ex- report-sep06.pdf>.
plain to newcomers the problem at hand and the various solu-
tions under discussion. This would also be helpful for new mem- Mueller, M. (2002). Ruling the Root. Internet Governance and the Taming of
Cyberspace. Cambridge: MIT Press.
bers of the Board and councils.
NTIA (US. National Telecommunications and Information Administration) (1998).
Specific recommendations for improving performance Memorandum of Understanding Between the Department of Commerce and
ICANN is still an emerging organisation, as is reflected in the regular the Internet Corporation for Assigned Names and Numbers (ICANN)
[online]. Available from: <www.ntia.doc.gov/ntiahome/domainname/icann-
modifications of its bylaws. In order to increase trust in the organisa-
memorandum.htm>.
tion’s processes, it is vital to establish an equivalent to the rule of law.
ICANN’s formal rules and principles need to become more self-binding NTIA (2006). IANA Contract [online]. Available from: <www.ntia.doc.gov/
so that the organisation’s decisions will be more predictable and par- ntiahome/domainname/iana/ianacontract_081406.pdf>.
ticipating stakeholders can rely on the organisation’s actions. Another
Peake, A. (2004). Internet governance and the World Summit on the Information
crucial component of the rule of law is a non-discriminatory and effec- Society (WSIS) [online]. Prepared for the Association for Progressive
tive means to appeal against potential violations of the bylaws. Communications (APC). Available from: <rights.apc.org/documents/
A possible and desirable side effect of a stronger “constitution- governance.pdf>.
alisation” of ICANN would be a change in the balance of power be-
Postel, J. (1994). “Domain Name System Structure and Delegation” [online].
tween ICANN staff and the constituencies and councils working on a
Information Sciences Institute, University of Southern California. Available
voluntary basis. from: <www.isi.edu/in-notes/rfc1591.txt>.
ICANN’s decisions on the delegation of new TLDs, the renewal of
contracts for TLDs, and its accreditation policies for registrars have
allocation effects. So far, ICANN’s policies indirectly favour a small
number of mostly US-based registry businesses and large, globally-
acting registrars, none of which are located in developing countries.
Regional effects of accreditation policies or the selection of new TLDs
should play a more important role in ICANN’s decisions.31 I

31 To give one obvious example: the new type of regional TLDs such “.cat”, which
serve a local community, should be allowed to work with local registrars who
cannot afford an ICANN accreditation.