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How ICANN's Foray Into Global Internet Democracy Failed

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How ICANN's Foray Into Global Internet Democracy Failed Palfrey | Working Paper | “The End of the Experiment” | 1/9/04 THE END OF THE EXPERIMENT: HOW ICANN’S FORAY INTO GLOBAL INTERNET DEMOCRACY FAILED John G. Palfrey, Jr.1 ABSTRACT ICANN’s experimentation in running a representative and open corporate decision-making process to manage the domain name system has largely failed. This failure has manifested itself most explicitly by ICANN’s retreat from its effort to enable the direct election of a subset of its Board members and, less explicitly, by the extent to which other efforts to engage the Internet user community in the decision-making process have proven ineffective. A systematic review of over 100,000 comments by public participants in ICANN, other inputs that the Board considered, and the Election of 2000 for five ICANN Board members, reveal that ICANN has never fully succeeded in integrating users into the governance model in other than an ad-hoc fashion. Instead, the Board appears largely to have based its decisions upon the recommendations of professional staff and of the powerful Supporting Organizations (SOs), in which users can participate. An Internet user approaching the ICANN process from the outside would have little way to determine how to participate meaningfully in the decision-making process. Three lessons emerge from this study. First, ICANN’s failure shines further light upon the need for an overhaul of its governance structure. Second, ICANN should clarify the way in which users can involve themselves in the decision-making process for managing the domain name system, arguably through the Supporting Organization process. Third, we should look beyond the ICANN model, which has never been the appropriate venue for experimentation in global decision-making, toward new ways to govern the technical architecture of the Internet in an increasingly networked, less clearly bordered world. Keywords: Internet, governance, law, ICANN, participation, democracy JEL Classification: K3 1 John G. Palfrey, Jr., is Executive Director of the Berkman Center for Internet & Society and Lecturer on Law at Harvard Law School. A much earlier iteration of this paper was submitted in partial fulfillment of the requirements for the J.D. degree at Harvard Law School. The author also drew inspiration in part from an earlier paper by John Palfrey, Keith Abrams, Enoch Chang and Jake Erhard, entitled “[names] alt-ICANN: The Technologies, Politics, and Structure of Control,” for Harvard Law School class “Internet and Society 1999”, taught in the fall of 1999 by Professor Jonathan Zittrain. I am deeply indebted to Prof. Zittrain, who has provided enormous guidance and substantive input throughout the development of this paper. Specific references throughout the paper highlight those ideas for which Prof. Zittrain deserves particular attribution. The author also owes a debt of gratitude for the research assistance of Noah Eisenkraft, Clifford Chen, Sam Hwang, and Jonathan Blavin, as well as the thoughtful advice of Andrew McLaughlin, Benjamin Edelman, and Diane Cabell at various stages of this project. A shorter, web-based version of some of the findings here is posted at: http://cyber.law.harvard.edu/icann/publicparticipation/. Of course, the author is alone responsible for all errors and omissions. 1 Palfrey | Working Paper | “The End of the Experiment” | 1/9/04 I. Introduction. Despite the failure of its experimentation2 in novel forms of governance and representation of the global Internet user community, the Internet Corporation for Assigned Names and Numbers (“ICANN”) will, at the very least, warrant a footnote in the history books.3 ICANN will deserve mention on several grounds. If nothing else, its inception in the late 1990s as the Internet morphed from a limited network of academics, technologists, civil servants, and other trailblazers into a widely used and incessantly discussed global phenomenon places ICANN in an intriguing role – the first substantial institution with a global reach and a mandate to coordinate a key aspect of the Internet’s operations – at a fascinating moment in history.4 ICANN may also be worth remembering and chronicling as a sui generis institution that was at once obscure and a lightning rod for attention, and often criticism,5 from numerous government entities, including the United States Congress, Internet users around the world, legal scholars, and many others who have struggled with the question of who should govern the technical aspects of the Internet and how those persons should do so.6 If the reform process underway during 2003 continues on its desultory path, or if time runs out on ICANN’s extension of its Memorandum of Understanding with the United States Department of Commerce, ICANN may well be remembered as a case study in organizational self-destruction.7 2 See, e.g., http://www.pfir.org/statements/icann (describing ICANN as a “failed experiment”). 3 This notion of the failure of ICANN’s experimentation in “democratizing” its decision- making process is described in a number of places, including Dan Hunter, ICANN and the Concept of Democratic Deficit, 36 LOY. L.A. L. REV. 1149 (Spring 2003). 4 See, e.g., David Post, Cyberspace’s Constitutional Moment, THE AMERICAN LAWYER, (November, 1998) http://www.temple.edu/lawschool/dpost/DNSGovernance.htm (accessed December 3, 2002). 5 Criticism of the ICANN structure even before ICANN got started in earnest. See http://www.ntia.doc.gov/ntiahome/press/icann102098.htm (accessed November 11, 2003) (in which J. Beckwith Burr of the United States Department of Commerce noted that “the public comments received on the ICANN submission reflect significant concerns about substantive and operational aspects of ICANN.”) 6 See, e.g., Jason Krause, ICANN Can’t, Critics Say: Controversial Group that Oversees the Internet is up for Renewal, ABA JOURNAL E-REPORT (September 6, 2002). 7 ICANN’s woes, circa 2003, are legion. A series of nations, including Brazil, India, South Africa, China, and Saudi Arabia, “are growing dissatisfied with the workings of California- based ICANN” and have pushed for the intervention of the UN in the Internet governance process. See Frances Williams, Plan for UN to Run Internet “Will be Shelved,” FINANCIAL TIMES, November 9, 2003. Aside from this collateral attack by several governments on ICANN and the perpetual dispute over the representation question, a distributed denial-of- service attack on October 21, 2002, in which 7 of the 13 DNS roots were cut off from the rest of the Net, raised questions about ICANN’s fitness to carry out its core mission, which has ordinarily not bee a major source of controversy. The United States General Accounting Office issued a report in Fall, 2002, critical of ICANN’s steps toward greater security protections for the root servers. And the departures of key staff in the past year, in particular CEO Stuart Lynn and Chief Policy Officer Andrew McLaughlin, also have led to the swirling of the vultures. See, e.g., Patrick Thibodeau, Future of ICANN Remains Uncertain, COMPUTERWORLD, http://www.computerworld.com/governmenttopics/government/policy/story/0,10801,72034 2 Palfrey | Working Paper | “The End of the Experiment” | 1/9/04 ICANN will also warrant attention as an ambitious experiment in seeking to empower the Internet user community, and the private sector at large, to manage a coordination function necessary for the stable operation of the Internet, a global network of networks.8 ICANN’s novel, though ultimately flawed, structure has enabled management of the domain name system (DNS) by a coalition of private sector interest groups, with limited though growing input from formal states, and with broad input from individual users.9 From the perspective of some stakeholders and onlookers, ICANN was centrally about an experiment in democratic governance on a global scale, 10 using the technologies, power and attractiveness of the Internet as key drivers.11 ICANN has failed to attract and incorporate sufficient public involvement to serve as such a model. Those who sought to prove a point about Internet and democracy through the ICANN model have misplaced their emphasis, as ICANN’s narrow technical mandate has not leant itself to broad-based public involvement in the decision-making process. ,00.html (accessed November 11, 2003). But see http://www.icann.org/general/amend5- jpamou-19sep02.htm (accessed February 18, 2003) (for the one-year extension of the MoU between ICANN and the United States Department of Commerce) and http://www.ntia.doc.gov/ntiahome/domainname/agreements/sepstatement_09162003.htm (accessed November 6, 2003) (for the three-year extension of the MoU beginning in 2003), which have allayed the most pressing fears, for the time being, that the United States Department of Commerce would pull its support for ICANN. 8 See, e.g., the parting statement of Board Member Masanobu Katoh, in which he is reported to have said that ICANN’s participants should believe that “ICANN can be [a] 21st [century] model for [international] organization[s] dealing with technology and new economy.” http://log.does-not-exist.org/archives/000929.html (accessed November 4, 2003). 9 See, e.g., Kenneth Cukier, Why The Internet Must Regulate Itself, FINANCIAL TIMES, October 31, 2003, at Comment Page (for the proposition that ICANN has enabled community-driven self-regulation and the importance of such a concept). Mr. Cukier has also posted the text of this article at http://www.cukier.com/writings/FToct03.html (accessed November 5, 2003). 10 See, e.g., ANDREW SHAPIRO,
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