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									CYBERLAW CLASS 7

ICANN and Internet Governance
    September 18, 2002
What is ICANN?
           What is ICANN?
• ICANN is the nonprofit group that
  oversees basic technical matters related
  to the Internet, including the system for
  managing and allocating domain names
  (e.g. http://www.law.edu)
• Nonprofit California corporation,
• Coalition of various constituents of the
  Internet community – individuals and
  organizations, entrepreneurs and educators,
  corporate enterprises and non-profit
  advocacy groups.
           HISTORY OF ICANN
• ICANN was formed in October, 1998 (in response to
  a DOC White Paper) to oversee a select range of
  Internet technical management functions currently
  managed by the U.S. Government, or by its
  contractors and volunteers on an ad hoc basis.
• This informal structure represented the spirit and
  culture of the research community in which the
  Internet was developed.
• However, the growing international and commercial
  importance of the Internet has necessitated the
  creation of a technical management and policy
  development body that is more formalized in
  structure, more transparent, more accountable, and
  more fully reflective of the diversity of the world's
  Internet communities.
     ICANN’S OBJECTIVES
• It is ICANN's objective to operate as an
  open, transparent, and consensus-
  based body that is broadly
  representative of the diverse
  stakeholder communities of the global
  Internet.
       ICANN’S FUNDING
• ICANN is funded through the many
  registries and registrars that comprise
  the global domain name and Internet
  addressing systems.
        ICANN FUNCTIONS
• IP Address Space     • Domain Name System
  Allocation             Management
• Protocol Parameter   • Root Server System
  Assignment             Management
     STRUCTURE OF ICANN
• Board of Directors
• 3 Supporting
  Organizations
• Policy/Advisory
  Committees
• Small Staff (16)
      ICANN’S 3 SUPPORTING
         ORGANIZATIONS
•   DNSO : Domain Name Supporting Organization
•   ASO: Address Supporting Organization
•   PSO: Protocol Supporting Organization
•   (See ICANN Amended Bylaws Art. VI)
•   Each Supporting Organization has organized
    itself and defined its own rules. Each is
    representative of its own unique, specialized
    constituencies – and each incorporates
    processes that involve substantial public
    comment and discussion.
                      ASO
• Concerned with issues relating to the
  allocation of Internet Protocol (IP) Addresses
• The ASO consists of the three Regional
  Internet Registries (RIRs) -- the organizations
  that allocate IP addresses in their respective
  regions:
• American Registry for Internet Numbers
  (ARIN)
• Asia-Pacific Network Information Centre
  (APNIC)
• RIPE Network Coordination Centre (RIPE
  NCC) Network Coordination Centre (RIPE
  NCC)
                DNSO
• The DNSO is an advisory body that
  advises the ICANN Board of Directors
  on policy issues relating to the Domain
  Name System. The DNSO consists of a
  General Assembly, a Names Council,
  and seven Constituency Groups. DNSO
  names 3 directors to ICANN Board
                      PSO
• The PSO is an advisory body that will advise
  the ICANN Board of Directors on policy
  issues relating to protocol parameter
  numbers, which let computers exchange
  information and manage communications
  over the Internet. PSO names three Directors
  to the ICANN Board.
• 4 standards development organization
  (Internet Engineering Task Force (IETF),
  World Wide Web Consortiium (W3C),
  International Telecommunications Union
  (ITU), European Telecommunications
  Standards Institute (ETSI)
 3 ADVISORY COMMITTEES
• GAC (Government Advisory Committee)
• Domain Name Root Server Advisory
  Committee
• At-Large Membership Study Committee
            ICANN BOARD
• 19 directors
• 9 of the directors are at-large (and 5 of these
  selected by a vote in October 2000 of Internet
  users worldwide) Lessig was an unsuccessful
  candidate! NOTE: ICANN SAID
  ORIGINALLYT THAT 9 would be selected from
  at-large
• 9 of the directors are selected by ICANN’s 3
  Supporting Organizations (3 each)
• Directors serve 3 year terms
        ICANN DIRECTORS
• Chairman: Vint Cerf     Hans Kraaijenbrink
• Vice Chair: Alejandro   Sang-Hyon Kyong
  Pisanty
                          M. Stuart Lynn (Pres. &
• Amadeu Abril I Abril      CEO)
• Karl Auerbach
                          Andy Mueller-Maguhn
• Robert Blokzijl
                          Jun Mujrai
• Ivan Moura Campos
• Lyman Chapin            Nii Quaynor
• Jonathan Cohen          Helmut Schink
• Frank Fitzsimmons       Linda Wilson
• Masanobu Kato
ICANN and CORPORATE LAW
• Is ICANN ignoring its obligations under the
  California Corporations Code?
• Rights of “members” of California
  Corporations
       WHO IS A MEMBER?
• Section 5056 of the California Corporations Code
  normally defines who is a "member" of ICANN:
  [emphasis added]
• 5056. (a) "Member" means any person who,
  pursuant to a specific provision of a
  corporation's articles or bylaws, has the right to
  vote for the election of a director or directors or
  on a disposition of all or substantially all of the
  assets of a corporation or on a merger or on a
  dissolution. . .
• ICANN’S Bylaws say members are not members!
   ELECTION OR SELECTION?
• [ICANN] shall not have members as defined in
  the California Nonprofit Public Benefit
  Corporation Law ("CNPBCL"), notwithstanding
  the use of the term "Member" in these bylaws, in a
  selection plan adopted by Board resolution, or in
  any other action of the Board. Instead, the
  Corporation shall allow individuals (described in
  these bylaws as "Members") to participate in the
  activities of the Corporation as described in this
  Article II and in a selection plan adopted by
  Board resolution, and only to the extent set forth
  in this Article II and in a selection plan adopted
  by Board resolution.
             Criticism
• Democratic theory suggests that
  the absence of accountability tends
  to breed arbitrariness and self-
  dealing. In addition to avoiding
  governmental accountability
  mechanisms, ICANN lacks much of
  the accountability normally found
  in corporations and in nonprofits.
        AT LARGE STUDY
          COMMITTEE
• Vote of 5 ICANN directors by a self-selected
  At Large constituency was interim solution
• ICANN is studying how to appropriately
  provide for input and influence into ICANN
  policy deliberations and actions by the
  general Internet community. ICANN's Board
  has chartered the At Large Study Committee
  to forge a consensus on the best method for
  appropriately providing input and influence
  into ICANN policy deliberations and actions
  by the general Internet community.
REPORT OF ALSC (Nov. 2001)
• Recommend that individual domain name holders
  should be members of new At-Large Supporting
  Organization.
• At-large members should select 6 directors to the
  ICANN Board
• View ICANN as reflecting interests of 3 groups:
  developers, providers and users
• Why not permit e-mail address holders to be at-
  large members?
      CONSENSUS DECISION
           MAKING
•   ICANN bodies make decisions by consensus
•   Is this a good way to make decisions?
•   Would voting be better?
•   Should Roberts Rules of Order or some
    other rules of parliamentary procedure be
    used for electronic discussions?
              OPENNESS
• ICANN Says: ICANN SEEKS PUBLIC INPUT
  BEFORE, DURING AND AFTER ITS
  CONSENSUS-BASED DECISION MAKING
  PROCESS
• Board Meetings now open to the public in
  person and via realtime webcast
• All decisions of substance are preceded
  by prior notice and a full opportunity for
  public comment
                OPENNESS
• ICANN has been criticized for failing to operate
  with openness, transparency, and accountability.
• Many of its decisions and discussions are secret
  and are not made by recorded vote.
• Should all decisions and discussions be made
  public? Actions by staff? By Directors?
  Concerning litigation? Personnel issues?
       DOES A LAW FIRM
      DOMINATE/CONTROL
           ICANN?
• Jones, Day, Reavis & Pogue – ICANN’S
  law firm since beginning
• Dominant Creditor if ICANN
• Partner, Louis Touton, left Jones, Day to
  become ICANN’S Vice-President,
  Secretary, and General Counsel
• Is this relationship proper?
      ICANN FINANCIAL
     PRACTICES: PROPER?
• Karl Auerbach claims: Money flows through
  ICANN at a prodigious rate, mainly into the
  pockets of its expensive law firm and its
  overpaid President/CEO.
• ICANN must adopt clear and solid business
  practices.
ccTLDs withdrawal from DNSO
      IS ICANN THE
   GOVERFNMENT OF THE
       INTERNET?
• ICANN says: (in its Fact Sheet): As a
  technical coordinating body, ICANN's
  mandate is not to "run the Internet."
  Rather, it is to oversee the management
  of only those specific technical
  managerial and policy development
  tasks that require central coordination:
  the assignment of the Internet's unique
  name and number identifiers.
             IS ICANN THE
      GOVERFNMENT OF THE
•
                INTERNET? statutory or
    ICANN also says: ICANN has no
  other governmental power: its authority is
  entirely a consequence of voluntary contracts
  and compliance with its consensus policies
  by the global Internet community. It has no
  power to force any individual or entity to do
  anything; its "authority" is nothing more than
  the reflection of the willingness of the
  members of the Internet community to use
  ICANN as a consensus development vehicle.
• It can’t tax anyone
        REVIEW OF ICANN
           DECISIONS
• ICANN's bylaws provide for the establishment
  of an independent review process by which
  contested actions of the ICANN Board may
  be subjected to independent third-party
  review.
• At Cairo mtg in 2000, ICANN Board adopted
  Independent Review Policy that is to result in
  formation of 9 member Independent Review
  Panel
• To be nominated by Independent Review
  Nominating Committee (6 members) and
  subject to confirmation by ICANN board.
• Committee is appointed by ICANN’s
  Supporting Organization for 3 yr terms.
      ACCOUNTABILITY?
• To whom, if anyone, is ICANN
  accountable?
Stuart Lynn: The President’s
    Report (Feb. 2002)
           Lynn’s criticisms
• Icann as an “incomplete experiment”
• Needs to become a well-balanced public-
  private partnership
• More participation by critical entities
• Too much process – criticizes global
  Internet elections for at-large directors
• Too little funding
• What are his recommendations?
     Lynn’s recommendations
• Board of Trustees
• Policy Councils
• End stranglehold of process
   GETTING INVOLVED IN
         ICANN
• The best way to get involved is to join
  one or more of the groups
  (constituencies, working groups, policy
  forums, committees, etc.) that interest
  you and contribute to their online
  discussions.
• Attend ICANN meetings e.g.
      Recent Developments in
          Auerbach suit
• July 29, 2002: ruling by LA Superior Court
  hat ICANN must provide Auerbach with
  access to financial and confidential records
  but courts will determine what information
  Auerbach can release to the public, and he
  must inspect documents at ICANN’s
  Marina del Rey HQ.

								
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