Looking Back at ICANN: Fielding Tough Questions From Day One


The Internet Corporation for Assigned Names and Numbers will hold its 50th public meeting on June 22-26 in London. In honor of the occasion, I thought I should share some of Bloomberg BNA's coverage of ICANN over the past 16 years. This post will be the first of several in a series. Today's topic: early challenges to ICANN's legitimacy.

ICANN was created on Sept. 18, 1998, and soon thereafter incorporated as a California non-profit. On Nov. 25, 1998, the U.S. Department of Commerce and ICANN entered signed a document called the Memorandum of Understanding, and agreement that would, over time, transfer to ICANN the responsibility to oversee operation of the Internet domain name system. ICANN was specifically charged with the responsibility to introduce competition into the domain name registration business and, as part of that, to determine whether new generic top-level domains should be created. The Memorandum of Understanding directed ICANN to consult with the international community on domain name policy.

As you can see from the selections below, ICANN has always been controversial, criticized from its inception right up to the present day. Questions about legitimacy, lack of transparency and accountability, overreach, squabbles with registry operators and trademark owners ... that is all just another day at the office for ICANN. Even Ralph Nader took a few shots at ICANN in 1999.

GAO investigations? Been there, done that. Several times. Here's what the Government Accountability Office wrote, in 2002, in its second report on ICANN, Internet Management: Limited Progress on Privatization Project Makes Outcome Uncertain:

"[T]he effort to privatize the domain name system has reached a critical juncture, as evidenced by slow progress on key tasks and ICANN's current initiative to reevaluate its mission and consider options for reforming its structure and operations. Until these issues are resolved, the timing and eventual outcome of the transition effort remain highly uncertain, and ICANN's legitimacy and effectiveness as the private sector manager of the domain name system remain in question."

Hardly laid a glove on them.

Seemingly possessed with the soul of a circus impresario, the self-righteousness of a bishop, and the hide of an armadillo, ICANN has so far had the last word with all challengers.

Cybersquatting, Competition Issues Confound Early Efforts to Privatize Net Registration (6/30/1999)

Fledgling Net Authority Questioned On Legitimacy, Basic Mission, Survival (9/29/1999)

GAO Report Legitimizes Creation of ICANN, Questions Control of 'A' Root, Fee Collection (7/12/2000)

NSI's Concessions, Seen as Best Possible, Likely to Mute Criticism of ICANN Board (11/10/1999)


Cybersquatting, Competition Issues Confound Early Efforts to Privatize Net Registration

Originally published June 30, 1999

The Internet Corporation for Assigned Names and Numbers has just started down the path of opening up the Internet domain name registration business to competition, and already the group is in hot water.

Critics worry about ICANN's apparent embrace of a proposal to deal harshly with domain name speculators, or "cybersquatters," a proposal that could be applied to all other domain name registrants as well.

ICANN is also mired in conflict with commercial Internet domain name registration near-monopolist Network Solutions Inc. over control and ownership of the domain name registration database. NSI has so far refused to sign the registrar agreement that ICANN has proffered to new registrars. Up until now, NSI has been grandfathered as a registrar, without having to sign the agreement, as a result of its status as the de facto sole registrar of domain names until earlier this month.

On June 25, the Department of Commerce extended the testbed phase in which five new registrars are testing the Shared Registration System to July 16. The SRS will allow competition in the domain name registration business for the first time.

'Cybersquatters'

Critics question the speed at which ICANN is moving forward on cybersquatting issues, which they say is at the expense of establishing new top level domains and protecting privacy of Internet users.

The ICANN board, after its May meeting in Berlin, adopted a resolution supporting the World Intellectual Property Law Final Report on Internet Domain Name Process in principle, and referring it to a committee for detailed action proposals. ICANN will take up, and likely adopt some of the policies in, the WIPO report and recommendations at its next meeting in August 24-26, 1999, in Santiago, Chile. ICANN stated in a press release following the Berlin meeting that the dispute resolution principles enunciated in the WIPO Final Report should be "wider than cases of abusive registration," or cybersquatting.

The WIPO Final Report was issued April 30 (4 ECLR 374, 5/5/99), in response to the Department of Commerce's White Paper asking WIPO to develop recommendations for resolving trademark and domain name disputes (3 ECLR 748, 6/10/98). The WIPO Final Report confined its recommendations for mandatory alternative dispute resolution to instances of cybersquatting. As WIPO acknowledged in the Final Report, its final recommendation was a shift from its earlier drafts, which had evoked heated protests by proposing that mandatory ADR be imposed for all domain name disputes.

Free Speech Subsumed to Trademark?

The WIPO Final Report does not reassure those concerned about the free speech rights of domain name registrants. Neither WIPO nor ICANN have proposed the specifics of the selection process for the arbitrators of the mandatory ADR system. Critics in the United States worry that the arbitrators who could be deciding alleged cybersquatting cases may be non-U.S. intellectual property attorneys not familiar with, or even hostile to, rights very dear to U.S. citizens. Those rights include free speech, commercial speech, and consumer complaint rights.

Critics fear that the pokey.org scenario will result in legitimate though trademark-bereft domain name registrants taken to Switzerland and stripped of their domains under WIPO's ADR regime.

For example, Pokey.org is a World Wide Web site belonging to a child with the nickname of "Pokey." The Web site was given to the child as a birthday gift. The family was taken to court by the toymaker/owner of the Pokey character for trademark infringement; the suit was dropped in the face of public outcry.

If a foreign arbitrator with a trademark background adjudicates the case, that judge may well place less value on the personal rights involved, and instead side with the economic arguments of the trademark owner. U.S. citizens stripped of their sites may have no recourse to the court system here. According to Michael Froomkin, professor of law at the University of Miami Law School, a non-trademark owner whose domain name registration was revoked by an ADR decision often would have no cause of action in the U.S. courts.

The WIPO recommendations require domain name owners to contractually agree with the domain name registrars to submit to mandatory arbitration, in the event of a cybersquatting dispute. Moreover, WIPO recommends that the registration contracts should mandate that registrants agree to the registar's implementation of any arbitration decision, such as stripping a domain name away from an owner. Also, the Final Report's recommendations push a contractual clause requiring domain name registrants to agree that the registrar will not be liable for any implementation of an arbitration decision.

ICANN already mandates that all registrars have such terms in their contracts. While arbitration losers are not prohibited from going to court contractually, if a domain name is taken away pursuant to the arbitration terms of the contract, there would likely be no breach of contract claim. Thus, losers in a domain dispute would likely have to rely on tort or unfair competition claims to bring a claim in the United States. Froomkin said that if a former domain name owner had no viable trademark rights to allege, it would be difficult to allege a cognizable injury under which a suit could be brought.

Nuts and Bolts Not Spelled Out

Another troublesome issue is the mechanics of the mandatory ADR system. Those were laid out in Annex V to the WIPO Final Report.

One provision, Article 8(a) in the Annex V, gives respondents ten days to reply from the time the arbitrator sends an e-mail notifying him or her of the complaint. The reply must contain a statement of defense, including comments on any of the elements in the complaint, as well as any documentary evidence that the respondent intends to rely upon. Neither the Final Report nor the annexes require that the complainant give any notice to the respondent that the filing of a complaint is imminent. There is no guidance in the Final Report or the annexes about what happens if a respondent is on a two-week vacation when the e-mail is sent, or what would happen if the arbitrator received an automated response indicating the person is out of the office.

The time frame is terribly short, according to Froomkin. Indeed, in courts in the United States, most defendants are given 30 days simply to answer a complaint. There is generally additional time for the development of legal and factual defenses. ADR is designed to be expeditious and less expensive than traditional litigation, but Froomkin says that he fears that the WIPO proposal sacrifices speed for fundamental fairness.

Settlement Offers Becoming the Scarlet A?

The guidance given for defining bad faith also has problems. The WIPO report says that offers to sell a domain name to a trademark owner, standing alone, is an indicia of bad faith. Once a registration can be claimed to be in bad faith, the WIPO guidelines allow the filing of a mandatory ADR proceeding.

Presuming that an offer to sell a domain name is a bad faith act, however, has already made domain name cases very difficult to settle, according to Harold Feld, an attorney in Covington & Burling's Washington office. Not all domain name disputes involve cybersquatters who register names with the express purpose of reselling them to trademark owners. There can be conflicting rights to the same character string, as in the case of a junior and senior user of the same trademark, or in the case of two users on different types of goods and services, such as United for an airline and a moving company. Under the WIPO guidelines, though, an offer to settle a business dispute may instead brand legitimate claimants to a domain name as cybersquatters.

Bumpy Road to Registration Competition

The move to competition for the domain name registration business has not been smooth so far. ICANN has been embroiled in a dispute with Network Solutions Inc. over the continuation of NSI as a domain name registrar, as well as over ownership of the Whois database.

ICANN announced five new domain name registrars April 21, as part of a move toward competition for registration (4 ELCR 355, 4/28/99). ICANN was charged by the Commerce Department's June 1998 white paper to introduce competition into the domain name registration system (3 ECLR 748, 6/10/98).

The shared registration system (SRS) testbed phase, a precursor to full competition, was initially set to end on June 24. The Department of Commerce and NSI announced June 25 that the testbed period is being extended three weeks, until July 16. Once the testbed phase is completed, the domain name system will be opened to all registrars accredited by ICANN.

However, only one of the five registrars, register.com, has begun to register domain names, and has only done so since June 7. According to a memorandum on the ICANN Web site addressing registrar competition, significant technical problems were encountered early in the testbed process. ICANN appears to place the blame at NSI's doorstep: "Although NSI has declined to publicly explain the reasons for these delays, it appears that some aspects of the SRS did not initially work as expected, so that testbed registrars have experienced great difficulties in connecting to the SRS and implementing and testing their interfaces to the system."

In a June 15 status report to the Department of Commerce, ICANN sounded a similar theme: "In [transitions from a monopoly to competition], the incumbent monopolist has no particular incentive to do anything more, or quicker, than is absolutely required to expedite this transition, and our experience to date is that this situation will not prove to be an exception."

The SRS was developed as part of NSI's exclusive domain name registration contract with the National Science Foundation. NSI has claimed ownership to intellectual property rights in the customer and its Whois database, which contains e-mail addresses of domain name registrants (4 ECLR 422, 5/12/99). The new registrars have complained that without access to some of NSI's database, they will be unable to compete with NSI.

ICANN Under Fire Over Policies

On June 11 letter, Ralph Nader and James Love sent ICANN chairman Esther Dyson a letter questioning Dyson about the scope of Internet governance issues that ICANN planned to address, the authority of ICANN to levy domain name registration fees, and whether the interim ICANN board of directors was making substantive policy decisions, before an elected board was in place.

Congressman Thomas J. Bliley (R-Va.), chairman of the House Commerce Committee, posed similar questions, though at greater length and detail, in a June 22 letter to Dyson.

Critics have voiced concern that ICANN is implementing wide-ranging policies with an interim, unelected board. They question the organic authority of ICANN to assess fees, impose mandatory arbitration clauses on registrars, to control the assignment of Internet protocol (IP) parameters and to control the allocation of IP addresses. Detractors of ICANN also question why the board has so few persons serving on it that have actual operational expertise in technical management duties, when such duties are ostensibly the purpose of the organization.

David Post, a law professor at Temple University, questions whether ICANN truly has the authority to make some of these policy decisions. He says it is not clear to him who gave ICANN such authority. The U.S. government may have asked ICANN to take over administrative responsibilities from NSI, Post says, but he says he cannot point to any legal reason that a new company or other organization cannot decide to start registering domain names outside the scope of ICANN.

As a practical matter, such a company would have to have access to one of the root servers, much like long-distance companies have to have access to local phone company networks.


Fledgling Net Authority Questioned On Legitimacy, Basic Mission, Survival

Originally published Sept. 29, 1999

Serious criticism continues to dog the fledgling Internet authority over its own legitimacy and actions as its first birthday in November approaches, with questions being raised about the ultimate viability of the nonprofit company.

Both those who have long been involved with the debates that preceded the creation of the company as well as relative newcomers to the fray are voicing concerns about what they say is the uncertain scope of the company's mandate for managing the Internet and its seeming lack of accountability to anything but itself.

These criticisms were levelled against the Internet Corporation for Assigned Names and Numbers, tapped last year by the federal government to introduce competition into the Internet domain name registration business, at a Sept. 24-25 conference in Alexandria, Va., titled "Governing the Commons: The Future of Global Internet Administration," and hosted by Computer Professionals for Social Responsibility.

Nader Calls for Government Charter for ICANN

Consumer activist Ralph Nader questioned whether there were any real limits on ICANN's authority to govern the Internet. Nader, who entered the debate in June on behalf of the Consumer Project on Technology, was the keynote speaker at the conference.

Nader argued that without congressionally set limits on ICANN, there is no guarantee that ICANN will act in an accountable manner once the Department of Commerce hands over control of the root server and the domain name system, as expected in September 2000. Nothing prohibits ICANN from amending its by-laws, he pointed out. The fact that ICANN is a California corporation removes its actions from oversight by affected Internet users, he said. Nader also criticized the privatization of the governance of the Internet by the Department of Commerce, first in 1993 by contracting exclusively with Network Solutions Inc. for domain name registrations, and in 1998 with a Memorandum of Understanding signed last November with ICANN to oversee management of the domain name system.

Nader called for an international government charter that would limit ICANN's authority. "ICANN should not be created as the foundation for a vast Internet governance institution," according to Nader's proposal. In particular, Nader said he wants to assure that ICANN is limited to tasks related to the DNS management, and that it is prohibited from promoting policies that regulate conduct or content on the Internet. That charter should include a right of free speech, parody and criticism for all domain name holders, Nader stated.

Congress Concerned

Congress is also concerned with the legitimacy of ICANN, said Paul Scolese, professional staff member of the House Commerce Committee. According to Scolese, some federal legislators are mulling over whether Congress needs to "brand" a decision-maker for Internet governance issues. Hearings on this and other issues relating to ICANN and Internet governance will likely be held in the coming months, Scolese told BNA.

ICANN's Role Is Limited One, Chairman Says

Esther Dyson, chairman of the ICANN board of directors, maintained that ICANN is not about governance of the Internet. Few panelists, though, agreed with Dyson's assertion that ICANN was not an Internet governance organization. ICANN has been careful to confine itself to issues relating to Internet protocols and addresses, and domain name disputes, she said. ICANN's goal, according to Dyson, is to keep itself limited to such issues. The key question, she acknowledged, is how to accomplish that goal. Dyson noted that as the ICANN board of directors becomes an elected one, rather than the self-appointed body it now is, the "legitimacy issues should go away."

ICANN Is Internet Governance

The essential criticism leveled at ICANN is that its current, unelected board of directors is making policy decisions that exceed the scope of the mandate given to it by the Department of Commerce in its June 1998 White Paper, the government's policy statement of ICANN's mandate. The White Paper claimed that the policy would apply only to the management of Internet names and addresses, would not set out a system of Internet governance, and would not disturb free speech protections.

Part of ICANN's legitimacy problem is that its mission has remained unclear, according to Tamar Frankel, a professor at the Boston University School of Law. While ICANN is charged with overseeing DNS management, the current board has undertaken policy functions, she said.

The White Paper charged ICANN with deciding how new gTLDs would be added to the domain name root system. Yet, ICANN has only just begun to address the issue of adding new gTLDs. ICANN has moved ahead on a dispute resolution policy for abusive domain name registrations, and is expected to have in place by Oct. 15 a domain name dispute resolution process to address abusive domain name registrations, or cybersquatting. In contrast, an initial proposal for how and when to add new gTLDs to the Internet is expected to be posted by Oct. 15 for public comment, the first step in the process of adopting such a policy.

The perceived rush to adopt a dispute resolution policy, while lagging on addressing the creation of new generic top level domains, has been cited by ICANN's critics as only one example of inappropriate policy-making. Indeed, some see the making of any policy relating to domain disputes as beyond the mandate of managing the DNS system.

Karl Auerbach, a California attorney who now develops video systems for Cisco Systems, asserted that any action that does not directly affect the movement of Internet protocol packets from one end of the Internet to the other constitutes governance of the Internet. Auerbach attended the conference on behalf of the Individual Domain Name Owners Constituency. Auerbach and others argued that ICANN's role should be limited to "the plumbing" of the Internet, namely the assignment of IP addresses.

Seriously Defective, 'Byzantine' ICANN Structure

ICANN is still in the process of building its structure. The current unelected interim board of directors will eventually be replaced by a board elected in part by an at-large membership, in part by an address supporting organization, and in part by a domain name supporting organization. Within each of these three organizational structures, there are at least half a dozen consitutuency groups. The White Paper and most observers call for ICANN to be a bottom-up organization, with the actual policies of ICANN originating in working groups within the various constituencies.

The ICANN structure is "seriously defective," and lacks meaningful process, according to Michael Froomkin, professor of law at the University of Miami and a member of the ICANN dispute resolution drafting committee. ICANN's "byzantine" organizational structure is one of the primary causes of its legitimacy crisis, according to Froomkin.

ICANN has stated repeatedly that it is a consensus-based organization. Yet, Froomkin criticized what he called a "manipulable consensus" by the ICANN board. As an example, he pointed to Esther Dyson's declaration that ICANN does not "see a global consensus demanding that ICANN hold all its meetings in public," in a response to a Commerce Department letter criticizing ICANN's closed board meetings (4 ECLR 593, 7/14/99). This was the one issue, Froomkin told BNA, on which ICANN's critics were united, demanding open board meeting. Consensus seems to be, he said, what the board says it has when it wants to do something, regardless of what the constituency groups within ICANN have said.

Like Nader, Froomkin expressed concern that the contract model used by the Department of Commerce and also by ICANN is "highly insulating from real review of decisions" made by ICANN. For example, individual domain name holders cannot challenge the validity of the dispute policy they are subject to because that policy is a non-negotiable part of all domain name registration contracts. As part of the accreditation process, ICANN contractually requires registrars to adhere to whatever dispute resolution process ICANN decides to adopt.

Froomkin proposed two possible solutions to ICANN's legitimacy crisis. One would be a reform of ICANN, by adding restrictions to its scope of operations, much like the Bill of Rights acted upon the U.S. Constitution. The other solution, he said, is to treat ICANN like the ill-fated Articles of Confederation, and start over again.

Tipping Balance of Property vs. Free Speech

Jean Camp, an assistant professor at the Kennedy School of Government at Harvard University, questioned whether enacting a bill of rights for ICANN would suffice to remedy its legitimacy crisis. "Whose bill of rights would it be?" she asked. She echoed the sentiments of many conference participants when she stated that "ICANN and NSI have tilted the balance of speech and property rights toward property." By that, Camp told BNA that there should be an acknowledgment that in some cases, domain names are themselves a form of speech. She pointed to the example of gwbush.com, a World Wide Web site protesting the candidacy of George W. Bush for president. The Bush campaign has complained to the FCC about the Web site; were the campaign a company, though, Camp says that it would have been able to use NSI's existing dispute resolution policy to shut down the site. Any dispute resolution policy adopted by ICANN needs to acknowledge the free speech implications of some Web sites, according to Camp.

There was a consistent call for more representation of individuals and noncommercial entities during the conference. This criticism is not new; many, in addition to Nader, Camp and Auerbach, have complained in the past about the overwhelming representation of business interests within ICANN, and the lack of representation of noncommercial and individual Internet user interests.

Dispute Policy at Expense of New gTLDs

Milton Mueller, associate professor of information studies at Syracuse University and a member of the ICANN working group charged with formulating policy for the introduction of new generic Top Level Domains (gTLDs), also maintained that ICANN is in fact a governance body, rather than a mere plumber of the Internet.

Mueller sharply criticized the use of ICANN as a tool for "global surveillance of Internet users" on behalf of trademark owners. According to Mueller, such surveillance is accomplished by requiring that all Whois database information be completely accurate and available to anyone who wants to access it, regardless of other concerns, such as privacy. ICANN also has imposed a business model on domain name registrars, said Mueller; the shared registry model is an economic choice, not a technical requirement for operation of the DNS system, he said. All of these factors require the conclusion that ICANN is governing the Internet, not merely managing the technical aspects of it, according to Mueller.


GAO Report Legitimizes Creation of ICANN, Questions Control of 'A' Root, Fee Collection

Originally published July 12, 2000

An eagerly awaited General Accounting Office report on the legitimacy of the Internet's fledgling authority largely blessed the U.S. government's selection of the Internet Corporation for Assigned Names and Numbers, but raised troubling questions about ownership of the Internet's main domain name address database. The report also cast doubt on ICANN's ability to exact levies on Internet users in excess of amounts necessary for basic operating costs.

The report, requested by Congress last year, examined several legal issues, including:

  • whether the Department of Commerce has the legal authority to transfer control of the authoritative root server to ICANN;
  • whether the formation of the Internet Corporation for Assigned Names and Numbers was in accordance with the Administrative Procedure Act and the Government Corporation Control Act; and
  • whether ICANN, as a "project partner" with DOC, has the authority to impose fees on Internet users to cover its operating costs.

Among the issues unaddressed by the report is whether ICANN's ongoing decisions are subject to the APA.

Controlling the Root of the Internet

The GAO's report left unresolved the issue of who owns and controls the "A" root server of the Internet, which contains the authoritative listing of all domain name Internet protocol addresses. Currently, the A root is maintained by Network Solutions Inc. under contract with the Department of Commerce.

Last fall, Commerce said that it expected to receive a technical proposal from ICANN to manage the root, and that management responsibility "may be transferred to ICANN at some point in the future" (4 ECLR 890, 10/6/99).

The GAO report noted that control over the authoritative root server is not based on any statute or international agreement. However, the report also pointed out that the U.S. government has been deeply involved in supporting and developing the Internet and the DNS. Commerce has no specific statutory authority or obligation to manage the DNS or control the A root, the report said. It is "uncertain" whether transferring control of the A root would mean transferring government property to a private entity, according to the report. Even determining whether there is government property involved with the A root "may be difficult," the report continued. "To the extent that transition of the management control to a private entity would involve the transfer of government property, it is unclear if the Department has the requisite authority to effect such a transfer." But according to GAO, Commerce says it currently has no plans to transfer the root to ICANN.

GAO's statement that Commerce may not have the ability to transfer the root is "very important," according to Milton Mueller, a professor information studies at Syracuse University and a frequent ICANN critic. Even though the GAO tries to legitimize Commerce's actions after the fact, Mueller said, it could not agree that Commerce could do the one thing that ICANN was created for--privatization of the DNS.

Privatization OK under APA

The GAO report concluded that the Commerce's plan to transfer the administration of the DNS was not subject to the notice and comment procedures of the APA. The agency in Feb. 1998 had issued a proposed rulemaking, known as the Green Paper, on domain name administration issues (3 ECLR 142, 2/4/98). In response to the 650-plus comments it received, Commerce withdrew the notice and instead issued what it termed a policy paper, the White Paper, in June 1998 (3 ECLR 748, 6/10/98). According to the GAO report, once the White Paper issued, the Commerce Department was not under any legal obligation to put out for comment any proposals of private parties submitted in response to the White Paper. Notice and comment processes do not apply to general policy statements, the GAO report said; the White Paper was a policy statement, rather that a substantive rulemaking, because it provided the public only with a general framework of how the Department intended to proceed with the transition to privatization of the DNS.

Fee Levy Questioned

The report also scrutinized ICANN's ability to levy fees on Internet users. Last year, ICANN had proposed a $1 per domain name fee to fund itself, but dropped the proposal after meeting stiff opposition (4 ECLR 647, 7/28/99).

GAO concluded that ICANN is not subject to Office of Management and Budget rules relating to cost recovery through user charges. However, ICANN is a project partner with the Department of Commerce under a Memorandum of Understanding signed in 1998. Commerce's policy generally is to allow project partners to recover only actual project costs. The MOU between Commerce and ICANN does not address the issue of fees, the GAO report observed. The policy could limit the amount of fees ICANN will be able to collect, though not prevent the imposition of some fees, according to the report. The report did not address whether ICANN's current budget reflected fees that exceeded actual project costs.

ICANN was born in late 1998 into a maelstrom of controversy over the administration of the domain name system (DNS). Government contracts with Network Solutions Inc., used to manage various aspects of the DNS, were coming to an end, and the government wanted to privatize a network that was catapulting toward commercial use and away from its government and research roots (3 ECLR 179, 2/11/98).

Of the four proposals to privatize the DNS, Commerce chose one submitted by the late Dr. Jon Postel on behalf of what eventually became ICANN. Postel was the director of the Internet Assigned Numbers Authority, which had maintained the list of Internet names and numbers since the mid-1980's.

The choice of ICANN by Commerce did not end the controversy over DNS issues. Since its inception, ICANN has been plagued by charges of capture by large commercial and trademark interests (4 ECLR 870, 9/29/99).


NSI's Concessions, Seen as Best Possible, Likely to Mute Criticism of ICANN Board

Originally published Nov. 10, 1999

LOS ANGELES--While Network Solutions Inc.'s surprise decision Nov. 4 to address the longstanding concerns of registrars over NSI's agreements with the Department of Commerce and the Internet Corporation for Assigned Names and Numbers undoubtedly improved NSI's image within the Internet community, the major beneficiary of the last-minute concessions may have been the ICANN board.

Throughout the four-day ICANN conference here Nov. 1-4, in meetings and public discussions, criticism of the agreements transferring authority over domain name registration to ICANN dominated debates, even while all participants, even the harshest critics of the deal, conceded that the ICANN board would approve it at the end of the conference.

Indeed, it was the "fait accompli" nature of that approval that drew the ire of speaker after speaker, who viewed the lack of consultation with various ICANN advisory bodies as a violation of ICANN's promise of a "bottom up" approach to decision-making.

The Domain Name Supporting Organization Names Council, for example, did not even see the proposed agreements until they were presented for public comment, the Names Council chair, Caroline Chicoine, told BNA Nov. 2.

Anger within the Names Council over the deal emerged repeatedly during the advisory group's open session Nov. 2, to the extent that a motion calling on the ICANN board to delay approval of the agreements barely fell short of a majority.

Doubts Voiced on Deal Provisions

Similarly, at a public forum of the ICANN board Nov. 3, some newly elected board members voiced doubts about provisions of the deal, while others endorsed the concerns of the registrars. Michael Pelage, secretary of ICANN's registrar group, told the forum that all registrars polled--except NSI--voted not to support the agreements.

Both publicly and privately, ICANN officials acknowledged that the agreements were not perfect, but defended them as the best deal possible, given NSI's dominant position in the domain name registration sector. The ICANN officials said there was a very real possibility that, in the absence of the agreements, the matter could have been tied up in courts for years.

They also insisted that the promise of "bottom up" decision-making remained an ICANN commitment, even if the unique circumstances of the NSI negotiations required something less than that for those agreements.

NSI's surprise move to address the outstanding complaints of registrars meant not only that "the war is over" between NSI and the rest of the Internet community, but that ICANN has an enhanced legitimacy--recognized by NSI--and can now move forward to take over management of the root server and other tasks, several board members said at a post-board meeting press conference.

Jonathan Cohen, a longtime ICANN participant and one of the nine newly elected board members, said repeatedly that NSI's sudden conciliation on points of longstanding dispute had produced "a climate of trust" that will facilitate ICANN's next steps.

Principal among those steps are the eventual rollout of new generic Top Level Domain Names (gTLDs), and bringing country code Top Level Domain Names under the ICANN umbrella, Joseph Sims, ICANN's outside counsel told BNA.

Members of ICANN working groups on both famous trademarks and new gTLDs told BNA that no new gTLDs are likely to be introduced until ICANN resolves the debate over how to define and protect famous trademarks. But Sims, asked about that position, said: "that's their opinion."


Next: ICANN's early encounters with Network Solutions Inc. and House Commerce Chair Thomas J. Bliley Jr. (R-Va.).

By