Chapter 8: Institutionalizing the Root: The Formation of ICANN

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Overview

Don Heath: IANA's method of working has always been, in fact, to assess what the community, the community . . . the broad Internet stakeholders wanted, and [IANA] would never do anything on its own unless it was acceptable generally. . . . Jon knows, Postel and IANA know, that they cannot function unless they are meeting the will of the Internet community at large.

Anthony Rutkowski: The notion that there is any Internet community is a myth. In fact it's rather the converse. [Laughter] You've got probably a dozen or fifteen different, fairly insular communities that all have to dovetail into that. . . .

-Transcript of public hearing on the Green Paper, February 23, 1998

Institutionalization occurs when the parties involved in the exploitation of a resource adopt group rules and customs regarding its allocation and use. The process of contracting for property rights, however, can only take place when the parties are in communication with each other and have established mutually acceptable methods and arenas for bargaining and negotiation. It took some time for the struggle to control the Internet's name and address space to reach the stage where formal collective action was possible.

The exchange that begins this chapter, between Don Heath, president and chief executive officer of the Internet Society (ISOC) at the time, and Anthony Rutkowski, Heath's predecessor who had become a harsh critic of ISOC, poignantly illustrates one reason why the road to effective collection action was so rocky. Traditional notions of an Internet community were derived from the halcyon days of the 1980s, when a small cadre of computer scientists facilitated the emergence of an informally organized standards community (the Internet Engineering Task Force-IETF) and there was an interconnection among research and education networks worldwide. Respected authority figures such as Jon Postel could determine informally 'the will' of such a community. But the Internet of the late 1990s was a very different place. In addition to the opinions of a tightly knit epistemic community of technologists, decisions had to take into account the interests and ambitions of businesses of all shapes and sizes, consumers, politicians from different parts of the world, and all the opportunities for legal conflict among producers and consumers. The number of bargaining parties was now much larger, and their interests were heterogeneous.

Table 8.1 lists key stakeholder groups and describes their interests. By 1998 each of those groups was activated around Internet governance issues. Each had formed some concept of what was at stake and was capable of promoting policy alternatives that reflected their interests. Each group's relationship to other groups, whether one of alliance or opposition, was becoming known.

1. U.S. Government

A highly complex organization subject to multiple points of access and pressure, the U.S. government acted, or rather reacted, as an intermediary for diverse and often conflicting interests. Because the constituencies to which it responded were deeply divided, its main objective was to get rid of the problem without creating serious political liabilities or yielding too much control to foreign interests.

2. Network Solutions, Inc.

A profit-making firm controlling 70 percent of the global market for domain name registration, it wanted to establish a stable property right over its generic top-level domains or, barring that, to prolong its special market position as long as possible.

3. Internet Technical Community

Encompasses the original ARPANET elite, the IANA, the Internet Architecture Board, and other leading hierarchs of the IETF, and the founders and staff of RIPE-NCC and AP-NIC. The technical community wanted to maintain its historical control over the Internet's name and address spaces. It also developed an economic interest in DNS management as a source of support for its activities. Overlaps with (4) and (6).

4. Research and Education Networking Organizations

Administrators and engineers of government-subsidized research and education networks. Organized nationally around organizations like EDUCAUSE in the United States or science and technology and education ministries outside the United States. Overlaps with the technical community through the Internet Society and the National Science Foundation, and had a similar interest in maintaining the status quo in administrative control of the Internet.

5. Trademark and Intellectual Property Interests

Major trademark holders opposed expansion of the name space and demanded more effective and inexpensive ways to monitor domain name assignments and enforce their claims of exclusive rights over specific names. Representative groups were INTA, FICPI, MPAA, AIM, and WIPO.

6. Large Telecommunications and e-Commerce Corporations

Organized around GIP, ITAA, WITSA, and the International Chamber of Commerce, these companies were primarily interested in fostering stable, predictable administration of the Internet while retaining private sector control. Many were also major trademark holders and placed high priority on theintellectual property protection agenda. Included IBM, MCI, AT&T, AOL, France Telecom, and Deutsche Telekom.

7. Prospective Market Entrants

Businesses seeking entry into the domain name market. This grouping was split into two distinct and opposing stakeholders: CORE registrars -smaller, mostly non-U.S. businesses seeking entry into the commercial market for .com, .net, and .org registrations as registrars and as co-owners of a global, shared registry. Allied with the Internet Society and against Network Solutions; claimants to new TLD strings- small entrepreneurs and maverick technical people who created their own top-level domains and registries, and attempted to support them in non-IANA root server confederations. Both groups wanted competitive entry into the market, but promoted different ideological and policy agendas.

8. Local and Regional Internet Service Providers

Smaller-scale ISPs and their trade associations, including CIX and ISP/C in the United States, Euro-ISPA, APIA. As consumers of IP addresses lower on the chain than the larger infrastructure providers in (6), this group had an interest in a stable, accountable assignment authority and was concerned with getting a seat at the table for its constituents.

9. Country Code Registries

A highly diverse group encompassing large-scale, private sector nonprofit consortiums in Germany and England, quasi-commercial TLDs in island territories, and registries run by government science and technology ministries. All held de facto property rights to TLD strings and had incentives similar to Network Solutions', except that there was no hostility or rivalry between them and the technical community. Included Domainz (NZ), CENTR, APTLD, IATLD.

10. Civil Society and Civil Liberties Organizations

Organized public interest groups saw in the domain name wars threats to freedom of expression and a dangerous expansion of intellectual property rights. Included DNRC, EFF, CPSR, ACM, ACLU.

11. Intergovernmental Organizations and National Governments

ITU and WIPO responded to organizational imperatives to incorporate Internet governance functions into their mission. The European Commission and a few key national governments, notably France and Australia, similarly wanted to secure for themselves a seat at the decision-making table, but were also concerned with countering U.S. economic and political dominance of the Internet, and with asserting rights over specific names and registries.

Between the release of the Green Paper in late January 1998 and the issuance of the final White Paper in June 1998, a subset of the groups listed in table 8.1 formed a 'dominant coalition' capable of driving the institutionalization process to conclusion. This chapter analyzes the origins and composition of the 'dominant coalition' and its capture of ICANN in its formative stages. Chapter 9 details the enactment of its agenda in the twoanda-half years following the release of the White Paper.

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