Chapter 8: Institutionalizing the Root: The Formation of ICANN

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1. Comments on the Green Paper are still posted at <http://www.ntia.doc.gov/ntiahome/domainname/130dftmail/ >.

2. For a detailed legal discussion of the implications of the Administrative Procedures Act and its avoidance in the creation of ICANN, see Froomkin (2000). Ultimately the Commerce Department chose a mode of action designed to avoid the APA, but at the Green Paper stage, there was still the possibility that the privatization process would occur under the Act. See the comments of J. Beckwith Burr, Transcript of a Public Hearing with Ira Magaziner, White House Advisor, and Beckwith Burr, Associate Administrator, NTIA, Department of Commerce, Washington, D.C., February 23, 1998, <http://www.ntia.doc.gov/ntiahome/domainname/130dftmail/feb23transcript.htm>.

3. Network Solutions and the alternative registries supported the general thrust of the proposal. IBM praised the Green Paper as 'basically sound and workable.' Educom commented that 'the Green Paper provides a robust blueprint for addressing many current problems with management of Domain Names, and is strongly endorsed by the higher education networking community.'

4. The Australian government's comments, for example, criticize the Green Paper for not mentioning the gTLD-MoU, even though they 'do not necessarily support it.' The Australian government's policy critique of the Green Paper followed the same lines as the MoUvement's, insisting that registries should be administered as a monopoly, nonprofit 'public trust' instead of by for-profit enterprises, and rejecting the nonuniform dispute resolution approach of the NTIA proposal.

5. Interview with Don Heath, June 19, 2000.

6. Of the 50-odd emailed comments filed on March 21 and 22, the second and third days before the deadline, nearly three-fourths came from individual ISOC members or CORE participants; 17 of the responses were identical. See note 1.

7. The CORE executive committee at this time consisted of Werner Staub (Switzerland), Siegfried Langenbach (Germany), Ivan Pope (U.K.), Leni Mayo (Australia), and Trevor Hayes (Australia).

8. Council of the European Union, European Commission: 'Internet Governance: Reply of the European Commission and Its Member States to the U.S. Green Paper,' March 16, 1998.

9. Response of the Commonwealth Government of Australia to the Proposed Rule of the United States Department of Commerce, <http://www.ntia.doc.gov/ntiahome/domainname/130dftmail/Australia.htm >.

10. The issue of for-profit registries and the uniformity of the dispute resolution procedure were both points of substantive policy difference between the two proposals.

11. Its founding members were Netscape (acquired by AOL by 1999), MCI, IBM, AT&T, Deutsche Telekom, Oracle, Visa International, NEC, Fujitsu, Sun Microsystems, BBN Planet, and EDS.

12. From the GIP Web site, <http://www.gip.org/>. Compare this to Barlow's 'Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather. . . . Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours.'

13. In June 1999, when ICANN was desperate for funds, Vint Cerf and Mike Nelson mounted an appeal to the Internet industry for US$1 million in 'bridge funding.' According to Cerf, 'I would then launch a campaign with GIP, ITAA, Internet Society, and other interested groups on the basis that ICANN must succeed or Internet will be in jeopardy.' Despite fund-raising appeals to Silicon Valley, only MCI WorldCom and Cisco were willing to provide loans for US$500,000 and US$150,000, respectively. Email, Gordon Cook to Telecom Digest email list, September 1, 1999; on file with author.

14. Interview with Roger Cochetti, June 2, 2001. A group of major IBM executives had been treated to a presentation by the IAHC members at a very early stage, either late December 1996 or early January 1997. They came out of the meeting, according to Cochetti, unimpressed with the claims of the IAHC that they already controlled the root and convinced that the brash IAHC members failed to comprehend the need to cultivate the needed political support.

15. Interview with Scott Bradner, July 19, 2000.

16. The IAB had not, however, completely abandoned the gTLD-MoU. Its meeting minutes reveal that it continued to nominate representatives to the MoU's Policy Oversight Committee as late as June 1998. IAB Minutes for June 9, 1998.

17. A source at WIPO who wishes to remain anonymous thinks that Magaziner really did believe that technical coordination concerns were paramount and that trademark issues were a distraction. After agreeing (thanks to European pressure) to permit WIPO to perform its role, he expected to bury or sidestep the issue in that way.

18. A revealing public statement by Magaziner shortly after the release of the Green Paper provides insight into the motivation behind the U.S. Government's approach to the White Paper: 'The easiest thing for us would be if we could punt on this. That is, if we could say, ‘We're lame ducks. We're getting out of this. Let's wait for this new organization, and we're not going to change anything until that comes into being.' And that would certainly make our job easier. [But we are convinced] that it would delay the onset of competition. And so that's why [in the Green Paper] we went against our better visceral judgment about what was in our own best interests, and said, we'll go ahead and try to create this transition. . . . But if there was an overwhelming set of opinions from the broad community that said, ‘No, just wait,' then I'm sure we would be amenable to listening to that.' Transcript of a Public Hearing with Ira Magaziner, White House Advisor, and Beckwith Burr, Associate Administrator NTIA, Department of Commerce, Washington, D.C., February 23, 1998.

19. Internet Architecture Board minutes, June 9, 1998.

20. Don Heath told the press that 'the final policy represents a victory for the Internet Society-influenced Generic Top-Level Domain Memorandum of Understanding (MoU). ‘It's excellent,' he said, that government had decided to leave Internet governance to users and the private sector instead of governments.' Will Rodger, 'Government Hands Domain Name Reins to Private Sector,' ZDNet News, June 5, 1998.

21. A European Commission Council meeting dated May 19-several weeks before the publication of the White Paper-noted, 'The U.S. authorities are now in the process of drafting a White Paper which, according to Commissioner Bangemann, seems to take into account many of the concerns expressed in [ Commission's response to the Green Paper].' Minutes of European Commission 2096th Council Meeting, Brussels, May 19, 1998, 8529/98 (Presse 149).

22. John Sopko, Chief Counsel for Special Matters, U.S. Commerce Department, to Rep. Thomas J. Bliley, November 5, 1998.

23. Rutkowski's June 9, 1998 email to Jon Postel, Vint Cerf, Dave Farber, Scott Bradner, and John Gilmore, entitled 'Incorporation Workshop,' said in part, 'It's critical now to really bring everyone together to construct a corporation or trust with the right attributes-that provides for diversity, balance, safeguards, and meets the interests and expectations of everyone. This workshop happened because a lot of people were talking with a lot of other people about how to proceed if the government wasn't going to itself form a corporation, and what form of legal creature should be brought into existence.'

24. ISP/C news release, June 18, 1998.

25. The IFWP steering committee included representatives of the following organizations: Catalonian Foundation for Research (. ES), Image Online Design (. US), Information Technology Association of America (. US), Canadian Association of Internet Providers (. CA), Association for Interactive Media (. US), Camara Argentina de Bases de Datos y Servicios en Linea (. AR), Association Usarias de Internet (. ES), Open Root Server Confederation (. US), EuroISP Association-UK, EuroISP Association-Germany, Council of Internet Registrars (. CH), ISOC Australia, Mexican TLD, Domain Name Rights Coalition (. US), Harvard Berkman Center (. US), ISP/C (. US), DENIC (. DE), Internet Society (. US), Commercial Internet eXchange (. US), European Telecommunications Standards Institute (. EU), Asia Pacific Internet Association (. AP), EDUCAUSE (. US), ISOC-Geneva (. CH), Asia Pacific Networking Group (. SG), International Chamber of Commerce (. UK).

26. Einar Stefferud raised procedural and substantive objections to the plenary's actions. See Stefferud to IETF list, September 2, 1998, 'Tamar's IETF appearance.'

27. Stefferud's report, corroborated by others present, notes that he stood up and asked the plenary attendees, Who has read the proposals? Only about one-quarter of the attendees raised their hands.

28. Email, Lawrence Lessig to Michael Sondow, September 6, 2000; on file with author.

29. A widely publicized, caustic email from Mike Roberts announcing his refusal to participate in the ratification meeting signaled the demise of the final meeting proposals. Mike Roberts to IFWP-discuss list, August 28, 1998, 'Ratification- the IFWP Emperor Has No Clothes.'

30. Paul Festa, 'Raising Funds for New Names Body,' CNET News, September 9, 1998.

31. The first subclause stated that the new corporation must recognize any agreements between the U.S. government and IANA or Network Solutions. The second subclause stated that the corporation should not knowingly destroy any contractual or property right of a particular party.

32. The BWG members included Karl Auerbach, Internet technologist since 1974, IETF participant since the mid-1980s, California attorney, and chief technical officer of InterWorking Labs; Peter Dengate Thrush, patent attorney, solicitor, and barrister, counsel to ISOCNZ (New Zealand) and its subsidiary, the NZ registry, Domainz; David Schutt, chief information systems manager for a manufacturing company; Patrick O'Brien, CEO of Domainz, the NZ registry; Eric Weisberg, principal and general counsel for a rural Texas ISP, Internet Texoma; Diane Cabell, of the law firm Fausett, Gaeta & Lund; Jorge Contreras, Hale & Dorr (host, representing the Berkman Center for Internet and Society at Harvard Law School). Most had purchased nonrefundable airline tickets to Boston.

33. Letter from the Boston Working Group to Ira Magaziner, senior advisor to the President for policy development, September 28, 1998.

34. The Open Root Server Confederation was formed in July 1997 by Richard Sexton, Einar Stefferud, and Brian Reid. It was incorporated in Delaware in the summer of 1998.

35. The Electronic Frontier Foundation urged IANA to include protections for freedom of expression in the articles, and a proposal submitted by the European ISP Association proposed a structure similar to ORSC's.

36. 'I am assuming that by midweek at the latest, there will be some names of board members emerging. I am assuming this because we will need to have some broad public discussion of those names before October first.' Gordon Cook, interview with Ira Magaziner, September 21, 1998, posted to Domain Policy list, September 22, 1998.

37. John Sopko, Chief Counsel for Special Matters, U.S. Commerce Department, to Rep. Thomas J. Bliley, November 5, 1998.

38. Ibid.

39. Comments responding to the ICANN incorporation proposal are still posted at <http://www.ntia.doc.gov/ntiahome/domainname/proposals/comments/comments.html.

40. 'Overall, the submissions we received supported moving forward with the ICANN structure. We note, however, that the public comments received on the ICANN submission reflect significant concerns about substantive and operational aspects of ICANN. The submissions of the Boston Working Group and the Open Root Server Confederation, among others, articulate specific concerns, many of which we share. As you refine your proposal, we urge you to consult with these groups and others who commented critically on your proposal to try to broaden the consensus.' Burr letter to ISI, October 20, 1998.

41. Letter of Esther Dyson, interim board chair, to J. Beckwith Burr, Department of Commerce, November 6, 1998.

42. Memorandum of Understanding, Department of Commerce and ICANN, November 28, 1998.

43. Letter from Esther Dyson, ICANN, to J. Beckwith Burr, Department of Commerce, July 19, 1999.

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