Global Ideal, National Reality
The document below is the work of Berkman Center student affiliates. Accordingly, it does not represent the views of the Berkman Center institutionally; rather, it presents the perspective of its authors.
This paper considers at the role that national identity and nationalism play and have played in the development of ICANN and ICANN policy. We will begin by looking at the role of the US government in relation to ICANN. Second we will look at the current status of the ccTLDs. Third, we will address the At-Large elections and the use of geographic regions for voting. Finally, we will conclude with a proposal for blending ICANN’s global scope with accountable national representation through a reformulation of the role of the Governmental Advisory Committee.
The Internet was created under the control of the US government as a Department of Defense project. Since then, it has grown into an essential part of people’s lives all over the world, important for governments and corporations, as well as a major part of the worldwide “new economy.” With private communication and information increasingly taking place on the net, many interests seek involvement in its governance. The US government has responded to increased international interest in the Internet by transferring control of the Internet’s Domain Name System (DNS) to ICANN, though maintaining at least temporary supervision via the Department of Commerce (DoC). It should be noted, in defense of the oft-chided US, that it was under no obligation to give away control of the Internet; it did, after all, fund the network’s creation.
As a Department of Commerce “spin-off,” ICANN is viewed by many critics as a “quasi-governmental” organization covertly controlled by the US government. ICANN is still under a “Memorandum of Understanding” on continuing “policy authority” with the US DoC. Within this policy framework, the US government maintains control over certain aspects of ICANN. This control was previously scheduled to end in September 2000 but has not, leading critics to question whether the US government is scared of completely giving away ICANN to the world. But worth reemphasizing is that the US did not have to “give it away” at all. As Congressman Tom Bliley, Commerce Committee Chairman, argued in a scathing attack on ICANN at a committee meeting in July 1999: “The Internet is too important to this nation, and the world at large, for this Committee to stay on the sidelines.” But even this assertion does not necessarily mean that the US government should not go further. Indeed, many would argue that the US still exercises too much control, and keeps too much of the Internet for itself. For example, perhaps governmental, educational and military institutions worldwide should be able to use the .gov, .edu and .mil TLD’s.
Do country code top level domains (ccTLDs) contribute to the current nationally divided reality of the Internet, by emphasizing division along country boundaries? At the very least, the registration and use of ccTLDs raise concerns over the transformation of and emphasis on national sovereignty in the information age. To some extent, country codes currently serve as Internet domain suffixes, lessening the need for numerous additional gTLDs. Although the ccTLD for the United States (.us) is rarely used, corporations and organizations abroad frequently use ccTLDs. Yet out of the 200+ countries that offer Internet domain registrations under their own ccTLDs, more than 70 have no local residence requirements and possess very weak trademark laws. This has brought up the interesting question of who exactly “owns” country domains. Are ccTLDs just gTLD’s by another name, and if that is the case, would it not further the global ideal to replace them with gTLDs? Does the answer change when it is noted that some countries do prize their designated country domain as an extension of their territorial sovereignty. The Japanese government, for instance, allows only Japanese organizations or companies to register one .jp name. Is this just a remnant of the current national reality, which ICANN should be trying to move towards the global ideal? Other countries seem to consider their TLDs to be a valuable windfall, as Tuvalu’s sale of .tv and Moldova’s sale of .md to the private sector demonstrate.
ICANN bases its decisions to grant ccTLDs on the presence of a country on the ISO-3166-1 list of two-letter country codes, a list maintained by a designated department of the International Standards Organization (ISO). The 3166-1 list was developed not for the purpose of designating ccTLDs, but rather to standardize country names into two-letter assigned codes. Jon Postel, through IANA, decided to utilize the ISO 3166-1 list as a basis for creating ccTLDs in order to avoid making political decisions himself, a practice which ICANN inherited and has maintained. Thus, when IANA designated a ccTLD for France, they merely took “.fr” from the ISO 3166-1, rather than themselves choosing the string “.fr.”
A territory or region can be added to the ISO list even though it has not been recognized as a state by the UN. For example, the ISO 3166 Maintenance Agency created .ps as the code for the Palestinian National Authority (PNA) territory. Thus, territories that are not officially recognized as states by the United Nations, such as Taiwan and East Timor, have been granted their own ccTLDs. The extension of ccTLDs to such territories raises important political concerns regarding the manifestation, and possible redefinition, of sovereignty within cyberspace.
Granting the .ps domain to the Palestinian National Authority is in a sense the cyberspace equivalent of internationally recognizing a state, regardless of whether or not it is done based on the ISO list. The Internet’s ability to transform evolving ideas into realities has been shown to be a powerful social force. The use of ccTLDs presents an effective way for individuals and institutions to associate themselves with particular territories, regions, and countries. The recent push by European companies and organizations to persuade the ISO to add .eu to the list of country codes exemplifies this new perception of online sovereignty; proponents of the .eu code assert their identity as European institutions in contrast to the generic, and US-dominated, .com domain.
ICANN must recognize that adopting country codes merely because they are on a list created by a different organization with a different raison d’être is a political decision in itself. Rather than simply grandfather in Jon Postel’s choice, ICANN should review the decision to determine whether the choice of list was appropriate, or even whether ICANN should determine its own process, possibly in consultation with the GAC, for deciding whether to adopt a new TLD. ICANN will soon decide the fate of the .eu TLD. Of course, the European Union is not a state per se, but is rather a political union of states. But it has been ICANN’s policy not to grant a ccTLD to any territory not on the ISO list, yet if ICANN does grant the domain, it will surely force acknowledgment that it does itself make political decisions about which territories deserve TLDs.
ICANN’s bylaws state that it must have some “at-large” directors elected by the members, defined in the bylaws as ”individuals”. The bylaws provide little detail about the “at-large membership,” although the Articles of Incorporation do say that the Company must act for the “benefit of the Internet community as a whole.” The logic behind this method of ensuring representation seems to have been to ensure that the interested stakeholders, including those who use and are affected by the DNS, have appropriate representation. In that light, the aim of geographic distribution requirements seems to have been to prevent overwhelming American control of ICANN.
Though international representation was clearly a goal, it is less clear that the outcome of the recent At-Large Director elections is what was intended. Yet it might be said that the outcome could easily have been predicted. The current state of international sentiment seems to be such that individuals voting for representatives to an international organization are likely to prefer representatives from their own nation, particularly when different languages are involved. Due to the size of the Board, representation on the Board of every world nation was out of the question, even if ICANN had wanted to get the benefits of representation and accountability that might result from it. Global representation therefore presented the danger of capture of the board by Americans. Thus, ICANN chose regional representation, giving neither the democratic advantages of national representation nor the potentially issues-over-nationality sensibility engendered by global representation.
For example, if there were one representative from Germany who was pro-trademark holders’ rights, and more Germans registered to vote than the rest of Europe put together, it would be likely that the German representative would be elected, whether or not the nation (or, more broadly, Europeans) favored the interests of trademark holders. Indeed, many voters likely investigated candidates no further than their nationalities. If the same thing happened in the other regions, then the elected representatives might all end up representing a single, and not necessarily dominant point of view.
As the recent elections have shown, this hypothetical is not far from reality. National publications in Germany, such as der Spiegel (the German equivalent of Time), told readers of the importance of the upcoming ICANN elections. Der Spiegel called ICANN the “government of the Internet”, a term subsequently used frequently throughout the nation, then reviewed ICANN’s candidates and encouraged readers to register to vote. Thousands of Germans did, to the extent that once registrations were completed, Germany actually had registered more voters than the rest of Europe combined. As expected, then, the European region elected a German candidate.
The structure of the regions is not, never can be, and perhaps was never intended to be, perfectly representative. However, as Prof. Jonathan Zittrain has noted, the structure certainly promotes competition among nations in a region, and thus possibly force representation where it would not otherwise have existed. However, allowing someone from one country to represent people from a broad diversity of cultures, languages and races may also give that person a disproportionate amount of influence, perhaps also tempting him not to represent certain viewpoints due to exogenous conflicts and experiences. For example, Israel will be represented by the person who also represents Egypt and Saudi Arabia. Even though Internet views differ from real world ideas, it is more than possible that different nations within the same region will be able to have very different “virtual views.”
Nowhere was this clearer than in the Asia/Pacific/Australia region. The Japanese press started printing stories similar to those that had appeared in Germany, encouraging people to register. But then the rumors started. It was said that Japanese ISPs were filling in and sending in forms for their clients. Why would they do this, if indeed these rumors were true? Possibly because in doing so, they felt that it made the election of a Japanese representative much more likely, and as such, they would have more influence over him/her, and thus within ICANN.
It seems that when the Chinese heard these rumors, they reacted. Possibly they wanted a Chinese representative who they could influence. Again, more rumors began circulating. It was said that Chinese programmers were writing scripts to repeatedly reconnect to ICANN servers when registrants couldn’t get through, worsening server loads for everyone. Korea and Taiwan also got involved, again, trying to ensure that a Chinese representative wasn’t elected, so the new director for Asia/Australia would be more sympathetic to them. Whether any of the rumors were true or not is almost beside the point. Nearing the end of registration ICANN servers were clogged almost to a standstill, preventing many voters from registering; nonetheless, more people registered in the Asia region than the rest of the world put together, with almost 4 times as many Asians registering as North Americans.
If the ICANN At-Large Board Members are to represent the global Internet community, the At-Large directors should be elected globally, to enable issue-driven, rather than nationalistic, competition. The fear of capture by the United States seems to have been proved unfounded by the recent elections. The greatest number of votes by far came from the Far East, rather than America. Though the Japanese director-elect was elected by mainly Japanese voters, this does not have to be the case. Ideally in the future voters will choose to vote on issues rather than national affiliation.
The GAC and National Representation
However, given that we do currently live in a national reality, some national participation is surely worthwhile, if not essential. The Governmental Advisory Committee (the GAC) serves this purpose. The GAC only has the power to advise ICANN on any matter it chooses, however it is clear from past action that the ICANN Board listens closely to the advice of the GAC.
In theory, then, people should be able to feel their connections to ICANN through the GAC. However, it seems from the brouhaha over the At-Large elections that individuals do not view GAC delegates as their representatives. This could be due to the lack of publicity and transparency surrounding the GAC. Rather than seeing the GAC as an additional avenue for representation, the press seems to view the GAC as a secretive organization that the Board obeys without question.
If the GAC were to operate in a more open, transparent, and representative manner, it might appropriately be given the formal authority the press (seemingly erroneously) already alleges it has. The GAC might be the best avenue for gaining the sense of national representation and accountability that many voters in the recent elections seemed to be seeking. If properly composed, the GAC would contain knowledgeable representatives of all the national governments, and could report back to their home state, as well as present their home state’s views to ICANN.
The role of the GAC could be transformed to mirror the Supervisory Board in German companies (a better translation is Advisory Board, which seems particularly fitting in this situation). Thus, the directors (via the staff) make the day-to-day decisions as to the running of ICANN, and for this reason directors should still be elected by some form of membership, whether international or national. However, the GAC would supervise and advise them on matters of major policy decisions. Thus, if a majority of states believe that a policy put forward by the directors should not pass, the directors would need to rethink it before proceeding. This consensus-driven model seems fitting given ICANN’s roots in consensus, and it is also a model familiar to Europeans given its similarity with their collective decision-making via the EU.
 Jeri Clausing, “European Domain Operators Refuse to Pay Bills,” The New York Times on the Web, 7 June 2000, [http://www.nytimes.com/library/tech/00/06/cyber/articles/07domain.html].
 Jeri Clausing, “European Domain Operators Refuse to Pay Bills,” The New York Times on the Web, 7 June 2000, [http://www.nytimes.com/library/tech/00/06/cyber/articles/07domain.html]. (Our italics)
 Martin Irvine, “Global Cyberculture Reconsidered: Cyberspace, Identity, and the Global Informational City,” Paper originally delivered at INET '98, Geneva. Revised 17 October 1999, [http://www.georgetown.edu/irvinemj/articles/globalculture.html].
 See “Amendment 2 to ICANN/DOC Memorandum of Understanding,” 7 September 2000. [http://www.icann.org/general/amend2-jpamou-07sep00.htm].
 Milton Mueller argues that ICANN’s “self-regulation” is mere rhetoric, masking the reality that the US Department of Commerce still heavily regulates the organization. Milton Mueller, “ICANN and Internet Governance: Sorting Through the Debris of Self-Regulation,” info vol. 1, no.6 (1999): 497-520.
 “Bliley Statement on Domain Name Privatization,” The House Committee on Commerce News Release, 22 July 1999, [http://com-notes.house.gov/cchear/].
 US commercial interests have largely ignored the .us ccTLD, having instead opted for the popular .com, .net, and .org domain suffixes. The Internet’s initial commercial popularity within the US led many companies to opt for gTLDs. State and local governments are the primary users of the .us domain.
 Peter H. Lewis, “The Great Domain Name Hunt,” The New York Times on the Web, Technology. June 4, 1998. Does this make them functionally equivalent to gTLD’s, and if so, why are they still needed?[http://www.nytimes.com/library/tech/98/06/circuits/articles/04tong.html].
 David F. Gallagher, “Internet Labels Lose Meaning in Rush for Popular Addresses,” The New York Times on the Web, 29 November 1999, [http://www.nytimes.com/11/biztech/articles/29name.html].
 The rights to .tv being sold for $50m to be used as a possible TLD for TV stations, and .md being promoted as a TLD for doctors.
 “Functions of the ISO 3166 Maintenance Agency,” ISO 3166-1 home page, 18 May 2000, [http://www.din.de/gremien/nas/nabd/iso3166ma/function.html].
 See RFC 1591 – ftp://ftp.isi.edu/in-notes/rfc1591.txt
Although the ISO ‘recognizes’ the territory as a state in the real world, it is ICANN’s grant of the ccTLD, a separate action, even if ICANN does not admit this, that gives the ‘state’ its all-important recognition in cyberspace.
 Joanna Glasner, “New Domain May Unite Europe,” Wired News, 20 December 1999, [http://www.wired.com/news/business/0,1367,33156,00.html]
 It could, however, have given the GAC more power, as will be argued below.
 Some would argue that we are being naïve. We would respond that ICANN should lead, and show the cyberworld the issue-based representation is the way forward.
 This is because, although the GAC has little formal power, the Board has so far listened to everything the GAC has had to say. This is doubtless because foreign governments could possibly make life difficult for ICANN should they choose to do so. However, now that the at-large directors are in place, it is possible that this attitude may change, and the GAC could lose this informal ‘power’.