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
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,
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.
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.
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.
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.
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.
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
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
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.
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.
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.
Clausing, “European Domain Operators Refuse to Pay Bills,” The New York Times on the Web, 7 June 2000,
Clausing, “European Domain Operators Refuse to Pay Bills,” The New York Times on the Web, 7 June 2000,
 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].
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.
Statement on Domain Name Privatization,” The
House Committee on Commerce News Release, 22 July 1999,
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
 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.
of the ISO 3166 Maintenance Agency,” ISO 3166-1 home page, 18 May 2000,
 See RFC
1591 – ftp://ftp.isi.edu/in-notes/rfc1591.txt
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.
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’.