The Internet and the State

Part 2: Internet Goverance

 Fall 2002

1. ICANN Basics

Reading

  1. United States Department of Commerce, White Paper: Management of Internet Names and Numbers
  2. ICANN, ICANN Fact Sheet & Background
  3. Compare ICANN, ICANN Organizational Chart, with Tony Rutkowski, The ICANN-GAC Organization  (HTML version) ... or try the spiffy powerpoint version (you may need to install a powerpoint viewer by going to the MS Download Center then clicking on the blue "download now" button half way down the page)
  4. Memorandum of Understanding Between the U.S. Department of Commerce and Internet Corporation for Assigned Names and Numbers and Amendment 1 to MOU and Amendment 2 to MOU
  5. Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000), pp. 18-50  (remainder or article is optional).
  6. Froomkin, Form and Substance in Cyberspace, 6 J. Small & Emerging Bus. L.J. 93 (2002) (.pdf).  For starters, read just section I, pages 93-98.
  7. Joe Sims & Cythia L. Bauerly, A Response to Professor Froomkin: Why ICANN Does Not Violate the APA or the Constitution, 6 J. Small & Emrging Business L. 65 (2002) (westlaw)
  8. Froomkin, Form and Substance in Cyberspace, 6 J. Small & Emerging Bus. L.J. 93 (2002) (.pdf).  Now read the rest of the article, pp. 98-124.

Doing

  1. Visit the ICANN site, or the Domain Name Handbook, or  ICANNWatch.org (disclaimer: I'm one of the editors), or the ICANN Blog and poke around.

Thinking

  1. To what extent, if any, are the four goals in the White Paper in conflict with each other?
  2. What are ICANN's goals?  To what extent, if any, do they differ from those in the White Paper?
  3. Who runs ICANN?  Who monitors it?
  4. How would one measure whether ICANN is a "success"?
  5. Can you think of any other organizations that resemble ICANN?
  6. Suppose someone were to sue ICANN and the courts were to revive the non-delegation doctrine.   Would that turn the clock back to Schecter and Panama Refining?

Optional

  1. ICANN, Articles of Incorporation
  2. ICANN, Bylaws
  3. Craig Simon, The Technical Construction of Globalism: Internet Governance and the DNS Crisis (draft, 1998)
  4. Craig Simon, Roots of Power: The Rise of Dot Com and the Decline of the Nation State
  5. ICANN Second Status Report to Department of Commerce (June 30, 2000)
  6. Complaint in Regland v. ICANN (undated, circa. Oct. 31, 2000); ICANN, Advisory Concerning Regland Litigation (Nov. 3, 2000)
  7. David Post, Governing Cyberspace: "Where is James Madison when we need him?" (June 6, 1999)
  8. Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 Duke L.J. 17 (2000).
  9. ICANN, (Draft) Model MoU for Root Nameserver Operations (Jan. 21, 2002)
  10. Peter Guerrero, US General Accounting Office, INTERNET MANAGEMENT: Limited Progress on Privatization Project Makes Outcome Uncertain (June 12, 2002) (.pdf)  [highly recommended]
  11. ICANN, Final Report of the New TLD Evaluation Process Planning Task Force (July 31, 2002)

    12.  

2. The UDRP Debate

Reading

  1. Froomkin, ICANN's UDRP: Causes and (Partial) Cures, 67 Brooklyn L. Rev.605 (2002), pp 608-650
  2. ICANN, Uniform Domain Name Dispute Resolution Policy
  3. ICANN, Rules for Uniform Domain Name Dispute Resolution Policy
  4. Michael Geist, Fundamentally Fair.Com? An Update On Bias Allegations And The ICANN UDRP (2002) (.pdf)
  5. Froomkin, ICANN's UDRP: Causes and (Partial) Cures, 67 Brooklyn L. Rev.605 (2002), pp. 651-88 (remainder of article is optional).

Thinking

  1. What do you see as the main advantages and disadvantages of the UDRP?
  2. If you were representing a trademark holder, or a domain name registrant, what would you look for in an arbitration provider?  In an arbitrator?
  3. How could one establish a 'arbitration court of appeals' to harmonize UDPR decisions?  Who should pick the people to sit on that panel?
  4. Is it fair to say the UDRP is 'fair enough' given that there is appeal to a court?
  5. Is the UDRP a valid contract, given that neither party to the agreement (the registrar or the registrant) can bargain about it? If neither party can freely bargain to waive the UDRP does that make it an unconscionable or otherwise voidable agreement?
  6. What aspects of the UDRP, if any, should be reformed?

Optional

  1. Froomkin, Semi-Private International Rulemaking: Lessons Learned from the WIPO Domain Name Process (.pdf).
  2. Milton Mueller, Rough Justice: An Analysis of ICANN's Uniform Dispute Resolution Policy (also available in .pdf format)
  3. Read some UDRP decisions from the enormous alphabetical list (warning: this takes a long time to load!).

3. The Alternate Roots Controversy

Reading

  1. .web FAQ
  2. IAB, RFC 2826, IAB Technical Comment on the Unique DNS Root (May, 2000)
  3. M. Stuart Lynn, Completion of "A Unique, Authoritative Root for the DNS" (ICP-3) (July 9, 2001)
  4. M. Stuart Lynn, A Unique, Authoritative Root for the DNS  (9 July 2001)
  5. David Post, ICANNWatch, Some Thoughts on Stuart Lynn's 'Authoritative Root' Discussion Draft (June 1, 2001)
  6. Jonathan Weinberg, ICANNWatch, How ICANN policy is made (July 10, 2001)
  7. New.net, Proposal to Introduce Market-Based Principles into Domain Name Governance  (.pdf, May 30, 2001)
  8. ICANN Staff, Keeping the Internet a Reliable Global Public Resource: Response to New.net "Policy Paper" (July 9, 2001)
  9. K. Crispin, Alt-Roots, Alt-TLDs (May 2001)
  10. [skim - it's a little technical]  M. Schneiders et al., Root Fix for the .US Top Level Domain (March 2002)

Thinking

  1. What happens if there are two computers with the same domain name in the same root?  In different roots?
  2. How should decisons as to which TLD is added to the legacy root be made?
  3. And how should decisions about who gets the potentially lucrative right to be the registry be made?
  4. To what extent if any should the existence of a functioning 'alternate root' TLD of the same name affect either decision above?
  5. To what extent should the age or size of the 'alternate root' TLD affect either decision?
  6. Which should be selected first - the TLD name or the group that will act as registry?  Or should they be selected as a package deal?
  7. How much disclosure, and of what kind, does the seller of a registration in an 'alternate' TLD owe to customers?
  8. UPDTATE (Sept. 19): Is a single root dangerous? Compare this yes with this no. Are they talking about the same issues?

Optional

  1. Karl Auerbach, Delving Into Multiple DNS Roots (MS word file, undated)
  2. S. Higgs, Alternative Roots and the Virtual Inclusive Root (May, 2001)
  3. S. Higgs, Root Server Definitions (Feb, 2001).

4. ccTLDs and Country Names on the Internet

Reading

  1. J. Postel, RFC 1591 (March 1994)
  2. IANA, ICP 1, Internet Domain Name System Structure and Delegation (May, 1999)
  3. J. Klensin, RFC 3071, Reflections on the DNS, RFC 1591, and Categories of Domains (Feb. 2001)
  4. ICANN, Governmental Advisory Committee, Principles for the Delegation and Administration of Country Code Top Level Domains (Feb. 23, 2000)
  5. ccTLD Constituency of the DNSO, ICANN Services to ccTLD Working Group, Draft Contract for Services between ccTLD Managers and ICANN, version 8 (Nov. 14, 2000)
  6. Skim: Contact for performance of the IANA function (21 March 2001)
  7. Virtual Countries, Inc. v. Republic of South Africa, 300 F.3d 230 (2nd Cir. 2002) available on Westlaw
  8. Republic of South Africa, Ministry of Communications, Comments on WIPO-2, RFC 3 (June 7, 2001)
  9. IANA, ccTLD Redelegation Step-by-Step Overview (June 19, 2002)  (Note date as relates to .za issue!)
  10. The .za imbroglio
    1. http://co.za/ect/html1/chapter10_60to62.html - Chapter X of the ECT Bill, signed into law on July 31, 2002, setting up a national authority to run .za
    2. Introduction, Parts I-III of Namespace ZA, Comments on the Electronic Communications and Transactions Bill (March 24, 2002) (prior to passage of the ECT bill)
    3. News coverage
      1. Robyn Chalmers, E-Politics Virus Hits Co.za Domain, allAfrica.com (June 5, 2002).The reaction of the .za administrator to the proposal.
      2. Mike Lawrie, ZA Domains, Press Release (June 6, 2002); Press Release (June 13, 2002)
      3. News24.com, ZA domain moves abroad (June 13, 2002)

Thinking

  1. IANA is secretive.  ICANN runs IANA under contract.  Is this consistent with ICANN's obligations under its bylaws?
  2. How should the United States manage the .us domain?  What objectives should it attempt to achieve in so doing?
  3. If this case arose under the UDRP, how would you decide the merits?
  4. Suppose South Africa prevails before WIPO, round 2, and ICANN subsequently agrees to change the UDRP rules to suit it.  In order to bring a UDRP claim, South Africa would have to sign the ordinary consent to jurisdiction in the event that the registrant seeks to bring a court action.  Does this amount to a waiver of sovereign immunity?  If Virtual Countries were to lose the UDRP proceeding, and then bring a new lawsuit in US district court arguing that immunity had been waived, what result?  If the court found waiver, what result on the mertits?

Optional

  1. ccTLD Follies
    1. .ua: Secret police seek to take over
    2. .nr: Hijack attempt
    3. .ph: Conflict
    4. .au: Re-delegation attempt
  2. The .us mess
    1. Brian Kahin, Making Policy by Solicitation: The Outsourcing of .us (2001)  HMTLand .pdf versions.
    2. Sen. Hollings et al, Letter to Dept. of Commerce
    3. Congressman Markey Letter to Dept. of Commerce
    4. The .us RFQ itself. (June 13, 2001, plus amendments in July, 2001)
  3. The .cx controversy
    1. Letter, REQUEST TO AMEND SERVER DETAILS CX ccTLD, Alan Fealy (dot cx ltd) to Louis Touton (ICANN), July 26, 2000 (.pdf)
    2. Letter, Request for Clarification, Alan Fealy (dot cx ltd) to Australian National Office for the Information Economy (NOIE), Aug 25, 2000
    3. NOIE Reply to above, Sep. 7, 2000
    4. Derek Newman to Louis Touton, <.cx> Primary Nameserver Changes and Correction to Contact Database, Feb. 13, 2001
  4. European Parliament, European Parliament resolution on the Commission communication to the Council and the European Parliament on 'The Organisation and Management of the Internet - International and European Policy Issues 1998-2000' (COM(2000) 202 - C5-0263/2000 - 2000/2140(COS))
  5. Mike Lawrie, Problems with Chapter X of the ECT Bill Version 2 (June 17, 2002)

5. The Problem of Representation on a Global Scale

Readings

  1. Froomkin, Beware the ICANN Board Squatters! and Update: Replacing the ICANN Board Squatters
  2. Esther Dyson, SF Gate, Challenges for domain managers (May 27, 2001)
  3. RTMark.com, Voteauction Satire Illegally Squelched, Will Re-Open in Hundreds of Places (Nov. 5, 2000) & Voteauction.com, Vote-auction announces END-RESULTS (Nov. 7, 2000)
  4. Jonathan Weinberg, ICANN and the Problem of Legitimacy,  50 Duke L.J. 187 (2000), §§ III, IV & Conclusion
  5. Auerbach v. ICANN (Cal. Sup. Ct. No. BS 074771 Aug. 5, 2002) (.pdf, but very slow)

Thinking

  1. Who should have a say in picking ICANN directors?  How much?
  2. What additional things would you worry about when conducting an on-line election in addition to the usual things that apply to ordinary elections?  Are any of the traditional worries magnified or alleviated?
  3. If the Internet continues to grow at its current pace, pretty soon there will be billions of users, and potentially hundreds of millions of domain names and registrants.  Can ICANN elections scale?  How?
  4. If ICANN elections cannot scale, what then?

Optional

  1. Calif. Internet Voting Task Force, A Report on the Feasibility of Internet Voting (Jan. 2000)
  2. Doug Jones, Some Comments on the California Internet Voting Task Force Report of January 2000 (Apr. 12, 2000)
  3. Safevote, Voting System Requirements (Nov. 2000) (.pdf)
  4. Jonathan Weinberg, Geeks and Greeks (.pdf draft June, 2001)
  5. A debate over amendment of the ICANN By-laws
    1. Froomkin, Comments on Proposed Changes to ICANN By-Laws
    2. Joe Sims, Response to Froomkin
    3. Froomkin, ICANN and Individuals
    4. Joe Sims, Re: [names] From Michael Froomkin
  6. Another debate over representation:
    1. Steve Kettmann, ICANN Chief Strikes Back, Wired.com June 13, 2001
    2. Bret  A. Fausett, Who Represents Whom?, ICANNWatch, June 13, 2001
  7. Full transcript of the Auerbach v. ICANN hearing (July 29, 2002)

6.  More on Elections and Structure

Reading

  1. ICANN At-Large Study Committee (ALSC)  (aka The Bildt Committee)Report
  2. The Executive Summary of the NGO and Academic ICANN Study (NAIS) Report in either .pdf or HTML.(Aug. 31, 2001)
  3. Joe Sims, Evaluation of NAIS and ALSC Reports (Sept. 7, 2001)
  4. Donald Simon, NAIS report and Joe Sims (Sept. 25, 2001)
  5. M.Stuart Lynn, President's Report: ICANN – The Case for Reform (February 24, 2002)
  6. ICANN, Committee on ICANN Evolution and Reform, Second Interim Implementation Report (Sept. 2, 2002)
    FLASH: Instead of reading that document, read this one: Final Implementation Report and Recommendations of the Committee on ICANN Evolution and Reform (Oct.2 2002). You may also wish to glance at ICANN's proposed new by-laws--especially the ones about composition of the Board, of the Nomcom, and the vitally important "transition" provisions in art. XX . Also if you have a fast link, this .pdf of unofficial charts is very helpful.

Optional

  1. The entire NAIS Final Report (150 pages...) (.pdf only)
  2. ICANN, Proposed Fiscal Year 2002–2003 Budget (May 15, 2002)
  3. A. Michael Froomkin & Mark Lemley, ICANN & Anti-Trust (draft) (forthcoming, 2002) (.pdf)

Thinking

  1. What sort of case would have to be made to justify an ICANN structure that deviated from the White Paper?  Is that what the Lynn paper proposes?  If so, what are the differences, and does it make out a compelling case?
  2. Who represents you in the structure envisioned by the Second Interim Implementation report?  Who picks them, and how? To whom are the accountable and how?
  3. How does the Implementation Report address the difficult problem of the public voice in ICANN affairs?  Will it work?
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Last update Oct. 3, 2002