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Critical Internet ResourcesFunctional and Organisational Mapping

Phase 1

19 December 2008

Howard Williams

howard.williams@oii.ox.ac.uk

David Satola

dsatola@worldbank.org

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Presentation Outline

• The Problem

• Context & Background

• Objectives of Mapping

• Mapping – Phase I

• Next Steps

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Making sense of the “noise”

Started with grumblings on both sides about countries’ involvement in the management of “their own” ccTLDs, specifically, and the Internet more generally

Political landscape prevented open and meaningful discussions on institutional and governance issues

Could small changes/compromises have averted confrontation?

WGIG and IGF processes provided a pressure release valve

Now the politics, the process and the institutions are evolving …

…but basic concepts of “ownership” by stakeholders (i.e., meaningful inclusion, representation and participation) of Internet governance issues affecting them persist

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Presentation Outline

• The Problem

• Context & Background

• Objectives of Mapping

• Mapping – Phase I

• Next Steps

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Origins and Progression towards Functional AnalysisThe WSIS Process

• WSIS I – Internet Governance emerges as contentious issue http://www.itu.int/wsis/geneva/index.html

• WGIG – Outcome of WSIS I; tasked with, inter alia, – Identifying the public policy issues that are relevant to

Internet governance;– Developing a common understanding of the respective

roles and responsibilities of Governments, existing international organizations and other forums, as well as the private sector and civil society in both developing and developed countries

WGIG Report available at: http://www.wgig.org/

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Origins and Progression, continued

• DoC Announcement – – US will “maintain its historic role” over changes in the root zone” and

will “continue to provide oversight”

• WSIS II – The Tunis Phase http://www.itu.int/wsis/tunis/index.html

• IGF – Outcome of WSIS II– tasked with, inter alia, “…[convening] in an open and inclusive

process …, [a] multi-stakeholder policy dialogue …to… discuss public policy issues related to key elements of Internet governance…” http://www.intgovforum.org/cms/

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Origins and Progression, continuedIGF Evolution on CIR

• CIR Definition:“Issues relating to infrastructure and the management of critical Internet resources, including administration of the domain name domain name system and Internet protocol addresses (IP addresses), system and Internet protocol addresses (IP addresses), administration of the root server systemadministration of the root server system, technical standards, peering and interconnection, telecommunications infrastructure, including innovative and convergent technologies, as well as multilingualization.” (Para 13 a, WGIG Report)

• IGF Athens (2006) – No real discussion of CIR• IGF Rio (2007) – CIR introduced, but discussion about

ICANN still verboten• IGF Hyderabad (2008) – CIR Governance takes on

Major Thematic importance

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“Noise” at WSIS, WGIG, IGF and elsewhere about ICANN

Rich and thorough, but incomplete literature:

John Palfrey (2004) “The End of the Experiment: How ICANN’s Foray into Global Internet Democracy Failed”, Harvard Journal of Law and Technology, volume 17, Number 2, Spring 2004 pp 411-473 – looked at functions and current organization

Hans Corell – analyzed potential organizational forms for ICANN (international organizations) , but did not map forms to functions http://www.icann.org/en/psc/corell-24aug06.html

JPA Review Concluded early 2008 – opened door to discussion…

http://www.ntia.doc.gov/ntiahome/frnotices/2007/ICANN_JPA_110207.html

ICANN’s President’s Strategy Committee Transition Framework http://www.icann.org/en/psc/

Origins and Progression, continued

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IGF Athens

“Building Local Legal Capacity on Internet Governance”

General Legal Introduction to IG issues

Set the foundation

Examined the horizontal relationships among various Internet Governance issues and the vertical relationships among national, regional and international approaches.

Explored the relationship that actions at the national level have on the development of international legal norms, and vice versa

IGF Rio

“Governance Frameworks for Critical Internet Resources”

Introduced the linkages between “governance” and CIR functions

Should the definition of CIR be expanded beyond that given in the WGIG paper?

How, by what means and by whom should those CIR be governed?

What are the normative and legal basis for such governance frameworks

IGF Hyderabad

“Legal Aspects of Governance of Critical Internet Resources Functions”

Looked specifically at mapping different organizational forms to specific CIR functions

Addressed key CIR substantive and process functionalities

Assessed how different legal and institutional structures could be mapped to those CIR functions.

Origins and Progression, continuedIGF Legal Workshops

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Internet Governance

No government All governmentDegree of government involvement

International

Regional

National

Company/Local

Individual

Internet standards

E-governmentTelecom regulation

Domain names

Trade policy

Cyber-crime

Development aid

Spam On-line privacy

Cyber-security

WTOIETF, W3C

ICANNCOE

Peering

User Decisions onPublishing/ Accessing

CERTs

Ministries

Parliaments

Spectrum policy ITU

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Presentation Outline

• The Problem

• Context & Background

• Objectives of Mapping

• Mapping – Phase I

• Next Steps

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Functional & Organizational Mapping: An Objective Options Analysis

• Analyse different functional competencies of ICANN• Identify options to convert ICANN from its current

organizational form to another form of entity– For example, an international organization such as the

International Committee of the Red Cross);

• Map functional attributes to various legal forms• Pros vs. Cons of each• Identify the issues and mechanics of converting

organizational forms

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Legal Form/Organizational Options

Status Quo

(Cal. n-f-p)

Fully Private Corporation

International Organization

(ICRC, IOC, etc.)

UN Organization

(ITU, etc.)

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Legal Form/Organizational Issues

• Ownership/Shareholders/Governance

• Participation in Decision-making

• Location

• Power to enter/enforce contracts

• Immunities

• Others

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• What organizational options are reasonably available under public and private international law, as well as national law applicable law for ICANN to be converted and established as such an organization?

• Different functional attributes of ICANN may imply different organizational responses 

• In addition to its functional attributes, against what criteria might the organizational options be assessed?

• What would the principal internal organizational structures look like for each of the options?

Some considerations in the mapping

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• What would be the principal corporate governance implications of each organization form and set of internal structures?

• What is the nature of the current form of ICANN’s principal assets and liabilities and how would such assets and liabilities be transferred to the new organization under different organizational structures?

• Under each organizational option, what legal means and immunities would be available to the organization?

Some considerations in the mapping

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Proto-mapping

Pros

and

cons

of e

ach

Organizational Forms Options

CIR

Fun

ctio

ns

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Presentation Outline

• The Problem

• Context & Background

• Objectives of Mapping

• Mapping – Phase I

• Next Steps

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Summary of Research to Date

• Established methodology

• Completed “zero” draft of paper

• Identified Different types of Functions– CIR and “infrastructure”-related functions– Policy functions

• Informal Consultations

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Methodology

1. What is the function?a. Is it codified or created through community consensus and

practice?b. How does it relate to ICANN’s values?

2. How does ICANN undertake this function?a. With regards to policy and contract processes b. Consultation sub processes with related entities

3. What Resources are allocated to the function over time?a. Moneyb. Peoplec. Infrastructured. Supporting activities of USG/DoC

4. What are the emerging issues with respect to that function?

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Understanding the purpose behind the functions

Entity

Missions

Values

PROCESS PROCESS PROCESS

FunctionFunction

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ICANN’s Mission

…from the MoU …from the ByLaws

• Establishment of policy for and direction of the allocation of IP number blocks;

• Oversight of the operation of the authoritative root server system;

• Oversight of the policy for determining the circumstances under which new top level domains would be added to the root system;

• Coordination of the assignment of other Internet technical parameters as needed to maintain universal connectivity on the Internet; and

• Other activities necessary to coordinate the specified DNS management functions, as agreed by the Parties.

1.Coordinate the allocation and assignment of the three sets of unique identifiers for the Internet, which are:

a. Domain names (forming a system referred to as "DNS");

b. Internet protocol ("IP") addresses and autonomous system ("AS") numbers; and

c. Protocol port and parameter numbers.

2.Coordinate the operation and evolution of the DNS root name server system.

3.Coordinate policy development reasonably and appropriately related to these technical functions.

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ICANN’s Values & Principles“Core Values” (from the By laws) Principles (from the MoU)

“Section 2. CORE VALUES

1. Preserving and enhancing the operational stability, reliability, security, and global interoperability of the Internet.

2. Respecting the creativity, innovation, and flow of information made possible by the Internet by limiting ICANN's activities to those matters within ICANN's mission requiring or significantly benefiting from global coordination.

3. To the extent feasible and appropriate, delegating coordination functions to or recognizing the policy role of other responsible entities that reflect the interests of affected parties.

4. Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making.

5. Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.

6. Introducing and promoting competition in the registration of domain names where practicable and beneficial in the public interest.

7. Employing open and transparent policy development mechanisms that (i) promote well-informed decisions based on expert advice, and (ii) ensure that those entities most affected can assist in the policy development process.

8. Making decisions by applying documented policies neutrally and objectively, with integrity and fairness.

9. Acting with a speed that is responsive to the needs of the Internet while, as part of the decision-making process, obtaining informed input from those entities most affected.

10. Remaining accountable to the Internet community through mechanisms that enhance ICANN's effectiveness.

11. While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account governments' or public authorities' recommendations.”

“1. Stability This Agreement promotes the stability of the Internet and allows the Parties to plan for a deliberate move from the existing structure to a private-sector structure without disruption to the functioning of the DNS. The Agreement calls for the design, development, and testing of a new management system that will not harm current functional operations.

2. Competition This Agreement promotes the management of the DNS in a manner that will permit market mechanisms to support competition and consumer choice in the technical management of the DNS. This competition will lower costs, promote innovation, and enhance user choice and satisfaction.

3. Private, Bottom-Up Coordination This Agreement is intended to result in the design, development, and testing of a private coordinating process that is flexible and able to move rapidly enough to meet the changing needs of the Internet and of Internet users. This Agreement is intended to foster the development of a private sector management system that, as far as possible, reflects a system of bottom-up management.

4. Representation. This Agreement promotes the technical management of the DNS in a manner that reflects the global and functional diversity of Internet users and their needs. This Agreement is intended to promote the design, development, and testing of mechanisms to solicit public input, both domestic and international, into a private-sector decision making process. These mechanisms will promote the flexibility.” needed to adapt to changes in the composition of the Internet user community and their needs.”

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ICANN’s Processes to Achieve its Missions

• Three main processes– Policy and Contract Development– Policy and Contract Implementation– Policy and Contract Enforcement

• Various Sub-processes– Consultation is a pervasive sub-process

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ICANN’s Consultative Apparatus

Policy and Contract

Development

Consultation with Corporate bodies

Consultation with contractually related

organizations

Consultation with Independent organizations

Address Supporting Organization (ASO)

The Country Code Name supporting

Organization (ccNSO)

Generic Names supporting

Organization (GNSO)

Internet Assigned Numbers authority

(IANA)

Internet Engineering Task Force (IETF)

Regional Internet Registries

RIRs

(ITU) International Telecommunications

Union

Different Internet Societies

International Organization for Standards (ISO)

Academic Institutions

Consultation with Advisory

Committees

The Governmental Advisory Committee

(GAC)

At-Large Advisory Committee (ALAC)

Root Server System Advisory Committee

(RSAC)

Security and Stability Advisory Committee

(SSAC)

World Intellectual Property

Organization (WIPO)

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ICANN’s Functions1. Allocation and assignment of the three sets of unique identifiers

for the Internet:

a.IP addressesb.Domain namesc.Protocol port and parameter numbers

2. Operation and evolution of the DNS root name server systema.Security and Policing of the DNS

3. Policy development reasonably and appropriately related to the forgoing technical functions:

a.Intellectual property “regulation”b.Creation of competition and Choice and the Control of Pricing

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Presentation Outline

• The Problem

• Context & Background

• Objectives of Mapping

• Mapping – Phase I

• Next Steps

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Recent Developments

• JPA Expires September 2009

• ICANN has done significant legal exploration of its organisational alternatives– reflected in internal documentation not yet made public

• ICANN has raised the organisational stakes with its proposed process for new gTLDs– Revised entity will oversee significantly greater intellectual

property real estate

• ICANN has “committed” to keeping headquarters in US

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Recent Developments

• ICANN seems to be inclining toward keeping HQ as CA entity but opening several “international” subsidiaries

• The IGF as a new form of international consensus building – “… adapting to new forms of economic and social organization and decision-making…”

M. Kummer, ABA Annual Meeting, NYC August 2008

• New US administration ready to engage internationally and ready to work with non-state actors? Implications for IGF and ICANN

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Next Steps

• Formal Consultations on Functional Analysis

• Map Functional findings to “Corell”-type Organizational Review

• Liaise with ICANN President’s Committee

• Publish Findings