I. Introduction
No matter how it is emphasized, it may be difficult to describe the importance of the Internet in our daily lives. It is very important to provide a secure service to connect domain names to the numeric computer identifiers, such as Internet Protocol (IP) addresses, for a stable internet exploration environment. The service, coordinating (i) the allocation of identifiers for the Internet, (ii) the operation of the nameservers, and (iii) policy development on the domain name system (DNS) has been managed in a central manner by the Internet Corporation for Assigned Names and Numbers (ICANN). [1] Due to its significant effects on the global society, ICANN, a Californian nonprofit public-benefit corporation, has been watched since its creation in 1998. [2] However, it has still been controversial: Is ICANN accountable and transparent enough to manage the global DNS?
II. Domain Name System (DNS) in the Internet
Each computer or device is assigned to a unique Internet Protocol (IP) number for unique identification. [3] The Domain Name System (DNS) plays a significant role as a human-friendly form of identifier over the Internet, connecting the domain name and corresponding IP numeric address. [4] The DNS consists of the reversed-tree hierarchy structure. [5] From right to left, it follows the top-level domain (TLD), second-level domain (SLD), and other-level domains in sequence. For example, in the domain name “law.uiuc.edu”, “edu” is the TLD, “uiuc” is the SLD, and “law” is the third-level domain. The TLDs are generally divided into generic top-level domains (gTLD) and country-code top-level domains (ccTLD), while there are no differences in the function. [6] Although gTLDs and ccTLDs are functionally the same, this paper will refer only to gTLDs, because of their separate management. [7]
The main purpose of the DNS creation was to provide a “consistent name space which will be used for referring to resources.” [8] For this purpose, the DNS consists of three components:
- The Domain Name Space, which consists of a tree of domain names and resource records and is matched with each node or leaf on the tree of the DNS;
- Name Servers, which have the authority to access the information about the domain name tree; and
- Resolvers, which correspond to users’ queries by using the information of name servers. [9]
The central control system is referred to as the root and contains a list of each domain name registration. [10] There are 13 name servers in the world, which operate in parallel – the operation of these name servers contributes to the secure and stable DNS system operation. [11]
III. Management History on the DNS
The early history of the DNS and the Internet is inseparable from the United States Government. The Internet originated from the “ARPANET” network, which was established by the Department of Defense’s Advanced Research Projects Agency (DARPA) in the 1960s, connecting to the networks of other United States government agencies. [12] The U.S. Government contracted with the University of California at Los Angeles (UCLA) to maintain and develop the ARPANET. [13] Dr. Jon Postel, who was a graduate student at UCLA and worked at the University of Southern California’s Information Sciences Institute (USC-ISI), had maintained the list of assigned Internet numbers and names and he developed the DNS system to improve the administrative maintenance proceeding of the Internet numbers and names. [14] After ARPANET was terminated in 1990, the National Science Foundation (NSF) of the U.S. contracted with Network Solution, Inc. (NSI) to manage the DNS in December, 1992. [15] Since that time, NSI had managed the registration and maintenance of the generic top level domains (gTLDs), [16] until the incorporation of the Internet Corporation for Assigned Names and Numbers (ICANN) in 1998. [17]
Although the DNS continued to be managed by the U.S. government’s contractors, the DNS was globally popularized with the development of the World Wide Web in 1990. [18] The international society raised concerns that one nation had the controlling power over the DNS root server, which was the “global commons.” [19] The U.S. government also felt that governmental governance over the DNS was inappropriate, and thus decided to privatize DNS management with the expiration of the contract with NSI, [20] after collecting opinions in several meetings. [21] In the Green Paper and White Paper, the U.S. government proposed to create a “new private, not-for-profit corporation responsible for coordinating specific DNS functions for the benefit of the Internet as a whole.” [22] The U.S. government incorporated the new corporation in California, the U.S. and justified this by the following:
“Because of the significant U.S.-based DNS expertise and in order to preserve stability, it makes sense to headquarter the new corporation in the United States. Further, the mere fact that the new corporation would be incorporated in the United States would not remove it from the jurisdiction of other nations. Finally, we note that the new corporation must be headquartered somewhere, and similar objections would inevitably arise if it were incorporated in another location.” [23]
IV. ICANN’s Governance Over the DNS
As a result of the policy statement of the U.S. Government, [24] ICANN was incorporated in California as a section 501(c)(3) non-profit corporation in October 1998. [25] From then on, ICANN has managed the root file, the authoritative list of top-level domain names. ICANN introduced itself as:
“…an internationally organized, non-profit corporation that has responsibility for Internet Protocol (IP) address space allocation, protocol identifier assignment, generic (gTLD) and country code (ccTLD) Top-Level Domain name system management, and root server system management functions…
As a private-public partnership, ICANN is dedicated to preserving the operational stability of the Internet; to promoting competition; to achieving broad representation of global Internet communities; and to developing policy appropriate to its mission though bottom-up, consensus-based processes.” [26]
The activities of ICANN are not limited to technical support for the DNS; its activities extend to policy making, affecting the rights of all Internet users – for example, the Uniform Domain-Name Dispute Resolution Policy. [27]
Even though ICANN is not the only institution to provide the root server service, and it is technically available for other providers to initiate the root server service, ICANN exercises a strong influence on the root server services as if it were a monopolist. [28] As a result, there is a big barrier to enter into the DNS market without accepting the current ICANN Domain Name Registration Agreement. Besides, due to its “interdependent, distributed, [and] hierarchical” [29] structure, the DNS market is a natural monopoly market, referred to as “new economy” by Landes and Posner. [30] Regarding this issue, American judiciary declared its opinion in Name.Space, Inc. v. Network Solution, Inc. [31] In this case, the U.S. Court of Appeals for the Second Circuit rejected the argument that NSI’s control over the domain name system was a violation of antitrust laws. [32] Despite this decision, it is obvious that ICANN has strong power in the DNS market. In this sense, it is reasonable to say that ICANN governs the DNS and it directly affects the rights of the global Internet community. [33]
V. ICANN’s Accountability and Transparency
With its significance in the DNS, the accountability and transparency of ICANN has drawn the attraction of the world. Officially, ICANN is a private and not-for-profit corporation, which is neither a governmental agency nor intergovernmental organization as intended in the White Paper. [34] However, because of the incomplete privatization process of the DNS, the Department of Commerce of the U.S. Government has the power to affect ICANN’s important policy-making decisions without the interfere of formal regulation. [35] Due to the political sensitivity of the association between the U.S. Government and the DNS, the international community has raised the concerns of the accountable and transparent management over the DNS. [36]
ICANN has also recognized the importance to improve accountability and transparency in its service and it is now operating a forum to reconstruct its accountability and transparency as one of the current topics. [37] As a part of the improvement procedure, One World Trust conducted an independent research, commissioned by ICANN. [38] The Report suggested several issues to be improved, [39] though it stated ICANN is very transparent, compared to other international organizations. [40] Accepting the suggestions from the report, ICANN published a draft of ICANN Accountability and Transparency Frameworks and Principles. [41]
VI. Conclusion
The DNS is a global system, which is significant to the global Internet community. Thus, it is in the global interest that ICANN, the central manager of the DNS, should be transparent and accountable, independent from any particular nation or interest group. Due to its significance and sensitivity, the degree of transparency should be strict: it is not sufficient to be relatively transparent, compared to other international organizations.
As suggested in the Report, ICANN should have the formal and systematic transparency rules to provide timely and accessible information for the open opportunities to participate into the policy or decision making process. [42] With this demand, ICANN is now reconstructing to increase its accountability and transparency. The global Internet community should watch its reconstruction for a more reliable and secure Internet environment.
Sources
[1] Internet Corporation for Assigned Names and Numbers, Bylaws for Internet Corporation for Assigned Names and Numbers (2007), http://www.icann.org/general/bylaws.htm#I.
[2] See, e.g., ICANNWatch Mission Statement, http://www.icannwatch.org/mission.shtml (last visited Sep. 26, 2007).
[3] Management of Internet Names and Addresses, 63 Fed. Reg. 31, 741, 31,742 (Dep’t of Commerce Jun. 10, 1998) (statement of policy), available at http://www.ntia.doc.gov/ntiahome/domainname/6_5_98dns.htm.
[4] WORLD INTELLECTUAL PROPERTY ORGANIZATION (WIPO), THE MANAGEMENT OF INTERNET NAMES AND ADDRESSES: INTELLECTUAL PROPERTY ISSUES 2 (1999), http://www.wipo.int/export/sites/www/amc/en/docs/report-final1.pdf.
[5] J. POSTEL, RFC 1591: DOMAIN NAME SYSTEM STRUCTURE AND DELEGATION 1 (1994), http://www.isi.edu/in-notes/rfc1591.txt.
[6] Id. However, they are managed by different institutes and policies. See Internet Assigned Numbers Authority ("IANA"), Root-Zone Who is Index by TLD code, http://www.iana.org/root-whois/index.html (last visited Oct. 4, 2007) (management of the ccTLDs).
[7] While gTLDs are managed by ICANN, ccTLDs are generally managed by each nation’s government or governmental contractor. Because this paper focuses on international regulation, it will not address ccTLD issues, which should be decided by each nation.
[8] P. MOCKAPETRIS, RFC 1034: DOMAIN NAMES – CONCEPTS AND FACILITIES 1 (1987), http://tools.ietf.org/html/rfc1034.
[9] Id. at 6.
[10] Kathleen E. Fuller, ICANN: The Debate Over Governing the Internet, 2001 Duke L. & Tech Rev. 0002, ¶ 4 (2001), http://www.law.duke.edu/journals/dltr/ARTICLES/2001dltr0002.html.
[11] Id.; Management of Internet Names and Addresses, supra note 3, at 31,742.
[12] Management of Internet Names and Addresses, supra note 3, at 31,741. See Improvement of Technical Management of Internet Names and Addresses, 63 Fed. Reg. 8,826 (Dep’t of Commerce Feb. 20, 1998) (proposed rule; request for public comment), available at http://www.ntia.doc.gov/ntiahome/domainname/022098fedreg.txt (stating the DNS management history and policy of the U.S.)
[13] Management of Internet Names and Addresses, supra note 3, at 31741.
[14] Milton Mueller, ICANN and Internet Governance: Sorting Through the Debris of ‘Self-Regulation’, 1 Info 497, 499 (1999), http://www.icannwatch.org/archive/mueller_icann_and_internet_governance.pdf.
[15] Management of Internet Names and Addresses, supra note 3, at 31,742.
[16] Id.
[17] Internet Corporation for Assignment of Names and Numbers, Registrar Accreditation: History of the SRS, http://www.icann.org/registrars/accreditation-history.htm (last visited Oct. 8, 2007).
[18] See Tim Berners-Lee, The World Wide Web: A Very Short Personal History (May 7, 1998), http://www.w3.org/People/Berners-Lee/ShortHistory.html.
[19] Anupam Chander, The New, New Property, 81 Tex. L. Rev. 715, 757 (2003).
[20] Management of Internet Names and Addresses, supra note 3, at 31,742-31,732.
[21] See generally INTERNATIONAL AD HOC COMITTEE (IAHC), FINAL REPORT OF THE INTERNATIONAL AD HOC COMMIITTEE: RECOMMENDATION FOR ADMINISTRATION AND MANAGEMENT OF GTLDS (1997), http://www.gtld-mou.org/draft-iahc-recommend-00.html.
[22] Management of Internet Names and Addresses, supra note 3, at 31,744-31,745; see also Technical Management of Internet Names and Addresses, supra note 12, at 8,827-8,828.
[23] Management of Internet Names and Addresses, supra note 3, at 31,745.
[24] However, as Froomkin pointed out, White Paper is a mere policy statement, thus it is not binding. A. Michael Froomkin, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution, 50 DUKE L. J. 17, 92 (2000).
[25] International Corporation of Authorized Names and Numbers, Articles of Incorporation of Internet Corporation for Assigned Names and Numbers (Nov. 21, 1998), http://www.icann.org/general/articles.htm.
[26] International Corporation of Authorized Names and Numbers, ICANN, http://www.icann.org/tr/english.html (last visited Oct. 4, 2007).
[27] See generally International Corporation for Authorized Names and Numbers, Domain Name Dispute Resolution Policies, http://www.icann.org/udrp/ (last visited Oct. 8, 2007). See also Froomkin, supra note 24, at 97-136; Jay P. Kesan & Rajiv C. Shah, Fool Us Once Shame on You – Fool Us Twice Shame on Us: What We Can Learn from the Privatizations of the Internet Backbone Network and the Domain Name System, 79 WASH. U. L.Q. 89, 176-178, 215-216 (2001), for criticisms at ICANN’s policy making, which is allegedly arbitrary and non-transparent.
[28] Karl M. Manheim & Lawrence B. Solum, An Economic Analysis of Domain Name Policy, 25 Hastings Comm. & Ent. L.J. 317, 364 (2003).
[29] Froomkin, supra note 24, at 42.
[30] WILLIAM M. LANDES & RICHARD A. POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 390 (2003).
[31] Name.Spce, Inc. v. Network Solutions, Inc., 202 F. 3d 573 (2nd Cir. 2000).
[32] Id., at 584 (holding that NSI is entitled to conduct-based antitrust immunity).
[33] Fuller, supra note 10, at ¶ 17.
[34] White Paper, supra note 3, at 31,744.
[35] Froomkin, supra note 24, at 20, 50-51.
[36] Brenden Kuerbis & Milton Mueller, Securing the Root: A Proposal for Distributing Signing Authority (May 17, 2007), http://www.internetgovernance.org/pdf/SecuringTheRoot.pdf.
[37] See generally International Corporation for Assigned Numbers and Names, Transparency, http://www.icann.org/transparency/ (last visited Oct. 9, 2007).
[38] ONE WORD TRUST (OWT), INDEPENDENT REVIEW OF ICANN’S ACCOUNTABILITY AND TRANSPARENCY – STRUCTURES AND PRACTICES 7 (2007), http://www.icann.org/transparency/owt-report-final-2007.pdf [hereinafter Report].
[39] International Corporation for Assigned Numbers and Names, Summary of Input on Transparency and Accountability Management Operating Principles January 2007, http://www.icann.org/announcements/announcement-26jan07b.htm (last visited Oct. 10, 2007).
[40] Report, supra note 38, at 11.
[41] International Corporation for Assigned Numbers and Names, ICANN Accountability & Transparency Frameworks and Principles 4 (Jun. 23, 2007) (draft for consultation), http://www.icann.org/transparency/acct-trans-frameworks-principles-23jun07.pdf.
[42] Report, supra note 38, at 11.