ICANN Board Chair Vint Cerf now works for a company whose motto is, "Do No Evil." So how could Vint and his fellow board members be engaged in a massive capitulation to the enterprise greed of dot-com operator VeriSign?
The story of how the Internet community got to its current impasse over the future of the ICANN-VeriSign relationship is overly complicated but the bottom line is that we are suffering from woes created by the U.S. Government with the best of intentions over the past fifteen years. And only the government has the capacity to stop equivocating and do the right thing for all of us.
The Road to Hell is Paved with Good Intentions
In the beginning, the Networking Division of the National Science Foundation outsourced the assignment of Internet domain names to a corporate predecessor of VeriSign in order to improve the service provided to those seeking names.
Unfortunately, the contractual agreement used was of a form designed to facilitate the transfer of government funded technology from research agencies to the private sector where it could be properly commercialized. Only after dot-com had become a multi-billion dollar government granted monopoly service did people see that a public good was being converted into enormous and unwarranted private gain.
In 1997, the White House packaged up what had become a growing scandal over jumbo profits in dot-com and asked Commerce Secretary Daley to "privatize" the domain name system. In 1998, Commerce published a white paper with the terms that formed the basis for awarding DNS "technical coordination" duties to ICANN, which was formed as a California non-profit corporation expressly for the purpose of assuming those duties.
But Commerce lawyers were faced with a multitude of problems in actually transferring responsibilities to ICANN. Were domain names property? Interested members of Congress wanted to know if a "giveaway" was in progress. In the meantime, the agreement under which dot-com (and net and org) were being operated was up for renewal, and the views of government lawyers and Network Solutions lawyers (this was prior to the VeriSign acquisition) were miles apart. Lawsuits and concomitant paralysis of the domain name system were threatened.
In the fall of 1998, a race to zero hour, which had been defined by the White House as Thanksgiving, took place. In the end, Munich style thinking prevailed. Network Solutions got a continuation of its monopoly at a guaranteed wholesale price of six dollars a name, without any obligation to justify its costs to the community of users, in return for a vaguely worded commitment to agree to abide by policies to be adopted by ICANN. All of the important questions, many of which could only have been resolved by litigation in our system of government, were dodged, and the details were tossed in ICANN's direction to be worked out.
In the subsequent seven years, the ICANN Board and its lawyers have struggled to do the right thing while being fundamentally handicapped by the shortcomings of its legal arrangements with the government, and the government's continuing legal and political ties to the dot-com monopoly operated by VeriSign.
Monopolies Require Regulation
Acknowledging that the dot-com monopoly agreement was a problem, Commerce lawyers directed ICANN in 1998 to implement a system whereby retailing and wholesaling of domain names would be separated, retailers would be accredited by ICANN under a code of good practice, and registry operators would be required to do business with any accredited retailer, to be known as registrars. The projected benefits were similar to those sought when the U.S. Government separated long distance from local phone service in the 1980's. Unfortunately, the economic theory behind these ventures has proven to be defective in practice. Dot-com is a bigger monopoly than ever, and the telecommunications business is remonopolizing as we write.
ICANN, VeriSign and the government currently are bound to each other in an incestuous legal triangle in front of which an appearance of public-private partnership is maintained. This arrangement masks the monopoly related tensions which have surfaced in the latest contract renewal debate. It suits VeriSign's economic objectives and the government's political objectives to have a facade of privatization over the DNS and to make it appear that the ICANN-VeriSign negotiations are simply the working out of differences among private partners in the DNS.
In truth, VeriSign is still protected from government anti-monopoly action by its residual cooperative agreement with the Department of Commerce. There is no doubt that in its response to any antitrust suit filed against it, VeriSign will claim, as it has successfully in the past, that it is simply doing the bidding of the U.S. government. And ICANN, which has been sued over the terms of the draft agreement with VeriSign, will also maintain that it is simply fulfilling the terms of its contractual relationship with Commerce as detailed in the MOU and the separate IANA contract.
A Big Dose of Political Courage is Needed
As the lawyers pass this hot potato among them, what about the rest of us? Where is the solid institutional foundation under ICANN that we were promised in the glowing rhetoric of the White Paper seven years ago? Is there any end to the campaign of legal and financial intimidation that VeriSign continues to wage against ICANN? Are the legal troubles left over from expedient decisions in the 1990's so serious in light of the international politicization of the DNS that we just need to throw in the chips and start over?
Unfortunately, the recent leadership at the Department of Commerce and at ICANN has been so preoccupied dodging bullets that none of the long term issues are being articulated or debated. Instead, we are treated to squabbles over contract language designed to perpetuate a comfortable and permanent annuity for the shareholders of VeriSign at the expense of domain name holders. If this is the American free enterprise system in action, it's a pretty sad commentary.
Michael M. Roberts was the first President and CEO of ICANN, 1998-2001
|Cybersquatting||Policy & Regulation|
|DNS Security||Registry Services|
|IP Addressing||White Space|
Minds + Machines