Critical Internet Resources Functional and Organisational Mapping Phase 1

Critical Internet ResourcesFunctional and Organisational MappingPhase 1 19 December 2008 Howard Williams howard.williams@oii.ox.ac.uk David Satola dsatola@worldbank.org

Presentation Outline • The Problem • Context & Background • Objectives of Mapping • Mapping – Phase I • Next Steps

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

Origins and Progression towards Functional AnalysisThe WSIS Process • WSIS I – Internet Governance emerges as contentious issuehttp://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/

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 Phasehttp://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/

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 system and Internet protocol addresses (IP addresses), administration 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

Origins and Progression, continued “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, continuedIGF Legal Workshops

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

Legal Form/Organizational Options

Legal Form/Organizational Issues Ownership/Shareholders/Governance Participation in Decision-making Location Power to enter/enforce contracts Immunities Others

Some considerations in the mapping • 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 • 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?

Proto-mapping Organizational Forms Options CIR Functions Pros and cons of each

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

Methodology • What is the function? • Is it codified or created through community consensus and practice? • How does it relate to ICANN’s values? • How does ICANN undertake this function? • With regards to policy and contract processes • Consultation sub processes with related entities • What Resources are allocated to the function over time? • Money • People • Infrastructure • Supporting activities of USG/DoC • What are the emerging issues with respect to that function?

Understanding the purpose behind the functions

ICANN’s Mission

ICANN’s Values & Principles

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

ICANN’s Consultative Apparatus

ICANN’s Functions • Allocation and assignment of the three sets of unique identifiers for the Internet: • IP addresses • Domain names • Protocol port and parameter numbers • Operation and evolution of the DNS root name server system • Security and Policing of the DNS • Policy development reasonably and appropriately related to the forgoing technical functions: • Intellectual property “regulation” • Creation of competition and Choice and the Control of Pricing

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

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

Next Steps • Formal Consultations on Functional Analysis • Map Functional findings to “Corell”-type Organizational Review • Liaise with ICANN President’s Committee • Publish Findings

Critical Internet Resources Functional and Organisational Mapping Phase 1