PRELIMINARY COMMENTS ON ICANN REFORM FROM THE

ASIA-PACIFIC TOP LEVEL DOMAIN ASSOCIATION

24 May 2002

  1. Background
    1. APTLD is the association of managers of country code domain name registries in the Asia-Pacific region. It represents the country code registries in the largest of the five ICANN geographical regions of the world, and represents possibly the broadest range of legal, political, cultural, social and linguistic diversity of the ICANN regions. Members of the APTLD have played a part in the development of the internet since before, during and after the formation of ICANN. For example, the region hosts (in Korea) the secretariat of the global ccTLD constituency, is the region from which the only two countries (Australia and Japan) yet to sign contracts with ICANN come, and another member (Australia) has been the founding host of the GAC (Government Advisory Committee), providing it with its first Chair.
    2. Further details of the APTLD may be found at its website www.aptld.org
    3. Members of the APTLD welcome the opportunity to comment on the ICANN reform process.
    4. At its annual general meeting in Bangkok in March 2002, delegates expressed concern at the apparent rapidity intended for the reform process. Members took part in the reform discussions at the ICANN meeting in March in Ghana, and have participated in on-line discussions since then. This report is an interim response to the matters raised in the CEO and Presidentís report:
    5. "ICANN: The Case for Reform" (see http://www.icann.org/general/lynn-reform-proposal-24Feb02.htm)

    6. APTLD expects to continue to monitor and review the contributions made to the reform debate by other constituent parts of ICANN, and looks forward to contributing further to the debate.

  2. Dr Lynnís analysis in relation to ccTLDs
    1. We are not sure that the analysis in relation to ccTLD matters is accurate. We do not seek to revisit past issues, except where we think it is relevant to restructuring.
    2. Reference in the White Paper to the ccTLDs is limited, and to the effect that they were administered by their corresponding governments, which would continue to have authority to manage and establish policy for those ccTLDs. There is, in fact, a great diversity in the nature of ccTLDs, and in the roles governments play in relation to them.
    3. The first Memorandum of Understanding between ICANN and the US Government does not provide explicitly for ccTLDs, whereas the second Memorandum requires ICANN to achieve agreements that deal with delegation and re-delegation, allocation of global and local policy formulation responsibility and relationships between the ccTLD operators, and government. See www.icann.org/general/icann-mou-25nov98.htm and www.icann.org/amend2-jpamou-07sep00.htm.
    4. That Memorandum of Understanding was drafted without consultation by either party to it with the ccTLDs.
    5. On reflection, a less ambitious set of objectives might have formed the basis of an acceptable Memorandum of Understanding or agreement between the ccTLDs and ICANN.
    6. APTLD suggests that it is important to understand that the failure to reach agreements between ccTLDs and ICANN is not an indication of either lack of support for an ICANN constituted along White Paper principles, or that the continued stable global interoperability of the internet is not of critical importance to members. However, the failure to reach agreements needs to be taken into account in designing or reforming a structure to prevent simply a repetition of the previous result. Without a change of understanding, a new structure will not produce agreements.
    7. The primary obstacle to reaching agreements was the failure by both parties to satisfactorily establish whether there were any limits to the "sovereignty" of the ccTLDs in relation to their policy-making role. Draft contracts prepared by ICANN have tended to reflect and carry forward the totally different contractual relationship necessary between ICANN and the generic top level domains. For the g-TLDs, it is ICANN itself which has to perform the role of the "local internet community". This requires it to develop and manage policies, which is a function which it should not perform in relation to ccTLDs. These difficulties, coupled with scepticism concerning the independence of ICANN from the US Government and its susceptibility to influence from major commercial interests have not assisted the formation of agreement. Neither has the apparent adoption by the staff of policies promulgated by the Government Advisory Committee, despite their lack of acceptance by the Board, not having been developed by the ICANN consensus-based policy development process.

  3. What the ccTLDs require of ICANN
    1. The primary requirement of the ccTLDs is continued entry in the IANA database. This is not currently done well. The database is not maintained in an up-to-date fashion, and all requests for change are treated as an opportunity to demand the signing by the ccTLD manager of a most regrettable contract.
    2. The secondary requirement is for continued root server service. Considerable time has been wasted by the ccTLDs expecting to enter a contract with ICANN in relation to root server service, including drafting such a contract, only to have it flatly rejected by ICANN. ICANN has been unable to enter agreements with the root server operators.

  4. Proposals for reform
    1. In general, APTLD supports the White Paper principles underlying ICANN, namely that there should be management of the technical functions of the internet by an organisation which is industry-led, transparent as to process, characterised by policies developed by a "bottom up" process which is government-free, and self-regulating.
    2. In addition, APTLD would add that such an organisation should be "light weight". That is, it should avoid expanding its mission statement so as to require the addition of staff to carry out its function.
    3. The APTLD regards it as essential that there be agreement that the mission statement for ICANN return to a narrow technical focus on coordinating names, addresses and numbers. Of particular importance to the ccTLDs as stated is the provision of an updated IANA database, and root server service. Save for policies that relate to those narrow technical functions, ICANN has no role in relation to policy development in relation to ccTLDs.
    4. The ccTLDs have agreed that there may be a carefully definable set of global issues which the ccTLDs may, between themselves, develop within the framework of the proposed Country Code Support Organisation.
    5. Accordingly, the APTLD does not see a role for the ICANN Board in developing and implementing policies affecting ccTLDs. ccTLD policy is best made by ccTLDs, who will continue to do that.

  5. Funding
    1. Members of the APTLD, along with other ccTLDs, have made voluntary donations as a sign of their interest in the outcome of the ICANN project.
    2. It is not accepted by APTLD members that ccTLD contributions should be applied, as they have been, to fund ICANNís work in developing policies for the g-TLD.
    3. APTLD supports the principle that ccTLD funding should be used within ICANN primarily to fund the performance of the technical function identified as being a necessary service to the ccTLDs, namely the satisfactory maintenance of the IANA/ccTLD database.

  6. The role of governments
    1. APTLD defines two roles for government in the internet management process. The first is in relation to the ccTLD registry or registries over which it has authority, and within its role within the local internet community which such registries serve.
    2. The second is in relation to representing its citizens and residents who use g-TLDs. Governments need to be able to take part, on behalf of those citizens, in what is the equivalent to the local internet community for g-TLDs. This is not currently possible with the DNSO, nor provided by the Government Advisory Committee.
    3. In general, APTLD does not favour any enhanced role for governments within ICANN, in relation to ccTLD matters. That is not a matter for ICANN, but a matter for the local internet community.
    4. It should be noted that both .cn (China) and .vn (Vietnam) propose an enhanced role for government in relation to "at large" issues. (Their papers may be seen at www.aptld.org/file/cnreform.doc.)

  7. Proposed legal structure
    1. It is not clear to members of the APTLD what legal nature the proposed restructured ICANN would have. It is noted that not all legal jurisdictions recognise the concept of a "trustee". It is not clear in which country, if any, the proposed organisation would be legally incorporated. Further information on the proposed legal structure and its governing law is required to permit a consideration of advantage for the current US registered corporation.

  8. Nominating committee
    1. The nominating committee is not an acceptable method of appointing Board members. In general, APTLD members prefer a method of direct elections and specifically in relation to ccTLD representation will require that.

  9. Role of the "At Large"
    1. The APTLD believes ICANN needs to develop a structure in which the interests of users within the g-TLD space are represented, in balance with those of registries, registrars, and other service providers. The APTLD believes that governments may have the ability to assist with representation of the interests of those users. Such an enhanced role for governments may be associated with increased governmental representation.

  10. ccSO
    1. The APTLD supports the formation of a body equivalent to a Support Organisation within the current structure, and having direct elections of Board members from that organisation.

  11. Single entity?
    1. The APTLD is aware of suggestions from other quarters that the functions currently sought to be coordinated by ICANN might be effectively separated and distributed among different organisations. This is a concept which requires further study. At present, APTLD believes that it is preferable for a single entity to coordinate the technical functions for management of the internet.
    2. Under such an organisation, it may be possible to contract out to a ccTLD-based organisation the running of the ccTLD IANA database.

  12. Independent review
    1. APTLD believes that the policy developed to provide a mechanism for independent review of Board action should not be abandoned for the reason only that members of the Panel have been hard to find.
    2. Independent review is a cornerstone policy of ICANN, and forms a crucial safeguard. It is one of ICANNís performance requirements under the amended MOU (see above).