ICANN MOU EXTENSION SHOULD BE EARNED

The Honorable Donald L. Evans
Secretary
Department of Commerce
1401 Constitution Avenue, N.W.
Washington, D.C. 20230

Dear Secretary Evans:

We are writing with respect to the reform proposals being discussed June 24-28, 2002 at the Internet Corporation for Assigned Names and Numbers (ICANN) Board of Directors meeting in Bucharest, Romania. We offer our strong support for reform of ICANN, and indicate our desire to see some specific concepts included in any reform package to ensure legitimacy and the continued existence of the organization.

In 1998, the Department of Commerce sought to create a non- governmental international entity that could coordinate core Internet functions and manage the technical aspects of its naming and address allocation systems. The resulting organization was ICANN. This organization was based on four principles: stability, competition, bottom-up coordination, and representation. However, over the past four years that ICANN has been in existence, we have seen few of these principles come to fruition. To the contrary, we believe ICANN now lacks the legitimacy needed to guide an international consensus body. Indeed, even ICANN's president recently admitted that "ICANN in its current form has not become the effective steward of the global Internet's naming and address allocation systems."

As the ICANN Board contemplates various reform proposals next week, we, after meeting with many of the stakeholders and interested parties in the Internet community, believe there are minimum thresholds that any reform plan should include.

ICANN's Mission Should Be Clearly Defined

In June 1998, the Department of Commerce issued the Statement of Policy on the Privatization of the Internet Domain Name System (DNS), known as the DNS White Paper, which articulated four primary functions for global DNS coordination and management: (1) to set policy for and direct the allocation of IP number blocks; (2) to oversee the operation of the Internet root server system; (3) to oversee policy for determining the circumstances under which new top-level domains (TLDs) would be added to the root server system; and (4) to coordinate the assignment of other technical protocol parameters as needed to maintain universal connectivity on the Internet.

While the White Paper contains what we believe ICANN's responsibilities should be, this statement of purpose is not enough. ICANN must also articulate those issues for which it is not responsible. This could take the form of explicitly barring ICANN from addressing issues outside the scope of the White Paper, thereby leaving no room for creative interpretations of ICANN authority. Regardless of how ICANN decides to spell-out its mission, there needs to be clear, definable, and unalterable lines around the responsibilities of ICANN.

ICANN Must Be Accountable

One of ICANN's greatest obstacles has been its complete lack of clearly articulated decision-making processes. Any reform of ICANN must address this lack of accountability. As a non- governmental body responsible for managing a global Internet resource, ICANN's operating procedures must be transparent to any and all interested parties. This means far more than posting decisions on a website. ICANN must establish rules, not unlike those in the Administrative Procedures Act, that provide interested parties with predictability. Without defined notice and comment periods, established decision criteria, and the application of such criteria to the problem, petitioners are left with an ad hoc process. If the problems surrounding ICANN's selection of new TLDs taught us anything, it was that picking winners and losers without a process in place to justify those decisions is totally unworkable.

Additionally, for ICANN to be accountable, there needs to be an independent review process that provides complainants with a fair, speedy, and unbiased resolution. This appeals process must be clearly independent of ICANN to avoid any claim of abuse of process. Although ICANN was tasked by the Department of Commerce with creating an external, third-party review board, that task was abandoned as unworkable and lacking support. Our discussions with interested parties indicate just the opposite.

To provide true accountability, the ICANN Board should ensure that it is not in a position of reviewing the appeals of its own decisions. Even the perception of impropriety will prevent ICANN from ever being able to attain the trust of the Internet community.

ICANN Needs to Enhance Transparency

Related to improved accountability is the issue of transparency. Transparency begins with the ICANN Board of Directors. We continue to believe that international participation by all stakeholders and interested parties in the Internet community is a goal that ICANN should vigorously pursue. Not only will diversity on the ICANN Board help overcome the crisis of confidence that is currently plaguing ICANN, but it will also produce needed transparency. Board members with different perspectives, alternative ideas, and novel solutions will provide the checks and balances necessary to make ICANN a credible and legitimate organization. Additionally, ICANN should establish and maintain stronger relationships with the registries of country code TLDs, root server operators, and other entities that, to date, have not typically been participants in the ICANN process.

Further Extensions of the Memorandum of Understanding Should Be Earned

In November 1998, the Department of Commerce entered into a Memorandum of Understanding (MOU) with ICANN. Having been extended several times, most recently in September 2001, the MOU is set to expire on September 30, 2002. After monitoring ICANN's activities for the last four years, we strongly believe that the Department should only authorize a short-term renewal of the MOU unless and until ICANN can show that reforms, necessary to limit its authority and provide for accountability and transparency, have been implemented.

We look forward to working with you and your staff to ensure these reforms are undertaken so ICANN can become the organization it was originally intended to be.

Sincerely,

W.J. "Billy" Tauzin, Chairman
John D. Dingell, Ranking Member
Committee on Energy and Commerce Committee on Energy and Commerce

Fred Upton, Chairman
Edward J. Markey, Ranking Member
Subcommittee on Telecommunications and the Internet

cc: Stuart Lynn, President, ICANN

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