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Preliminary Comments On ICANN Rrform From The Asia-Pacific Top Level Domain Association

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Background

 

 

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.

 

 

Further
details of the APTLD may be found at its website www.aptld.org

 

 

Members
of the APTLD welcome the opportunity to comment on the ICANN reform process.

 

 

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 Presidentˇ¦s report:

 

“ICANN:
The Case for Reform” (see http://www.icann.org/general/lynn-reform-proposal-24Feb02.htm)

 

 

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.

 

 

Dr
Lynnˇ¦s analysis in relation to ccTLDs

 

 

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.

 

 

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.

 

 

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.

 

 

That
Memorandum of Understanding was drafted without consultation by either party to
it with the ccTLDs.

 

 

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.

 

 

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.

 

 

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.

 

 

What
the ccTLDs require of ICANN

 

 

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.

 

 

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.

 

 

Proposals
for reform

 

 

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.

 

 

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.

 

 

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.

 

 

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.

 

 

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.

 

 

Funding

 

 

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.

 

 

It
is not accepted by APTLD members that ccTLD contributions should be applied, as
they have been, to fund ICANNˇ¦s work in developing policies for the g-TLD.

 

 

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.

 

 

The
role of governments

 

 

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.

 

 

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.

 

 

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.

 

 

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.)

 

 

Proposed
legal structure

 

 

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.

 

 

Nominating
committee

 

 

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.

 

 

Role
of the “At Large”

 

 

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.

 

 

ccSO

 

 

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.

 

 

Single
entity?

 

 

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.

 

 

Under
such an organisation, it may be possible to contract out to a ccTLD-based
organisation the running of the ccTLD IANA database.

 

 

Independent
review

 

 

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.

 

 

Independent
review is a cornerstone policy of ICANN, and forms a crucial safeguard. It is
one of ICANNˇ¦s performance requirements under the amended MOU (see above)