Testimony of Dr. Paul Twomey Before U.S. Senate Committee on Commerce, Science, and Transportation
Mr. Chairman and members of the Committee, thank you for the opportunity to make my first appearance before this Committee in my role as President and Chief Executive Officer of the Internet Corporation for Assigned Names and Numbers (ICANN).
I assumed this responsibility about four months ago, and have been spending most of my time since then listening to the many constituency interests that in the aggregate make up ICANN, which has kept me on the road a very large portion of the last four months. In addition, I and many others have been working very hard to finally implement the ICANN reforms that were kicked off by Stuart Lynn's report to the Board in February of 2002, and I have published a comprehensive plan for the reorganization of the ICANN staff function, which is in the process of being implemented. This testimony will focus on these two aspects of ICANN reform.
In the year since Stuart Lynn last appeared before you to discuss ICANN, the reform process that he described as underway has essentially been completed. Of course, we still have things to do; important parts of the reforms are still being implemented. But the basic and critical building blocks of the new ICANN -- ICANN 2.0, if you will -- are now in place. I would like to describe both the process and the results, since I think both are important signs of the continuing maturation of this still young entity.
ICANN is a complex body with a complicated mission -- developing consensus policies related to the technical coordination, at the overall level, of the global Internet's systems of unique identifiers, and in particular ensuring the stable and secure operation of the Internet's unique identifier systems, including the Domain Name System. Because it is intended to be a private sector consensus development body, it necessarily must permit, and indeed encourage, participation from all who have legitimate interests in the subject matter, from individuals to governments. But if it is to be effective in overseeing the management of this critical global asset, it must also be able to come to conclusions and to implement them efficiently when required. Finding the right balance of these two somewhat inconsistent objectives has been a constant learning experience for those involved in ICANN, none of whom had experience in such an entity, since no similar private sector entity has ever existed. ICANN is unique, for better or worse, and thus the learning curve has been steep.
The good news is that I believe that the various interests and constituencies that make up the ICANN community have now moved very far up that steep learning curve. We have more than four years of experience in learning how to make this concept work, and with the benefit of that experience, we have essentially completed a thorough reform of ICANN structures, processes, and indeed its very constitutional documents. We have a new set of bylaws, a new mechanism for selecting the ICANN Board of Directors, a new mechanism for enabling and encouraging individual participation in a meaningful and productive way, and new procedures and structures for ensuring transparency, fairness and accountability. I don't want to overstate the case: ICANN 2.0 is still a work in progress. But I believe that, in completing this reform and reorganization, the ICANN community has demonstrated that it can develop consensus on important and controversial issues. The various ICANN constituencies have learned to work together, to compromise, to take account of the points that are important to others just as they want the points important to them accounted for. The success of the reform efforts, and the changes it has produced, leave me very optimistic that ICANN will be a more productive entity in the years ahead.
It is hard to overstate the comprehensiveness of the ICANN reforms that have taken place over the last year. They include:
- Restructuring the ICANN Board, advisory committees, supporting organizations and other participatory bodies to build effective, transparent, responsive and balanced participation by all stakeholders;
- Forming a Country-Code Names Supporting Organization to further participation in ICANN by the almost 250 ccTLDs around the world;
- Establishing more effective processes for ICANN to solicit and receive advice on public policy and consumer policy matters from the Governmental Advisory Committee, other multi-national expert agencies, and its own Supporting Organizations;
- Creating new constituency driven policy-development processes;
- Monitoring and offering policy guidance on key upcoming technical issues facing the domain name system, such as the implementation of Internationalized Domain Names and the transition to a new numbering protocol, IPv6;
- Establishing accountability mechanisms, such as creation of an Ombudsman program and an independent review process for Board decisions;
- In response to consumer demand, adopting new policies relating to a redemption grace period for deleted domain names, inter-registrar transfers and whois data protection and accuracy policies; and
- Establishing an at-large advisory committee and organizing regional at-large organizations to encourage informed and productive public participation by individual Internet users.
The reforms of the past year have completely transformed ICANN. A majority of the ICANN Board is now selected by ICANN’s Nominating Committee, with the remainder being selected by ICANN's policy making bodies -- the Address Supporting Organization, Generic Names Supporting Organization and Country-Code Names Supporting Organization. Nominating Committee members are delegated to act on behalf of the global Internet community, and are guided by very specific and detailed criteria set out in the bylaws for qualifications, international representation, diversity, experience and eligibility. There is a Nominating Committee Code of Ethics, and mandatory disclosure of any potential conflicts of interest. In its initial experience of selecting eight ICANN Board members earlier this year, the Nominating Committee solicited ideas and statements of interest from the Internet community as a whole, and made its eight selections from over one hundred persons considered.
How to ensure informed and productive participation by individual Internet users has been a frustratingly difficult problem for ICANN since its creation. As part of the overall reforms adopted in the last year, we have established the At Large Advisory Committee, which will be the representative body of a supporting framework of local and regional entities made up of and representing individual Internet users. The At Large Advisory Committee will be responsible for generating and providing advice to ICANN policy bodies and the ICANN Board from the global user community. The At Large Advisory Committee also appoints delegates to ICANN's Nominating Committee, and liaisons to the managing Councils of the Generic Names Supporting Organization and the Country-Code Names Supporting Organization, as well as other ICANN committees and participatory bodies.
ICANN is as much a process as it is an entity -- a place where those with legitimate interests in DNS operation and policies can come together to discuss, and hopefully reach consensus on, matters of common interest. To be successful, it must be open and transparent, and there must be appropriate accountability mechanisms. Like all things, these goals must be balanced against the practical realities of reaching and implementing decisions, but we believe we have now arrived at an appropriate balance of all these factors.
Potentially the most important innovation in this area is the Ombudsman Program. ICANN’s new Bylaws provide for an Office of the Ombudsman to act as a neutral dispute resolution practitioner for matters not subject to reconsideration by the Board or eligible for the Independent Review Process (both described below). The Ombudsman’s role is to serve as an objective advocate for fairness, tasked with evaluating and clarifying complaints from members of ICANN's various constituencies, and where possible, helping to resolve complaints about unfair or inappropriate treatment by ICANN staff, the ICANN Board, or ICANN constituent bodies, using the full range of conflict resolution tools. ICANN has recently retained an individual experienced in the establishment of Ombudsman Programs to provide assistance in developing and writing ICANN’s Ombudsman program policies and operating practices, and in the identification of appropriate candidates to lead the Office of the Ombudsman.
ICANN’s new Bylaws also include a procedure by which any person or entity materially affected by an action of ICANN may request review or reconsideration of that action by the Board, to the extent that he, she, or it have been adversely affected by (a) a staff action or inaction contradicting established ICANN policy or policies; or (b) one or more actions or inactions of the ICANN Board taken or refused to be taken without consideration of material information. All reconsideration requests are publicly posted on ICANN’s website, and must be responded to in some fashion by the Board’s reconsideration committee within thirty days of receipt. To date, ICANN has received, evaluated, and acted on a number of such reconsideration requests.
ICANN’s new Bylaws also mandate that ICANN establish a process for independent third-party review of Board actions alleged to be inconsistent with ICANN’s Articles of Incorporation or Bylaws. Requests for review are to be referred to an independent review panel operated by an international arbitration provider with an appreciation for and understanding of applicable international laws, as well as California not-for-profit corporate law. Three arbitration providers have emerged as suitable candidates to operate the review panel, and the qualifications and attributes of each are being reviewed currently, with the intent for the organization to make a selection this Fall.
Finally, the new ICANN bylaws also incorporate a specific articulation of ICANN's mission -- to coordinate the allocation of the global Internet's systems of unique identifiers, and to coordinate policy development reasonably and appropriately related to these technical functions. After considerable discussion and debate, the new bylaws set forth in some detail the core values that underlie that mission statement, and thus should inform the performance of that mission by ICANN. ICANN 's bylaws also adopt policies to ensure balanced input and participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision-making.
Participation and a voice within ICANN is available to any interested participant. ICANN’s Board and Board committees, Supporting Organizations, Advisory Committees, and other ICANN bodies all operate under principles which include striving for geographic and professional diversity. Each ICANN committee, Supporting Organization, and other constituent body is charged with adopting rules and procedures intended to ensure a balance of views within the entity.
Notwithstanding the fact that the participants in ICANN have been devoting significant time and attention to the reform effort over the past year, ICANN has also been able to respond to concerns and issues about the DNS that directly affect consumers and other users. Four examples of this are described below.
Redemption Grace Period Service
The Redemption Grace Period Service is a response to the increasing number of complaints made by holders of domain names that were unintentionally deleted (either because of unintentional failure to renew or for other reasons) and then registered by someone else, sometimes using the domain name to display content repugnant to the former registrant. Frequently the registrant experienced significant delays and costs in recovering the name and having the former services (web service, e-mail, etc.) restored.
To address these unfortunate situations, it was proposed to institute a grace period after expiration of a name, during which the domain name would no longer resolve but the former registrant (and only the former registrant) could have the name restored in return for payment of any fees required. After favorable public discussion, the Board concluded that the idea should be further explored. A technical steering group was formed (including knowledgeable registry and registrar personnel and in consultation with the relevant Supporting Organization) to develop a concrete proposal implementing the Redemption Grace Period Proposal. This resulted in amendments to ICANN’s agreements with registry operators designed to require the implementation of a Redemption Grace Period Service.
To date, VeriSign has introduced a Redemption Grace Period Service in the .com and .net top-level domains, subject to completion of contractual documentation. Likewise, the Public Interest Registry has introduced a Redemption Grace Period Service in the .org top-level domain on a provisional basis. NeuLevel has launched a Redemption Grace Period Service in the .biz top-level domain. Other registry operators are expected to follow suit shortly. The decision of whether and how to implement a Redemption Grace Period Service in sponsored top-level domains has been left to the sponsors of those domains.
The implementations mentioned above have incorporated the first phase of the Redemption Grace Period Service. The next step in implementation of the Redemption Grace Period Service is expected to occur this Fall, and will allow a registrant to move the renewed registration to another registrar if so desired.
ICANN is the leading global forum for discussion of Internet Whois issues. We are currently moving forward with implementation of four consensus policies related to Whois that were adopted at the ICANN Board of Directors meeting in March 2003 in Rio de Janeiro. One of the four recommended policies, the Whois Data Reminder Policy, was implemented in June 2003. The Whois Data Reminder Policy calls for ICANN-accredited registrars to provide domain-name registrants with an annual listing of their Whois data and to remind registrants of the need to correct inaccurate or out-of-date information. The other three policies, as to which the technical considerations of implementation are currently being considered, are expected to be implemented this Fall.
ICANN also recently posted a “Registrar Advisory Concerning the ‘15-day Period’ in Whois Accuracy Requirements.” The advisory was posted in order to promote a clearer understanding of registrar Whois data-accuracy requirements. As explained in detail in the advisory, registrars have the right to cancel a registration if a customer fails to respond within 15 days to an inquiry concerning Whois data accuracy, but registrars also have flexibility to decide when to use that right, depending on factors including whether the inaccuracy appears intentional and whether third parties are being harmed by maintaining the registration with inaccurate data. Registrars are obligated to take reasonable action to correct reported Whois inaccuracies, but are not bound to a fixed timetable or specific action.
A two-day Whois Workshop held during ICANN’s meetings in Montréal initiated a new phase of discussion within the ICANN community on Whois and related privacy and other issues. The Whois Workshop was held in response to a request from the GNSO, and in cooperation with the GAC’s Whois policies program. The two-day workshop consisted of one day of tutorial-style presentations (with public comment and question/answer sessions) dealing with current Whois policy and practice, and one day of public policy-focused panel discussions on “Balancing Public Policy Issues in the Current Whois System” and “New Approaches to Whois Policy and Practice.”
Whois-related discussions will be a continued focus of ICANN’s Whois Steering Group and the ICANN President’s Standing Committee on Privacy.
ICANN is in the process of implementing another new set of consensus policies intended to improve inter-registrar transfers of domain names. Domain transfers (portability) allow consumers and business to freely select their domain registration service provider based on price and service levels.
When competition was introduced into the domain registration market in 1999, there were initially only five accredited registrars. There are now more than 168 accredited registrars, approximately 100 of whom are active. Competition has been extremely successful, with prices having fallen approximately 80%, and widespread innovation and creativity in the domain registration market. However, transfer issues continued to be troublesome, and in 2001, ICANN’s Domain Name Supporting Organization convened a Transfers Task Force to study the inter-registrar transfer system and recommend improvements. The Transfers Task Force worked for over a year in crafting twenty-nine (29) consensus policy recommendations set forth in its final report. The Task Force’s recommendations were accepted unanimously by the GNSO Council, and were forwarded to ICANN’s Board early this year. In March 2003, ICANN referred the recommendations to its Governmental Advisory Committee (as is required for all proposed actions affecting public policy concerns.) The GAC’s recommendation to ICANN was “to support and implement the GNSO Task Force’s recommendations, without amendment.”
In April 2003, ICANN’s Board unanimously adopted the 29 consensus policy recommendations on transfers, and authorized staff to take steps to implement the policy recommendations. ICANN has convened a Transfers Assistance Group, including individuals from the Transfers Task Force, the GNSO Council, the Registries and Registrars Constituencies, and the At Large Advisory Committee. This Group will work with ICANN staff in the coming weeks and months to draft notices and amendments to ICANN’s contracts with registries and registrars in order to put these recommendations into practice.
Wait List Service (WLS)
The WLS is a new registry service proposed by Verisign, the registry operator for the .com and .net. top-level domains. The service, if implemented, would allow potential registrants to subscribe to a “wait list” that would guarantee they would be next in line to register a name if the current registrant lets it expire.
Domain names ending in .com, .net, .info, etc. are registered through ICANN accredited registrars – of which about 100 are currently active. Generally, anybody can register any string of characters through any registrar on a first-come, first-served basis. Once somebody registers a particular name, no one else can register that same name until the current registrant lets the registration expire and the name is deleted from the registry. The WLS proposal is designed to offer consumers and businesses the opportunity to secure the next place in line to obtain the right to register a particular name should the current registrant decide not to renew it. (Approximately 800,000 names are deleted by the registry each year.)
The WLS proposal generated considerable controversy within the ICANN community. In the absence of a registry service such as that proposed by VeriSign, various ICANN registrars had created products that purported to take reservations for names that might be deleted in the future. Those registrars then regularly queried registries in an attempt to be the first to learn of a deletion, in which case they would then seek to register the name for their clients. Obviously, no registrar could guarantee that any particular registration would be successful, and since there were commonly a number of registrars seeking to register any given deleted name, most people who signed up for those services were destined to be disappointed.
The VeriSign proposal offered a significant improvement from a consumer perspective to the various services already offered by registrars. Because VeriSign operated two registries, it could guarantee that a reservation made in the WLS for names registered in those registries would always be successful IF the name was ever deleted. Obviously, such a guarantee can only be offered by the registry or its agent, since only the registry can guarantee such performance. This fact lead some registrars to conclude that the availability of the WLS (with its guarantee of performance) to consumers would reduce the demand for their services (which were not able to offer a comparable guarantee), and thus they strongly opposed approval of the WLS. While reaction from other parts of the ICANN community that did not have a direct competitive interest was more mixed, it would be fair to characterize the majority view as opposed to approval of the WLS proposal.
After considering the full range of views expressed, the ICANN Board concluded that ICANN should act whenever possible in a way that promotes consumer choice and innovative services, and that its general goal to seek to increase competition when possible did not require it to prevent consumers from having the option of purchasing services they may decide are beneficial. It would be anomalous to "protect" competition between providers of non-guaranteed products by preventing the new competition of a guaranteed product that at least some consumers would likely prefer. Considering all these factors, the Board approved the WLS proposal with certain conditions that it felt appropriate under the circumstances to protect consumer interests. Among these were a limitation of the approval to a twelve month experimental period, after which time the Board would be required to review and make an independent decision on the continuation of the WLS. The Board authorized ICANN’s CEO and its General Counsel to negotiate amendments to the registry agreements with VeriSign that were consistent with its approval.
The Board's approval did not end the controversy over WLS. In fact, this issue is now the subject of two lawsuits, one filed in Canada and one in California. In the California litigation, the plaintiff requested a Temporary Restraining Order, which request was denied by the Court. Further proceedings will likely take place. The WLS will not be implemented until the registry agreement amendments that the Board's approval requires are completed, and the new agreement is approved by the Department of Commerce, as required by the Memorandum of Understanding between ICANN and the DOC.
Following the ICANN meeting at Marina del Rey in November of 2001, ICANN created a Security and Stability Advisory Committee focused on security and integrity of the Internet's naming and address allocation systems. The committee draws its membership from operators of Internet infrastructure and other security specialists, and presently continues work on several ongoing projects, including a recommendation regarding the layering of services on the DNS ( for example, the Verisign IDN Program and the domain name "auctions" of various registrars), an evaluation of the redundancy and resiliency of the major domain name servers to withstand distributed denial of service (DDoS) attacks, and an assessment of the status of DNSSEC, the forthcoming protocol to add cryptographically signatures to the domain name system and thereby prevent forgery and hijacking of domain names. The DNSSEC work includes building a road map outlining its deployment and identification of where further work is needed.
The committee is also assessing most of the significant security issues affecting the Internet; and is beginning an assessment of the transition to the new Internet addressing system, IPv6.
ICANN's Root Server System Advisory Committee has a membership drawn from representatives of the organizations responsible for operating the world's thirteen root nameservers and other organizations focused on stable technical operation of the authoritative root server system. ICANN operates one of these thirteen root servers, which has given ICANN valuable insight into the issues involved in root-server operations and enhancement.
The RSSAC has spent considerable time examining and monitoring the deployment of more robust DNS infrastructure for the Internet. The Committee has also closely followed the efforts of root server operators to successfully expand the capacity of the system and its geographical diversity through the use of “anycast” systems. At present, the committee is examining the implications of new technologies on the root server system, such as implementation of IPv6 for the root.
One of the first things that I focused on when I assumed this position was the internal organization of ICANN. Since I had been involved with ICANN, one way or another, since before its birth, and because of my personal background in business and business consulting, I had some very definite ideas about how ICANN staff could be organized to enable more efficient and more effective performance, even working under what will always be significant financial constraints. After some consultation with various constituencies, I announced plans for evolving ICANN into a more business-like management structure -- one that takes into account the increasing demand for and complexity of the work that ICANN undertakes to support the Internet community. My goal is to improve responsiveness and to streamline management processes.
The new structure contemplates two Vice President positions (a Vice President of Business Operations, focusing on the day-to-day operation of ICANN, and a Vice President of Supporting Organizations and Committee Support, focusing on the need to support ICANN's constituent bodies). It also includes the reorganization of the various ICANN staff functions into four general groups, each headed by a General Manager; these will be the IANA function, the Public Participation function, a Global Partnerships function that focuses on our relationships with governments and multi-national bodies, and Technical Operations, which is self-explanatory. Finally, there will be a General Counsel responsible for the legal activities of ICANN, principally the negotiation of agreements and advising the Board and the CEO on various legal requirements. Recruitment for these new positions is now well underway.
This new management structure is intended to clearly delineate internal and external operations; recognize important relationships that ICANN has with the community; and provide clear lines of accountability for key operational and strategic functions. While this will involve the addition of a small number of new positions, I am convinced that this structure will greatly assist in ICANN's efforts to enhance the responsiveness and transparency of its operations to the community.
I hope this brief overview of the immense changes that ICANN has been and is going through gives you both a feel for the velocity of change -- which is considerable -- and a heightened sense of confidence that ICANN can in fact carry out its limited but important mission effectively. I believe that it can, or I would not have taken on this visible (but not always popular) position. I took the job because I believe that the ICANN mission is important, and because I want to help establish that a public-private partnership of the kind that ICANN has become is in fact a feasible and appropriate way to deal with matters like the DNS, over which no single government can claim sovereignty, but which all governments and many private parties have important and legitimate interests in seeing function well.
I will be pleased to answer any questions you may have.