Letter from Mike Roberts to U.S.
15 May 2000
May 15, 2000
Mr. Jere Glover, Chief Counsel for Advocacy
Mr. Eric Menge, Asst. Chief Counsel for Telecommunications
Office of Advocacy
U. S. Small Business Administration
Washington, DC 20416
Dear Mr. Glover and Mr. Menge,
I am responding to your letter to Ms. Esther Dyson of October 27, 1999 and your subsequent presentation at the public forum session of the ICANN Annual Meeting in November. The Board welcomes the suggestions you have made and hopes you will excuse this delayed response.
In your detailed communications to us, your primary recommendation was that ICANN "open a proceeding" to establish various rules of procedure for its policy-development activities and suggested that those rules should be patterned on the United States Administrative Procedure Act.
The ICANN Board and staff take seriously their obligation to operate in as open and transparent a manner as possible. Our Bylaws, themselves the product of an open drafting process, contain exceptionally detailed guidance to the Board on matters affecting openness, transparency, and redress.
During the course of the last eighteen months, we have learned much about creating consultative processes to support the requirements of the Bylaws and the needs of our constituents. There are obviously a number of difficult tradeoffs to be made between ensuring the maximum access to ICANN consensus processes for the maximum number of people while at the same time being responsive to the needs of the Internet community for effective private-sector technical coordination of the Domain Name System, which is what ICANNN is all about.
With regard to specifics, it seems useful to take note of the section of the U.S. Government's White Paper dealing with the nature of the new entity that it intended should take responsibility for the technical coordination of the DNS. The complete document may be accessed at:
"4. Creation of the New Corporation and Management of the DNS.
The Green Paper called for the creation of a new private, not-for-profit corporation (17) responsible for coordinating specific DNS functions for the benefit of the Internet as a whole. Under the Green Paper proposal, the U.S. Government(18) would gradually transfer these functions to the new corporation beginning as soon as possible, with the goal of having the new corporation carry out operational responsibility by October 1998. Under the Green Paper proposal, the U.S. Government would continue to participate in policy oversight until such time as the new corporation was established and stable, phasing out as soon as possible, but in no event later than September 30, 2000. The Green Paper suggested that the new corporation be incorporated in the United States in order to promote stability and facilitate the continued reliance on technical expertise residing in the United States, including IANA staff at USC/ISI.
Comments: Almost all commenters supported the creation of a new, private not-for-profit corporation to manage DNS. Many suggested that IANA should evolve into the new corporation. A small number of commenters asserted that the U.S. Government should continue to manage Internet names and addresses. Another small number of commenters suggested that DNS should be managed by international governmental institutions such as the United Nations or the International Telecommunications Union. Many commenters urged the U.S. Government to commit to a more aggressive timeline for the new corporation's assumption of management responsibility. Some commenters also suggested that the proposal to headquarter the new corporation in the United States represented an inappropriate attempt to impose U.S. law on the Internet as a whole.
Response: The U.S. Government is committed to a transition that will allow the private sector to take leadership for DNS management. Most commenters shared this goal. While international organizations may provide specific expertise or act as advisors to the new corporation, the U.S. continues to believe, as do most commenters, that neither national governments acting as sovereigns nor intergovernmental organizations acting as representatives of governments should participate in management of Internet names and addresses. Of course, national governments now have, and will continue to have, authority to manage or establish policy for their own ccTLDs."
The structure of ICANN, the entity subsequently recognized by the Department of Commerce as fulfilling the requirements of the White Paper, embodies the concept of "private-sector leadership" and attains this goal through the organizational means of a tax-exempt, non-profit California public benefit corporation that encourages extensive bottom-up participation by its stakeholders in the crafting of new or revised coordination policies.
Given this structure, which we believe is supportive of the goals of the White Paper, it would not be appropriate, in our opinion, for ICANN to adopt or observe federal agency rules of procedure. Those procedures, which are based on a notice-and-comment model of regulatory decision making, do not offer the environment of community participation in deliberative discussions that characterize most aspects of the ICANN process.
ICANN needs to stand or fail on its ability to fulfill its assigned DNS mission through private-sector consensus means, not through adoption of governmental policies and procedures, no matter how well intentioned. It is our belief that the desired attributes of openness and transparency in our processes are at least as available to us using private-sector means as they would be if the U.S. Government had chosen a federal agency to undertake DNS technical management.
Again, let me express our appreciation for your interest in ICANN. We look forward to your continued participation in our work.
Michael M. Roberts
President and Chief Executive Officer
cc: Members of the ICANN Board
Ms. J. Beckwith Burr, NTIA
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