ICANN domain name process under fire

WASHINGTON -- The process used by the Internet Corporation for Assigned Names and Numbers (ICANN) to select seven new generic top-level domain (TLD) names came under fire in a House subcommittee hearing on Thursday, as members of U.S. Congress from both parties questioned whether the process was fair.

ICANN has been criticized on several fronts since November when it selected the new TLDs .aero, .biz, .coop, .info, .museum, .name, and .pro, but the hearing was the first opportunity for Congress to express its concern about the procedures used.

The new chairman of the House Subcommittee on Telecommunications and the Internet, Fred Upton, a Republican from Michigan, said he called the hearing because questions had been raised about whether the process thwarted competition and was too subjective.

"To my mind, legitimate questions have been raised by several of our witnesses about the standards of the application and selection process, questions which must in fact be answered by ICANN," Upton said as he opened the hearing. Other questions involved the omission of .kids and .xxx as new TLDs to help protect children from "the awful filth that is spread" over the Internet, Upton said.

Representative Edward Markey, a Democrat from Massachusetts, said he was concerned about the procedure, saying it was more shrouded in mystery than events at the Vatican. He also expressed concern over ICANN's decision not to select all technically and financially qualified applicants. In addition, Markey said, although some of the people who made the decisions were elected, others were not, and he asked whether the US$50,000 nonrefundable application fee that ICANN charged was spent entirely on analyzing applications.

Eight witnesses testified, including two companies whose TLDs applications were denied, two whose applications were accepted and one that didn't apply. Defending ICANN was Vinton Cerf, chairman of the board of ICANN.

Cerf said the procedure was a limited proof-of-concept process and from the beginning ICANN made it known that only a limited number of new TLDs would be selected.

"Everything about this process was transparent," Cerf told the subcommittee. "What ICANN was doing here was an experiment, a proof of concept, an attempt to find a limited number of appropriate applicants to test what happens when new TLDs of various kinds are added to the namespace today -- a namespace that is vastly different in size and in application than that which existed more than 15 years ago when the first seven global TLDs . . . were created."

All 44 proposals were posted on ICANN's Web site and more than 4,000 public comments were received and reviewed by ICANN technical, financial and legal experts, Cerf said. ICANN also held open meetings where people were allowed to testify.

ICANN was created in October 1998 and became operational about a year later when it signed a series of agreements with Network Solutions Inc. (NSI), which at the time was the only operator of significant registries. As its first action, ICANN created an accreditation system for competitive registrars, of which there are now more than 180, Cerf said. Another early ICANN accomplishment was the creation of a cost-effective and efficient dispute resolution system, he added.

But the introduction of new TLDs has been the most complex of ICANN's initial goals. One reason is because it involves expanding the structure of the namespace, which presents more risks. Before the selection process began, ICANN consulted Internet engineers and found that while most believed that some additional TLDs could be added without serious risks of instability, there was considerable uncertainty about how many could be added without adverse side effects, Cerf said.

ICANN named nine criteria that were set out in August for assessing TLD proposals, including the need to maintain the Internet's stability and the extent to which proposals would meet previously unmet needs, and Cerf said they were consistent throughout the process. ICANN never suggested it would accept all the proposed TLDs, he explained.

"Our objective was to simply start with small numbers. We never expected as a board to approve every single application which might qualify to operate a TLD," Cerf said. But the board does anticipate that once the first new TLDs are in operation, more will be added and the process will be simplified.

He also defended the $50,000 application fee, saying the process had to be self-funding since ICANN has no general source of funds, and it was unlikely an entity that couldn't afford that fee could operate a successful and scalable TLD registry. About half of the money was used during the evaluation process, Cerf said.

Cerf's explanations, however, did not satisfy every member of the panel. Professor A. Michael Froomkin, a law professor at the University of Miami, criticized ICANN for creating only seven TLDs, for using arbitrary criteria and for acting like an allocation authority.

Froomkin said there was no question in his mind that a court would find ICANN's TLD selection process unfair.

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