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IP: Where goes ICANN -- the second of two notes
From: Dave Farber <dave () farber net>
Date: Wed, 27 Feb 2002 09:00:09 -0500
------ Forwarded Message From: "Michael Froomkin - U.Miami School of Law" <froomkin () law miami edu> Date: Wed, 27 Feb 2002 08:09:51 -0500 (EST) To: Dave Farber <farber () cis upenn edu> Dave. Thanks for the chance to reply to Dr. Lynn's latest. Dr. Lynn's message typifies why ICANN is in trouble. The founding agreements that led to ICANN are anything but a red herring. Of course the White Paper is not sacred, but there was near consensus around it, a near consensus which was the result of a great deal of discussion in very varied communities. The Lynn paper seeks to throw it all out, pretty much single handedly, and does so in a way that does violence to the substance and spirit of the original deal -- and without much thought for what motivated it either. ICANN's new grab at more power and more money is in any case the attempted culmination of an ongoing process--see, for example the many changes in ICANN's bylaws in just three years, documented by Ellen Rony at http://www.domainhandbook.com/archives/comp-icannbylaws.html . ICANN was created to be private--and very limited, and there were really good reasons people wanted it that way. It was supposed to coordinate the tasks that need centralization (keeping a master list of the unique TLD's in the root, doing the various ministerial IANA tasks to keep data current and to assign protocol numbers). Instead of doing this fairly simple job well, it decided to use its power to withhold changes requested by ccTLD until they agreed to its "pay and obey" contracts. And it was supposed to take on the very difficult task of finding a way to get agreement on the issue of what new TLDs should be created and how we should decide who would enjoy the spoils. At this, very difficult, task, it largely failed. Contrary to Dr. Lynn's vision, ICANN does not manage the Internet, and given its track record that's a good thing. It doesn't have responsibilities for security. It is not a manager at all. It is not a policy maker. Its job is to make standards and engage in technical coordination. Standards have power primarily by their merit. If people make a choice to use a different standard, that's the market telling us something, and we should listen. Technical coordination is a limited role, largely clerical, keeping lists of unique names for example. I admit, however, that ICANN probably needs to do a little more than that -- setting very basic baseline rules for what it takes to run a registry, maybe, and baseline norms for them, such as rules for backups. In addition, ICANN should framing the conversation we need to have about how many TLDs can safely be added to the root, and the discussion about what fraction of that total we should add per year and to whom we'll delegate the jobs of picking and running the new TLDs to be added. But that's about it. ICANN isn't supposed to run the root servers. The fact that other people run the root servers is one of the fail-safe checks on ICANN. One of the most notable features of Dr. Lynn's plan is that it would systematically remove every single external check on ICANN, be it technical (root servers), political (ccTLD autonomy), internal (the Independent Review Panel that Dr. Lynn has had a year to implement and yet not managed to get done), legal (the Dept. of Commerce veto), judicial (no pesky members who might claim they have rights), electoral, or financial. The plan also discards as unworkable the idea that ICANN should be consensus-based. Rather, once governments have pressured the major actors (ccTLDs, root server operators, RIRs, etc.) to sign ICANN's "pay and obey" contracts, the new, muscular, ICANN is to be a coercive top-down regulator. The new ICANN will impose the rules it thinks best in its own discretion, yet be self-perpetuating and without any accountability to external forces save that provided (?) by having five of fifteen directors named, not by the Internet community, but by world governments through some regional mechanism to be announced. No. The more powerful ICANN is to be, the more important it is to have both internal and external checks, balances and accountability devices. Thus, for example, because ICANN is a single point of failure astride an Internet chokepoint, it is esse ntial that its funds be low. That's a feature, not a bug. It limits mission creep -- or, if the Lynn roadmap were adopted, mission gallop. The Lynn roadmap calls for an additional 10 or more staff members, bringing the headcount up to 30 or so. What are all those people supposed to do? Motivating the Lynn `roadmap' paper -- although you have to collect up all the bits to see how central it is -- is a vision of a new, bigger, much stronger ICANN with myriad regulatory duties. ICANN exists not because there was a felt need for a huge new bureaucracy to make new rules unaccountable to anyone but itself, but because the consensus on which IANA had run was breaking down and Jon Postel needed legal cover at least, and a way to try to more quickly forge consensus or near-consensus in a way that existing structures didn't allow. The needs have not changed (and appeals to 9/11 in this context are both irrelevant and demeaning). The trend in the EU and elsewhere is towards trying to cure democratic deficits, not create new ones. ICANN cannot have it both ways -- either it embraces the public voice, unmediated by the input of despotic governments (recall that the governments of the world just elected Syria to the UN Security Council), and tries to make the case for why it should have a policymaking role on matters that cut to the core of communication and citizen participation (think "e-government") in modern democracies. Or, if we are to accept Dr. Lynn's focus on the process of elections rather than their outcomes (for the outcome of the last elections seems pretty good, for all that Dr. Lynn's critique of the procedural theory has merit) then the inescapable conclusion is that ICANN must be limited to the narrow technical mission Dr. Lynn rejects. It will be less fun for the staff, less profitable for ICANN's insiders and other beneficiaries, but far better for everyone else. (It also avoids lots of messy legal issues, reducing threat of litigation and thus lawyer costs.) This note from Dr. Lynn, and the "roadmap" that preceded it, show that ICANN doesn't get it. I fear the current management may never get it. I do agree with one thing, though: the next step is to initiate a positive dialog -- but the terms of the discussion should center on what are the minimal set of tasks we need ICANN to perform, and what is the minimal organization that could carry them out in a professional manner. I tried to start that discussion in my testimony to the Senate almost exactly a year ago, http://personal.law.miami.edu/~froomkin/articles/senate-feb14-2001.htm. Today, Susan Crawford and David Johnson sketched out their vision of an ICANN 2.0 at http://www.icannwatch.org/essays/022602-johnson-crawford-icann2.htm. I'm sure others have much to add to this discussion, and now's the time. -- Please visit http://www.icannwatch.org A. Michael Froomkin | Professor of Law | froomkin () law tm U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA +1 (305) 284-4285 | +1 (305) 284-6506 (fax) | http://www.law.tm -->It's warm here.<-- ------ End of Forwarded Message For archives see: http://www.interesting-people.org/archives/interesting-people/
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- IP: Where goes ICANN -- the second of two notes Dave Farber (Feb 27)