WORTH READING EU urges Internet governance revamp

[David Farber <dave () farber net>]

Begin forwarded message:

From: Karl Auerbach <karl () cavebear com>
Date: May 4, 2009 3:22:50 PM EDT
To: dave () farber net
Cc: ip <ip () v2 listbox com>
Subject: Re: [IP] EU urges Internet governance revamp

David Farber wrote:

> EU URGES INTERNET GOVERNANCE REVAMP
> ... (ICANN), the body in charge of assigning Internet addresses such  
> as .com and .net, should be shorn of its US government links and  
> made fully independent,

First, in response to Lauren W. - we may disagree on whether net top
level domains are useful.  However, I think we can agree that any body
that can say "no" and thus deny existence to any lawful innovation or
idea is a body that must not operate by subjective principles.  And
operation by capricious and subjective principles is exactly what
ICANN's top level domain process has been.

But back to the main issue of ICANN free from US gov't oversight:

I understand the feeling of the EU (and other nations) about US
hegemony.  But one has to ask whether the EU's position is more a
reaction to the US position than it is to a desire for better internet
governance.

ICANN is a body that exists to benefit the public.  But it does not do  
so.

Rather than being an engine of public benefit ICANN seems to be more an
engine of public harm.  ICANN imposes a direct cost on internet users to
a tune of nearly a billion dollars a year, every year, in excessive and
unjustifiable domain name costs.  And ICANN has eliminated competitive
forces and expelled innovation from a large part of the internet
marketplace.  And what amounts to a private law of the internet has been
created by ICANN that elevates intellectual property to a supreme
position well beyond the enactments of any national legislature.

ICANN's structure is such that it essentially excludes the public from
the processes through which ICANN makes decisions.

When ICANN was formed the US Gov't and the community of internet users
were promised that the public would chose a majority of ICANN's board of
directors.  Today the public chooses not even one Director.

As a practical matter ICANN's serves certain selected industrial  
interests.

ICANN, operates like a medieval trade guild or a modern combination in
restraint of trade.  In ICANN intellectual property interests and
incumbent providers collaborate to set prices, define products and terms
of sales, and prevent the entry of new providers.

People who are willing to engage in lawful enterprises and risking their
own money have been denied by ICANN.

The internet has come under a lex-ICANNia, a regime in which ICANN has
created rules of trademark-over-anything-else.  ICANN is also being
pressured, and has on at least one occasion, acceded to national
political pressures to restrain internet content.  This combination of
trademark protection, non-offensive domain name semantics, and ICANN
mandated business practices heralds a new kind of internet AUP -
Appropriate Use Policy - that is slowly being imposed upon
non-consenting internet users.

ICANN's mission has drifted from that of assuring the technical
stability of the domain name system and IP address spaces to a body that
engages barely at all with technical coordination and almost entirely
with the regulation of business, intellectual property, and economic
practices.

And that alternate mission is growing rapidly: ICANN's budget is on an
accelerating up-curve that will soon make ICANN the size of the ITU.

ICANN has improved of late.

For example ICANN is making noises about allowing a glimmer of real
public participation.  And ICANN has begun to suggest that it might
perhaps begin to pick up some of its intended role as a protector of
internet technical stability.

But these steps are largely unfulfilled and exist as expressions for a
possible future, not as histories of tasks completed.

All of this suggests that it would be rude for the US Government to
relinquish its already tenuous oversight until ICANN reformulates itself
to be a body that serves the public interest and is accountable to the
public.

The first step for this would be for ICANN's Board of Directors to be
chosen by those for whose benefit ICANN exists - the community of
internet users.

The second step would be for those directors to recognize that they are
in ultimate charge of ICANN and the best word in their arsenal is "no".

The third step would be a retreat of ICANN back to its intended role as
a coordinator of technical matters in DNS and IP address spaces to
promote the technical stability of the internet - which, for the domain
name system, I define thus: The efficient, speedy, and accurate
translation of DNS query packets into DNS response packets without
prejudice for or against any query source or query name.

The forth step would be to re-open those things that ICANN that go
beyond its proper role.  By this I mean, for example, that ICANN should
re-open its UDRP, ICANN's private law of trademark-over-other-speech and
the ICANN created system of courts to apply that law.

I have read ICANN's preliminary strategies for moving beyond US.  These
strategies do not create a shining example of corporate transparency and
accountability but, instead, create an even more muddy system of
multiple entities in multiple countries operating under multiple and
inconsistent laws.  ICANN governs through contracts.  And some of those
contracts would remain under US/California law and other contracts for
virtually identical relationships would be under Swiss law.  The ICANN
that resulted would be a model of impenetrability.

I would suggest that the EU and other countries not take the easy road
of saying to the US "set ICANN free" but, instead say, precisely and in
concrete terms, how that can be done so that the resulting body is more
accountable, transparent, and open than the existing ICANN.

                --karl--






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