IP: The End of Domain Name Self-Regulation

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Michael Geist <mgeist () uottawa ca>
Date: Thu, 13 Jun 2002 09:14:43 -0400
To: farber () cis upenn edu
Subject: The End of Domain Name Self-Regulation

Dave,

Although yesterday's Congressional hearing on ICANN was inconclusive,
it is clear that government is coming back into domain name
governance in a big way.  In the past couple of weeks, we've seen
Senator Conrad Burns raise the possibility of legislation to give the
U.S. greater control over ICANN, the EU suggest that government must
play a greater policy role and that ICANN must pay attention, and
even the United Nations questioning why governmental organizations
aren't more involved in the process.

Today I run a column in the Globe and Mail that discusses this trend,
arguing that ICANN's inability to facilitate meaningful public
participation and accountability lies at the heart of governmental
interest and marks the failure of the ICANN self-regulatory
experiment.

MG

Burns statement at
<http://www.icannwatch.org/article.php?sid=795>
EU document at
http://register.consilium.eu.int/pdf/en/02/st09/09526en2.pdf
UN Legal Counsel statement at
http://www.dnso.org/clubpublic/council/Arc10/pdf00001.pdf

My column at
<http://makeashorterlink.com/?O23025D01> [Globe and Mail]
<http://www.theglobeandmail.com/servlet/ArticleNews/printarticle/gam/2002061
3/TWGEIS>

Public's role in Net governance threatened

MICHAEL GEIST

As the Internet blossomed from a small community of users to a global
phenomenon in the mid-1990s, the governance of the domain name system
underwent a similarly dramatic change.

Once administered by Jon Postel, a computer scientist at the
University of California at Los Angeles, the U.S. government handed
over the reins to Internet Corp. for Assigned Names and Numbers
(ICANN), a California non-profit company, in 1998.

Four years later, both supporters and critics label ICANN a failure.
While ICANN embarks on significant reforms, chief executive officer
M. Stuart Lynn argues that his organization is hobbled by a framework
that encourages too much discussion and too little decision-making.

Mr. Lynn, in fact, has it backward. ICANN is failing because too
little discussion occurs in public -- to such a degree that there is
virtually no transparency. At the same time, too much decision-making
takes place without sufficient public representation on the board.

ICANN's creation drew interest from a diverse group of stakeholders,
including Internet users, domain name registrars, technical groups
and intellectual property law associations. While each group offered
different perspectives on such issues as domain name dispute
resolution and the creation of new suffixes, there was widespread
agreement on one key principle -- ICANN was to be based on a
self-regulatory model free from government interference.

Self-regulation was premised on a consensus-based approach in which
policy discussion was open to all, supported by a governance
structure that ensured representation at the board level for all
stakeholders. This latter goal was to be achieved by filling half the
board with guaranteed positions for several stakeholder groups and
completing the other half with on-line elections that would enable
Internet users to elect board representatives on a regional basis.

ICANN never really upheld its end of the self-regulatory bargain.
While the stakeholder groups assumed their guaranteed positions on
the ICANN board, only five of the nine elected seats were ever filled
because the appointed board never put the remaining four seats up for
election, thereby creating an imbalance that has never been rectified.

Moreover, earlier this year Mr. Lynn called for major reforms that
would eliminate public elections for the foreseeable future. He views
elections as unworkable despite the fact that they were successfully
completed by ICANN in 2000, by the Canadian Internet Registration
Authority (CIRA) last year and were recommended by an ICANN-sponsored
electoral review committee led by the former Swedish prime minister
Carl Bildt.

ICANN's inability to facilitate meaningful public participation in
the form of a governance role will surely force governments to become
re-engaged on this issue since the self-regulatory model premised on
consensus is simply not being met.

Interestingly, both ICANN supporters and critics have begun to look
to government for support. Supporters want to bring government (and
its financial resources) into the fold by creating a guaranteed
government board position, while critics have turned to the U.S.
government to call for a re-evaluation of ICANN's mandate.

Governments have begun to question the ICANN approach by suggesting
that more governmental oversight may be needed. This week, U.S.
Senator Conrad Burns announced his intention to introduce legislation
that would give Washington greater influence over ICANN. He argues
that the measure is needed because ICANN has exceeded its authority,
does not operate in an open fashion and is unaccountable to Internet
users.

In a document released last week, the European Union argued that
government must have greater involvement in public policy issues. It
recommends that ICANN always consult government on policy matters and
that it only be able to ignore or reverse government advice by a
two-thirds majority of the board.

Similarly, late last month the Legal Counsel of the United Nations
noted how unusual it is to entrust domain name governance to a
private body rather than to an international representative body. It
argued that the Internet requires international co-operation for both
its operation and regulation and that global governmental
organizations are uniquely suited to foster such co-operation.

ICANN supporters have tended to dismiss critics as merely viewing
ICANN as a grand experiment in global democracy. In fact, the real
ICANN experiment is about self-regulation, not on-line elections.

Indeed, even elections do not guarantee fair treatment of all
stakeholders. In Canada, it is quite possible that the federal
government would increase its role in the administration of the
dot-ca domain were CIRA's elected board to fail to meet the balanced
representation requirement.

With its most recent reform proposals, ICANN has made it clear that
it will welcome public commentary but not public votes. In doing so,
it leaves the public without its promised role in Internet governance
and heads toward the end of a self-regulated Internet.
-- 
**********************************************************************
Professor Michael A. Geist
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
e-mail:    mgeist () uottawa ca
URL:    http://www.lawbytes.ca

Looking for Internet and technology law resources?  Check out:
- the Canadian Internet Law Resource Page (CILRP) at: http://www.cilrp.org/
- my bi-weekly Globe & Mail Cyberlaw column at
http://www.globetechnology.com
- the 2nd edition of my Internet law textbook at
http://www.captus.com/Information/inetlaw-flyer.htm
- Butterworths monthly newsletter Internet and E-commerce Law in
Canada at <http://www.butterworths.CA/book.asp?bookid=403>
- UDRPInfo.com for information on the ICANN UDRP at http://www.udrpinfo.com.

My daily Internet law news service is now BNA's Internet Law News.
Visit http://www.bna.com/ilaw to subscribe to this free service.


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