IP: Michael Geist on ICANN, Congress, end of "self-regulation"

[Dave Farber <dave () farber net>]

------ Forwarded Message
From: Declan McCullagh <declan () well com>
---

Date: Thu, 13 Jun 2002 09:12:35 -0400
To: declan () well com
From: Michael Geist <mgeist () uottawa ca>
Subject: The End of Domain Name Self-Regulation

Declan,

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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