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

From: Declan McCullagh (declanat_private)
Date: Thu Jun 13 2002 - 14:32:22 PDT

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    Date: Thu, 13 Jun 2002 09:12:35 -0400
    To: declanat_private
    From: Michael Geist <mgeistat_private>
    Subject: The End of Domain Name Self-Regulation
    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.
    Burns statement at
    EU document at
    UN Legal Counsel statement at
    My column at
    <http://makeashorterlink.com/?O23025D01> [Globe and Mail]
    Public's role in Net governance threatened
    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:	mgeistat_private
    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 
    - Butterworths monthly newsletter Internet and E-commerce Law in Canada at 
    - 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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