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ICANN’s “Unelected” Crisis

The leaked release of the European Commission’s working papers on the future of Top Level Domains highlights the impending collision between adherents of the present “multistakeholder” ICANN governance model, and an ever longer list of national governments who challenge that model.

At the core of the controversy is the question of how ICANN can claim legitimacy in the DNS world when none of its Directors or Officers are elected. Even worse, its only answer, when challenged legally, is that it is responsive to its contract with an agency of the U.S. Government, which agency claims authority from the elected Congress of the United States through the agency’s organic act, which nowhere mentions the Internet, ICANN, or the Domain Name System.

Historically, the Internet has been all about getting the networking job done. The motto of the Internet Engineering Task Force is “rough consensus and working code.” The attitude of the industry has been that governments, the proverbial “lagging indicator,” are the last people to be guiding, directing or governing the Internet. There is loads of empirical evidence that we would not have a global Internet today if everyone had waited around for legislation.

But things have changed. The Internet today is not about packets and their technology, it is about content, with all its social, political, religious, and economic implications. There are daily illustrations of its power to curb tyranny—the Arab “Spring”—and to empower pathology and lawlessness—the London riots.

A decade ago, the balance of political sentiment was articulated in “hands off the Internet.” Today, content wars are pushing the pendulum the other way, and the question is how far towards control by elected bodies will ICANN and other Internet governance functions move.

In addition to the “unelected” problem, ICANN faces criticism of its multistakeholder model. In many eyes, multistakeholder is a ruse to cover effective control of ICANN by equally unelected special interests. Scrutiny of the inner workings of ICANN shows domination by long time insiders whose own economic welfare is bound up in ICANN decisions. Representative democracy this is not.

Because of the tens of millions of dollars at stake, many ICANN decision processes today—new TLDs being the latest example—suffer from the smells attendant on political sausage making so familiar in Washington and other capitals. Whatever level of idealism existed when the ICANN experiment was begun, most of it has dissipated.

If ICANN is to maintain its quasi-independence, a hard boiled, Kissinger-like brand of pragmatic statesmanship will be necessary. The time for platitudes about sheltering the Internet from muddling by ignorant government bureaucrats is over. The time for pretending that lobbyists for domain name companies are “multistakeholders” is over. ICANN still has the power to act like the enlightened regulator it should be, but hasn’t been. If it cannot step up to this challenge, then a government dominated future is certain.

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Pot...kettle...black? Milton Mueller  –  Sep 6, 2011 7:46 PM

It is a bit strange that Mike Roberts, the first CEO of ICANN and the consummate early Internet insider, is complaining about “the inner workings of ICANN [being] dominated by long time insiders.” It is even stranger to see Mr. Roberts, who stoutly resisted any semblance of democracy within ICANN, and who helped to dismantle ICANN’s attempt to elect Board members by the public, complaining that ICANN has a problem because it is unelected.

But let’s overlook that incongruity and take his arguments at face value. To my mind, the actions of the European Commission staff - who, by the way, are unelected and constantly trigger complaints from the European people and members of the Euro Parliament about its unrepresentative and arbitrary nature - should be reinforcing our resolve to keep governments away from the Internet. The idea that the Internet is now about “content” - more accurately, that it is about people-people communication in all its forms - should make us even more resistant to power-grabbing initiatives by national governments than we were back in the days when it was about “packets and technology.”

What does the EC want? It’s very clear. It wants control, and it is really mad about the fact that ICANN is moderately autonomous and requires some persuasion before conforming to its demands. The forms of control that EC is asking for are both illegitimate from the standpoint of rule of law, and unwise as a matter of public policy. What law or treaty gives governments a right to prepare a list of reserved names? None. Who on the GAC was elected by all the world’s people to be empowered to veto domains? No one on the GAC was elected, and such veto powers contradict constitutional guarantees in most of the developed world. Why are you so interested in rationalizing these actions, Mike?

It is also not unfair to continue to accuse governments of acting in sheer ignorance. They are acting in ignorance. I was at Singapore and the Brussels meetings and have listened in on more hours of GAC deliberations than I care to recall. The discussions we had on the mailing lists of ICANN working groups were far more sophisticated and informed than the rantings of the EC and most other governmental representatives in GAC, and far more legitimate and open than these kinds of secret papers. It’s time to stiffen our resistance to these kinds of incursions, not to give up on them simply because a guy (who was never very idealistic to begin with) advises defeatism in the face of authoritarian onslaughts.

I can only laugh when Mr. Roberts invokes the old line about sausages being made, as if this proved something important about ICANN and the outcome of its process. If there’s anything ugly, toxic and sausage-making-like about this situation, it’s the backroom lobbying from the trademark holders and the nasty little conspiracies among governments to gain control of this once-autonomous medium. ICANN’s new gTLD program, as I’ve said before, was an ugly compromise, but it WAS a compromise and it was reached over a long period of time that involved all stakeholders and was done mostly in the open. Moreover, ICANN was the institution specifically charged by the USG and the EC to make this decision. Pulling the rug out from under the involved community in the way the EC proposes is not the answer.

Who is really doing the lobbying? Antony Van Couvering  –  Sep 6, 2011 11:21 PM

If you look at what the GNSO recommended as policy, and what we ended up with, you’ll see that the major differences are major concessions to big brands.  I don’t see a problem with reaching a compromise with different interests—it is discomfiting, however, to reach such a compromise only to find the goalposts moved.  Again.

In a recent report to the British government with regard to copyright law, an independent inquiry decried the malign influence of Lobbynomics (PDF), which skewed public policy toward protecting brands at the expense of the public.

The same thing is happening here, though you’d never know it from the “ICANN insider” narrative which seems to have taken hold.  According to this version of events, these so-called insiders are often referred to but never named, as if they are a shadowy group of death-eaters who roam the hallways looking to nobble unwary Board members.  Supposedly, these ghouls take an otherwise innocent policy and bend it toward “commercial interests”—which brands, somehow, are not.

The facts tell a different story.  They tell of an organization (ICANN) which was founded to introduce choice and competition, but whose Board consistently counseled “delay, delay, delay.”  The community, fed up with the appalling arbitrariness of the 2000 and 2005 round, got together and proposed a real process for the introduction of new gTLDs, instead of the former practice of getting the Board together for tea and cucumber sandwiches to pick their favorites. 

For five years, there has been intense lobbying, but in which direction?  Verizon has 150 lobbyists in Washington DC who meet with the NTIA on regular basis concerning broadband, telecom policy, and yes, ICANN.  Same with AT&T;.  AIM, which represents big brands, weighs in at every ICANN meeting.  Brands have their own consituency, the IP Constituency, and for all intents and purposes have captured another, the Business Constituency. 

Furthermore, much of what comes out of the GAC is heavily influenced by brand lobbyists.  In the U.K., British brands have worn down the carpet getting to Mark Carvell’s office, which he points to as evidence that he’s consulted with the people affected by ICANN! 

Basically, the way ICANN works is that the community proposes something and then it’s held up and watered down by IP legal interests.  There is no compromise within ICANN that is not just another opportunity for brands to ask for more concessions at the expense of everyone else (q.v., the aftermath of the Implementation Recommendations Team report, a brand owners wishlist).

The “unelected special interests” at ICANN are not would-be registries, who in fact have no place at ICANN, no representation, being granted observer status only by the registry constituency.  Rather, the special interests are the ones who can afford to be special interests, who are masters at lobbying, who field hordes of smart, well-funded people to convince the ICANN Board and the GAC that humanity is best served by keeping the Internet in stasis.

Despite this, ICANN worked the way it was intended to work with regard to new gTLDs. The community got together and came up with a policy, albeit one that some brands didn’t like. I didn’t see Mike or Esther or any number of other critics mixing it up with us unwashed types who actually sit on working groups and try to grapple with the issues. If they had, they would have seen what I saw.

Idealism about the Internet is alive and well.  But it gets damn tiring down here in the trenches when the policy developed by the ICANN community is brushed off as the work of “special interests” just because the EC doesn’t like the result. 


Water Kevin Murphy  –  Sep 7, 2011 1:57 PM

Watering down works in both directions. The IRT recommended the Globally Protected Marks List, which was then rejected by ICANN, enabling companies such as M+M to make a bunch of money selling defensive registrations to big brands. (Unless of course you're planning some innovative rights protection mechanisms over and above what's mandated by ICANN). If the GPML had been adopted, we probably wouldn't be hearing organizations such as the ANA complaining loudly about new gTLDs today.

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