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Title II and ICANN

Many voices are hailing February 26th as a watershed day in the history of the Internet in the United States. After a year of loud argument, frequent misrepresentations, and epic flows of political contributions, the FCC has restored the open Internet rules which prevailed from 2010 until struck down in a court ruling last year. And it has done so with new reliance on existing provisions of U.S. telecom law which it believes will pass judicial scrutiny.

There are many themes to be seized from the months of debate over the FCC’s latest decision, but several are relevant to issues confronting the portion of the Internet community concerned with ICANN.

Perhaps of greatest significance is the role going forward of governments in overseeing and regulating Internet activity, a subject of much debate, particularly in view of the long awaited decision of the U.S. Department of Commerce to surrender its oversight responsibilities for the DNS root zone, aka “IANA transition.”

The answer to what will happen when the smoke clears is already known. There will continue to be a line between active governmental supervision of selected Internet activities, and those areas where governments agree to allow administration by the Internet community itself.

It won’t be easy to draw that line, for several reasons. First, the Internet continues to grow rapidly, and to absorb new social, political and economic activities. Drawing lines on moving targets is hard.

Second, governments everywhere are in trouble over perceived failures to achieve economic justice for their citizens. Stress from political turmoil over economics carries over to Internet discussions.

Third, the characteristic “flatness” of the Internet makes aggregating and socializing the views of Internet designers, developers, providers and users difficult. There are many self-identified claimants to speak for “the Internet.”

Fourth, the Internet has already transcended boundaries of time, space, and political geography, changing the dynamics of nation state influence on the Internet.

Stripping away the ignorance and occasional total idiocy of comments on the FCC decision, it is apparent that lawyers and courts will spend the next several years debating and ultimately deciding, at least for a time, where the line will be drawn between provider interests and user interests in the U.S. broadband Internet.

By implication, a version of the same debate will intrude into the Internet Domain Name System and ICANN. To be played out on a global scale with the additional complexities that internationalization entails.

Legal systems have ways of dodging bullets when presented with contentious social and political questions. For instance, the final decision in the ICANN lawsuit over sex.com was rendered on a matter of procedure, and not on the drawn out angonizing of the ICANN Board over whether to use its power to restrain access to sexual content via domain names.

The debate over the NTIA contract has perforce raised numerous big questions for which clear answers are not likely to be forthcoming. For instance, is the U.S. non-profit public benefit corporate structure of ICANN adequate to the present and future mission of the organization?

Months of public debate suggest that the answer is, “Despite its shortcomings, we are unable to identify a better solution that is politically viable under current circumstances.”

Likewise, another big question is, “After the contract expires, how are we to be assured that ICANN is properly fulfilling its obligations to the global Domain Name community?”

Accountability and its mechanisms are, of course, inherently debatable. An approach that appears necessary in the eyes of some to guarantee openness and transparency may well be rejected by others as a hopelessly expensive and bureaucratic “who watches the watchers” solution.

The evidence, from infrequent white smoke emanations of the ICG, is that an emphasis on practicality will prevail.

Indeed, the history of the Internet is rife with episodes of big questions being left unanswered. In the 80’s, telecomm purists insisted that progress required an answer to the big question of connected versus connectionless networks. Their cries were in vain. In the end, it was “rough consensus” and “working code” that carried the day.

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