I have no idea who wrote that wonderful piece, Time for Reformation of the Internet, posted by Susan Crawford. (It wasn’t me - I never use the word “netizen”.)

Elliot Noss of Tucows wrote a partial rebuttal, I must be attending the wrong ICANN meetings.

Elliot’s company, Tucows, has been a leader in registrar innovation and competition. And Tucows has constantly been among the most imaginative, progressive, responsible, and socially engaged companies engaged in these debates.

Elliot focuses on the registrar/registry distinction. I agree with Elliot that there does exist real competition and innovation among domain name registrars.

But the points made by Time for Reformation of the Internet go far beyond registries and registrars.

ICANN has significantly shaped and restricted the scope of that competition and innovation by imposing requirement after requirement on the kinds of products that registries can offer to registrars and that registrars can offer to the public. Many of those requirements, such as the requirement that registration business data (whois) be made public, are made at the expense of the community of internet users and for the benefit of the intellectual property industry. Other ICANN requirements are simply arbitrary. For example ICANN has never once justified the requirement that domain names be registered for one to ten years in increments of one full year. That arbitrary ICANN requirement has destroyed the potential for product innovation and competition by registrars at the short-term and long-term ends of the spectrum.

Elliot mentions the claim made by ICANN that consumers are saving money as the result of there being an ICANN. While it is true that prices for domain names have dropped since ICANN came into being it is far from true that prices are anywhere near as low as they could be. As Elliot correctly points out there is a significant difference between legacy registries, such as Verisign with .com, and the registrars that sell the those registries products. What is not mentioned is the degree to which ICANN has created a price support system for those legacy registries that forces domain name consumers to pay as much as $300,000,000 per year in windfall profits to those legacy registries.

When the current Verisign contract came before ICANN - the contract that gave Verisign .com in perpetuity - I voted against it in part because it had no mechanism to drive down the $6 fiat price that ICANN gifted unto Verisign.

There is a distinction between those legacy registries and those that have not yet been created. Legacy registries, such as those for .com and .net, have captive customers. These captives are people who have had no real choice of contract terms - they have been forced to build their brands and network names on Top Level Domains that are largely indistinguishable when measured in terms of contractual provisions and terms. It is necessary that these captive customers be protected against registry abuse. However, for future registries, if there were many choices and real competition, new customers could pick and chose among the offerings and obtain long term commitments to protect themselves from predatory practices by the registry. ICANN, unfortunately, has given no sign that it will ever allow such a system to be conceived much less that it be born and grow into a mature industry.

Real competition and innovation of product offerings by registries has been suffocated by ICANN’s refusal to allow any except a very few rigidly limited new TLDs. So registrars are forced to resell at retail a product that at wholesale is largely undifferentiated. Consumers, who are at the end of the distribution chain, are still forced to chose among domain name products in which the principal differences are a few dollars in price and the means of maintaining name servers and contact information. This lack of deep differences between retail product offerings is a hallmark of a marketplace that has little more than a thin skin of competition over a highly non-competitive skeleton.

It is very sad that the United States Department of Commerce has created a system that causes this kind of market distortion. It is worse the the United States Department of Commerce has not only allowed, but actually supported, this kind of restraint of trade of the products related to the internet’s domain name system. And it is downright detestable to consider how the United States Department of Commerce has fostered the false belief that ICANN is actually protecting the public against technical failures of the internet’s domain name system or IP address allocation systems.

‘Time for Reformation of the Internet’ said many things concerning ICANN’s regime of dogmatic absolutism rather than principled balancing of interests. I found much truth and merit in what was said.

Time for Reform only weakly addressed ICANN’s failure to concern itself with the actual technical stability of the internet and ICANN’s attempt to become the willing courtesan of the intellectual property industry.

Item #20 in Time for Reformation of the Internet was this:

20. The internet would improve if ICANN were simply to disappear

I have a great deal of sympathy for that assertion. But I also have concern about the transition that would follow. I wrote about exactly that point in my testimony to the US Senate in June 2002. Below is what I said in 2002. I believe that, except for the sale of the Network Solutions registrar by Verisign, that not much has changed in the intervening 2 1/2 years.

What Would Happen To The Internet If ICANN Were To Vanish?

Much of the debate over ICANN is colored by the fear of what might occur were there to be no ICANN.

ICANN does not have its hands on any of the technical knobs or levers that control the Internet. Those are firmly in the hands of ISPs, Network Solutions/Verisign, and those who operate the root DNS servers.

Were ICANN to vanish the Internet would continue to run. Few would notice the absence.

Were there no ICANN the DNS registration businesses would continue to accept money and register names. With the passage of time the already low standards of this business might erode further.

The UDRP (Uniform Dispute Resolution Policy) system runs largely by itself. The Federal ACPA (Anti Cybersquatting Consumer Protection Act) would remain in place.

ICANN has already established a glacial pace for the introduction of new top-level domains. ICANN’s absence will not cause perceptible additional delay in the creation of new top-level domains.

ICANN has already abrogated the making of IP address allocation policy to the regional IP address registries; those registries will continue to do what they have always done with or without ICANN.

ICANN has no agreements with the root server operators; the root servers will continue to be operated as an ad hoc confederation, as has been the case for many years.

The only function that would be immediately affected would be the IANA function. IANA is an important clerical job, particularly with regard to the country-code top-level domains (ccTLDs.) IANA is not a big job, nor does it have real-time impact on the Internet. (In fact there is a credible body of evidence to suggest that ICANN delays certain clerical tasks on behalf of ccTLDs for months on end in an effort to coerce ccTLDs to sign contracts with ICANN.)

There are those who will try to divert outside reforms of ICANN by asserting that touching ICANN will cause the Internet to collapse or otherwise be damaged. The truth is quite the reverse. ICANN’s ties to the technical and operational stability of the Internet are tenuous at best. A full inquiry into ICANN, a full reform of ICANN, or a complete rebid of the agreements under which ICANN operates would not damage the Internet.

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Originally published on CaveBear Weblog.