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Misunderstanding ICANN

Harvard Law School’s distinguished Berkman Center for Internet & Society has published a preliminary study, “Public Participation In ICANN.” The study examined the extent to which ICANN “achieved its stated goal of a ‘representative’ and ‘open’ decision-making process.” The study concluded that ICANN “has broadly failed in terms of attracting and incorporating ‘representative’ input from the global Internet user community.” Based on this perceived failure, the study states that there is a “need for an overhaul of ICANN’s governance structure away from its semidemocratic past.”

The problem with the preliminary study is that it fundamentally misunderstands the role of ICANN in Internet governance. Specifically, ICANN’s duty is not and should not be to simply carry out the will of the “Internet user community.” Instead, ICANN’s duty is to carry out the responsibilities the organization agreed to in its Memorandum of Understanding (MOU) and contract with the Department of Commerce. This does not mean that ICANN should exclude stakeholder views. Instead, the MOU specifically requires ICANN to develop, test and implement “appropriate mechanisms that foster informed participation in ICANN by the global Internet community.”

There is, however, a great difference between fostering informed participation and simply carrying the supposed will of the Internet community. Furthermore, there is no evidence that managing technical issues and related policy through adherence to global “democracy” would produce any tangible benefits whatsoever. In fact, such an approach could cripple effective governance of the internet by placing control of key technical and policy functions in the hands of the most vocal and/or numerous participants rather than in the custody of informed and responsible stakeholders who conduct a fair and open public process.

A good analogy for the appropriate role of community participation in ICANN would be the role of public comments in federal regulatory proceedings. Federal agencies must, by law, solicit and consider public comments during almost all regulatory proceedings. Although agencies consider and respond to public comments, agency decisions are required to adhere to relevant laws, including the “good government” laws that regulate the regulatory process.

Thus, ICANN needs to solicit and consider informed views, and act on them when appropriate. However, ICANN’s ultimate duty in its decision making process is to adhere to its agreements with the Department of Commerce and its related responsibilities.

Although mechanisms can and need to be implemented to ensure ICANN’s responsiveness to legitimate public concerns and to ensure the openness, transparency and quality of their work, a radical overhaul or replacement of the organization would be a massive step in the wrong direction.

More on this issue at ICANNfocus.org.

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Richard Sexton  –  Jan 7, 2004 2:29 AM


ICANN was created to create new tlds; the ancilliary functions were superfulous, thatis they hum along merrity despite, not because of ICANN. Indeed it wasn’t a crisis in assigned numbers or IP addresses that precipitated the creation of ICANN. It has, however failed very miserably at this task of introducing a very small number of less-than-steller tlds.

Note that for the first couple of years it was concerned primarily with intellectual property interests and put new tlds on the back burner.

Now, if the mechanism by which these TLDS were chosen is not working why stick with it?

It’s asseted that “Furthermore, there is no evidence that managing technical issues and related policy through adherence to global “democracy” would produce any tangible benefits”

Perhaps, but that’s just a guess, and it’s difficult to imagine anybody doing a worse job than the present incarnation if IAHC/IANA/ICANN/ISOC.

If what you’re doing isn’t working, stop doing it!

I urge everyone to go back to frist principles and read the white paper and the MoU to see just what kind of dicsonnect there is between what should have been and what is.

John Palfrey  –  Jan 9, 2004 3:49 PM

ICANN surely does need “to solicit and consider informed views, and act on them when appropriate.”  Nothing in our study is intended to imply otherwise.

Most worrisome about this post, however, is the reliance upon the administrative agency analogy, which does not hold up well after its initial attractiveness, for reasons articulated most effectively by Prof. Jonathan Weinberg in his Duke Law Journal piece on ICANN and the Problem of Legitimacy (to which I cite extensively in the companion working paper at <http://cyber.law.harvard.edu/icann/publicparticipation/Palfrey_Working_Paper_ICANN_120803.pdf>).  If an administrative agency makes an inappropriate decision, there’s recourse (ordinarily, to the court system, or even to the legislature).  There is no comparably reliable mode of recourse—no such backstop—in the ICANN setting.  Prof. Weinberg’s take on it is worth reviewing.

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