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To Serve the Public Interest You First Have to Define ‘Public Interest’

In the ancient parable, six blind men are asked to describe an elephant, with each coming up with wildly different answers, depending on which part of the animal they touched. Now, while I would hesitate to call participants in the ICANN process “blind men,” I am starting to think that “public interest” is their elephant.

ICANN is on the threshold of completing its first major obligation under the Affirmation of Commitments it signed with the U.S. Government in 2009. The Accountability and Transparency Review Team (ATRT) was a group of volunteers from the ICANN community who provided a thoughtful set of recommendations. If implemented, the ATRT improvements will help ICANN be more accountable and transparent to its global stakeholders.

But for all the good work done by the ATRT—and it was considerable—one thing they failed to do was add some definition to ICANN’s sharpened mandate to act in the global “public interest.” As I said in my official comments to ICANN, and will summarize here, this term has to be defined at some point.

When signing the Affirmation in 2009, Lawrence Strickling, Administrator of the U.S. National Telecommunications and Information Administration said, “this framework puts the public interest front and center and it establishes processes for stakeholders around the world to review ICANN’s performance.”

The final ATRT recommendations indirectly address this commitment, by identifying how ICANN can improve its processes as it works to serve the public interest. But missing from the ATRT document is a workable definition of what ‘public interest’ means for ICANN.

With all they had to deal with, it’s understandable that the ATRT didn’t also tackle the definition of ‘public interest.’ But until the ICANN community comes together on what ‘public interest’ means, we are flying blind in our efforts to meet this key imperative.

Leaving the term ‘public interest’ undefined leaves the floor open to conflicting and competing interpretations that serve the particular interests of ICANN stakeholders. Like the blind men in the story, each stakeholder group has its own, tailor-made definition of what public interest means.

Already, we see some in the ICANN community invoking ‘public interest’ to justify self-interested proposals and new programs. The longer the community goes without defining ‘public interest’ the more meanings it will take on, until ultimately, it means nothing at all.

The cost of failing to define public interest now—as an integral part of the Affirmation review processes—is that ICANN will continue to struggle with competing visions of that definition in future reviews and policy making processes.

Beginning last January, I made frequent suggestions (here and here again) asking the ATRT to consider a simple yet powerful definition for global ‘public interest ‘in the ICANN context. In short, I said that public interest means ICANN must ensure the Availability and Integrity of registration and resolution services.


• Name registrations must be available in any language and any script, both for generic and country-code top-level domains names.

• DNS resolutions must be available 24 hours a day, 365 days a year, from anywhere on the globe.

• Integrity means preventing falsification or redirection of DNS resolutions.

• Internet users and law enforcement require integrity of registrant data in Whois.

At the very least, this proposed definition can be a starting point for community discussion of what should and should not be included in the definition of ‘public interest’.

A structured community-wide discussion is the best way to institutionalize key Affirmation imperatives such as ‘public interest’ and ‘consumer trust’. But at the Cartagena meeting, some groups wanted to institutionalize these concepts by creating a new ‘consumer constituency’ within ICANN. That’s not surprising, since ICANN is organized as a constellation of special-interest stakeholder groups and constituencies. A newly chartered ‘Consumers Constituency’ would get a box on the ICANN org chart and its own seat at the table to advocate on behalf of the public interest and consumer trust.

As I said in Cartagena, “institutionalizing” consumer trust and public interest should not mean “creating a new institution,” but rather ensuring that the entire organization is acting in support of its new mandate. And in order to do that, we must define our terms.

Fortunately, ICANN’s board saw this coming and adopted a resolution in Cartagena for a community-wide effort to develop definitions and metrics for terms in the Affirmation review of the new gTLD program:

“Resolved, the ICANN Board requests advice from the ALAC, GAC, GNSO and ccNSO on establishing the definition, measures, and three year targets for those measures, for competition, consumer trust and consumer choice in the context of the domain name system, such advice to be provided for discussion at the ICANN International Public meeting in San Francisco from 13-18 March 2011.”

The board’s resolution is an essential first step for managing and measuring the success of new gTLDs. Now, the board needs to request another community-wide effort to define ‘public interest,’ too. ICANN will need that definition, and soon, or it risks wading through the same draining debate during every future Affirmation review—including the next Accountability & Transparency review due to begin just 23 months from now.

Until we come to consensus on a definition that all of us blind men can support, public interest will continue to be the elephant in the room.

By Steve DelBianco, Executive Director at NetChoice

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Public Interest .... Jothan Frakes  –  Feb 21, 2011 9:57 AM

It was good to see you at the .nxt conference in San Francisco.

I have found myself so frequently on the other side of your arguments or positions historically that I have trouble typing this.

I absolutely agree with your proposed start for that core definition, and I pray this does not become delay du jour to the new TLD program whilst trying to capture these mists in a bottle.

The term ‘In the public interest’ has been present for decades.  Hopefully for the purposes of allowing wisdom to trickle in to subjectivity in interpretation to suit appropriate action when it is needed.  I have been cautioned that I may be a bit too much of an optimist about how that subjectivity is actually leveraged, and I have certainly seen it leveraged on the pro and con side of debate by lobbyists, lawyers, and politicians.

As you propose, getting some base definition in place might help. 

If we can make it into something that leaves room for optimism about the subjectivity range, you’re really truly on to something.

Isn't "Global Public Interest" the real elephant in the room? Khaled Fattal  –  Feb 21, 2011 5:09 PM

It is very valid to agree definitions first. However, I am mesmerized how all these definitions become necessary to be defined this late in the game and why this was not addressed a while back. I must be from a distant planet? Fact-“Public Interest” was used 5 times in the AOC. What did ICANN or The USG mean by them back then?
Do you recall my intervention during the ATRT session in Cartagena where I raised the issue that it is not only “Public Interest” but that the role of ICANN is in the


Public Interest”. With that in mind I believe the Board can wait until “Public Interest” is defined, then attempt “global”  then seek to defined “Global Public Interest” together. Is it any wonder Jothan Frakes and so many others waiting for NEW IDN gTLDs are justified to be so frustrated by the continuous ICANN postponement on of the New gTLDs as if these tasks were unpredictable? I fear it is not only only an elephant but an animal kingdom in the room.

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