ICANN’s governance and policy development model was forged in a very different and more hospitable political and economic environment, and now being challenged and questioned in a far more hostile world.

How ICANN handles the long-deferred review of its “crown jewel” Consensus Policy, the Uniform Dispute Resolution Policy (UDRP), can either demonstrate that the multistakeholder model remains fit for purpose—or that flagging vigor and commitment within the ICANN community raise justifiable doubts regarding its continued efficacy.

The full article explores why the UDRP review has become a crucial test of ICANN’s multistakeholder model, and what is at stake for Internet governance. Click here to read the complete analysis and recommendations.

Executive Summary

• ICANN’s unique MSM, led by the private sector, reflects the fleeting political environment of its era of creation. ICANN’s establishment was a radical and largely unprecedented experiment reflecting the neoliberal and globalist policy perspective of the Clinton Administration which nurtured its creation. ICANN and its critical mission must survive in the current era of populism, nationalism and digital sovereignty/multilateralism, increasing global political tensions, and a jaundiced view that the Internet and its technical leaders have not just failed to deliver on early idealistic aspirations but have actively undermined them. What is needed today is a clear demonstration that the MSM is still fit for purpose—and aiming for a comprehensive, thorough, and balanced UDRP review and revision that further improves and updates that seminal policy can provide that evidence.
• The adoption of the UDRP in 1999 baked trademark protection into the DNA of the DNS from ICANN’s inception. The UDRP was ICANN’s first consensus policy and remains its crown jewel. While ICANN continues to pursue new policy initiatives on “DNS abuse”, the UDRP is and will likely remain the most effective and proactive anti-DNS abuse measure that ICANN will ever create, given the strong links between cybersquatting and multiple species on online fraud and abuse.
• ICANN committed to a UDRP review in 2011. But that UDRP review still awaits initiation nearly fifteen years later, after multiple deferrals. As ICANN 86 approaches in Seville, Council has taken no further action, much less started work on a revised charter for the Phase 2 UDRP PDP, and no firm date has been set for the start of that effort. The rationales provided for the continuing delay are not convincing, yet both the community and Org appear to regard the promised review as a distasteful burden to be resolved in as hasty a manner as possible.
• The WIPO-ICA UDRP Report is both worthwhile and helpful, but is in no way anchored within ICANN Bylaws. Any impulse within the ICANN community to accept the WIPO-ICA as a blueprint for UDRP reform, rather than a valuable input to Council’s charter drafting effort, should be firmly rejected as it would rob the resulting recommendations of legitimacy and set a worrisome precedent by which discrete elements of the community could attempt to front run and unduly influence an upcoming PDP. The ICANN Bylaws make clear that Council has the lead role in any PDP and that, once initiated, the PDP WG must strictly adhere to the provisions contained in Bylaws Annex A: GNSO Policy Development Process. Any temptation to conduct a cursory review of the Report and then rubber stamp it as PDP recommendations would be illegitimate. While a valuable and useful document, taking that course would lack any procedural or substantive basis in the Bylaws, or sufficient ties to the GNSO or the broader ICANN community. While the WG can look to the Report for guidance, it cannot avoid the hard work of rolling up its sleeves and conducting its own thorough UDRP review.
• The most meaningful UDRP reform would be creation of an internal appeals process that provides decision review availability in jurisdictions that currently lack applicable law providing judicial appeal, and that ensures consistency of decision-making across all accredited providers.
• The ICANN community should embrace the UDRP crown jewel and use the reform effort to demonstrate the continued vitality and relevance of its MSM policymaking process.