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Verisign vs. ICANN: More at Stake than Sitefinder

It’s easy to dismiss Verisign’s antitrust suit as a ploy to push through Sitefinder. But whether one loves Sitefinder or hates Sitefinder, the complaint raises a much more significant issue that won’t go away even if ICANN lets Verisign roll out Sitefinder. At the heart of Verisign’s complaint is the lack of any definable process for decisionmaking, and its a complaint shared by others. A settlement between Verisign and ICANN that does not create a clear process for decisionmaking at ICANN that includes trustworthy independent review will merely delay the inevitable. Eventually, some other party will become just as frustrated and again challenge ICANN—either in U.S. court or by enlisting the help of the U.S. Commerce Department, non-U.S. governements, or multinational treaty organizations. ICANN must recognize that the days of ad hoc decision making based on realpolitick must end and give way to stable processes that ICANN staff cannot control.

ICANN has spent much of its existence belittling the importance of process. Always its mantra has been “we have work to do!” Critics of ICANN’s cavalier ways and calls for some kind of independent appeals process were dismissed time and again as the whining of disempowered academics and social advocates trying to convert a technical organization into an experiment in world democracy.

But Verisign’s latest lawsuit shows why process matters.

I do not here intend to express an opinion about the merits of Verisign’s case or conduct. Indeed, that’s what has gotten ICANN into trouble. ICANN’s staff and directors focus on the specifics of each player and circumstance, making nice political calculations under the rubric of “consensus.” As a result, frustrated players have no choice but to bring lawsuits challenging the fundamental nature of ICANN.

If ICANN had developed clearly delineated processes with a genuine right of independent review, and had done so three years ago when Verisign was inside the ICANN tent, it would not now face the current crisis. And yes, it is a crisis. Verisign is only the latest party to sue ICANN, but it is probably the most significant. If ICANN insist on resolving this through the courts, as it has done with previous lawsuits, the stability of ICANN will suffer a debilitating blow. If ICANN loses, it’s justification as an entity capable of exercising private management over critical public infrastructure disappears. If ICANN wins, it becomes either an extension of the U.S. Commerce Department or some other form of full-fledged regulatory agency. Alternatively, it emerges with such unconstrained authority that those not yet under contract to ICANN would never submit to its terms.

But to return to the lawsuit, what drives Verisign—once regarded as the puppet master behind ICANN—to sue in federal court? While Sitefinder is the causus bellum, the broader issue is a singular lack of process at ICANN and a complete absence of any meaningful review of ICANN decisions. Whatever one thinks of Verisign’s Sitefinder service, one should acknowledge the complaint that ICANN failed to provide any realistic way to propose such a service with a hope of understanding how the proposal would be resolved or how long such a review process would take. How can Verisign hope to survive as a business if it cannot figure out how to bring new services to market? And if Verisign cannot survive as a business within ICANN, should anyone be surprised when it tries to remove itself from ICANN’s oversight?

Indeed, it is instructive here to take a look at ICANN’s history. Verisign attempted to roll out an international domain name system unilaterally. This met with considerable protest from the technical community and others. So Verisign put things on hold until it could get a resoultion through the ICANN process. And there things continued to stay indefinitely.

Wait List Service (WLS) worked somewhat better. At least the service moved. But nobody—neither ICANN nor Verisign nor any other participants in the process—had a clear idea of what the basis of the decision should be. Most of the comments boiled down to “introduction of WLS won’t serve the community.” But what did that mean? And who got to decide? Ultimately, the ICANN Board ended up pleasing no one, approving the service over objections of the Names Council but imposing conditions to which Verisign objected. And after it was all over, where could anyone go but to court?

Nor has Verisign been singled out for special treatment. The roll out of each new TLD has been inexcusably delayed by last minute regulations imposed by staff under the guise of contract negotiations. Demands to create processes for updating ccTLD delegations remain caught up in the power struggle between ccTLD administrators, governments, and ICANN.

To survive, ICANN needs to overcome its fear of neutral processes it cannot control. It must give up its trump card and devise a system of independent review acceptable to its critics. It needs to provide a clear road map and timetable for how services like Sitefinder will be evaluated, and what kind of independent review of ICANN decisions exists without going to court. Otherwise, even if ICANN wins this battle, it will continue to see resistance from stakeholders confused by its lack of processes, frustrated by its lack of accountability, and frightened by its lack of constraints.

By Harold Feld, Associate Director

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