[ga] New wine in old bottles

["William S. Lovell" <wsl@cerebalaw.com>]

William X. Walsh and I have been engaging in a debate over
what are the responsibilities of persons joining into this whole
ICANN process, and what are those of the long time participants
who are familiar with the process, the internet, the technology, etc.
Let me say for the record that given Mr. Walsh's premise, his
citations to the ICANN documents are totally accurate, his logic
is impeccable, and his conclusions are exactly right. I want to
respond more generally here, though, because this subject matter,
at least to me, happens to pinpoint a central reason why there is
and must be, profound decisions relating to the basic structure of
ICANN.

The problem with Mr. Walsh's conclusions is that the Internet,
and the ICANN, to which those original ICANN documents
referred, no longer exist.  If one has a "technical coordinating
body" that sees to IP allocations and all of the rest of the work
that is fundamental even to having an Internet, of course one
must show some technical expertise and qualifications in order
to have a right to be heard.  One cannot carry out that kind of
work -- the work defined in the original ICANN "charter," if
every ignoramus on earth can jump in and spout utter nonsense
and thus effectively bring the real work to a halt.  However, that
was the old ICANN; this is the new, and the documents to
which Mr. Walsh refers have been bypassed by events.

Commencing with the Network Solutions decision to stick its
nose into domain name issues -- NOT in the sense simply of
ensuring technical compatibility, etc., but as to who gets which
one, the Internet has been co-opted by the trademark and
commercial interests, and the fears of the original scientific
community which said that "commercialization" of the Internet
would corrupt its value have been realized many times over.
To everyday users, and registrants of domain names, it is not
necessary to know an IP from a DNS to have a right to speak
out on those kinds of issues.  The tradition within the technical
community, however, is to deprecate the "clueless newbie" and
try to chase that poor soul out of the process -- even while
others are trying to generate some real body of people (i.e.,
more than 305) so that a functioning system that could reach
a consensus on at least something could be shown.  Thus,
there is not just one ICANN, there are two, and they are both
incompatibly trying to follow the same set of rules.

There thus seem to be three possible solutions:

1) Restructure ICANN

2) Start over with an entirely new organization

3) Re-direct ICANN back to its sole and only
    technical coordination function and form a
    second organization -- not an ICANN (since
    the function of this organization would not be
    about "assigned names and numbers" at all
    -- the function of such new organization to be
    that of addressing matters of international
    social policy that fill the pages of these lists
    and have nothing whatever to do with the
    original ICANN function. Read "The Internet
    Corporation for Assigned Names and Numbers"
    I don't see anything in there about any UDRP
    or other such abominations, nor do I see, or
    have I ever seen, any document that gives either
    ICANN, the USG, or anyone else even the
    slightest legal basis for making up rules on the
    subject. International law (excluding the traditional
    (common law) has but two possible legitimate
    foundations: treaties, or     the consensus of
    individual people, and ICANN (and WIPO, etc.)
    have neither.

I myself would suggest option 3.  Someone just
posted something which said that as a matter of
cold, hard fact, ICANN is the only body that has
even the slightest chance of gathering in the approval
of the entire international community to carry out the
technical function of running an internet, so while its
abolishment is simply out of the question, at the same
time it has shown itself utterly incapable of dealing
with social issues in a manner that will be acceptable,
and that is not likely to change. The opinion has been
expressed that we now have not an ICANN but an
ICANN/NSI-Verisign duopoly -- the capture has
been complete, and the $$$ will not allow the kind
of restructuring that ICANN would require. Power
is power, regardless of whether it has any legal basis.

The issue of having a new organization and abolishing
ICANN was just answered.

With no. 3, a first step would be to restructure ICANN
to get rid, if possible, of the "bottom-up" fiction.  In the
technical running of an internet, the policy SHOULD be
"We're the experts, we'll do it the way we decide it
should be done based upon our best judgments, and if
you are not prepared to contribute substantively to
the reaching of those judgments, based upon a real
understanding of the issues involved, go away." The
USG documents that call for "bottom-up" governance
should be re-negotiated, with that requirement removed.
(Or alternatively, ICANN could be seen as supporting
the development of an "Internet Policy" organization,
that runs on (roughly) democratic principles and allows
everyone with a concern to have a voice, thereby
actually fulfilling that mandate.)

Bill Lovell



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