[ga] [Fwd: FC: Michael Geist on ICANN, Congress, end of "self-regulation"]

[Sandy Harris <pashley@storm.ca>]

-------- Original Message --------
Subject: FC: Michael Geist on ICANN, Congress, end of "self-regulation"
Date: Thu, 13 Jun 2002 14:32:22 -0700
From: Declan McCullagh <declan@well.com>
Reply-To: declan@well.com
To: politech@politechbot.com


---

Date: Thu, 13 Jun 2002 09:12:35 -0400
To: declan@well.com
From: Michael Geist <mgeist@uottawa.ca>
Subject: The End of Domain Name Self-Regulation

Declan,

Although yesterday's Congressional hearing on ICANN was inconclusive, it is 
clear that government is coming back into domain name governance in a big 
way.  In the past couple of weeks, we've seen Senator Conrad Burns raise 
the possibility of legislation to give the U.S. greater control over ICANN, 
the EU suggest that government must play a greater policy role and that 
ICANN must pay attention, and even the United Nations questioning why 
governmental organizations aren't more involved in the process.

Today I run a column in the Globe and Mail that discusses this trend, 
arguing that ICANN's inability to facilitate meaningful public 
participation and accountability lies at the heart of governmental interest 
and marks the failure of the ICANN self-regulatory experiment.

MG

Burns statement at
<http://www.icannwatch.org/article.php?sid=795>
EU document at
http://register.consilium.eu.int/pdf/en/02/st09/09526en2.pdf
UN Legal Counsel statement at
http://www.dnso.org/clubpublic/council/Arc10/pdf00001.pdf

My column at
<http://makeashorterlink.com/?O23025D01> [Globe and Mail]
<http://www.theglobeandmail.com/servlet/ArticleNews/printarticle/gam/20020613/TWGEIS>

Public's role in Net governance threatened

MICHAEL GEIST

As the Internet blossomed from a small community of users to a global 
phenomenon in the mid-1990s, the governance of the domain name system 
underwent a similarly dramatic change.

Once administered by Jon Postel, a computer scientist at the University of 
California at Los Angeles, the U.S. government handed over the reins to 
Internet Corp. for Assigned Names and Numbers (ICANN), a California 
non-profit company, in 1998.

Four years later, both supporters and critics label ICANN a failure. While 
ICANN embarks on significant reforms, chief executive officer M. Stuart 
Lynn argues that his organization is hobbled by a framework that encourages 
too much discussion and too little decision-making.

Mr. Lynn, in fact, has it backward. ICANN is failing because too little 
discussion occurs in public -- to such a degree that there is virtually no 
transparency. At the same time, too much decision-making takes place 
without sufficient public representation on the board.

ICANN's creation drew interest from a diverse group of stakeholders, 
including Internet users, domain name registrars, technical groups and 
intellectual property law associations. While each group offered different 
perspectives on such issues as domain name dispute resolution and the 
creation of new suffixes, there was widespread agreement on one key 
principle -- ICANN was to be based on a self-regulatory model free from 
government interference.

Self-regulation was premised on a consensus-based approach in which policy 
discussion was open to all, supported by a governance structure that 
ensured representation at the board level for all stakeholders. This latter 
goal was to be achieved by filling half the board with guaranteed positions 
for several stakeholder groups and completing the other half with on-line 
elections that would enable Internet users to elect board representatives 
on a regional basis.

ICANN never really upheld its end of the self-regulatory bargain. While the 
stakeholder groups assumed their guaranteed positions on the ICANN board, 
only five of the nine elected seats were ever filled because the appointed 
board never put the remaining four seats up for election, thereby creating 
an imbalance that has never been rectified.

Moreover, earlier this year Mr. Lynn called for major reforms that would 
eliminate public elections for the foreseeable future. He views elections 
as unworkable despite the fact that they were successfully completed by 
ICANN in 2000, by the Canadian Internet Registration Authority (CIRA) last 
year and were recommended by an ICANN-sponsored electoral review committee 
led by the former Swedish prime minister Carl Bildt.

ICANN's inability to facilitate meaningful public participation in the form 
of a governance role will surely force governments to become re-engaged on 
this issue since the self-regulatory model premised on consensus is simply 
not being met.

Interestingly, both ICANN supporters and critics have begun to look to 
government for support. Supporters want to bring government (and its 
financial resources) into the fold by creating a guaranteed government 
board position, while critics have turned to the U.S. government to call 
for a re-evaluation of ICANN's mandate.

Governments have begun to question the ICANN approach by suggesting that 
more governmental oversight may be needed. This week, U.S. Senator Conrad 
Burns announced his intention to introduce legislation that would give 
Washington greater influence over ICANN. He argues that the measure is 
needed because ICANN has exceeded its authority, does not operate in an 
open fashion and is unaccountable to Internet users.

In a document released last week, the European Union argued that government 
must have greater involvement in public policy issues. It recommends that 
ICANN always consult government on policy matters and that it only be able 
to ignore or reverse government advice by a two-thirds majority of the board.

Similarly, late last month the Legal Counsel of the United Nations noted 
how unusual it is to entrust domain name governance to a private body 
rather than to an international representative body. It argued that the 
Internet requires international co-operation for both its operation and 
regulation and that global governmental organizations are uniquely suited 
to foster such co-operation.

ICANN supporters have tended to dismiss critics as merely viewing ICANN as 
a grand experiment in global democracy. In fact, the real ICANN experiment 
is about self-regulation, not on-line elections.

Indeed, even elections do not guarantee fair treatment of all stakeholders. 
In Canada, it is quite possible that the federal government would increase 
its role in the administration of the dot-ca domain were CIRA's elected 
board to fail to meet the balanced representation requirement.

With its most recent reform proposals, ICANN has made it clear that it will 
welcome public commentary but not public votes. In doing so, it leaves the 
public without its promised role in Internet governance and heads toward 
the end of a self-regulated Internet.


-- 
**********************************************************************
Professor Michael A. Geist
University of Ottawa Law School, Common Law Section
57 Louis Pasteur St., P.O. Box 450, Stn. A, Ottawa, Ontario, K1N 6N5
Tel: 613-562-5800, x3319     Fax: 613-562-5124
e-mail:	mgeist@uottawa.ca
URL:	http://www.lawbytes.ca

Looking for Internet and technology law resources?  Check out:
- the Canadian Internet Law Resource Page (CILRP) at: http://www.cilrp.org/
- my bi-weekly Globe & Mail Cyberlaw column at http://www.globetechnology.com
- the 2nd edition of my Internet law textbook at 
http://www.captus.com/Information/inetlaw-flyer.htm
- Butterworths monthly newsletter Internet and E-commerce Law in Canada at 
<http://www.butterworths.CA/book.asp?bookid=403>
- UDRPInfo.com for information on the ICANN UDRP at http://www.udrpinfo.com.

My daily Internet law news service is now BNA's Internet Law News. Visit 
http://www.bna.com/ilaw to subscribe to this free service. 




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