ICANN or Governments? (was Re: [ga] WLS Suggestion

["Peter Dengate Thrush" <barrister@chambers.gen.nz>]

This is such a sad posting. It appears that Kent has misunderstood the whole
reason for ICANN, and its potential.
----- Original Message -----
From: <kent@songbird.com>
To: <ga@dnso.org>
Sent: Sunday, August 25, 2002 3:47 AM
Subject: Re: [ga] WLS Suggestion
> >
> > I think that the failed experiment that is ICANN illustrates that a
> > private body should not be in the role of regulating monopolies.
>
> To the extent that people have tried to force ICANN into a quasi
> governmental role of a regulator, with all the trappings of elections
> and so on, it has been a failed experiment.  But if you operate from the
> premise that ICANN has *never* been in the position of regulator, then
> it has done quite well.
>

This is such a confusion that it makes one whether time will be productively
spent in trying to help.

1. There need be nothing quasi governmental about a regulator. A regulator
needs only to have the power to regulate. The source of that power is
usually, in our economies, a government, but that's a coincidence about
where power resides.

2. The "trappings of elections" are about installing accountability,
responsibility and reporting obligations and procedures into a new type of
entity. They are the trappings of a governance structure, and have nothing
to do with regulation. Next, because ICANN represents an experiment in
building a new model, with responsibilities that cross national boundaries,
there is no Government that is appropriate for the task. The Government that
found itself holding this burgeoning baby expressly decided it didn't want
to try and be the governor or regulator of same when it began to toddle, and
started crashing into the furniture of international jurisdictional and
other problems. I suggest you read the Green and White papers.
> > They have
> > neither the financial means, nor the will.
>
> Precisely correct.  ICANN was never intended to be a regulator, and,
> contrary to popular delusion, it has *never* had the will to be one.
>
Not everyone may have realised the corollary to contracts was enforcement
mechanisms, but many of us have always done so, or been catching on quickly.

> As far as funding is concerned, even for its true restricted role, ICANN
> is very underfunded.(+) The funding required to deal with the imaginary
> "powerful ICANN" role would be vastly larger.

3. Underfunded, true. Whether much more funding is required is debateable.
The answer turns on how much of the enforcement and sanctions role is done
inhouse, or contracted out , a la the UDRP

  >
> > It is a job best left to governments.
>
> And the part of government that has power to regulate domain registries,
> and ICANN as well, is the part that deals with anti-trust issues.
>
4. This just demonstrates two misconceptions or prejudices. First, there is
no such government. The interest of Governments in a nominal ICANN is
represented by a  commitee of governments, known as the GAC. There is no
section of the GAC with the power to regulate registries. The prejudice is
the unspoken reliance on the US government.

Regulation in this model comes from the formation of compromise policies
debated by the whole community, which seeks to balance imput from
Governments, users, providers and tech specialists. Those policies are
carried forward into contracts with or mandated by the natural monopolist,
with explicit ior reserve powers in case of breach.

> It's worth noting that there is absolutely nothing in the bylaws or
> structure of ICANN that have the magic ability to turn it into a
> regulator, or to grant it more power.(*) ICANN is constrained at a much
> more basic level, because its only instruments are contracts.

5. The naivete here must be pretended not real. The power of the contracting
party holding  rights to a natural monopoly is to withdraw/suspend  supply,
or to fail to award services or licenses, on contractual terms which cannot
be later succesfully attacked in a contracts court. Have a look at the UDRP
for an example of contractual terms imposed by ICANN on second and third
parties (registrars and registrants) and, curiously, in relation to non-net
related matters, plus the ability to authorise dispute resolution providers,
as an example of the real world.

> means that whatever policies ICANN may adopt through its policy-making
> process can *always* be trumped by the legal realities of contract
> negotiations.

6. This confuses making the policy with implementing it in a contractual
negotiation. The latter is a matter of the skill and steel of the
negotiators. If the negotiators are unable to make a policy stick in an
outside negotiation, the proper course is not to abandon the policy, but to
return to the policy making body for fresh instructions.

What makes this slightly more complicated is that its not an outside
contract (as with, say, ICANN's insurers) but with one of the insiders. That
complicates the negotiation, as the insider has a role in the internal
negotiations in forming the policy, as well as its outside role once that
policy has been defined in the consensus process.


>  In concrete terms, it doesn't matter what policies ICANN
> comes up with -- if a large registry doesn't sign the resulting
> contract, the policy is meaningless.  Of course, there are things that
> ICANN can do to try to cajole the registry into signing contracts.  But
> mostly that consists of persuading entities with bigger clubs that they
> ought to lean on the registry.

7. True, because life is usually a compromise and politics (including the
politics of business) is about the art of the possible. But the consequences
of not signing the contracts can be made to be onerous. And the existence of
other sanctions is something which should be developed, and would be in a
strong, responsive and accountable ICANN.

>
> (*) I think most people realize that a small non-profit corporation
> can't simply put "We are the regulators of the Internet" in its bylaws,
> and actually regulate the Internet.  But there are many people who
> simply don't understand that putting "We are the regulators of the
> Internet, and we elect our directors and are therefore legitimate" in
> the bylaws doesn't work any better.
>
8. You need to go back to point one. Regulaltors regulate only when they
have power. Power in this case comes from the consent of the governed -to
participate in this domain space instead of its alternatives. Power won't
come from an assertion in the bylaws, but will come when those bylaws result
in the participation of all stakeholders in the process and an agreement to
be bound by the rules and processes developed. Just as words on a contract
don't of themselves have any ability to govern the conduct of businesses, of
course the bylaws can't achieve anything on their own. But, when they are
written by the stakeholders in bottom up consensus as to what rules they
will live by and govern their conduct by, and when the stakeholders trust
the process, and its tested and found to support those principles, then they
have a power that will surprise you. Have look at the power of other mere
"bylaws" to affect the conduct of parties. I suggest you begin with Magna
Carta 1215, and follow through the English revolution of the mid 1600's to
the revolutions of the 1700's, including in your own country, for some well
documented example.

> >  While I can't say I'm
> > particularly happy with my governments track record on that point as
> > of late, at least I have some semblance of representation, and my
> > governments pockets are deep enough to engage in long, drawn-out suits
> > involving monopolists.
>
> Precisely.  I'm absolutely amazed at the level of agreement we have
> reached :-)
>
9. If you genuinely believe that governments are required to, or should
manage or regulate this, I regard that as a complete departure from the
White Paper principles, in particular of the concept of an industry-led,
self regulating, international body. You should declare yourself opposed to
the concept of ICANN, and leave, or at least propose where the White Paper
is wrong and how it should be modified in this fundamental issue.

Regards

Peter Dengate Thrush
Barrister
Wellington

644 499 8959
64 21 499 888

fax  644 471 0672

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