[ga] The Administrative Procedures Act

["babybows.com" <webmaster@babybows.com>]

The recent letter from US Senator Conrad Burns to Mr. David Walker,
Comptroller General of the GAO, notably referenced the article "Wrong Turn
in Cyberspace: Using ICANN to Route Around the APA and the Constitution" by
Professor A. Michael Froomkin.  Having taken the time to read this
well-considered document in its entirety, I find myself drawn to the
following paragraphs that seem to sum up the crux of the ICANN problem:

* If ICANN is engaged in policymaking, and if DoC is reviewing these
decisions and retaining the authority to countermand them, then DoC's
adoption of or approval of ICANN's regulatory and policy decisions are
subject to the APA. One could argue as to whether DoC's approval is an
informal adjudication under the APA,{45} or whether due to its overwhelming
influence over ICANN and due to its adopting ICANN's rules, DoC is engaged
in rulemaking without proper notice and comment. In either case, however,
the APA has been violated.
* If, on the other hand, ICANN is engaged in policymaking and DoC does not
retain the power to countermand ICANN's decisions, then DoC has delegated
rulemaking and policymaking power to ICANN. This probably violates the APA,
since it was done without proper rulemaking; regardless of the applicability
of the APA, it violates the Due Process Clause and the nondelegation
doctrine of the U.S. Constitution, as well as basic public policy norms
designed to hold agencies and officials accountable for their use of public
power. Since ICANN's board and staff operate largely in secret, it is
difficult for outsiders to know how much influence DoC has over ICANN's [*pg
34] decisionmaking. As a result, the statutory and constitutional arguments
in this Article are presented in the alternative. The two arguments are very
closely related, however, in that both rely on legal doctrines designed to
promote accountability and prevent the arbitrary exercise of government
power.
The APA (the Administrative Procedures Act) is essentially the codification
of the principle of "fair play"; at issue in the Senator's letter is whether
"ICANN is the appropriate body to manage the DNS; and
whether ICANN has performed well". It seems clear to me that Washington has
received a very loud message from the public that "fairness" has been
woefully absent at ICANN, and that as such perhaps another institution needs
to be charged with the policy aspects of the Internet.
I believe that we have the means to address this problem.  The ICANN Board
has recently passed the following resolutions:
   [Resolution 01.28] The Board asks the Names Council and other sources
   to separate their proposals into those that improve operations of the
   DNSO as it is constituted today and those which may result in changes
   in the structure of the DNSO and/or major changes in its functioning.

   [Resolution 01.29] The Board encourages input related to changes that
   improve operations of the DNSO as it is constituted today no later
   than April 16, 2001. Further Board action on the basis of that input
   will be scheduled at the end of that period."

In light of these resolutions, it may be prudent for members of the DNSO to
recommend to the ICANN Board that it agree to abide by the language of the
APA as a first step toward improving operations of the DNSO, and as a first
step in restoring public confidence.  The language of the APA clearly
addresses the need for due process, for ample time for public comment, and
speaks to consensus-based decision-making mechanisms as well.

If Washington can be convinced that the Board is taking action to properly
manage its affairs, then the Senator's request to the Department of Commerce
might well be withdrawn:  "In the meantime, I urge you to refrain from
taking any major steps to further empower or delegate authority to ICANN."
In that the Senator's formal request can effectively serve to inhibit the
rapid DoC approval of the new registry agreements, the ICANN Board needs to
be able to take immediate action to fight to safeguard the interests of its
stakeholders.    A resolution from the DNSO to adopt the language of the APA
might well be the one single action needed to reassure oversight committees
that ICANN can indeed correct its deficiencies, and that the DNSO is the one
body best equipped to formulate Internet domain name policy recommendations.

We can come together as a group and adopt the language of the APA.  It is
workable even in the unique bottoms-up consensus-driven world of the DNSO
(an application of the APA to the working group environment may be noted in
the following document:
http://www.dnso.org/wgroups/wg-review/Arc02/msg01952.html ).     The Board
has asked for our help to improve operations.   It would be nice to hear
members of the General Assembly offering up some substantive
recommendations.

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