Re: [ga] Re: iCANN's protection

[Kent Crispin <kent@songbird.com>]

On Wed, Apr 18, 2001 at 11:04:00PM +0200, Thomas Roessler wrote:
> On 2001-04-17 16:46:37 -0700, Kent Crispin wrote:
[...]
> > This constraint of "not doing anything really stupid" seriously
> > undercuts the simple statement that the "USG has defacto control". 
> 
> Still, the USG has some kind of control over the root.

For some reason that reminds me of:

  GLENDOWER 
      I can call spirits from the vasty deep.
  HOTSPUR 
      Why, so can I, or so can any man;
      But will they come when you do call for them?

   <http://tech-two.mit.edu/Shakespeare/1henryiv/1henryiv.3.1.html>

:-)


Sorry.  To be serious once more:

Yes -- the USG has "some kind of control" over the root.  But many
entities have "some kind of control" over the root.

> What Froomkin
> is saying is (heavily simplified) that (1) the USG is bound to
> constitution and law when exercising that control over the root, and
> that (2) handing over its powers to any other party is most likely
> leading to legal difficulties.

Sure, Froomkin is saying that.  But the nature of that "some kind of 
control" has bearing, don't you think?  If the control that the USG has a 
very weak basis, then Froomkin's paper is moot.  And when you look at 
that "some kind of control", what do you see?  You see that it actually 
consists of a contract to advertise a particular dataset on the 
network, which is *voluntarily* used by others, through a series of 
conventions and protocols controled by others.

I once asked a lawyer friend what happens if Froomkins scenario is
played out to it's logical conclusion? What happens if a US court
decides that the delegation of whatever to ICANN is unconstitutional?
The answer was an involved discussion with multiple scenarios, but 2
quite likely results were that 1) not much happens; or 2) industry pulls
"control" of the root completely away from the USG. 

> >> (Of course, the actual question to be answered is how this
> >> monopoly can be fixed or brought under control.  Would
> >> competition help?  Or couldn't it persist on that market?  What
> >> kind of control mechanisms should be established so the single
> >> player in that market is forced to take into account public
> >> interest?)
> 
> > I'm sorry, but I think your analysis of ICANN-as-monopoly is
> > *very* far from describing ICANN's real behavior or its real
> > nature or even it's possible nature. I think a far better model
> > for ICANN would be a professional society, or a industry
> > standards body.
> 
> Let's diregard the USG's role, and let's look at the product ICANN
> is offering to the public: The root zone file.

One could perhaps more sensibly think of ICANN as offering a product 
for registries and registrars.

>  ICANN is currently
> the only source for a generally-accepted root zone, that is, ICANN
> is a (probably natural) monopoly on the market to root zone files.

Yes.  And who normally oversees monopolies?

> As a consequence, ICANN controls - directly or indirectly - the
> conditions under which domain name holders, registries, and
> registrars act.

Yes.  Microsoft controls a great deal of the conditions under which you 
use software; the american medical association has tremendous influence 
on the medical care seen by the public.  What you are describing is not 
an unusual situation.

> The fact that there is no competition to ICANN in particular means
> that the marketplace can not take its role as a powerful instrument
> of control.
>
> Thus, ICANN is in a rather comfortable situation: As long as it's
> not failing in a catastrophic way, customers will not replace it (by
> another monopoly?).
> 
> You'll now, I guess, argue that all relevant stakeholders are
> represented on ICANN's board of directors,

No -- I would not argue that at all.  I would argue that the model of
oversight by representation on the board is fundamentally flawed. 

 that ICANN is getting
> advice from the supporting organizations, and that additional
> control over ICANN is unnecessary.  In arguing that way, you miss
> two points: (1) The directors, once elected, have the duty to act in
> the best interests of the corporation.  What if these interests are
> not in line with those of the supporting organizations, or the
> internet at large? (2) Supporting organizations are asked for
> advice.  They can't veto, so by design, they can only exercise weak
> control.  (Being able to recommend (!) the replacement of directors
> isn't sufficient, since it is only a very coarse form of control.)
> 
> All this leads me to the conclusion that additional control must be
> exercised over ICANN.

Yes.  That is the role of competition regulators.  They already exist; 
they in fact have international scope; this is precisely the kind of 
work they do.

>  Electing members to the board may provide
> some (very limited) remedy,

But not enough to make it worth the trouble, or the risk.

> and will certainly add to the
> equilibrium of powers.

No, that doesn't follow.  What was clearly demonstrated by the atlarge 
election is that political concerns overtake everything else.

> It is certainly not the grant unified
> solution for all of ICANN's problems.

It's not a solution at all.

> In fact, other mechanisms for controlling ICANN should be sought,
> and this search should also concern the supporting organizations'
> possibilities to control ICANN's activities.

The other mechanisms are anti-trust authorities.  This is what they do
for a living, you know. 

> Let me, finally, come to your mentioning of professional societies.
> These societies have a role which is very distinct from the one
> ICANN takes.  In particular, their rulemaking is usually subject to
> members' approval and control, and it is usually only addressed at
> members.  Both properties are not present with ICANN.

Sorry, you are "painting with too broad a brush".  There are activities
at all levels; some of them are approved by the membership, but a great
deal are not.  They have executive bodies that act on behalf of the
broad goals of the members; the members don't micromanage the activities
of the executive.

>  (Just to give
> a simple example: There still is no such thing as an individual
> domain name owners' constituency - but still ICANN makes or
> implements rules which directly affect individual domain name
> owners.) 

The American Medical Association has enormous and pervasive impact on
the medical care received by individual patients.  But individual 
patients are not members of the AMA.

> Also, these societies normally don't choose freely whom to
> admit to a certain market and whom not.  A procedure such as the one
> we have seen with respect to the new TLDs last year would be almost
> unthinkable in the context of most such societies.

There is a startup issue.  The choice of the 7 registries/TLDs was
*explicitly* a proof of concept trial, on the way to a longer term
steady state process.  Professional societies control many things that
affect the economics of their profession, but with an established
society, those policies are well established, and don't cause much
controversy.  But sometimes policy changes with economic impact *do*
happen -- in relatively recent times certain alternative therapies have
become acceptable, and practioners of those therapies now are eligible
for insurance payments and so on.  I don't know the precise role of the
American Medical Association in helping or hindering that, but there is
absolutely no question that the AMA's position on such issues, at the
very least, has tremendous influence.

-- 
Kent Crispin                               "Be good, and you will be
kent@songbird.com                           lonesome." -- Mark Twain
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