[wg-review] Fair Play

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

A scholarly and insightful article has been brought to our attention.
Authored by Jay P. Kesan and Rajiv C. Shah, this 130-page article in the Law
and Economics Working Papers Series analyzes the history of the
privatization of the DNS.  This paper comes to the following conclusions
(which are well-worth noting in the context of our endeavors to restructure
the DNSO):

"Similarly, ICANN has no imperative to act in a fair and open manner, unlike
government agencies that are subject to the APA and the Sunshine Act.  Not
surprisingly, as the privatizations have shown, the abandonment of
principles of fairness and competition has been injurious to the public.  To
increase competition for the ongoing privatization of the DNS, we have three
main proposals.  First and most importantly, the U.S. government must ensure
that ICANN is accountable to the Internet community as a whole and not just
business interests.  Second, the U.S. government must ensure that there is
more transparency and public input into ICANN's decision-making.  Finally,
it must be remembered that a privatization is a means to achieve desirable
public purposes, such as the creation of competition, and not and end all by
itself since privatization does not, in and of itself, guarantee competition
in the relevant market.  Without multiple competing firms, the proper use of
interconnection agreements to counter network effects in the DNS, and fair
treatment by ICANN, there will continue to be problems with the
privatization of the DNS."

Structurally and procedurally, I believe that we need to provide for an
equivalent of the above-referenced Administrative Procedures Act in our
organization so that all parties impacted by the ICANN process have recourse
to measures that truly codify the principle of "fair play".

Our thanks to Thomas Roessler for having posting this article's URL on the
icann-europe list:
http://papers.ssrn.com/sol3/delivery.cfm?cfid=129472&cftoken=91933571&abstra
ctid=260834



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