CircleID

The Names Council met last week and will be meeting again next week to discuss a Policy-Development Process (PDP) for how ICANN should react to registry "proposals" (the new buzzword—an attempt to ensure that actions that do not necessarily add up to the introduction of a new "Registry Service" will nevertheless be subject to ICANN approval).

Midway through last week's call (here's a link for listening), at about 1:09, Christopher Wilkinson cleared his throat and balefully said the following (paraphrasing—listen to the call to get the exact text):

My main point is to encourage the GNSO Council to avoid ideological terminology. We are dealing with a situation currently where many governments need to know where regulatory authority over the Internet lies. Currently it lies in the ICANN/GAC public/private partnership. It is not productive to the present debate to deny that ICANN holds regulatory power. It has to be there somewhere. It's through ICANN that the Council is acting. [A registry representative had said that ICANN is not a regulator.] . . . . It is not helpful to tell the world that ICANN has no regulatory authority. If that's the message from the private sector, then many governments will say that the existing public/private partnership is not enough.

This is an important moment, and we should pay attention to Mr. Wilkinson's message. His point is that someone must be in charge. Someone must hold the reins; someone must be telling the registries what to do, even if their contracts with ICANN don't require any prior permission in order to act. Regulatory power has to be there somewhere, Mr. Wilkinson is saying. And if ICANN doesn't show that it has this power, governments will Have To Step In.

This is in the context of the assertion by ICANN staff (listen to the call carefully) that it is not appropriate to allow registries to act without permission.

What's remarkable about this moment is that the hot potato of DNS standard-setting is still up in the air. The US government didn't want to appear to be in charge, and wanted to convince European governments that it wasn't in charge, and so it created (or called for the creation of) ICANN. ICANN was designed to keep other governments at bay. ICANN has, however, no particular delegated power beyond that accorded to it by the contracts it has signed with registries and registrars. In fact, it can't have more power than that, because if it pretends to be a regulatory agency it should be complying with the APA—and if it pretends to be a regulator its private nature probably violates US law in a number of respects. Right now, though, it needs to pretend to be a regulator just enough to keep other governments happy (according to Mr. Wilkinson). But it's in a bind: it really isn't a regulator, and there's no reason for registries to agree to have their every "significant" (whatever that means) action approved by ICANN.

Mr. Wilkinson's sentiment—regulatory power must be there somewhere—also points to another sharp distinction that isn't being understood at the moment: At the moment, no one governs the Internet. ICANN isn't about Internet governance (whatever that means). ICANN worries about registries and number allocation. That's it. If the world wants to make rules about content and identity and intellectual property and cybercrime, the world will have to find another vessel. ICANN cannot bear that burden.

Written by Susan Crawford, Professor, University of Michigan Law School. Visit the blog maintained by Susan Crawford here.

See related topics: DNS, Internet Governance