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Rewiring Internet Governance: Step One Is About ICANN (Part 1)

Frederick Harris

It is time for some straight talk about governance. The word "governance" used here means authority. It does not merely mean rules, or coercion, or any other weasel-worded definitions that deflect our attention from the art of good governance as distinct from self-serving opportunism and illusory power sharing. Politics, as Theodore Lowi reminded us, is ultimately about "who gets what".

Quibbling with endless essays about who rules the root is useful, but not demonstrative. I defer here to Milton Mueller who reminds us that the contradictory nature of the 'bottom-up' regulatory model which has "characterized the development of the internet" also created what Prof. Mueller apparently views as the "fundamental dilemma of internet governance [which means] the intersection of technical management and regulatory control." Mueller wanted to know (and rightly so) "where does one end and the other begin? — [given that] U.S. government policy applies only to management of internet names and addresses and does not set out a [blueprint] for internet governance".

Nor do I believe that these days thoughtful persons will continue to niggle about whether fundamental governance questions that have yet to be answered beyond circular arguments about whether bred in the bone regulation speaks to coercion; or whether, as in ICANN's case, the blueprint for governance reflects the ideology of the empire of business without serious consideration as to whether laissez faire enterprise trumps in the end game common sense regulatory intervention.

The dilemma created by ICANN's bottom-up governance experiment is that policy choices with potential global significance have also intersected with the insatiable maw of international profit taking, notwithstanding ICANN's legions of "constituencies" which are its stake holder groups. Laissez faire capitalism as currently practiced within ICANN excludes common sense.

Governance has morphed from a necessary technical accoutrement to the rational management of technology into a wolf in sheep's clothing that tells us we are free, or not, as we prefer, to: a) monopolize the Internet with multiple applications from private sector applicants who have deep pockets which therefore eliminates everyone else; b) equivocate as to whom in the real world those deep pocketed interests actually represent, which is the slogans, jingles and double-talking language of marketers; and c) do all the above on the premise that selling ethereal goods called domain names to persons who even then receive no guarantee they will receive them except through forthcoming auctions, is somehow the equivalent of legitimate enterprise.

What the above amounts to in the real world is a degenerate form of business hitherto unknown, and whose only and actual purpose is to legally enable legions of third party vendors to sell worthless tokens to uninformed consumers; or, in the instance of legitimate businesses to strong arm into submission the proprietors of intellectual property even though sufficient protection arguably and presently exists via UDRP and intellectual property courts.

Do I paint with a broad brush the occasional legitimate enterprise where actual societal value might in future stem from internet innovation derived from additional TLDs. Unfortunately, yes. Laissez faire regulation which is an oxymoron does tend to do that.

The reason behind contradiction is common sense. ICANN's lemming-like-leap into an ocean of ambition tempered by a thimble full of common sense has produced what I have previously referred to as a "quango" or bastard institution which apparently does not know whom it actually represents. Where is the evidence to date that ICANN's gTLD mania can produce anything in terms of a promise of performance that adds appreciable value to ICANN's actual constituency, which is we the people, instead of winners and losers in an expandable bubble that hitherto has produced charlatans, resellers, auctioneers and other unsavory entities whose actual purpose is to make easy money from selling (mostly) worthless domain names to clueless consumers, and (of course) domain name speculators.

Step Two Is About Testing The Efficacy Of ICANN's Governance Model

Given the above, it also is time for some straight talk in connection with authority. ICANN has no authority to do anything if by authority we mean a more nuanced definition of global internet governance, which means temporarily setting aside NTIA and U.S. Commerce Department. I quote here from the abstract of a recent text titled "The Exercise of Public Authority by International Institutions" (Matthias Hellwig et al, 2010) because I think it is both instructive, and yet alarming.

Hellwig: "One of the most curious instances of international administrative governance is the Internet Corporation for Assigned Names and Numbers (ICANN). On the one hand, ICANN is neither an international organization, nor even an entity under international law, but a non-profit corporation under Californian law. On the other hand, it administers access to the Internet and sets the standards around the world. The principal participants in setting the standards and organizing the Internet are private corporations. Although national governments are involved, they are formally reduced to an advisory role vis-à-vis the organization. [These] roles are generally reversed in international law [where] private persons function as consultants only and it is up to the governments as representatives of states to make binding decisions".

In other words, ICANN (at present) is a purely American phenomenon whose political and policy contradictions have confounded internet governance because of imminent and as yet unanswered questions about whether it was wise in the first place for the U.S. Government to even contemplate a bottom-up regulatory experiment when policy choices with global significance were bound to intersect with the (above-mentioned) appetites of international profit taking.

Notwithstanding its "constituencies" ICANN is accountable to no one. Its numerous stake holders coupled with an unfathomable miasma of (almost) indecipherable acronyms are a regulatory illusion even though one ought not doubt their original and well meaning purpose. As Johan den Hertog points out (Economic Institute, Utrecht University, 1999):"[a] distinction is often made between economic and social regulation. Economic regulation consists of two types of regulations: structural regulation and conduct regulation. Structural regulation is used for regulating market structure. Examples are restrictions on entry and exit and rules against individuals supplying professional services in the absence of recognized qualifications. Conduct regulation is used for regulating behavior in the market. Examples are price control, rules against advertising and minimum quality standards."

ICANN does neither of these things which it accounts for by claiming it is merely a private business with a not-for-profit mandate which in any case is subject to oversight by stake-holders. Only the most uniformed person living perhaps on a asteroid would believe this nonsense. ICANN does what it wants to do because ICANN senior management ultimately and actually oversees itself.

As early as 2000 Jonathan Weinberg observed that the ICANN governance model is questionable because its authority is undermined by foundational stress points that intersect with law. "There is no ICANN [institutional mechanism] that performs the function that judicial review performs for administrative agencies." Weinberg also noted that ICANN "has invoked what one might call the techniques of administrative law: it has, in important respects, structured itself so that it looks like a classic U.S. administrative agency, using and purportedly bound by the tools of bureaucratic rationality".

If an ICANN critic applies reasonable regulatory theories about the distinction between economic and structural regulation, ICANN's "bureaucratic rationality" amounts to a hegemonic apparatus governed by an out-of-control bureaucratic empire seemingly accountable to no one. When convenient to say so, ICANN becomes a benign corporation which strives for the betterment of the Internet, and nothing more. Can the world actually afford to indulge a form of ICANN benevolence accountable to no one, including the United States Senate. (See the 2013 letter from Sen. Jay Rockefeller).

Hellwig: "Under the standard model of international law an international organization or an international authority may set rules only after having been empowered to this end by states. ICANN, however, has never been vested with such powers by any international treaty. Further, international actors are usually bound by the rules established by an international organization or authority only by accepting such an obligation through international treaties and agreements. The rules set by ICANN, however, are accepted and implemented without any such international legal instrument having been concluded." [ICANN creates] rules which are potentially of greater importance than most acts of international organizations and they are more widely and more strictly accepted and respected than binding decisions of most international organizations.... The reason why ICANN's decisions enjoy such broad acceptance and are followed so strictly is practical in nature: ICANN's rules are necessary for the operation of the Internet, without which the Internet would not run, and without the Internet today's world would not run."

The question, then, is should ICANN's convoluted constituency layers that insulate its leadership from the real world come as a surprise? As early as December, 1999 Mueller began digging into the detritus of what he termed a form of "self-regulation" that gave "private and public sector actors powerful incentives to seize control of the process or to win a struggle for power". That was about 13 months after the U.S. Commerce Department "entered into a memorandum of understanding with ICANN to "jointly design, develop and test the mechanisms, methods and procedures needed to transfer [internet governance] to a private sector, not-for-profit entity" (quoted by Mueller from ICANN's first Chairman, Esther Dyson).

Moreover, can anyone with a straight face who observes the ongoing commercial shenanigans in connection with hundreds of new gTLDs also imagine that the equivocating commercial messages propagated world wide by ICANN's new licensees is normal? Since when does a one-word "registry" market itself as if it's a generic TLD. In the wacky world of ICANN the letters ".co" are the marketing equivalent of a .CO top level domain where the goal is to sell worthless level three domains to fools. Think not? Check it out here.

Devising The ICANN Governance Test

Testing ICANN's internet governance model is a reality check that can only occur by comparing it with an alternative model that bypasses ICANN in the real world Internet, and does that by building an observable and testable governance régime from scratch. Does the task seem impossible? ICANN controls the root, does it not? Well, not necessarily so. It can be done.

In the November/December issue of Foreign Affairs magazine (2002), author Zoë Baird argued that "reliance on markets and self-policing has failed to address adequately the important interests of Internet users..." Baird observed that "the reality [of Internet] is that government participation in regulating the Internet is necessary. Given the new economic and geopolitical environment, finding the right balance between an open, networked system and the security of a more closed environment requires significant participation by government. Although governments do not all share the same values, they are the only institutions that can provide stability and a place for debate over what public values need to be protected. These issues are significant policy questions that require democratic resolution, not just technical matters that can be left to experts."

Of course this will not sit well with ICANN, nor those who presently benefit from ICANN's radical laissez faire approach. I respectfully point to the recent observation by Google's proselytizer-in-chief, Dr. Vint Cerf, who apparently believes that privacy might not only be an unreasonable expectation (November 2013); but, that the invisible hand of Adam Smith is nonetheless required to grow the Internet. Oh, really?

Cerf: (December 2, 2012 on Google's Blog). "While some governments argue that the internet needs new global rules to speed its rollout in the developing world, we believe the present market-driven approach is best positioned to keep up with the net's exponential growth...[a] state-controlled system of regulation is not only unnecessary, it would almost invariably raise costs and prices and interfere with the rapid and organic growth of the internet we have seen since its commercial emergence in the 1990s".

Who are these ones who presume to know better what is best for the world in terms of governance for the Web? Google? Amazon? Yahoo!? Facebook and Twitter?

It is time to get real; and, in doing so momentarily defer to Dr. Cerf by testing his theory about privacy in general, and governance in particular. Privacy might be unreasonable? The reality is that Internet is neither static nor politically and geographically neutral. It is time that ICANN either joins the rest of the world, or gets out of the way. As Baird points out in Foreign Affairs, "[t]he borderless nature of the Internet makes effective Internet governance even more challenging [for regulation]. Establishing the proper role for government inevitably means discerning the parts to be played by different countries and also the multi-lateral organizations they have formed".

But, the dilemma remains: how does one test the efficacy of ICANN's internet governance model? Say, against an alternative model? Can the reality check only occur by comparing ICANN with an alternative governance model that bypasses ICANN?

In my next post (Part 2) I will outline the possible elements of an empirical and verifiable test that compares ICANN's present governance model with a doable real world alternative that tests the present hegemonic apparatus against a more efficacious arrangement for internet oversight. I don't claim that it will be easy! Nor can I argue that the experiment might not fail. But, with a little help from our friends, there might be a way.

By Frederick Harris

Related topics: ICANN, Internet Governance

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Comments

Excellent Analysis Gary Osbourne  –  Nov 28, 2013 6:41 AM PDT

This is the best analysis I have ever read regarding ICANN and its, or more accurately, our quango quandary. I have maintained for years that ICANN is some sort of supranational entity hovering somewhere over international waters off the coast of California. It appears immune to any international law or treaty and treats US laws (eg: anti-trust), to say nothing of its own bylaws, on the unaccountably rare occasions it is challenged, as minor annoyances which will, and so often do, fade away.

The California and USG authorities have sat on their hands throughout this because to engage in some long overdue diligenge would uncover this nest of vipers to all, leaving it open for calls from many quarters that the USG divest itself of root control of ICANN/IANA. This is extremely unlikely. At best we might see a re-branding, perhaps even a split between ICANN and IANA, perhaps some nominal powers shared with the ITU or some other entity. However, I maintain the USG will never willingly give up ultimate control, and to take it unwillingly is non-trivial in the extreme and fraught with peril. I therefore greatly look forward to Frederick Harris's Part 2.

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