In 1998, the United States government might have taken a different path in asserting its control over the technical administration of the DNS. It might have asserted full U.S. governmental control, or it might have turned over the functions to an international body such as the International Telecommunications Union. Instead, it created a "private-public partnership", incorporated as a California "nonprofit public benefit corporation", with a charter giving the company a dual mission of quasi-governmental functions combined with responsibility for operational stability of the Internet.
In all its deliberations, the ICANN Board must maintain a balance in its mission of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet. ICANN has the responsibility to draw the fine line dividing two contrasting areas, one where it should not go, and the other where it risks not doing enough. On the one hand, ICANN cannot become involved in areas such as content control and rule making in areas unrelated to operational stability. On the other hand, ICANN's self image as technical coordinator has at times constrained it from taking action necessary to discharge its public interest obligations, such as, for example, requiring registrars to comply with their contractual obligations.
ICANN's recent attempts to find a way to insert new top level domains in the root zone file illustrate the difficulties of achieving this balance. From a purely technical point of view, there is room for many additional new gTLDs in ASCII and in IDN.IDN versions. There are concerns about stress on the root zone, but it appears that this is a manageable risk, and ICANN is taking responsible steps to deal with it.
On the other hand, the whole question of how new generic top level domains would serve the public interest has never been openly considered by ICANN. The current proposal for an Expression of Interest proceeding illustrates this. Instead of being a straightforward determination of who might want to apply, the proceeding risks becoming an avenue for well-financed commercial applicants who treat the domain name system as a species of investment opportunity comparable to real estate. This is a far cry from the public interest in making names available to people who want to use them.
The proposals for selection of new top level domains present even more serious problems. There will very likely be multiple applicants for some popular strings, and ICANN has the job of selecting from among the competitors. There will also likely be applicants for strings that are obscenities or phrases intended to inflame social or religious conflict. From the standpoint of ICANN's obligation to serve the "global public interest in the operational stability of the Internet", ICANN cannot allow these into the root.
In addition, there is the continuing problem of minimizing trademark infringement opportunities. For better or worse, the United States government demanded in 1998 that ICANN become the enforcer of a global system of trademark rights. This quasi-governmental function, in the form of the UDRP, became part of the otherwise more technical duties assigned to ICANN. The extension of this involvement with trademarks is possibly the most serious test of ICANN's abilities to promote the public interest.
ICANN's Draft Application Guidebook (the "DAG") for new gTLDs attempts to find the appropriate mechanisms for taking into account the sometimes conflicting responsibilities described above. The first and second drafts, issued in October 2008 and February 2009, respectively, were not successful in many respects.
These drafts demonstrate, all too clearly, ICANN's reluctance to face its public interest responsibilities. ICANN proposes to create a system of independent decision makers to decide such questions as likelihood of confusion between different proposed strings for new gTLDs, alleged infringement of legal rights by a proposed string, and objections based on morality, public order and community objections. Of these, the first and second are probably amenable to objective determinations based on internationally recognized principles of trademark law, although there are serious questions as to how far ICANN should go in creating what amounts to international law. As to the questions of morality, public order and community objections to applications for new gTLDs, these can only be tested against conceptions of the public interest. ICANN apparently believes that getting a third party to do this work relieves ICANN of its responsibilities. There are two problems with this approach. First, there is nothing to indicate that any third party has either the expertise or authority to make these judgments better than ICANN, and second, ICANN's mission to serve the public interest does not allow it to delegate its responsibilities to outsiders.
Further, ICANN apparently hopes that its self-serving requirement that all gTLD applicants waive all legal claims against ICANN will insulate it from litigation. ICANN is certainly justified in its fear of litigation. As a creature of California law and subject to US federal law, this risk is always present. However, attempts to pass off to third parties ICANN's obligations to make judgments about the public interest will not lessen this risk, and may in fact increase it. The waiver of legal claims applies only to applicants for new TLDs, not to third parties that may be adversely affected by the process.
As another example of ICANN's failure to face up to its responsibilities, ICANN proposes to create independent evaluation panels to choose from among conflicting applicants for the same new gTLD string. The call for expressions of interest states that evaluators must be capable of exercising subjective judgment. ICANN may have a legitimate need to consult with outside experts, but they cannot be allowed to make the final decisions. There are no grounds for a belief that a third party's subjective judgment would give better results than decisions made by ICANN's Board. The Board clearly must face up to its responsibility to make judgments in the public interest, based on the experience and expertise of the Board members.
To ICANN's credit, it finally realized that there is a connection between the creation of large numbers of new gTLDs and the public interest in preventing a vast increase in cybersquatting and the spread of fraudulent practices. The first two drafts of the DAG neglected to deal this issue in any serious way, but since then ICANN has taken steps "to develop and propose solutions to the over-arching issue of trademark protection..." It is still an open question whether or not ICANN's current proposals will be adequate to serve the public interest in protection of the legitimate rights of trademark owners.
ICANN has not been so successful in dealing with other overarching issues. In October, 2006, ICANN's Board asked that a comprehensive economic study be completed before the introduction of new gTLDs, but it was never made. Instead, ICANN produced economic studies that purport to justify its proposals for a radical change in the policy of separation of registry and registrar functions. Whether or not this change will serve the public interest will apparently be judged by the results of the experiment, and not by a considered weighing of relevant evidence.
Even when ICANN grasps the concept of its public interest responsibility, it does not always come up with a reasonable approach to a particular problem. For example, the current proposed base agreement for new registries includes a provision allowing ICANN to amend the agreement unilaterally. While there may be a need from time to time to take account of changing circumstances, this brute force approach can hardly be justified as serving the public interest in a stable relationship between ICANN and the new registries.
Despite the concerns outlined here, ICANN has done most of the right things it was created to do and it continues to deserve our support. It is very unlikely that a single government or international organization could better fulfill the obligations undertaken by ICANN. However, a lot of work remains to be done, and ICANN must pay a great deal more attention to its global public interest responsibilities.
For the PDF version of this post along with an accompanying appendix, click here
By David Maher, Senior VP, .ORG, The Public Interest Registry
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