Former President Theodore Roosevelt is not one whose remarks are usually associated with the domain name industry, but his commentary in 1913 could just as easily have been written today:

“The mob leaders usually state that all that they are doing is necessary in order to advance the cause of ‘liberty’, while the dictator and the oligarchy are usually defended upon the ground that the course they follow is absolutely necessary so as to secure ‘order’. Many excellent people are taken in by the use of the word ‘liberty’ at the one time, and the use of the word ‘order’ at the other, and ignore the simple fact that despotism is despotism, tyranny tyranny, oppression oppression, whether committed by one individual or by many individuals, by a state or by a private corporation.”

In the world of ICANN today, a battle is raging between the forces of egalitarianism (the at-large community) and the forces of “stability” (the ICANN Board) to determine the future of the entity that coordinates policy for the domain name system. On the one hand are those who argue that, ICANN, as a consensus-based organization, should follow a course of action determined by the consensus of the community alone, while on the other hand the incumbent ICANN Board argues in its “Blueprint for Reform” that “it does not follow that even proposals that enjoy consensus support should receive uncritical Board approval. The Board has a fiduciary responsibility to make decisions on the basis of good faith judgment in furthering the public interest.”

Apparently, what the Board considers to be good-faith judgment in furthering the public interest was the decision taken in Bucharest to completely deny all representation to the public through the total elimination of all publicly elected at-large director seats on the Board. So, herein lies the crux of the issue: how does one deal with such tyranny and constrain a Board run amok?

Even the U.S. Department of Commerce recognized that an independent review process would be needed to safeguard the interests of the community. Accordingly, they created a “task” within their Memorandum of Understanding with ICANN to address this issue:

“Collaborate on the design, development and testing of procedures by which members of the Internet community adversely affected by decisions that are in conflict with the bylaws of the organization can seek external review of such decisions by a neutral third party.”

ICANN has never implemented an Independent Review Panel, nor does it intend to do so, stating in its “First Interim Implementation Report” that, “while we understand that some members of the community feel that there should be a broader scope of review or appeal mechanisms, we remain quite skeptical about the desirability or feasibility of any such approach.”

This intransigence on ICANN’s part properly raises the ire of all those who believe that the operators of a public infrastructure should be held to some level of accountability. As Roosevelt so firmly stated, “we object to an unsupervised, unchecked monopolistic control in private hands.”

This battle is about appropriate checks and balances.

ICANN was envisioned as a private entity that would act for the public, with public representatives, as a public benefit corporation; instead, many believe, it has become a thoroughly commercial cartel that caters solely to the interests of its dominant stakeholders at the expense of the general public. As a cartel, it has sought to distance itself from any governmental oversight that would inure to the benefit of the public, and has acted whenever possible to avoid performing any of its assigned “tasks” that would further the public’s role in the process. One such task assigned by the Department of Commerce:

“Collaborate on the design, development, and testing of appropriate membership mechanisms that foster accountability to and representation of the global and functional diversity of the Internet and its users, within the structure of private- sector DNS management organization.”

Simply put, after four years of avoiding this task, ICANN still has no membership mechanisms in place, and boldly declares in its Bylaws, “The Corporation shall not have members.”

Cartels are by their very nature anti-public entities that seek to conduct their affairs as far from the realm of governmental oversight as possible—it is the undeniable character of the beast. Yet such cartels are not institutions that are to be readily tolerated by the broader community. This too was recognized by Roosevelt, who wrote, “The huge, irresponsible corporation which demands liberty from the supervision of government agents stands on the same ground as the less dangerous criminal of the streets who wishes liberty from police interference.”

The current Memorandum of Understanding with the Department of Commerce is set to expire at the end of September, and the only course of action remaining to the public is to write to key decision-makers to influence the outcome of this process. The government has been lax in allowing ICANN to flout U.S. policy and lax in allowing ICANN to continue to deny representation to the public within the ICANN process.

Letters can be sent to your governmental representatives, or to:

Nancy J. Victory
Assistant Secretary for Communications and Information
United States Department of Commerce National Telecommunications and Information Administration
1401 Constitution Avenue, N.W.
Room 4898
Washington, DC 20230
Email: .(JavaScript must be enabled to view this email address)