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Internet Users: Is It Time For A Declaration Of Independence?

Rod Dixon

Although, undoubtedly, it is disappointing, it is not surprising that after four years of experimenting with Internet governance, the first corporate entity to take on the ambitious task — the Internet Corporation for Assigned Names and Numbers (ICANN) — has not achieved the legitimacy of a global consensus-based manager of the Internet's domain name system. Simson Garfinkel explains, in his insightful piece in the March 2003 issue of Technology Review, that it has become conventional wisdom that "ICANN serves as a model for systematically shutting the public out” of its policy making activities. It should go without further explanation that the ICANN model is a particularly bad governance model, if consensus-building is supposed to be the corporation's linchpin of legitimacy. Among a few other concerns, ICANN, unmistakably, suffers from power-sharing phobia.

In assessing a number of alternative approaches to resolving ICANN's power-sharing logjam with individual Internet users, I am mindful of the terse expression that "history is the best teacher," which is not, for the most part, simply an epigrammatic jingle; it is a concise code of human experience — one that highlights the importance of learning from our past.

One of our past human experiences includes the idea that at critical times "in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them [and in doing so] they should declare the causes which impel them to the separation." The idea and the words come from the opening paragraph of the Declaration of American Independence, and they seem especially pertinent to the crisis of failed consensus-based governance that describes the performance of ICANN for nearly the past four years. For nearly four years, ICANN has rebuffed the attempts of Internet users to participate equally in the management of domain name issues that receive central focus in ICANN's governance responsibilities. In this respect, it seems appropriate to consider what might be the factors which should impel individual Internet users toward a declaration of independence from ICANN?

First, Internet users are the core of the Internet, yet have no formalized role in ICANN's governance process. In addition, whether ICANN will ever fulfill its mandate to operate the world's domain name system by making "decisions on the basis of Internet community consensus” seems impertinent to the interests of individual Internet users today. ICANN has been unresponsive — with alarming consistency — to the interests of individual Internet users, and has used its incumbency to insulate its power while disrupting nearly every attempt by organizing bodies of Internet users to obtain voting power within ICANN's structure. Unfortunately for those who had high expectations for ICANN, not only does ICANN, as it is currently composed, seem incapable of budging from its seat of unaccountability, but ICANN's appetite for top-down management seems implacable. Examples of ICANN's top-down management style are so well known, they are not worthy of repetition.

ICANN might defend itself by reference to its public corporate structure and the significant prerogatives that often accompany a corporate entity, but its agreements with the United States Department of Commerce betray the legitimacy of that argument; those agreements are plain and clear in stressing the United States' expectation that ICANN manage the domain name system as a global public resource. ICANN cannot insulate itself from its failure to operate as a bottom-up consensus-based organization with excuses that consensus-based decision making is alien to the corporate form or its management discretion. Indeed, the incumbents could step-aside and allow fair elections, if compliance with consensus-building is too onerous for those in power. Currently, ICANN is undergoing "reform." So far, one aspect of reform has resulted in ultimate abolition of voting rights of individual Internet users; other reform proposals seem equally distressing. Obviously, there is little basis to assume ICANN's reform efforts will reverse the course it has already taken. Consequently, if individual Internet users could control the fate of Internet governance, is there any doubt that a compelling case exists for a declaration of independence from ICANN.

To be clear, a revolution in Cyberspace is not the point. Instead, I am urging that it is more apparent now, than ever before, that the global base of individual Internet users who have a stake or interest in Internet governance need to act in a "revolutionary" manner, if power is ever going to be shared between the stakeholders, whose tight-fisted control of ICANN has never loosened, and those who have been allowed to vote in only a single election since ICANN became the Internet's corporate control center.

How can Internet users shake off the constraints of an unaccountable system? Here, again, we learn from history. Internet users can break free of unresponsive governance by declaring independence from a global structure that only represents self-selected "stakeholders." Of course, a declaration of independence presupposes some shared sense of what should come from such efforts, and that is a tough order for a group as wide-spread as the world.

Moreover, it is a quirk of democratic appeal to claim on the one hand that ICANN ought to be responsive to the needs and interests of Internet users in some democratic fashion, but fail to provide ICANN with a clear conception of the commonality of interests among Internet users that might make this work. It should go without saying that the "Internet community" is quite a concept and, perhaps, the mission of managing the domain name system consistent with the consensus of a global community is laden with exaggeration and contradiction. It might be plausibly asserted that ICANN has done poorly at consensus-building among the "Internet community" because any single entity is bound to fail at such an overly-ambitious task. No doubt, the occasionally polarizing rhetoric of some of ICANN's critics has added to the difficulty of ICANN's tasks as well. Regardless of merit, polarizing argument is likely to cause some ICANN insiders to turn immune to the logic or wisdom of argument. All of these factors and others as well may have impaired ICANN's responsiveness to individual Internet users; notably, specifying such factors may provide counsel on the likely success of future governance efforts that could involve similar issues.

Still, individual Internet users would be ill-advised to delay declaring independence from ICANN, unless ICANN'S current "reform" efforts turn into radical reform efforts. ICANN's top-down decision-making process is inherently hostile to criticism that challenges or dissents from the conventional wisdom of perceived stakeholders — this seems so even of criticism that is thoughtful and measured. There is no surer sign of ICANN's continued aloofness to the interests of Internet users than the recommendations of a task force of the Generic Names Supporting Organization (GNSO), which is operating as part of the "reformed" ICANN, in its issuance of a report on the procedures and integrity of the data stored in "WHOIS" databases (WHOIS databases include publicly accessible records personally identifying domain name registrants and other related matter). It was disappointing — even disturbing — to observe the conspicuous failure of the task force to provide a responsive and thorough-going consideration of the privacy interests of Internet users — despite compelling evidence that privacy is an increasingly serious concern to most Internet users. From my perspective, although the doors of Internet governance remain open to Internet users, ICANN has put out the unwelcome mat.

By Rod Dixon, Attorney
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