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Susan Crawford

ICANN has posted its suggested .net agreement [PDF]. The new draft puts the ICANN Board and the Names Council firmly in control of the registry's future, and represents a substantial change to the existing registry contracts. No one gave ICANN the power to do this, and it is strange that no approval by anyone — including the US Dept of Commerce — is being sought to make this happen. ICANN is taking the occasion of the .net rebid to restructure its entire relationship to the world.

It takes a lot — too much — to explain this issue to people who aren't closely involved with ICANN. This, of course, is part of the problem. ICANN can operate in great obscurity because it is simply too difficult (and too time-consuming) to understand what is going on. But I'm going to try to spell this issue out briefly.

The central deal behind the creation of ICANN was that the businesses who ran registries and registrars would agree, by contract, in advance, to new generally-applicable policies. This was a tremendously innovative approach taken to solve a difficult problem. ICANN has no delegated governmental power to act. Its role is to recommend additions to the root zone server, and work with IP registries on allocation of IP addresses. (Already the eyes of non-ICANN groupies are starting to glaze over. But stay with me — this won't take long.)

It was clear that changes to the ways registries and registrars operate might be needed someday. But how could ICANN ask registries and registrars to change the way they operate without any power? The answer that was dreamed up at ICANN's creation was that decisions could only be imposed on registries by consensus. This is the same way that actual technical standard-setting bodies operate.

Consensus is a hard word to understand. It doesn't mean that everyone agrees to go along. It means only that most people affected by a particular rule are in favor of it, and that opposition comes from people who are either unaffected or who are trying to hijack the process for unjustifiable or wrongful reasons. The ICANN deal was that registries would go along with policies adopted by consensus as long as that consensus was adequately documented. Registries would have a right to appeal if consensus didn't really exist.

ICANN staff never liked this deal very much. But in the intervening years, a number of policies that have been the subject of documented consensus have in fact been adopted. The consensus process has worked. The idea was, and is, that there would be very few global policies, and that most things would be left to local, registry control.

In recent years, ICANN has changed its bylaws to ensure that the ICANN Board can (with a vote of the Names Council in support) simply adopt policies. (I wrote about this here [pdf]) This didn't match the existing contractual scheme, but ICANN went ahead and did it anyway. ICANN didn't want to have to wait to adopt things that were demonstrated and documented. It wanted to have a relatively quick process driven in large part by voting. 

Now ICANN is ready to take the next step: to conform the contracts it has with registries to match its view of itself as a regulator. That's what this net draft represents. Although the draft refers to "consensus policies," that's an Orwellian reuse of the words — these new policies can be established if enough numbers of the Names Council want to beat up on a particular registry, and vote to do so. That's very different from the documented process established by the original contracts.

I'm an ICANN supporter. I think the ICANN experiment in governance is a good one. But ICANN needed to remain true to the idea of consensus (which was working, by the way) rather than move into simply imposing rules without accountability or legitimacy.

Whoever wants to run .net really has no choice — they have to sign this contract. This isn't negotiable, as a matter of reality. But I wanted to note that this particular element in this draft contract represents a substantial move into an unaccountable future for ICANN, and an unpredictable future for registries and registrars.

By Susan Crawford, Professor, Cardozo Law School in New York City
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Related topics: DNS, ICANN, Internet Governance, New TLDs
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