AW: [governance] ICANN Board Vote Signals Era of Censorship in Domain Names

[Lee McKnight]

Hi Wolfgang,

Good questions all.

First to review my own  history briefly, Milton and I had advocated an 'economically rational, technically/politically neutral' approach to gtld allocations a couple years ago, specifically to save the ICANN board - and staff - from having to make these kinds of political judgment calls.

OK, that was a mistake, apparently you can't take out the politics; noone wanted to go the automomatic annual auction route.  Even though auctions work fine for allocating all kinds of scarce resources.

But still, the present alternative does seem a funny spectacle: to have the iCANN board preoccupied with sex - without saying that word -  I mean deciding on .xxx versus other combinations of Roman letters.  

And the next wave of gtld applicants you point to is also what we foresaw, and warned ICANN about - this is just a small episode before the few applicants become a flood, and if ICANN says no to them all, they will all reasonably ask - their own governments if not ICANN directly - 'on what basis was this decision made?.'  And really, on what basis can the ICANN board reject any of these next claimaints? Certainly not technical, since while not trivial entriely, adding gtld's these days is about as difficult...as adding data to a database. Yeah I know it is a special database, but still.

So that gets us  back to the need for ICANN staff and associated interests to all do their homework, and read up on the rule-making procedures laid in that classic of American jurisprudnce, the Administrative Procedures Act, of 1948 I believe. Ok, I haven;t read it recently either, but point is there are some basic rules that ICANN could adopt and impose on themselves if noone else will or can; I am sure there are comparable laws passed elsewhere which could be used as models as well.  Point is it can be done by ICANN itself.  But..then ICANN is judge and jury for itself?  Sounds like a solution perhaps for ICANN, but maybe not for others.

IGPer John Mathiason, as well as many more at the Athens IGF I session organized by Parminder, discussed what an Internet Framework Convention might  be about.   So if not ICANN by itself, then isn;t this institiutionalization of oversight issue exactly the kind of thing a framework convention could help address? (And you know what, if we talk about this more at IGF II following the san juan icann meeting, then guess what, a de facto framework convention may have begun without folks even noticing...)

But really answering your question of who would be involved and how it could be managed to institute a multistakeholder review process for a global industry regulatory body - well that is not easy. 

Obviously ICANN as it stands needs some protection, even if just from itself, so it can do its job(s), and that is what the APA provided to eg US Federal Communications Commission staffers and commissioners alike: If they follow the rules, then the decisions made are usually respected by industry and the courts. Well OK, they get overturned all the time in the US courts, but the pressure for transparent decisionmaking is so strong that the FCCers try very hard to avoid that outcome.  And I am sure ICANN staff would try equally hard to avoid being overturned on review, were there an Adminsitrative Procedures Act of the Internet somehow agreed to, and some process in place, as yet only ill-defined.

When you figure it all out in San Juan, let us know! : )

Lee



Prof. Lee W. McKnight
School of Information Studies
Syracuse University
+1-315-443-6891office
+1-315-278-4392 mobile

>>> wolfgang.kleinwaechter at medienkomm.uni-halle.de 4/4/2007 11:18 AM >>>
 
Lee:

What is still lacking is an 'Administrative Procedures Act' for the Internet, in partidular to guide ICANN on how it should go about and what it may or may not consider in its decisionmaking, whether for gtld's or anything else. 

Wolfgang:
Lee, this is a good point. But who should adopt such an Act and who should guide ICANN? The DOC? The GAC? A new governmental or non-governmental body? One idea - in the long run -. could by the formation of a new hybrid organisation composed by all stakeholders with a mandat to deal with public issues and a certain authority (which could come from an intergovernmental arrangement eventually within the framework of GAC)? 
 
The chain fo controversial cases will grow dramaticially in the future. If you take only GEO-TLDs, which are labeld in the GNSO report as one group of TLDs  where we have "concerns", you will have soon an open pandora box. Projects so far which are on the horzon are .berlin, .nyc, .cym (Wales), .sco, .btn (Bretagne), .london. What about .basque, .tibet, . tchechnia, .kosovo?  
 
A good case is Germany and the .berlin proposal. The local government in Berlin (which is a land according to the German constitution) manages berlin.de in cooperation with a private company. It is naturally against the proposal arguing this would lead to "consumer confusion" (protecting their own business under berlin.de) . Paternalistic? Consumers are stupid and need guidance from the top? The funny thing is that the German Bundestag with the votes of the two main parties has adopted a TLD resolution which calls on ICANN to open the door for Geo-TLDs like .münchen, köln, .bayern etc to give consumers more chocse and to stimulate competition. 
 
Who is right? Is it consumer confusion or is it consumer choice? ALAC is planning to organize a workshop on that issue in San Juan to figure out the arguments of pro and con. But the more interesting issues is who decides on .berlin? If ICANN follows the .xxx procedure it will ask the GAC. GAC members will ask the German government but the German government has an internal problem to harmonize different approaches on the federal and the local level. If it is seen as a "cultural affair", then according to the German constiution, the federal government has no competences. Does it mean, that for such a decision ICANN has to consult with the local authorities directly? And how other governments will see this? Some may be happy to have next to the ccTLD also some big (or small) cities with a TLD for local marketing, tourism, local economy promotion, local language support (like .cat) etc. Others will fear that this will become very counterproductive, undermining national monopolies etc.
 
Where to go? And who leads the process? And which body is entitled to make a final decision? A lut of fun is waiting down the TLD road ....
 
Wolfgang
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