AW: [governance] ICANN Board Vote Signals Era of Censorship inDomain Names
Carlton A Samuels
carlton.samuels at uwimona.edu.jm
Thu Apr 5 14:59:04 EDT 2007
Lee:
Many thanks for this very thoughtful discourse.
Carlton
The University of the West Indies
[BTW, I confess that while Im not American well, civic American! - I did
read the Administrative Procedures Act
.and allied other treatises. Helped
me immensely!
-----Original Message-----
From: Lee McKnight [mailto:LMcKnigh at syr.edu]
Sent: Wednesday, April 04, 2007 11:10 PM
To: expression at ipjustice.org; governance at lists.cpsr.org;
NCUC-DISCUSS at LISTSERV.SYR.EDU;
wolfgang.kleinwaechter at medienkomm.uni-halle.de; Milton Mueller;
goldstein_david at yahoo.com.au
Subject: Re: AW: [governance] ICANN Board Vote Signals Era of Censorship
inDomain Names
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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