[governance] Is ICANN "engaged in commerce" ?

[Karl Auerbach]

Mawaki Chango wrote:
> In your model, which seems free of any policy authority or
> political (or not) oversight, who will authorize changes in the
> DNS root?

Good question, and one that has been asked many times over the last decade.

Here is the answer I have been giving, with minor variations, since 1997:

First of all, neutral criteria should (or rather must) be used to determine who 
can apply.  In order to avoid engaging in social or economic engineering (or 
rather, in order to leave that to established legislative bodies), the only 
question that should be asked is whether the applicant will abide by widely 
accepted and used written internet technical standards.  If the answer is "yes" 
then we go onto the next step; if not, the applicant is sent away.

Personally I feel that the applicant should be applying for a "slot" rather 
than a "name".  A "slot" is a right to have a name of the applicant's choosing 
put into the root (as long as that name is not already in use and that the name 
does not violate IDN and other technical limitations on the characters that can 
be used in a name.  No attempt should be made to inquire into the semantics of 
the name or the intended use either via HTTP or any other protocol.)

Given that we want to avoid human procedural errors, the rate at which new TLDs 
are added should be something that can be handled by one person (assisted by 
program scripts) working on a normal full-time basis.  I estimate that the 
average time to add a new TLD ought to be less than 5 minutes.  That's roughly 
100 TLDs each day.  But for now let's say that the number is one per your, or 8 
per day, 200 days per year, or about 1600 TLDs per year.  After a year or two 
that rate could be increased substantially.

There will certainly be more applicants than that rate can provide.

So we need an allocation mechanism.

It has long been urged that the most appropriate mechanism is an auction for 
the bulk of the slots and a lottery for some rather smaller remainder.  The 
lotter is there to allow some names to go out for the price of a lottery 
application - a few dollars - rather than the auction price, which will tend, 
particularly at first, to be bid up rather high.  (And yes, many lottery 
winners will simply turn around and sell their slot.  And yes, many well heeled 
interests will buy lots of lotter applications.  But our goal should be a 
usable system, not a perfect one.)

This is a clerical, non-discretionary system.  It could be contracted out to be 
performed by companies that do asset management - Accounting companies come to 
mind as the kind of company to whom this kind of clerical job could be 
assigned.  And since the job is mainly clerical, oversight to ensure that it is 
being performed properly is not hard and indeed, because it could be done in 
the public eye, direct public oversight is quite possible.

By-the-way, I try to avoid the phrase "the DNS root".  The reason that I do 
that is because there can be, and are, multiple DNS roots.  Whether one is 
"authoritative" or not is in the eye of the beholder; DNS authority arises fro 
m use by users, not by imposition by some super-authority.  In that sense, DNS 
authority is a fugitive asset, it can flow to another place if pushed or pulled 
by users.

		--karl--
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