[governance] limits of technical jurisdiction

[Karl Auerbach]

yehudakatz at mailinator.com wrote:
...
> Or ICANN's mandate that there be registries who only sell via accredited
> registrars? Is that technical coordination, if so why? 
..
> RegisterFly provides us with an interesting contest to examine.

> SO... What validity does Icann have at all, when Registrars can operate
> un-accredited, even after US Court rulings?

My series of questions have been based on the idea that any body of 
internet governance must have a clearly defined job and that it must 
actually do that job and refrain from doing other jobs.

In the language of nations we tend to express that thought by using the 
modifier "constitutional", as in "constitutional monarchy".

Now, looking at the RegisterFly situation:

Yes, consumers deserve protection.

But is consumer protection ICANN's job or is it the job of 
somebody/something else?

If it is ICANN's job, in other words, if ICANN is in fact a 
supranational consumer protection agency, then that fact ought to be 
clearly expressed in its job description.

Moreover, if ICANN is in fact a protector of consumers, it really ought 
to do that job.

Now to do that job it would need to do several things:

   - Allow consumers a real role in the way it makes its policies.  This 
is not today the case.

   - Actually enforce those policies (for example, ICANN's been 
postulating data preservation - escrow - ever since its inception.  Yet 
it has never been deployed.)

   - Provide consumers with third party beneficiary rights under ICANN's 
contracts with registries and registrars.  This would allow consumers of 
domain names to intercede and redress failures of those contracts in 
situations, such as RegisterFly, when ICANN turned a blind eye.

   - Replace its "ombudsman" with something that actually functions. 
The most appropriate mechanism would be via Directors that are chosen by 
a direct or indirect electoral process in which consumers get to vote.

   - Impose operational requirements at the root and TLD levels that 
assure that domain name query packet are quickly, efficiently, and 
accurately transformed into domain name response packets without bias 
for or against any query source or queried name.

If measured using the words of baseball - ICANN's been batting 0.

We do have to give ICANN a bit of credit, however.  If they do try to 
become a consumer protection body they are greatly understaffed to do 
so.  There are some good people in ICANN - Dan Halloran for example - 
who work their tails off trying to keep ICANN's registrars walking the 
straight and narrow.  If we do want ICANN to really undertake the role 
of a consumer protection body we ought to realize that ICANN would need 
to grow - to grow into a fully flowered regulatory body not unlike the 
US Fair Trade Commission (FTC.)

Now, on the other hand, if we define ICANN using the terms that were 
used to justify ICANN's creation - "technical stability" then only the 
last of those points above would be relevant and ICANN could shrink back 
to be a tightly constrained and focused body.

Now, my sense of the bulk of opinion is that ICANN is not felt to be a 
vehicle for consumer protection, but is more a vehicle for something 
more of a technical regulatory role.

It is indeed sad that the RegisterFly situation occurred.  Although it 
did not affect me, I do have friends who lost non trivial amounts of 
money and investment in brands built on names registered via registerFly.

But perhaps one might step back and ask - are there existing laws about 
what happened at registerfly?  Was there a breech of contract with 
consumers?  Was there fraudulent or misleading activity?  Perhaps the 
remedies sought would be better found by looking to traditional civil 
and criminal law than to a body of internet governance.

		--karl--


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