[governance] ICANN head warns against putting Internet

[Karl Auerbach]

On 05/27/2010 07:37 AM, George Sadowsky wrote:

> Given Adam's comments below, perhaps you would be willing to suggest
> some concrete areas in which ICANN could be more nimble (or choose your
> own adjectives) while ensuring responsiveness to community inputs.

Well there is one big way to "nimblefy" ICANN:

That would be to step back and ask "what job is ICANN supposed to be 
doing?"  I would posit that the answer does not include the kind of 
economic and business regulation that is absorbing nearly all of ICANN's 
time and efforts.

How do we measure what is properly ICANN's task?  I would suggest that 
we go back tothe original mantra of "technical coordination" and define 
that.  I suggest the following formulation:

   Technical coordination of DNS is the task of assuring (not 
guaranteeing) that at the upper tiers of DNS (root tier and delegation 
to TLD) domain name query packets are promptly, efficiently, and 
accurately transformed into domain name response packets without 
prejudice against the source of the query packet or against any 
particular "question" or resource record that is contained in those packets.

By that metric ICANN could be "nimblified" back to size in which all of 
its people could fit into a Volkswagen or two.

I mean, for example, what reasonable grounds exist to sustain an 
argument that rules against cross-ownership of registrars and registries 
is somehow part of "technical coordination"?

ICANN and the US government have recently "affirmed" that ICANN is not 
an instrumentality of the US government and that ICANN does not have any 
government imbued privileges or immunities.  That leaves ICANN rather 
naked against claims that what it is doing outside of the realm of 
"technical coordination" is restraint of lawful trade and the imposition 
of an incumbent protecting guild structure onto the internet.

Most modern nations have laws, complex laws, about that kind of thing. 
Many of those laws impose draconian penalties.  By my rough measure 
ICANN could find itself facing claims amounting to billions upon 
billions of dollars in damages.  Even if ICANN were to prevail in the 
end, the fights would utterly ossify ICANN during the legal proceedings.

ICANN's chosen structure is to have ICANN at the vertex of a pyramid of 
contractual relations.  If ICANN suffers a blow on the grounds that it 
is engaged in improper restraint of trade, in any of the hundreds of 
jurisdictions around the world, by virtue of its expansive activities, 
then that vertex could shatter and the entire hierarchy of contracts 
will shake and possibly collapse.

And because ICANN has purposely excluded third party beneficiary rights 
from that hierarchy of contracts only the parties and not the public for 
whose benefits those contracts (and ICANN's legal existence) are 
premised, will not be able to step forth and demand that the terms be 
enforced.

	--karl--


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