Tuesday, May 05, 2009

When Monopoly means arrogance and power to be arrogant

I understand the feeling of the EU (and other nations) about US hegemony. But one has to ask whether the EU's position is more a reaction to the US position than it is to a desire for better internet governance.

ICANN is a body that exists to benefit the public. But it does not do so.

Rather than being an engine of public benefit ICANN seems to be more an engine of public harm. ICANN imposes a direct cost on internet users to a tune of nearly a billion dollars a year, every year, in excessive and unjustifiable domain name costs. And ICANN has eliminated competitive forces and expelled innovation from a large part of the internet marketplace. And what amounts to a private law of the internet has been created by ICANN that elevates intellectual property to a supreme position well beyond the enactments of any national legislature.

ICANN's structure is such that it essentially excludes the public from the processes through which ICANN makes decisions.

When ICANN was formed the US Gov't and the community of internet users were promised that the public would chose a majority of ICANN's board of directors. Today the public chooses not even one Director.

As a practical matter ICANN's serves certain selected industrial interests.

ICANN, operates like a medieval trade guild or a modern combination in restraint of trade. In ICANN intellectual property interests and incumbent providers collaborate to set prices, define products and terms of sales, and prevent the entry of new providers.

People who are willing to engage in lawful enterprises and risking their own money have been denied by ICANN.

The internet has come under a lex-ICANNia, a regime in which ICANN has created rules of trademark-over-anything-else. ICANN is also being pressured, and has on at least one occasion, acceded to national political pressures to restrain internet content. This combination of trademark protection, non-offensive domain name semantics, and ICANN mandated business practices heralds a new kind of internet AUP - Appropriate Use Policy - that is slowly being imposed upon non-consenting internet users.

ICANN's mission has drifted from that of assuring the technical stability of the domain name system and IP address spaces to a body that engages barely at all with technical coordination and almost entirely with the regulation of business, intellectual property, and economic practices.

And that alternate mission is growing rapidly: ICANN's budget is on an accelerating up-curve that will soon make ICANN the size of the ITU.

ICANN has improved of late.

For example ICANN is making noises about allowing a glimmer of real public participation. And ICANN has begun to suggest that it might perhaps begin to pick up some of its intended role as a protector of internet technical stability.

But these steps are largely unfulfilled and exist as expressions for a possible future, not as histories of tasks completed.

All of this suggests that it would be rude for the US Government to relinquish its already tenuous oversight until ICANN reformulates itself to be a body that serves the public interest and is accountable to the public.

The first step for this would be for ICANN's Board of Directors to be chosen by those for whose benefit ICANN exists - the community of internet users.

The second step would be for those directors to recognize that they are in ultimate charge of ICANN and the best word in their arsenal is "no".

The third step would be a retreat of ICANN back to its intended role as a coordinator of technical matters in DNS and IP address spaces to promote the technical stability of the internet - which, for the domain name system, I define thus: The efficient, speedy, and accurate translation of DNS query packets into DNS response packets without prejudice for or against any query source or query name.

The forth step would be to re-open those things that ICANN that go beyond its proper role. By this I mean, for example, that ICANN should re-open its UDRP, ICANN's private law of trademark-over-other-speech and the ICANN created system of courts to apply that law.

I have read ICANN's preliminary strategies for moving beyond US. These strategies do not create a shining example of corporate transparency and accountability but, instead, create an even more muddy system of multiple entities in multiple countries operating under multiple and inconsistent laws. ICANN governs through contracts. And some of those contracts would remain under US/California law and other contracts for virtually identical relationships would be under Swiss law. The ICANN that resulted would be a model of impenetrability.

I would suggest that the EU and other countries not take the easy road of saying to the US "set ICANN free" but, instead say, precisely and in concrete terms, how that can be done so that the resulting body is more accountable, transparent, and open than the existing ICANN.

Karl Auerbach

Whatever it is, what counts is the results...if results have to be expected
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