• Marcel Schneider (switch.ch)
• Reply by Hans Klein
• Richard Henderson

Thanks for the CYBER-FEDERALIST No. 14. While I find all these initiatives important I wonder if it is appropriate to only bash 
ICANN for what it does.

According to my understanding ICANN is a project of the USG. USG's behavior - as we encounter it on multiple occasions - is to look for itself in the first place. If USG considers any activities as not serving US interests it is likely to veto against them or seeking to
act in a way which serves their interests in the best possible manner. 

This sounds probably a bit anti-US but it is how USG activities are sometimes perceived and it is fully understandable. IMO, the USG is  aware of the importance of the Internet and tries to keep it stable  and secure and it is, again IMO, only the USG (of all governments) that is capable to ensure this.

ICANN itself has never claimed to be democratic. I think its most powerful influences come from VeriSign (where the money comes from) and the USG (where the power comes from). ICANN only has contractual power (private law) and I am not aware it has been given sufficient power by the USG, at least it has no 'public law power'and I am not aware of any worldwide law or decree introduced by a private company.

So the question is how to introduce democratic forms in a private company and which democratic forms, if any. Would e.g. the Chinese have the same understanding of democracy as we have ? 

It is my understanding that ICANN has realized that they cannot be a testbed for worldwide democracy or consensus building. Especially due to their close ties with the USG they have to abide by any decisions made by the USG and if you look back at all important 'decisions made by ICANN' you will realize that they in fact were USG decisions.

The ICANN experiment has IMO resulted in the conclusion that a private company cannot be given power for global policy-making. It will always have to rely on one or more governments to support it.

If we leave ICANN with just contractual power it will be able to enforce this power only on its contractual partners.

So, instead of bashing ICANN, I wonder if it would not be more  important to bash our governments - all of them - with the objective
to work out a model to better link private and public sector and to obtain the benefits of both for the Internet.

This of course only if ICANN' mission really is to introduce global  policies.

Marcel

Thank you for your thoughtful comments. 

Let me start by briefly discussing the term "bashing." 

When I argued that ICANN simulates legitimacy, I offered a logical line of reason supported by evidence.  So if by "bashing" is meant that I made unfounded or wrong criticisms of ICANN, then I disagree.  I think the criticisms were based on evidence and logic.

As I understand your comments, you ask why one should criticize ICANN if 1) real power lies with the USG, or 2) ICANN has no real policy-making power (only private law), or 3) ICANN was never meant to be a democracy.  I will address these points in turn.

First, ICANN was intended to be democratic.  The 1998 terms of privatization specified a balanced board of user representatives and industry experts.  User representation was probably the most important issue in the by-laws process.  Furthermore, at the time of privatization ICANN committed itself in a letter to the Department of Commerce to elections. Esther Dyson wrote: "The bylaws now make it clear that the Board has an unconditional mandate to create a membership structure that will elect the At Large Directors of the Board..."  ( See: http://www.ntia.doc.gov/ntiahome/press/ICANN111098.htm )

Subsequent experiences and studies also endorsed elections.  The 2000 elections had some problems, but as an ambitious experiment in global voting it was remarkably successful.  The Board's own At Large Study Committee endorsed continued use of elections. 

The judgment that elections didn't work and that user representation was a problem originated with the ICANN staff.  The staff took a position contrary to the terms of Internet privatization, the commitments of the Board, and the recommendations of their expert committee.  The staff's decision to eliminate user representation and elections (i.e. "democracy") was the "palace coup d'etat" to which Charles Costello referred.

The record is clear: ICANN was intended to be democratic.

ICANN also has significant policy-making powers.  It regulates market entry in the DNS market.  It regulates conditions firms must impose on registrants in their domain.  It defines property rights in domain names.  (The UDRP can be appealed to courts, but this option is so expensive that, for practical purposes, the UDRP has the effect of law.)  Last month's CENTRE letter, signed by DENIC and others, called for a "lightweight ICANN."  To most observers, that meant that the signatories wanted an ICANN with less regulatory power.

ICANN does have regulatory power.  That power could easily expand in the future.

As for the role of the US government, I agree that this is a difficult issue.  Who do we prefer?  The choice seems to be between a private corporation making regulations in an unaccountable manner and a national government making rules for the world.  This is not a very appealing choice!  Perhaps the better approach would be to propose a third alternative.  I believe an open and accountable ICANN is the best solution.  Elections remain the most practicable mechanism for this.  We should implement the original terms of privatization.  Others believe that a decentralized organization is better.  They would break up ICANN into many different organizations. 

For now, I think that users and industry players can be happy that there is some higher authority that constrains ICANN, even if it is a national government.  I recognize that US oversight may not be a long-term solution, however.

We are entering a critical period for ICANN.  It Memorandum of Understanding is up for renewal.  It is my hope that this will provide an opportunity to save ICANN and to make it the kind of organization that it was originally intended to be.

Hans

Outstanding article. Thank you.

I'm going to find this material very useful as I organise my own thoughts. I
think it's a really useful summary.

I would add, that I think the ICANN leadership uses very selective
engagement, failing to participate in awkward debates, failing to answer
inconvenient questions, failing to answer mail rather than face the detail
of difficult questioning.

I think there should be a "responsiveness" policy which requires recognised
and serious mail to be answered. I also think the public forums are
undermined by the failure of the ICANN leadership to participate in them.

Too often, they use evasion to "hide" from real questions. There is
insufficient open and transparent dialogue.

Thanks again for this article.

Richard