Re: [ga] Re: iCANN's protection

[Thomas Roessler <roessler@does-not-exist.org>]

On 2001-04-17 16:46:37 -0700, Kent Crispin wrote:

>> Now, that means that the USG de facto has the control over the
>> DNS name space.

> That is far too simplistic, and that is in fact precisely the
> interesting question that Froomkin mentioned briefly, and then
> studiously ignored.  The USG has *asserted* that control, but
> that control is far, far more problematic and tentative than it
> appears.  

[...]

> This constraint of "not doing anything really stupid" seriously
> undercuts the simple statement that the "USG has defacto control". 

Still, the USG has some kind of control over the root. What Froomkin
is saying is (heavily simplified) that (1) the USG is bound to
constitution and law when exercising that control over the root, and
that (2) handing over its powers to any other party is most likely
leading to legal difficulties.


>> (Of course, the actual question to be answered is how this
>> monopoly can be fixed or brought under control.  Would
>> competition help?  Or couldn't it persist on that market?  What
>> kind of control mechanisms should be established so the single
>> player in that market is forced to take into account public
>> interest?)

> I'm sorry, but I think your analysis of ICANN-as-monopoly is
> *very* far from describing ICANN's real behavior or its real
> nature or even it's possible nature. I think a far better model
> for ICANN would be a professional society, or a industry
> standards body.

Let's diregard the USG's role, and let's look at the product ICANN
is offering to the public: The root zone file.  ICANN is currently
the only source for a generally-accepted root zone, that is, ICANN
is a (probably natural) monopoly on the market to root zone files.

As a consequence, ICANN controls - directly or indirectly - the
conditions under which domain name holders, registries, and
registrars act.

The fact that there is no competition to ICANN in particular means
that the marketplace can not take its role as a powerful instrument
of control.

Thus, ICANN is in a rather comfortable situation: As long as it's
not failing in a catastrophic way, customers will not replace it (by
another monopoly?).

You'll now, I guess, argue that all relevant stakeholders are
represented on ICANN's board of directors, that ICANN is getting
advice from the supporting organizations, and that additional
control over ICANN is unnecessary.  In arguing that way, you miss
two points: (1) The directors, once elected, have the duty to act in
the best interests of the corporation.  What if these interests are
not in line with those of the supporting organizations, or the
internet at large? (2) Supporting organizations are asked for
advice.  They can't veto, so by design, they can only exercise weak
control.  (Being able to recommend (!) the replacement of directors
isn't sufficient, since it is only a very coarse form of control.)

All this leads me to the conclusion that additional control must be
exercised over ICANN.  Electing members to the board may provide
some (very limited) remedy, and will certainly add to the
equilibrium of powers.  It is certainly not the grant unified
solution for all of ICANN's problems.

In fact, other mechanisms for controlling ICANN should be sought,
and this search should also concern the supporting organizations'
possibilities to control ICANN's activities.


Let me, finally, come to your mentioning of professional societies.
These societies have a role which is very distinct from the one
ICANN takes.  In particular, their rulemaking is usually subject to
members' approval and control, and it is usually only addressed at
members.  Both properties are not present with ICANN.  (Just to give
a simple example: There still is no such thing as an individual
domain name owners' constituency - but still ICANN makes or
implements rules which directly affect individual domain name
owners.) Also, these societies normally don't choose freely whom to
admit to a certain market and whom not.  A procedure such as the one
we have seen with respect to the new TLDs last year would be almost
unthinkable in the context of most such societies.

-- 
Thomas Roessler			    <roessler@does-not-exist.org>
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