[kictanet] ICANN and Its Responsibilities to the Global PublicInterest

[Harry Delano]

Thanks Alice for this objective assessment.

It's indeed a delicate balancing act for ICANN, and we can only hope it
lives up to serving the 
common global good for the sake of all..

Again reminds me, - ICANN is coming to Town in about 4wks. What is the
latest..?

Harry



-----Original Message-----
From: kictanet-bounces+harry=comtelsys.co.ke at lists.kictanet.or.ke
[mailto:kictanet-bounces+harry=comtelsys.co.ke at lists.kictanet.or.ke] On
Behalf Of alice
Sent: Thursday, February 11, 2010 9:59 PM
To: harry at comtelsys.co.ke
Cc: KICTAnet ICT Policy Discussions
Subject: [kictanet] ICANN and Its Responsibilities to the Global
PublicInterest

http://www.circleid.com/posts/icann_and_its_responsibilities_to_the_global_p
ublic_interest/

 ICANN and Its Responsibilities to the Global Public Interest

By David Maher


In 1998, the United States government might have taken a different path in
asserting its control over the technical administration of the DNS. 
It might have asserted full U.S. governmental control, or it might have
turned over the functions to an international body such as the International
Telecommunications Union. Instead, it created a "private-public
partnership", incorporated as a California "nonprofit public benefit
corporation", with a charter giving the company a dual mission of
quasi-governmental functions combined with responsibility for operational
stability of the Internet.

In all its deliberations, the ICANN Board must maintain a balance in its
mission of lessening the burdens of government and promoting the global
public interest in the operational stability of the Internet. ICANN has the
responsibility to draw the fine line dividing two contrasting areas, one
where it should not go, and the other where it risks not doing enough. On
the one hand, ICANN cannot become involved in areas such as content control
and rule making in areas unrelated to operational stability. On the other
hand, ICANN's self image as technical coordinator has at times constrained
it from taking action necessary to discharge its public interest
obligations, such as, for example, requiring registrars to comply with their
contractual obligations.

ICANN's recent attempts to find a way to insert new top level domains in the
root zone file illustrate the difficulties of achieving this balance. From a
purely technical point of view, there is room for many additional new gTLDs
in ASCII and in IDN.IDN versions. There are concerns about stress on the
root zone, but it appears that this is a manageable risk, and ICANN is
taking responsible steps to deal with it.

On the other hand, the whole question of how new generic top level domains
would serve the public interest has never been openly considered by ICANN.
The current proposal for an Expression of Interest proceeding illustrates
this. Instead of being a straightforward determination of who might want to
apply, the proceeding risks becoming an avenue for well-financed commercial
applicants who treat the domain name system as a species of investment
opportunity comparable to real estate. This is a far cry from the public
interest in making names available to people who want to use them.

The proposals for selection of new top level domains present even more
serious problems. There will very likely be multiple applicants for some
popular strings, and ICANN has the job of selecting from among the
competitors. There will also likely be applicants for strings that are
obscenities or phrases intended to inflame social or religious conflict. 
>From the standpoint of ICANN's obligation to serve the "global public
interest in the operational stability of the Internet", ICANN cannot allow
these into the root.

In addition, there is the continuing problem of minimizing trademark
infringement opportunities. For better or worse, the United States
government demanded in 1998 that ICANN become the enforcer of a global
system of trademark rights. This quasi-governmental function, in the form of
the UDRP, became part of the otherwise more technical duties assigned to
ICANN. The extension of this involvement with trademarks is possibly the
most serious test of ICANN's abilities to promote the public interest.

ICANN's Draft Application Guidebook (the "DAG") for new gTLDs attempts to
find the appropriate mechanisms for taking into account the sometimes
conflicting responsibilities described above. The first and second drafts,
issued in October 2008 and February 2009, respectively, were not successful
in many respects.

These drafts demonstrate, all too clearly, ICANN's reluctance to face its
public interest responsibilities. ICANN proposes to create a system of
independent decision makers to decide such questions as likelihood of
confusion between different proposed strings for new gTLDs, alleged
infringement of legal rights by a proposed string, and objections based on
morality, public order and community objections. Of these, the first and
second are probably amenable to objective determinations based on
internationally recognized principles of trademark law, although there are
serious questions as to how far ICANN should go in creating what amounts to
international law. As to the questions of morality, public order and
community objections to applications for new gTLDs, these can only be tested
against conceptions of the public interest. ICANN apparently believes that
getting a third party to do this work relieves ICANN of its
responsibilities. There are two problems with this approach. First, there is
nothing to indicate that any third party has either the expertise or
authority to make these judgments better than ICANN, and second, ICANN's
mission to serve the public interest does not allow it to delegate its
responsibilities to outsiders.

Further, ICANN apparently hopes that its self-serving requirement that all
gTLD applicants waive all legal claims against ICANN will insulate it from
litigation. ICANN is certainly justified in its fear of litigation. As a
creature of California law and subject to US federal law, this risk is
always present. However, attempts to pass off to third parties ICANN's
obligations to make judgments about the public interest will not lessen this
risk, and may in fact increase it. The waiver of legal claims applies only
to applicants for new TLDs, not to third parties that may be adversely
affected by the process.

As another example of ICANN's failure to face up to its responsibilities,
ICANN proposes to create independent evaluation panels to choose from among
conflicting applicants for the same new gTLD string. The call for
expressions of interest states that evaluators must be capable of exercising
subjective judgment. ICANN may have a legitimate need to consult with
outside experts, but they cannot be allowed to make the final decisions.
There are no grounds for a belief that a third party's subjective judgment
would give better results than decisions made by ICANN's Board. The Board
clearly must face up to its responsibility to make judgments in the public
interest, based on the experience and expertise of the Board members.

To ICANN's credit, it finally realized that there is a connection between
the creation of large numbers of new gTLDs and the public interest in
preventing a vast increase in cybersquatting and the spread of fraudulent
practices. The first two drafts of the DAG neglected to deal this issue in
any serious way, but since then ICANN has taken steps "to develop and
propose solutions to the over-arching issue of trademark protection..." It
is still an open question whether or not ICANN's current proposals will be
adequate to serve the public interest in protection of the legitimate rights
of trademark owners.

ICANN has not been so successful in dealing with other overarching issues.
In October, 2006, ICANN's Board asked that a comprehensive economic study be
completed before the introduction of new gTLDs, but it was never made.
Instead, ICANN produced economic studies that purport to justify its
proposals for a radical change in the policy of separation of registry and
registrar functions. Whether or not this change will serve the public
interest will apparently be judged by the results of the experiment, and not
by a considered weighing of relevant evidence.

Even when ICANN grasps the concept of its public interest responsibility, it
does not always come up with a reasonable approach to a particular problem.
For example, the current proposed base agreement for new registries includes
a provision allowing ICANN to amend the agreement unilaterally. While there
may be a need from time to time to take account of changing circumstances,
this brute force approach can hardly be justified as serving the public
interest in a stable relationship between ICANN and the new registries.

Despite the concerns outlined here, ICANN has done most of the right things
it was created to do and it continues to deserve our support. It is very
unlikely that a single government or international organization could better
fulfill the obligations undertaken by ICANN. However, a lot of work remains
to be done, and ICANN must pay a great deal more attention to its global
public interest responsibilities.


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