[AfrICANN-discuss] ICANN and Its Responsibilities to the Global Public Interest

alice alice at apc.org
Thu Feb 11 20:58:47 SAST 2010


 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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