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posted by mpawlo
on Thursday October 31, @04:18PM
from the wishful-thinking dept.
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- I feel like a total schmuck.
- Don’t worry, we all do.
I was standing in a small crowd. On July 24-25, 1998 the International Forum on the White Paper (IFWP) arranged a conference in Geneva.
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The conference was one of a series of meetings (earlier meetings: Reston, Brussels) organized in order to create a new organization to administrate the domain name system (DNS), related intellectual property issues and other common Internet resources. The plan for this new non-profit organization would be to eventually replace the current Internet Assigned Numbers Authority (IANA).
The guy next to me – who also felt like a schmuck – was Jonathan Zittrain. We had both just witnessed a plenary session with a brief message from Ira Magaziner, representing the US government. Magaziner told the audience that the US government has an interest in Internet governance due to historical reasons, but that the US government would leave the Internet governance as soon as possible. Magaziner stated that the time for arguing was over and that the US government was looking for a new, private, stakeholder-based organization to start Internet governance by September 30, 1998. Magaziner also said that the US government was looking for consensus among the stakeholders, not different proposals as to how this organization should be managed or formed. Following this message, Ira Magaziner chose to leave the conference, since the US government, according to Magaziner, won't be involved in forming the new organization.
The next speaker in the plenary session was Christopher Wilkinson of the European Commission DGXIII. Wilkinson acknowledged the efforts made by the US government, with certain reservations. Wilkinson firmly remarked that national and EU law must be recognised in the creation of the new entity, as for trademark and competition law. Wilkinson thought that it would be acceptable if the new entity was situated in the US, but that there should be safeguards in this area, so that no country would dominate Internet governance.
Following the plenary session was couple of breakout workshops. I entered a workshop that aimed at developing a constitution or charter of the new entity defining the scope and limits of its power. Larry Lessig led the workshop. The workshop slowly paced forward in a rather non-constructive way with very little coming out of it, in spite of great efforts by Lessig. I later learned most workshops had similar outcomes.
The reason I felt like schmuck was because I could not figure out how a new organization could be formed in the time frame suggested by Magaziner.
I was soon to be even more dumb-founded. Out of a pink cloud and in no way related to the IFWP meetings a new organization emerged. This was ICANN, the organization we still know as the DNS government, if there is such a thing.
However, it soon became apparent that ICANN was not a viable solution. The organisation lacked in transparency and accountability. It was hard to know what ICANN did and why. Its records were not made public, not even to some directors on its own board. Directors of ICANN seemed to take little or no responsibility for the flaws in ICANN’s management and policies.
Law professor Charles Nesson once asked me during a public session with ICANN Chief Policy Officer Andrew McLaughlin to whom ICANN should be held accountable. At the time, I was dumb-founded (as you can see that happens to me a lot when it comes to ICANN). Today I think it is easier to answer the question. ICANN and its board members need to be held accountable to the Internet community. This is not easy to achieve. If you consider the Internet community on a global level it is very diversified, both in values and in construction. Should governments, companies and users have their say on the same merits?
To me – there can be only one answer to the problem. The only regulation that I consider sound is a global regulation based on the participation of nations. The work of ICANN affects mostly those who still have not found their way out on the Internet. To make domain name ownership a condition for voting rights in the election of the ICANN board (as suggested by Carl Bildt’s At Large Study Committee) is therefore not appropriate. Current domain name holders should be most interested in decreasing the amount of new top-level domain names. New top-level domain names will lead to inflation in the legal and economic rights of the domain name holder. If Bildt's suggestion is approved and used, we will create a domain name regulator that lacks severely when it comes to representation. Only the landowners will get to vote. The connection between ownership and voting rights was a la mode in Europe at the mid-19th Century, but as an instrument for democracy in the 21th Century I consider the concept dusty and obsolete.
A new top-level domain name can lead to multiple registration of the same domain names and defamation and degeneration. A "good" domain name will be less worth if it's available under multiple top-level domain names.
However, it will benefit society if the name space is widened, while it will lead to more competition and innovation.
Hence, I find it more suitable to make as many nations as possible, offline or online, participate in ICANN or an organisation replacing ICANN. It can be achieved through the United Nations or a similar body. We have to bear with the risk of red-tape methods, even more bureaucracy would have users better off than with today’s system.
It should be noted that what I discuss is merely a regulation of new top-level domain names. In case ICANN or another domain-name regulator should have a wider scope of power and decide upon other technical measures, ICANN needs to get such a mandate. I am afraid that many people involved consider a widened ICANN with a broadened scope and a new government for the Internet. David Holtzman put it the best:
- If we're going to have a world government, then I want a revolution first.
I do not want to feel like a total schmuck anymore. I have done that for four years. It is time to fix ICANN.
Mikael Pawlo
Mikael Pawlo is an associate of the Swedish law firm Advokatfirman Lindahl. On nights and weekends he works as an editor for the leading Swedish open source and free software publication Gnuheter. He is also contributing editor of the Harvard Berkman Center publication on Internet law issues, Greplaw.org.
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