Froomkin Examines ICANN Legitimacy

cygnusx writes: "First saw this in the TBTF blog: an excellent 2-part article on the legal legitimacy of ICANN itself. You can read the (PDF) drafts: part 1 and part 2. The article (being a draft) forbids quoting without permission, but the essential argument is that the U.S. government has acted irresponsibly in exercising federal power, whether ICANN is an independent entity or not. Incidentally, Part 1 contains one of the best for-laymen introductions to the DNS I have read so far." Professor Froomkin is an occasional Slashdot contributor who has kept a closer eye on ICANN than ICANN would have preferred. This is an excellent paper for anyone who cares about how the Internet is and will be governed. Update: 10/13 5:58 PM by michael : Only the first link works; it contains the entire paper.

Comments

The Constitution isn't Internet-enabled

[jht]

The Constitution was not designed to handle cases like the Internet. The Internet is a global entity, but invented in the US, and dominated by us as well. It exists on a cooperative basis (the Internet is merely a huge aggregation of computers and gateways running TCP/IP), but numbering and naming do need to be administered centrally, so cooperation isn't replaced by anarchy.

The problem was that it all worked fine when Jon Postel was the benevolent dictator in charge of the system - he was relatively unbiased and had the technical credentials and experience (he was there at the beginning) that were needed to give him credibility. His death left a huge void, in more ways than one. ICANN is a "best effort" by the US government (who paid for this all in the beginning, lest we forget) to replace him with an organization with some degree of legitimacy and credibility - the benevolent dictator model was broken with Jon's loss.

Given all that, ICANN is a reasonable compromise. Other parts of the world get a voice for the first time on Internet governance, numbers are assigned in normal fashion, DNS is still a little screwy but at least NSI doesn't have a total monopoly anymore, and things keep running as always. Do some aspects of ICANN suck? Absolutely. They are way too biased towards business in domian name disputes, Esther Dyson isn't that skilled a leader (to be fair, it was kind of thrust upon her), and the whole organization, being global in scope, is falling victim to "UN-itis" - a whole batch of bureaucrats travel over the globe and eat expensive meals while doing very little.

But overall, before slamming ICANN to the mat, think about the alternatives and if there's really a better solution, short of putting the US government back in charge. Governing a mutant entity like the Internet is a tough job, but someone has to do it. ICANN needs some fixes, but I think they're the best suited to the job. Screw the APA. The only APA that I worry about is the one with Bradshaw and Farooq.

And unfortunately, we don't have the option of putting Postel back in charge - the "Weekend at Bernie's" model of governance just doesn't work in practice.

- -Josh Turiel

Use Of Government Power

[Artagel]

Traditionally, the Supreme Court has allowed broad activity by the government and its agents without direction from Congress when the scope of the activity is perceived as narrow. Initially, when ARPA was kicking this football game off, I am sure everyone considered it the most esoteric, irrelevant piece of the universe, whereupon nobody worried about it. You just make technical decisions and let it fly.

The technical decisions have non-technical consequences when the system expands exponentially in relevance, scope, and power. Although ICANN is probably not perceived as being as important as the FCC at this point, the time will come when it is perceived as MORE important than the FCC. Certainly as Froomkin recognizes, a body that is making decisions about people's substantive rights will have come into being and developed ways of handling those decisions without any guidance, delegation or even consideration by Congress.

Rather than nationalize the problems, the tendency has been to try to internationalize them so that the technical nightmare of root getting split is never raised by the need of the rest of the world to not be dominated by the US. Of course, this internationalization is not supervised by our government, or any that I can tell.

A lot worse could happen than the US Government continuing to ignore the situation. There is a reason that the Internet defeated Microsoft's initial business model executed as a closed network. I can't see how anything the government would do that would be more formal would do anything except choke the net in red tape.

Adobe's online pdf conversion tool:

[Anne Marie]

Adobe has an online tool for converting pdf files to html. Just put in the pdfs' URLs, and hurry before they get slashdotted.