Lessons Learned From the ICANN Process

1. Lessons Learned From the ICANN Process & from the ICANN-critique process…. A. Michael Froomkin U.Miami School of Law ICANNWatch.org

2. Guiding Maxim for this Talk • “Always make new mistakes” - former ICANN BoD Chair E. Dyson • Underlying question: Is the ‘reform’ plan making new mistakes, or institutionalizing the old ones?

3. What I learned from the IFWP • Lesson: Need to be organized • Future ICANN CEO destabilized the IFWP • cf. Milton Mueller’s book • No one knew he was negotiating to run ICANN • Lesson: ICANN fights dirty • Lesson: Disclosure matters • If we’d known then, we’d have acted differently

4. ICANN Formation • DoC made ICANN promise half the seats to elected public representatives • ICANN didn’t • Mutable documents mutate • Gaps will be used against you • Elections promised, vanished • Board Squatters promised to vanish, stayed • ccTLD re-delegations (e.g. ICP3, .au) • ICANN Doesn’t (Can’t?) Keep Promises

5. Middle ICANN • UDRP - the decision-making process wasn’t observed • On other issues - insiders can use process to block things • Lesson: Some are more equal than others • Lesson: ICANN manipulates terms (“consensus”) to suit insider interests

6. Major Process Failure: New gTLDs • Bad institutional design produces bad decisions if only due to lack of information, bad weighing of facts • ICANN failed to examine technical basis (if any) for constraints on new gTLDs • ICANN used expensive and not too competent consultant (Arthur Andersen) • Directors with conflicts participated in all discussions

7. Lessons From Process Failures • Conflicts of Interest Matter • Big Picture Lesson Debatable: • Some say it’s hopeless • Some say the answer is new personnel • Some say the answer is break it up

8. Lesson from ccTLD Experiences • ICANN manipulates the rules on re-delegation (ICP 3), then doesn’t follow them (.au) • ccTLD’s can’t get routine updates from ICANN, unless they sign ICANN’s “obey & pay” contracts -- almost none have • Reform says if ccTLDs don’t sign they don’t vote • Lesson: Blackmail happens

9. Lessons from the Auerbach Lawsuit • ICANN’s motives are obscure: Personal animus? Smoking gun document in file? • Seems as if all ICANN’s legitimate interests are protected by background California law, no need for extras • ICANN needs new lawyers? • Members of Board need help in understanding their duties, especially non-US directors who may over-rely on lawyers, rather than big picture interests

10. Department of Commerce • Smart folks with busy lives • Courts are not the answer -- too expensive • DoC’s NTIA has other priorities, will only act if forced to or if it is easy • Make it easy for DoC