The Root of All Evil? A.Michael Froomkin Professor, U.Miami School of Law http://www.law.tm
Two stories • (1) The classic story: chokepoints, taxes and controls • (2) The real story: chaos and adhocracy • The second story is a problem in its own right. • It also makes it impossible to disprove the first.
An Internet “Choke Point”? • If your TLD is not in the root you are essentially invisible • Network effects • Inertia • Changing is ‘fiddly’ or controlled by someone else upstream from you • All this can (and probably will) change
(Ab)use of the Root • How • Flow-down terms of service • Legal claims of ownership in names, right to list TLDs or SLDs • What • Who gets to be seen • Anti-cybsersquatting, anti-spam rules • Privacy rules • Content controls (filters?)
Who Controls the Root? • Today: U.S. Commerce Department • Some issues as to legal authority • Not many issues as to power: NSI accepts that Commerce controls entry in root, entry of new TLDs • Disputes with NSI as to “ownership” of data relating to registrations
Enter ICANN • “Virgin Birth”? • “Original sin”? • Does ICANN control the root today? NO. Commerce does. • Commerce says it intends to cede control to ICANN--but it is NOT required to • ICANN acts as if it is in control
Suppose ICANN Controls the Root • Two cultures: Engineering & Lawyer • Engineer: focus on results (“Does it float?”) • Laywer: uses Holmes’ “bad man” approach - ask not what is likely; ask what is possible (“How easily does it get out of control?”) • Lawyers Care about process • Lawyers are nasty suspicious people • Constitutions are written by lawyers
Bad Things? • “Taxes” on domain names & IP allocations • Conditions on the use of resources • Contractual model is highly insulated from review • First UDP (includes USE restrictions now); then privacy; then… • Some of these might be great rules • Some might not • Where there is not trust you need process
The Real Evil: A Really Lousy Governance Model • Governments are a product of a long evolution. They have rules... • On representation (feedback control) • Notice • Voting • On self-dealing (data corruption) • On procedure (protocols) • On external checks (boundry conditions) • Due process; even lawsuits
The ICANN Structure Is Seriously Defective • “With all due respect … we are less interested in complaints about process" and more interested in "doing real work and moving forward.” • The procedure IS the real work at this stage • Like software, if you start with a bad architecture, you pay for it downstream
Sample Defects • Byzantine structure • Legitimation crisis • Creation, Funding, Spending • Expectation / outcome mis-match • Flawed representational structures • That manipulable “consensus” • “The ICANN board does not "see a global consensus demanding that ICANN hold all its meetings in public."
ICANN: Rulemaking adhocracy • Notice, formality, regularity, consensus issues • Timing • Role of working groups • Voting rules • Bylaws conflicts
“All Those Lawyers Going on About Rules” • You can run a system on trust - but only so long as the trust is there. • Rules protect people. • Notice • Conflict of interest • Separation of powers • They define the conditions for participation. • They make deciders jump through hoops they’d rather avoid.
Internet Participation in ICANN (Not?) • Physical attendance at meetings seems critical • The medium has not been used well • With the honorable exception of E.Dyson, the Board is invisible • If you participate virtually, with delays, written rules are ever-more important
Making Participation Meaningful • Participation is a good in itself • More input may make better decisions • It’s the right thing to do • Participation is an instrumental good • Creates visible legitimacy • Protects decisions against 3rd party challenges
What’s the Answer? • If this is a political problem then it requires a political solution. • Of course, if it’s a technical problem it needs a… Al Gore? Sec. Daley? Jeb Bush? Bill Bradley?
A Technical Solution? • Unlike standards debates in that it is much harder to drive the market by making a better proprietary standard • Like standards debate in that a new technology can make old standards irrelevant
Internal Reform? • Model One: Retrofit • Bill of Rights? • Entrenched Promises not to do some things? • Could address many/most “Root of Evil” concerns • Model Two: Reboot • We can learn from this (are these the Articles of Confederation?) • Need a better requirements sheet • Must forefront end-user role