The contrary argument to this broad view of ICANN as serving the public trust does not deny the importance of the Internet, but rather minimizes the importance of the role ICANN plays in regard to the Internet. Under this argument, ICANN's role or mission is not to "manage" or "regulate" or "govern" the Internet, but rather to serve as a mere technical coordinating body.
Indeed, some (but not most) of ICANN's work neatly fits this more modest description. And it is assumed by those who make this argument that "technical coordination" is a function so arcane or inaccessible that it should be exercised by experts whose decisions are dictated-and thereby narrowly bounded-by the objectivity of the science or technical reasoning involved, rather than by unbounded discretionary policymaking. Within this bounded sphere of technical reasoning, it is argued, legitimacy is sufficiently conferred by expertise alone, and there is simply no need for a broader reference to public will or public accountability in order to ground the decisions made.
There are at least two major flaws with this argument.
The application of expertise to decisions that affect matters of public interest does not thereby insulate those decisions from the need for public accountability. To claim a decision is "technical" does not mean it can be made without oversight that protects the public interest in the decision being made correctly.
Much of what governments do is highly "technical"-from operating air traffic control systems to predicting the weather-and at least as arcane and complex as what ICANN does. Those functions are performed by experts, but experts who are ultimately subject to public control through elected officials. If experts running the air traffic control system repeatedly fly planes into each other, there will certainly be public pressure brought to bear on elected officials who will-undoubtedly in consultation with new experts-replace those who have not performed well. If such steps are not taken, the public will likely replace the officials who fail to act. Thus, to describe a function as "technical" does not in any important way address the question of whether it pertains to a matter of great public interest, and therefore whether there should be public accountability for, or a public voice in, the management of that function.
The second flaw in the argument based on "technical coordination" is more important. Even though much of what ICANN does can be characterized as "technical coordination," it is sometimes nonetheless inextricably intertwined with policymaking of precisely the sort that requires grounding in some form of public legitimacy. Further, much of what ICANN does is simply and forthrightly policymaking that has no particular patina of technical expertise to it. Several of the most important decisions that ICANN has made since its founding are exercises of discretion of the kind typically associated with public agencies. Three examples illustrate this point.
First, arguably the most important (and certainly the most publicly visible) decision made by ICANN to date was the award of new global Top-Level Domains (gTLDs). Both the decision on how many gTLDs to award, and then the selection of the chosen gTLDs themselves, were exercises in discretionary policy making, not technical coordination. The ICANN Board's discussion on the selection of new gTLDs had all the characteristics of a public agency exercising subjective policy judgment in the application of its values about how to best serve the public interest in expanding the DNS. In this instance, the judgments were based not simply on how best to run a "test" of the introduction of new gTLDs, but rather on which new domain names would best serve public purposes.
There is nothing improper in that basis for judgment-indeed, it is arguably the correct one-but it highlights the need for the decision-makers to have some underlying legitimacy to make inherently value-laden policy choices, particularly where they result in the granting of an economically lucrative franchise to a quasi-public resource.
A second example of policy-type decision making is the creation of the UDRP process. ICANN established this process in order to create a tribunal for resolving issues relating to the protection of intellectual property rights in the DNS. In establishing the UDRP process, the ICANN board has responded to the claims that it should protect, or provide a mechanism for protecting, the rights of trademark holders. Making this judgment was itself a substantive policy decision, and certainly the design of an adjudication process involved a host of policy determinations about how to balance the rights and interests of Internet users and trademark holders, how to allocate the costs of dispute resolution, and how to establish a means for fair, legitimate and supposedly neutral adjudication. None of these are "technical" questions. All involve policy judgment based on some underlying conception of whose interests should be protected, to what degree and how.
Finally, even though ICANN does not conceive of itself as a regulatory body, it has in fact engaged in a process of regulation by contract, which has resulted in a range of substantive policy making. This has not been done by the issuance of "rules," but rather through the drafting of private contracts. For instance, in recently renegotiating its contract with VeriSign, ICANN argued that modifying the contractual terms of its relationship with VeriSign would promote competition in the DNS marketplace. That may be a legitimate, even desirable, goal for ICANN to implement, but a policy of enhancing competition-a kind of policy typically implemented by a government, not by a private company-depends on judgments about the nature of the marketplace and the degree and form of competition that will best serve the public interest.
Similarly, the contracts ICANN has negotiated with the registries that were awarded the new gTLDs contain a host of regulatory provisions about the permissible uses of the new domain names. These contractual rules, in many instances, go well beyond what is strictly required to implement a test of expanding the DNS. Such collateral policy goals of ICANN may be laudable, certainly they are controversial, but they again illustrate a kind of substantive regulatory policymaking that ICANN engages in through contract.
These three illustrations-the award of new gTLDs, the creation of the UDRP process and the imposition of regulatory-type controls through private contracts-are among the most important, visible and controversial actions that ICANN has taken. None of these actions can be accurately described as "technical" or arising from mere "technical coordination" of parameters necessary for the operation of the Internet.
Instead, each involved overt policy making-decisions about how to facilitate the development of the Internet as a public, global resource, about how to shape the marketplace for key Internet services to best create competition, and about how to balance the protection of conflicting private economic rights claims against each other, or against claims of free speech in the management of the DNS. All of these decisions must be based on some underlying substantive conception of how the DNS, and hence the Internet, will best function. And to the extent that the Internet is, or will become, a global quasi-public resource, these decisions must involve some deeper conception of the general public good. For that reason, these decisions-all of which lie within the sphere of authority that ICANN claims to have-resemble the kinds of decisions typically made by public agencies.
In this regard, we strongly agree with the statements of the At Large Study Committee (ALSC), chaired by Carl Bildt, which, in its Discussion Paper #1, dated July 12, 2001, strongly asserted the need for public participation and representation in the work of ICANN.
"It is clear to us," the ALSC wrote, "that there is a public interest' responsibility vested in ICANN."
The ALSC continued:
In essence, ICANN needs to be accountable not just to those people whose daily work concerns ICANN's activities...but also those who are affected by its actions but whose daily focus is elsewhere. Actions ICANN takes within its seemingly narrow technical and administrative mission can affect (and generate interest among) the world's individual Internet users in a myriad of ways. These users hold a variety of values and represent interests that may be personal, political or economic. They care about issues such as access to domain names in non-Latin characters, the potential use of IP addresses and domain names for identification or location of individuals and groups, the mapping of telephone numbers to Internet addresses, competition and choice (or not) in the provision of various services provided by independent parties under contract to ICANN, domain name intellectual property issues, and the like. http://www.atlargestudy.org/DiscussionPaper1.shtml
These views of the At-Large Study Committee strongly reinforce our own view that ICANN is involved in a myriad of public policy issues and decisions that affect the public at large.
Thus, the minimalist account of ICANN as a merely technical coordination body that does not engage in broad policymaking affecting matters of the public interest is, at the very least, an incomplete description of the organization. Even though ICANN exists in the form of a private company, its functions, at least in part, very much embody the consideration of public issues. Thus, even as a unique and experimental hybrid entity, its legitimacy to resolve these issues must be based on a process that reflects some reference to the public will or public accountability.
| 1.1.2 The Management of the Root Is a Public Trust | 1.1.4 Legitimacy as a key to stability |
© 2001 NAISProject.org
Privacy Policy
webmaster@naisproject.org