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Comments on NSI/Commerce/ICANN Agreement
By Solveig Singleton, Director of Information Studies, Cato Institute
Sadly, the creation of ICANN has given rise to some acute problems. The
project's purpose was to arrange for the Internet to "self-regulate" and to
set up a more competitive process for assigning domain names. But
self-regulation and markets cannot work unless underlying property and
contract rights are clear and secure. A corporation legitimated and
monitored by government is not really private, nor is it likely to be the
kind of "bottom-up" structure that was hoped for. The result of muddled
property and contract issues and private/public boundaries was, naturally, a
power struggle. If the creators of ICANN had deliberately intended to
create an entity to be the plaything of massive entities like the ITU and
WIPO, they could not have done a better job.
The agreement negotiated between the Department of Commerce, ICANN, and NSI
resolves some of these issues by
ˇ Clarifying property rights.
ˇ Clarifying that creation and operation of ICANN entails "state action" (on
the part of Dept. of Commerce) which would at least sometimes bring the U.S.
Constitution into play to (for example) protect free speech and due process
ˇ Limiting ICANN's power to make policy.
ˇ Setting out a framework for bottom-up decision-making.
The agreement is, finally, a sort of embryonic constitution for the
Internet. Perhaps the substance of it is not perfect (in particular, I am
skeptical of "open access" to domain name data as a wise long-term
arrangement for any property rights). The agreement lacks the elegance and
simplicity of the U.S. Constitution--but at least does not foster the
illusion that the creation of an entity like ICANN is a mere technical
matter with no constitutional implications. With ICANN's power reduced, it
should be a less tempting morsel for international bureacracies. Ratifying
the agreement seems to be the most promising practical alternative before us
at this time.
It might have been better had ICANN never have been created. But the
alternative would have been to permit a much more uncertain process to go
forward--involving not just competing registrars, but competing registries
or some entity truly evolving from the bottom up--not of the type we are
presently able to imagine. Whatever happens with this current agreement
between NSI, ICANN, and Commerce, we should be on guard that privately
evolving alternatives--entirely new keyword or name-based methods of finding
Net content, or alternative root servers--are not foreclosed.
Director of Information Studies
1000 Mass. Ave. NW
Washington DC 20001
(202) 842-3490 (fax)