Starting from scratch – would we reinvent ICANN?

If we were starting over – with all the benefits of hindsight – do you think we would recreate or reinvent ICANN? I don’t.

Crucially what we would not do is allow the key technical functions which ICANN performs to become enmeshed  or intertwined with the economic interests of Registrars and Registries. The public interest – actually almost anybody else’s interests – and the interests of Registrars and Registries do not always coincide. And it shows. The Registrars’ and Registries’ agendas are prioritised. Everything else takes second or third place.

Paying the piper, calling the tune

When I looked at this previously, between them the Registrars and Registries provided 94.3% of ICANN’s total revenues.  ICANN’s policy-making and voting systems recognise and entrench their paymasters’ ability to call the tune and allow them to disregard or minimise anyone else’s plaintiff cries for relief or help.

When is a contract not a contract? When ICANN says so

ICANN constructed a set of rules  by which it said the domain name system would be governed.  However, it then announced to the rest of the world that  in many vital respects it is everybody else’s responsibility to make the rules stick. Not theirs.

So ICANN went through a series of elaborate processes to devise their rules. They clothed themselves with words like agreements and contracts but now say they won’t enforce major aspects of them.  Unbelieveable.

How can I say  all this? Actually I don’t have to.  ICANN said it themselves, or rather someone called Allen Grogan, ICANN’s Chief Contract Compliance Officer did in his recent blog entitled ICANN Is Not the Internet Content Police.  Fadi Chehadé, ICANN’s CEO, has also been saying pretty much the same thing for a while.

Here is the opening salvo.

ICANN is not a global regulator of Internet content, nor should (our) 2013 Registry Accreditation Agreement (RAA) be interpreted in such a way as to put us in that role….

A linguistic sleight of hand?

ICANN seems to have managed a linguistic sleight of hand by redefining the meaning of the word content to cover  anything and everything that happens on a web site or is associated with it. This includes what the rest of us would call activity.

Grogan goes on to say

Institutions already exist that have political legitimacy and are charged with interpreting and enforcing laws and regulations around the world. These institutions, including law enforcement (local and national police agencies as well as intergovernmental organizations like Interpol), regulatory agencies and judicial systems, have the expertise, experience and legitimacy to police illegal activity and to address difficult questions such as jurisdiction and conflicts of law. In most countries, these institutions also offer procedural due process and mechanisms for appeal and are experienced in addressing difficult issues such as the proportionality of remedies. If content is to be policed, the burden is on these institutions, and not ICANN, to undertake such regulation.

I can see what Grogan is driving at but the problem is ICANN’s rules have become so complex, time-consuming and expensive to follow that, when wedded to the enormous volumes  of complaints or issues being generated by those same rules – think phishing, fake pharmaceuticals, spam, child abuse images – for practical purposes the bodies ICANN hoped would enforce their rules actually can’t or they can do so in only a hit and miss way which goes nowhere near meeting the total need.

How to fix it?

More to the point it goes without saying that most of what needs to be done to ameliorate the situation would involve Registrars and Registries taking a more active role in ensuring that registrants do what they are supposed to do and don’t do what they’re not. It’s hard to make a buck out of this kind of thing.

ICANN has thus, in effect, presided over and in many ways created a constant buzz of unlawfulness and frustration.  Yes we are so extremely grateful for  the good bits  but in reality ICANN has also created a platform for crooks. Meanwhile in the name of increasing competition  more and more domain names are made available (more cash for you know who) and a recent report suggests this is simply leading to increased levels of abuse. Brilliant.

Welcome to the labyrinth

To give you some idea of how these things pan out in practice you could do a lot worse than read the Open Rights Group’s correspondence complaining about the behaviour of the City of London Police’s Intellectual Property Crime Unit.

Now I am not going to argue that the police, or anyone, should have carte blanche to behave inappropriately or to trample on anyone’s legitimate interests but just take a moment to look at the hoops and steps set out in the ORG letter. The whole edifice which ICANN has constructed is turning into a nightmare – a virtual Day of the Triffids

Should we rename ICANN The Lawyers’ Benevolent Fund?

Perhaps we should rename ICANN and the heavenly bodies which are sucked into its orbit as the Lawyers’ Benevolent Fund. Meanwhile innocent people and blameless businesses continue to lose out.

People’s patience will eventually expire

Up to now to fend off critics ICANN  has been able to  hide behind its technical role and the threat of potential alternative governance models handing too much power to (ill-intentioned) states. These are not bad defensive positions but they won’t last forever. People’s patience will eventually disappear.

Sure the internet is founded on a technical layer which needs to be preserved and maintained but this technical layer has huge social, personal  and real world impacts which have to become an equally important part of the equation not constantly dismissed as “someone else’s business” or as being in some way only second order concerns. They are first order concerns for the people dying from contaminated drugs, losing their life savings or having their creative work stolen.

Do I have an answer? No. But to return to a theme I expressed in my last blog: we should all refuse to accept that the ongoing abuse of cyberspace is the inevitable price we must all pay in perpetuity for the many undoubted benefits the internet has brought us. ICANN seems to be too mired in vested interests to be capable of reforming itself. The only question in my mind is what will be the trigger event which forces the change?

In the meantime, unless and until ICANN and the rest of us can devise better ways to reduce the amount of online abuse taking place on or through non-compliant web sites no new domain names of any kind should be created.