The Root of All Evil?

A.Michael FroomkinProfessor, U.Miami School of Lawhttp://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 youAll 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 SLDsWhat

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 processLawyers are nasty suspicious peopleConstitutions are written by lawyers

Bad Things?“Taxes” on domain names & IP allocationsConditions 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 rulesSome might notWhere 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)

NoticeVoting

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 structureLegitimation 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 wellWith the honorable exception of

E.Dyson, the Board is invisibleIf 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”

concernsModel Two: Reboot

We can learn from this (are these the Articles of Confederation?)

Need a better requirements sheet Must forefront end-user role