Why Does A Technical Manager Function As A Regulator?
NTIA's response to CRE, although clear and comprehensive, raised a number of important questions about ICANN and
their governance of the internet. Specifically,
Unlike ICANN, the National Telecommunications and Information Administration (NTIA) responded graciously,
promptly and substantively to inquiries from the Center for Regulatory Effectiveness (CRE) regarding governance of the internet.
CRE sent a letter to NTIA in mid-March asking
about public access to documents prepared by ICANN under Memorandum of Understanding (MOU) with NTIA.
NTIA provided a quick and clear response
to CRE's questions. NTIA also reiterated its commitment to achieving transparency and accountability in ICANN's processes.
- Why does a private administrative body act as a regulator? The
NTIA letter stated that the agency treats their meetings with ICANN in the same manner as they treat their meetings
with "other private sector entities." NTIA's statement is consistent with their assertion that ICANN is responsible for
the day-to-day technical management of the internet domain name and numbering system (DNS).
Regretably, ICANN has gone far beyond day-to-day technical management and has assumed de facto regulatory
responsibilities with regard to the domain name system (DNS). For example, ICANN sets price controls on registry
services. Thus, the question that needs to be answered is why is a private technical administrative entity acting as a
public regulatory body?
- Why does ICANN have confidential business information? In their response to CRE's inquiry
as to whether the agency will release ICANN's Strategic Plan developed pursuant to the MOU, NTIA stated that they
would not release reports, including the Strategic Plan that contain "proprietary and business confidential information."
Confidential business information is usually considered to be "trade secrets" or other competitively sensitive information.
ICANN, however, has no competitors. Furthermore, ICANN is organized as a non-profit public benefit corporation that,
according to its Articles of Incorporation, "is organized, and will be operated, exclusively for charitable, educational, and
Thus, by discussing ICANN's proprietary and business confidential information interests, NTIA has raised a serious question
as to whether the organization is operating according to its own Articles of Incorporation as well as in adherence of California
corporate law and Internal Revenue Service regulations.
- How can transparency be achieved through privacy? NTIA's letter to
CRE stated that they share the goal of "transparency and accountability in ICANN's processes." However, since the letter
also noted their meetings with ICANN were conducted in private and that key ICANN documents were not subject to public
scrutiny, the question is raised as to how ICANN can achieve transparency in their operations while excluding the public from
oversight of their organization?
It appears, based on the NTIA letter, that ICANN is a chimera, an organization that
usurps the public power of a federal regulatory agency while maintaining the privacy and other privileges accorded to private
businesses. ICANN's governance of the internet, therefore, seems to combine the worst of both worlds, the power of a federal
agency with the lack of accountability of a private business. The question thus arises, how is this situation in the public interest?
CRE believes that ICANN needs to function only as a day-to-day technical manager, not a regulator.
Read CRE Letter to NTIA
Read NTIA Letter to CRE