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Misunderstanding ICANN
Harvard Law School's distinguished Berkman Center for Internet & Society has
published a preliminary study, "Public Participation In ICANN." The study examined
the extent to which ICANN "achieved its stated goal of a 'representative' and 'open'
decision-making process." The Berkman study looked at about "100,000 postings by
members of the Internet user community to ICANN's e-mail lists and public online forums"
as well as other data. The study reached three conclusions/recommendations:
- ICANN "has broadly failed in terms of attracting and incorporating 'representative' input
from the global Internet user community." Based on this perceived failure, the study states
that there is a "need for an overhaul of ICANN's governance structure away from its semidemocratic past."
- Regardless of how ICANN changes it governance structure, the organization "should clarify
the way(s) in which users can involve themselves in the decision-making process for managing
the domain name system..."
- "To the extent that we seek new means of governing the technical architecture of the
Internet, we ought to look beyond ICANN, which may never have been the right place for
such experimentation given its limited technical mandate."
The problem with the preliminary study is that it fundamentally misunderstands the role of
ICANN in internet governance. Specifically, ICANN's duty is not and should not be to simply
carry out the will of the "Internet user community." Instead, ICANN's duty is to carry out the
responsibilities the organization agreed to in its Memorandum of Understanding (MOU) and
contract with the Department of Commerce. This does not mean that ICANN should exclude
stakeholder views. Instead, the MOU specifically requires ICANN to develop, test and implement
"appropriate mechanisms that foster informed participation in ICANN by the global Internet community."
There is, however, a great difference between fostering informed participation and simply carrying
the supposed will of the internet community. Furthermore, there is no evidence that managing technical
issues and related policy through adherence to global "democracy" would produce any tangible benefits
whatsoever. In fact, such an approach could cripple effective governance of the internet by placing control
of key technical and policy functions in the hands of the most vocal and/or numerous participants rather
than in the custody of informed and responsible stakeholders who conduct a fair and open public process.
A good analogy for the appropriate role of community participation in ICANN would be the role of public
comments in federal regulatory proceedings.
Federal agencies must, by law, solicit and consider public comments during almost all regulatory
proceedings. Although agencies consider and respond to public comments, agency decisions are
required to adhere to relevant laws, including the "good government" laws that regulate the regulatory
process. Thus, ICANN needs to solicit and consider informed views, and act on them when appropriate.
However, ICANN's ultimate duty in its decision making process is to adhere to its agreements with the
Department of Commerce and its related responsibilities.
Although mechanisms can and need to be implemented to ensure ICANN's responsiveness to
legitimate public concerns and to ensure the openness, transparency and quality of their work, a radical
overhaul or replacement of the organization would be a massive step in the wrong direction.
Read Berkman Study
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