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
· Clarifying property rights.
· 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 rights.
· Limiting ICANN's power to make policy.
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.