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Username: Solveig Singleton
Date/Time: Mon, November 1, 1999 at 3:01 PM GMT (Mon, November 1, 1999 at 8:01 AM PDT)
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Subject: Tentative Agreement and constitutional perspective


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 by

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.
Setting 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.


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