The recent letter from
US Senator Conrad Burns to Mr. David Walker,
Comptroller General of the GAO, notably
referenced the article "Wrong Turn in Cyberspace: Using ICANN to Route Around the
APA and the Constitution" by Professor A. Michael Froomkin. Having taken the
time to read this well-considered document in its entirety, I find myself drawn to
the following paragraphs that seem to sum up the crux of the ICANN problem:* "If
ICANN is engaged in policymaking, and if DoC is reviewing these
decisions and
retaining the authority to countermand them, then DoC's
adoption of or approval
of ICANN's regulatory and policy decisions are
subject to the APA. One could argue
as to whether DoC's approval is an
informal adjudication under the APA,{45} or
whether due to its overwhelming influence over ICANN and due to its adopting ICANN's
rules, DoC is engaged in rulemaking without proper notice and comment. In either
case, however, the APA has been violated."
* "If, on the other hand, ICANN is engaged
in policymaking and DoC does not retain the power to countermand ICANN's decisions,
then DoC has delegated rulemaking and policymaking power to ICANN. This probably
violates the APA, since it was done without proper rulemaking; regardless of the
applicability of the APA, it violates the Due Process Clause and the nondelegation
doctrine of the U.S. Constitution, as well as basic public policy norms designed
to hold agencies and officials accountable for their use of public
power. Since
ICANN's board and staff operate largely in secret, it is
difficult for outsiders
to know how much influence DoC has over ICANN's [*pg 34] decisionmaking. As a result,
the statutory and constitutional arguments in this Article are presented in the alternative.
The two arguments are very closely related, however, in that both rely on legal doctrines
designed to promote accountability and prevent the arbitrary exercise of government
power."
The APA (the Administrative Procedures Act) is essentially the codification
of the principle of "fair play"; at issue in the Senator's letter is whether "ICANN
is the appropriate body to manage the DNS; and whether ICANN has performed well".
It seems clear to me that Washington has received a very loud message from the public
that "fairness" has been woefully absent at ICANN, and that as such perhaps another
institution needs to be charged with the policy aspects of the Internet.
I believe
that we have the means to address this problem. The ICANN Board has recently
passed the following resolutions:
[Resolution 01.28] The Board asks
the Names Council and other sources to separate their proposals into those that improve
operations of the DNSO as it is constituted today and those which may result in changes
in the structure of the DNSO and/or major changes in its functioning.
[Resolution 01.29] The Board encourages input related to changes that improve operations
of the DNSO as it is constituted today no later than April 16, 2001. Further Board
action on the basis of that input will be scheduled at the end of that period."
In
light of these resolutions, it may be prudent for members of the DNSO to recommend
to the ICANN Board that it agree to abide by the language of the APA as a first step
toward improving operations of the DNSO, and as a first step in restoring public
confidence. The language of the APA clearly addresses the need for due process,
for ample time for public comment, and speaks to consensus-based decision-making
mechanisms as well.
If Washington can be convinced that the Board is taking action
to properly manage its affairs, then the Senator's request to the Department of Commerce
might well be withdrawn: "In the meantime, I urge you to refrain from taking
any major steps to further empower or delegate authority to ICANN."
In that the
Senator's formal request can effectively serve to inhibit the rapid DoC approval
of the new registry agreements, the ICANN Board needs to be able to take immediate
action to fight to safeguard the interests of its stakeholders. A resolution
from the DNSO to adopt the language of the APA might well be the one single action
needed to reassure oversight committees that ICANN can indeed correct its deficiencies,
and that the DNSO is the one body best equipped to formulate Internet domain name
policy recommendations.
We can come together as a group and adopt the language
of the APA. It is workable even in the unique bottoms-up consensus-driven world
of the DNSO (an application of the APA to the working group environment may be noted
in the following document:
http://www.dnso.org/wgroups/wg-review/Arc02/msg01952.html
).
The Board has asked for our help to improve operations.
It would be nice to hear members of the General Assembly offering up some substantive
recommendations.