ICANN is global, but potential disputes have no global consensus

[Dan Krimm <dan@xxxxxxxxxxxxxxxx>]

Submitted on 08/14/2007 - 21:45
Submitted by anonymous user: [69.19.14.39]

Submitted values are

Name: Dan Krimm
Email: dan@xxxxxxxxxxxxxxxx
Subject:
ICANN is global, but potential disputes have no global consensus

Comments:
Werner Staub does not question whether ICANN is a proper venue to be making 
policy judgments extending beyond the technical and operational criteria that 
it was originally created to address.  But this is precisely the issue at hand.

ICANN regulates a global platform, the Internet.  Therefore its policy must necessarily reach 
uniformly to the whole world with a one-size-fits-all policy.  However, when we discuss issues of 
"morality and public order" we encounter matters that have no global consensus.  When we 
consider issues of trademark ownership, we encounter a legal regime that relies inelimiably upon 
local cultural considerations such as the "typical consumer".  It is literally impossible 
to define a single uniform global policy with such criteria that will do justice to all of the 
regional and local variation across the globe.  Anything ICANN does to incorporate such criteria 
into its gTLD approval process will necessarily violate the regional/local variation that prevents 
global consensus on these issues.  The inevitable result of allowing vetos from anywhere on the 
basis of criteria that appeal to the expressive content of gTLDs is to impose a form of real 
censorship on the gTLD approval process, !
and it would be dangerous to establish such a formal institutional precedent of 
governance that could be applied to other aspects of Internet operation in the 
future.

This is not to say that no jurisdictions exist for such judgments, but simply 
that ICANN cannot be a candidate for such a jurisdiction because of its 
necessarily unified-global scope.  In addition, ICANN does not have a 
legitimate political authority to enforce such political determinations.  By 
definition, these criteria range beyond the technical domain to general public 
policy matters, and ICANN is simply not set up as a proper international 
policy-making institution with appropriate accountability.  This 3-week comment 
period is hardly more than a gesture toward real constituent voice from the 
general public.

The proposed challenge process is also rife with problems because it allows a very low 
standard to initiate a challenge, and the resulting uncertainty in the process thus 
raises the risk of high costs for gTLD applicants to levels that only very wealthy 
"established institutions" (an unavoidably arbitrary and subjective 
distinction) can handle.  It goes against the principle of a well-defined objective 
standard that is the foundation for all fair processes.  It would raise the economic 
barriers to entry for gTLD registries well beyond the level necessary simply to operate a 
gTLD, squelching innovation and diversity in the control of DNS.  It would also place 
ICANN at risk of legal action if and when it may reject applications for reasons that do 
not clearly stand up in a court of law in the U.S., where its legal mandate still 
originates in the Joint Project Agreement with the NTIA.

If ICANN does not remove the non-technical and non-operational criteria from 
the gTLD approval process, and does not remove the subjective components from 
its challenge process (or remove the challenge process altogether), it will be 
stepping far out of it depth of expertise and wandering dangerously into areas 
of general public policy for which it is not authorized nor does it have the 
expertise or institutional capacity to address productively.

This combination of the global reach of a uniform ICANN policy and ICANN's 
fundamental lack of capacity to adjudicate general non-technical public policy 
suggests that ICANN should correct these fatal flaws before approving the new 
gTLD policy.




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http://www.keep-the-core-neutral.org/action1?sid=219