2.1.3. Criticisms

ICANN has been the most-criticised of all institutions of Internet governance from the moment of its inception. Those criticisms may be grouped into four common categories, all of which, bar perhaps the first, are instructive in their broader application for other entities engaged in Internet governance:

The Machiavellian circumstances surrounding its incorporation, as described above at Section 2.1.1.1, sowed the seeds for the first barrage of criticism ICANN received, particularly over the opaque process by which its initial board was appointed. IANA’s pedigree notwithstanding, the IFWP process more closely adhered to the Internet’s values of openness and egalitarianism than the IANA process that trumped it by presenting the ICANN bylaws and board of directors as a fait accompli.[1]

The second common criticism of ICANN is that it has exceeded its mandate by straying into areas of national and international public policy. A good example of this is found in ICANN’s UDRP or Uniform Domain Name Dispute Resolution Policy, which was established in 1999 in response to the report that the US Government’s White Paper solicited from WIPO setting out a procedure for the resolution of claims by trademark owners that a registered gTLD infringed their rights.[2]

Complainants in UDRP proceedings who seek to have a registered domain name cancelled or transferred to them must prove that the disputed “domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights,” that the registrant has “no rights or legitimate interests in respect of the domain name,” and that the domain name “has been registered and is being used in bad faith.”[3]

Academic response to the UDRP has ranged from describing it as “a tremendous achievement in a key aspect of Internet governance”[4] to a “significant threat to free and robust expression on the Internet.”[5] Those critical of the UDRP have been so on both substantive and procedural grounds.

Substantively, it is undeniable that domain names, once a simple semantic identifier for IP addresses, have become a strongly-protected form of expression of trademarks and personal names of their proprietors.[6] The opposing interests of the public in free expression have been accorded comparatively less weight. This has been attributed to the fact that UDRP panellists are overwhelmingly intellectual property law practitioners whose practices are predominantly in the service of trademark owners.[7]

One of the most cogent procedural criticisms of the UDRP is that complainants are granted the right to choose which dispute resolution provider should hear their complaint, which generates inappropriate incentives for providers to find in favour of complainants. Sure enough, of the original four accredited providers, those with the greatest propensity to find in favour of complainants, apparently because they steered their caseloads towards their most complainant-friendly adjudicators,[8] gained the majority of case references.[9]

There are numerous other areas of public policy outside the UDRP into which ICANN has also been criticised for stepping. For example its agreements with new registries[10] contain non-technical specifications relating to intellectual property infringement, privacy of registrant data, fees the registries may charge, competition policy (prohibiting them from acting as registrars) and so on. As ICANN is performing these policy functions under contract to the US Commerce Department, Froomkin has argued that this amounts to a private delegation of power to ICANN that is unconstitutional and contrary to United States federal law.[11]

But ICANN’s assumption of policy authority outside of US borders has been even more conspicuous, particularly for those who would characterise ccTLDs as a national resource, as advanced by the GAC and subsequently accepted by the NTIA and WSIS.[12] In that context, ICANN has taken on a role akin to that of an intergovernmental organisation in transferring control of ccTLDs to governments or governmental nominees such as auDA. auDA’s is not the only case in which such a transfer was made in disregard of the wishes of the domain’s incumbent non-governmental administrator, even—as in the recent case of Kazakhstan—when that administrator was formed from the local Internet community.[13]

That ICANN in fact makes national and international public policy decisions is no longer seriously disputed. Indeed, at least until the formation of the IGF, it was probably the best-placed body to do so, sitting at one of the Internet’s only chokepoints, the root of the DNS. As much as the existence of such a centralised point of authority may be an aberration from the Internet’s culture, the fact is that the issues that ICANN addressed (for example, balancing the interests of domain name registrants against those of trademark owners) were issues that needed addressing, and that it was well placed to address. The reason why it ICANN is criticised for doing so however is that it lacked the legitimacy, democratic or otherwise, that an organ of public policy ought to have.

Weinberg analyses ICANN’s response to this charge as at 2000 in the following terms:

First, it has invoked what one might call the techniques of administrative law: it has, in important respects, structured itself so that it looks like a classic U.S. administrative agency using, and bound by, the tools of bureaucratic rationality. Second, ICANN has invoked the techniques of representation: it has adopted structures and procedures that make it look more nearly like a representative (that is to say, an elective) government body. Finally, it has invoked the techniques of consensus: it has asserted that it derives its authority from its ability to manifest the consensus of the larger community through discussion.[14]

However in dismissing each of these responses,[15] Weinberg goes on to make what is the third main criticism of ICANN, which is as to its capacity to operate by consensus (which as noted above is more than a mechanism of governance for ICANN,[16] but a plank of its legitimacy). He claims that because the decisions that ICANN makes often involve competing claims of right (such as between competitive applicants for a registry tender), they are not susceptible to resolution by consensus;[17] and that even for those issues which can be resolved by consensus, ICANN lacks the means to determine that a consensus exists.

A more apt criticism is that ICANN lacks not so much the means (which its SOs and ACs are designed to provide),[18] but rather the will to survey and interpret the community’s consensus. In other words, even given that ICANN would gain legitimacy in its policy-making functions if it acted by consensus, and assuming that it has the means to do so, it does not in fact use them. This is the fourth and most persistent criticism of ICANN, for which there is a litany of documented wrongs to convict it.[19]

To take just one example, it is unclear that the board of ICANN acted upon the consensus of the community in adopting the WIPO report that recommended the establishment of the UDRP, particularly since in doing so it did not even comply with its own procedures set down for the development of a so-called “consensus policy.”[20] It is all the more ironic that one of ICANN’s grounds for declining to review the UDRP in 2003 was that this was “likely to be contentious; there are not many (if any) areas that are obviously amenable to achieving consensus.”[21]

In comparison to the pillorying that ICANN has received from numerous quarters, criticism of other institutions involved in technical coordination of the Internet has been considerably more muted. On a regional level, criticism of APNIC has mostly been limited to the suggestion that its regional monopoly on the allocation of IP addresses should be opened to competition.[22]

On a national level, criticism of auDA’s transparency and accountability has only flared outside the bounds of its discussion mailing list in respect of one issue; its handling of the transfer of the au ccTLD from Robert Elz.[23] However, an echo of the disingenuous claims of the early ICANN that “ICANN is nothing more than the reflection of community consensus”[24] is heard in auDA’s Chief Executive Officer’s claim that “auDA and its ‘incumbent administration’ does not create policy, it implements policy.”[25]

In fact, auDA’s Board has considered actions such as the introduction of renewal fees and periods for domain registrations, and even the introduction of the auDRP—its equivalent to the UDRP[26]—as “an administrative change, not a policy change.”[27] Whilst some public input was, nevertheless, received on the broad outline for these “administrative changes,” the underlying issue that remains is that technical coordination of the Internet inherently engages issues of public policy, and that unless the governing board of a body engaged in technical coordination reflects the consensus of its constituents in an accountable and transparent fashion, the board cannot wash its hands of responsibility for the policy development it undertakes.

Notes

[1]

See Mueller, Milton, ICANN and Internet Governance: Sorting through the Debris of Self-Regulation (1999).

[2]

See http://www.wipo.int/amc/en/processes/.

[3]

ICANN, Uniform Domain Name Dispute Resolution Policy (1999)

[4]

Hancock, Douglas, An Assessment of ICANN’s Mandatory Uniform Dispute Resolution Policy in Resolving Disputes Over Domain Names (2001)

[5]

Mueller, Milton, Success by Default: Domain Name Trademark Disputes Under ICANN’s UDRP (2002), 27.

[6]

Mueller, Milton, Success by Default: Domain Name Trademark Disputes Under ICANN’s UDRP (2002), 18

[7]

See eg Mueller, Milton, Success by Default: Domain Name Trademark Disputes Under ICANN’s UDRP (2002), 23.

[8]

Geist, Michael, Fair.com?: An Examination of the Allegations of Systemic Unfairness in the ICANN UDRP (2002)

[9]

Mueller, Milton, Rough Justice: An Analysis of ICANN’s Dispute Resolution Policy (Version 2.1) (2000)

[10]

See http://www.icann.org/tlds/agreements/.

[11]

Froomkin, A M, Wrong Turn in Cyberspace: Using ICANN to Route Around the APA and the Constitution (2000)

[12]

See Section 2.1.2.1.

[13]

McCarthy, Kieren, 2005: The Year the US Government Undermined the Internet (2005)

[14]

Weinberg, Jonathan, ICANN and the Problem of Legitimacy (2000), 224–225 (footnotes omitted).

[15]

For reasons some of which will be examined further at Section 4.4.3.

[16]

By this thesis’s typology, it is a consensual form of governance by network: see Section 4.4.2.

[17]

Weinberg, Jonathan, ICANN and the Problem of Legitimacy (2000), 252. This criticism is addressed at Section 4.4.

[18]

Though they are an excessively blunt instrument for this purpose: see Section 6.3.1.1.

[19]

David Post, Michael F & Farber, David, Elusive Consensus (1999)

[20]

Froomkin, A M, ICANN’s “Uniform Dispute Resolution Policy"—Causes and (Partial) Cures (2002), 652, n139; and see http://www.icann.org/general/consensus-policies.htm for the list of consensus policies.

[21]

ICANN, Staff Manager’s Issues Report on UDRP Review (1993)

[22]

Mueller, Milton, Competition in IPv6 Addressing: A Review of the Debate (2005)

[23]

Malcolm, Jeremy M, Who Owns .org.au?: Where Domain Name Policy and Law Collide (2001)

[24]

See David Post, Michael F & Farber, David, Elusive Consensus (1999)

[25]

See http://www.dotau.org/archive/2001-11/0068.html, and the author’s response at http://www.dotau.org/archive/2001-11/0082.html.

[26]

auDA, .au Dispute Resolution Policy (2002)

[27]

See http://www.auda.org.au/minutes/minutes-08052001/.