[discuss] elephant in the room

Mawaki Chango kichango at gmail.com
Mon Mar 17 01:51:00 UTC 2014

I wonder what the "constitutional moment" option would concretely look like
in this global context. Any starter?


On Mon, Mar 17, 2014 at 1:34 AM, DAVID JOHNSON
<davidr.johnson at verizon.net>wrote:

> I want to point out that the debate about iana is not the real issue.
> The question is: without USG oversight, what would keep ICANN (a future
> rogue ICANN, not the friendly guys we know) from using the revocation of
> domain names (or registry contracts or registrar accreditations) to enforce
> a mandatory, adhesion contract that compels registrants (or even their
> users) to comply with global rules that are not supported by consensus, not
> related to protection of the sound, secure, resilient operation of the net,
> but instead related to some notion of what content is permissible, how
> people should behave online?
> Will we allow the domain name system to be used, by a global
> multi-stakeholder group, to enforce global rules that are not supported by
> a demonstrated consensus among affected parties, that are designed not to
> regulate the internet but to regulate how people use the internet, that
> replace local decision-making (subsidiarity) with global rules that don't
> have any reasonable form of consent of the governed?
> Some fear a registry-based oversight over IANA, even though the registries
> (including cctlds) effectively represent the whole world and, because they
> are the ones who have to sign the contracts with ICANN, are the sole
> available source of push back against abusive use of a monopoly position
> (the definitive say on what goes in the root).
> The fact is that ICANN has already abused its monopoly (perhaps without
> even realizing what they were doing) by using their gatekeeper function
> over new gTLDs to impose contract terms that were opposed by registries and
> registrars and certainly not supported by consensus (and not even related
> to sound operation of the DNS). Specification 11 requires new gTLDs to
> require registrars to prohibit, inter alia, "copyright infringement or
> violation of any applicable law". This may or may not be enforced. But it
> potentially makes every registrar into an involuntary enforcer of local
> laws, at pain of losing its accreditation. And it potentially leverages the
> power of intermediaries to over-censor, over-regulate -- just the thing
> that section 230 in US law was designed to avoid.
> If the new non-governmental form of internet governance is to support
> human rights, it must prevent the abuse by a future, roque ICANN of its
> power to use denial of domain name registration (or registrar accreditation
> or registry contracts) to force compliance with global rules that are not,
> in fact, supported by a global consensus among affected parties. We could
> and should make the ICANN contract terms (part of the ICANN policy process,
> not the IANA ministerial function) subject to consensus and limited to
> subjects that do not include either content regulation or prohibition of
> activities that do not threaten the security and stability of the net. We
> could give countervailing power to a group (the global registries) who
> might have incentive to constrain such incursions. A new DNSA, as suggested
> by IGP, could do that.
> We could have a "constitutional moment" and create some real, accessible
> judicial branch to rule on such disputes, against the background of a
> founding document that sets forth the standards. Or we could try separation
> of powers -- an IANA owned by registries that would have the power NOT to
> follow the policy directives of a (hypothetically) rogue ICANN. Or we could
> do both.
> But what we cannot do is to allow any institution(even the friendly,
> enlightened ICANN)  to control both the decision of what goes into the
> root, and under what conditions, so as to set those conditions so as to
> require the intermediaries (registries and registrars) to impose global
> rules that are not supported by (consented to by) a global polity of
> affected parties (the consent of the governed, sovereignty of the people)
> and not limited to rules general agreement on which is necessary to assure
> sound and secure operation of a global net. How long will it be before
> these global rules are forced onto ccTLDs as a matter of "contract required
> to avoid re-delegation"?
> There are those who would like to use revocation of domain name
> registrations to "govern the net" (meaning govern the way that people
> behave on the net). This is a very dangerous game unless limited to the
> enforcement of rules on which there really is global consensus that the
> behaviors in question have no possible justification. An unconstrained
> (rogue) ICANN could in fact impose global rules, through its monopoly power
> over intermediaries. It would be wise now to construct the mechanisms that
> would constrain it from doing so. ICANN could protect itself against
> over-reaching governments by explaining that it doesn't have the power to
> enforce global rules by board fiat. The best defense would be for it to tie
> itself to the mast -- sign a contract with the global registries that ties
> the new, separate IANA duty to obey its policies to the condition that
> ICANN will not impose global rules unless they are supported by consensus
> and necessary  to protection of the sound, secure operation of the dns.
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