Law 897

DOMAIN NAME GOVERNANCE

Assignment prepared by Stanislav Dolgopolov for the October 11 session

I. Background Information on the Issue of Domain Name Governance and the ICANN

(1)     Committee for Information, Computer and Communications Policy, Organization for Economic Cooperation and Development, Input to the United Nations Working Group on Internet Governance (2005)

http://www.oecd.org/dataoecd/34/9/34727842.pdf

read pp. 16 (chart), 22-25 (historical introduction), 38-39 (confusing abbreviations)

(2)   Wikipedia, ICANN

http://en.wikipedia.org/wiki/ICANN

(a somewhat critical introduction to the ICANN; read the main article and browse the cross-referenced links if additional background is needed)

(3)   Memorandum of Understanding Between the U.S. Department of Commerce and ICANN (1998)

http://www.ntia.doc.gov/ntiahome/domainname/icann-memorandum.htm

• To what extent is the existing regulatory architecture a creature of the U.S. government?
• Did the powers granted to the ICANN amount to a blank check from the government?
• How (artificially) scarce is the domain name "resource"?

II. ICANN’s Internal Governance

(1)   A. Michael Froomkin, Beware the ICANN Board Squatters (2000)

http://personal.law.miami.edu/%7Efroomkin/boardsquat.htm

(2)   Current Version of the ICANN Bylaws

http://www.icann.org/general/bylaws.htm

read Art. I, secs. 1 and 2; Art. III, sec. 2; Art. IV, sec. 2, pts. 1-3, sec. 3, pt. 1; Art. VI, secs. 1-5; Art. VI, secs. 1-2 (pay attention to the descriptions of various constituencies and their relative powers and the process of electing the board)

• How "democratic" is the ICANN?
• Are there sufficient safeguards — at least in the bylaws — to prevent self-perpetuation?
• Does the complex board election / selection process balance the interests of different constituencies or merely makes the governance structure less transparent and less predictable?

III. Antitrust Implications Under Domestic Law

(1)   A. Michael Froomkin and Mark A. Lemley, ICANN and Antitrust, 2003 U. Ill. L. Rev. 1

http://osaka.law.miami.edu/~froomkin/articles/icann-antitrust.pdf

(skim pp. 52-60, 65-68)

• How appropriate is the very idea of a private ratemaking entity protected by the government from competition?
• How real is the monopoly threat posed by the ICANN?
• Will private lawsuits against the ICANN persist?

IV. The Future of the ICANN: Governmental, Private, or International Control?

(1)   U.S. Senate Hearing, Internet Governance: The Future of ICANN (2006)

http://commerce.senate.gov/public/index.cfm?FuseAction=Hearings.Hearing&Hearing_ID=1798

(read the statement of John M.R. Kneuer, Acting Assistant Secretary, U.S. Department of Commerce)

(2)   ICANN’s Press Release (Sept. 21, 2006)

http://www.icann.org/announcements/announcement-1-21sep06.htm

(3)   ICANN’s Affirmation of Responsibilities (Sept. 25, 2006)

http://icann.org/announcements/responsibilities-affirmation-28sep06.htm

(4)   Comments of the Internet Governance Project, The Continued Transition of the Technical Coordination and Management of the Internet Domain Name and Addressing System

http://www.internetgovernance.org/pdf/ntiacomments-igp-final.pdf

• What is the appropriate scope of political oversight?
• What explains the policy of constant renewals of the ICANN’s contract by the U.S. Department of Commerce?
• How credible is the Department’s commitment to "let it go" in the near future?
• What does "private sector leadership" really mean? What should it mean?

V. Broader Critical Questions

What is the most appropriate governmental or international body to oversee domain name governance (even if a private body is in charge)?

What is the true (or aspirational) meaning of the "multi-constituency" approach to domain name governance? How should public or private decision-makers approach the issue of balancing different interests? How would one even identify stakeholders?

What procedural safeguard should be implemented in order to protect various stakeholders from an arbitrary exercise of power?

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