Transcript The Root of All Evil?

The Root of All Evil?
A.Michael Froomkin
Professor, U.Miami School of Law
http://www.law.tm
Two stories
(1) The classic story: chokepoints, taxes
and controls
(2) The real story: chaos and adhocracy
The second story is a problem in its own
right.
It also makes it impossible to disprove the
first.
An Internet “Choke Point”?
If your TLD is not in the root you are
essentially invisible
Network effects
Inertia
Changing is ‘fiddly’ or controlled by someone
else upstream from you
All this can (and probably will) change
(Ab)use of the Root
How
Flow-down terms of service
Legal claims of ownership in names, right to
list TLDs or SLDs
What
Who gets to be seen
Anti-cybsersquatting, anti-spam rules
Privacy rules
Content controls (filters?)
Who Controls the Root?
Today: U.S. Commerce Department
Some issues as to legal authority
Not many issues as to power: NSI accepts
that Commerce controls entry in root,
entry of new TLDs
Disputes with NSI as to “ownership” of data
relating to registrations
Enter ICANN
“Virgin Birth”?
“Original sin”?
Does ICANN control the root today?
NO. Commerce does.
Commerce says it intends to cede control to
ICANN--but it is NOT required to
ICANN acts as if it is in control
Suppose ICANN Controls
the Root
Two cultures: Engineering & Lawyer
Engineer: focus on results (“Does it float?”)
Lawyer: uses Holmes’ “bad man” approach ask not what is likely; ask what is possible
(“How easily does it get out of control?”)
Lawyers Care about process
Lawyers are nasty suspicious people
Constitutions are written by lawyers
Bad Things?
“Taxes” on domain names & IP allocations
Conditions on the use of resources
Contractual model is highly insulated from
review
First UDP (includes USE restrictions now);
then privacy; then…
Some of these might be great rules
Some might not
Where there is not trust you need
process
The Real Evil: A Really
Lousy Governance Model
Governments are a product of a long
evolution. They have rules...
On representation (feedback control)
Notice
Voting
On self-dealing (data corruption)
On procedure (protocols)
On external checks (boundary conditions)
Due process; even lawsuits
The ICANN Structure Is
Seriously Defective
“With all due respect … we are less
interested in complaints about process"
and more interested in "doing real work
and moving forward.”
The procedure IS the real work at this
stage
Like software, if you start with a bad
architecture, you pay for it downstream
Sample Defects
Byzantine structure
Legitimation crisis
Creation, Funding, Spending
Expectation / outcome mis-match
Flawed representational structures
That manipulable “consensus”
“The ICANN board does not "see a global
consensus demanding that ICANN hold all its
meetings in public."
ICANN: Rulemaking
adhocracy
Notice, formality, regularity, consensus issues
Timing
Role of working groups
Voting rules
Bylaws conflicts
“All Those Lawyers Going
on About Rules”
You can run a system on trust - but only
so long as the trust is there.
Rules protect people.
Notice
Conflict of interest
Separation of powers
They define the conditions for participation.
They make deciders jump through
hoops they’d rather avoid.
Internet Participation in
ICANN (Not?)
Physical attendance at meetings seems
critical
The medium has not been used well
With the honorable exception of
E.Dyson, the Board is invisible
If you participate virtually, with delays,
written rules are ever-more important
Making Participation
Meaningful
Participation is a good in itself
More input may make better decisions
It’s the right thing to do
Participation is an instrumental good
Creates visible legitimacy
Protects decisions against 3rd party
challenges
What’s the Answer?
Al Gore?
Sec. Daley?
Jeb Bush?
Bill Bradley?
If this is a political
problem then it
requires a political
solution.
Of course, if it’s a
technical problem it
needs a…
A Technical Solution?
Unlike standards debates in that it is much
harder to drive the market by making a better
proprietary standard
Like standards debate in that a new
technology can make old standards irrelevant
Internal Reform?
Model One: Retrofit
Bill of Rights?
Entrenched Promises not to do some things?
Could address many/most “Root of Evil”
concerns
Model Two: Reboot
We can learn from this (are these the Articles
of Confederation?)
Need a better requirements sheet