ICANN lessons

Lessons Learned From the ICANN Process: 

Lessons Learned From the ICANN Process andamp; from the ICANN-critique process…. A. Michael Froomkin U.Miami School of Law ICANNWatch.org

Guiding Maxim for this Talk: 

Guiding Maxim for this Talk 'Always make new mistakes' - former ICANN BoD Chair E. Dyson Underlying question: Is the ‘reform’ plan making new mistakes, or institutionalizing the old ones?

What I learned from the IFWP: 

What I learned from the IFWP Lesson: Need to be organized Future ICANN CEO destabilized the IFWP cf. Milton Mueller’s book No one knew he was negotiating to run ICANN Lesson: ICANN fights dirty Lesson: Disclosure matters If we’d known then, we’d have acted differently

ICANN Formation: 

ICANN Formation DoC made ICANN promise half the seats to elected public representatives ICANN didn’t Mutable documents mutate Gaps will be used against you Elections promised, vanished Board Squatters promised to vanish, stayed ccTLD re-delegations (e.g. ICP3, .au) ICANN Doesn’t (Can’t?) Keep Promises

Middle ICANN: 

Middle ICANN UDRP - the decision-making process wasn’t observed On other issues - insiders can use process to block things Lesson: Some are more equal than others Lesson: ICANN manipulates terms ('consensus') to suit insider interests

Major Process Failure: New gTLDs: 

Major Process Failure: New gTLDs Bad institutional design produces bad decisions if only due to lack of information, bad weighing of facts ICANN failed to examine technical basis (if any) for constraints on new gTLDs ICANN used expensive and not too competent consultant (Arthur Andersen) Directors with conflicts participated in all discussions

Lessons From Process Failures: 

Lessons From Process Failures Conflicts of Interest Matter Big Picture Lesson Debatable: Some say it’s hopeless Some say the answer is new personnel Some say the answer is break it up

Lesson from ccTLD Experiences: 

Lesson from ccTLD Experiences ICANN manipulates the rules on re-delegation (ICP 3), then doesn’t follow them (.au) ccTLD’s can’t get routine updates from ICANN, unless they sign ICANN’s 'obey andamp; pay' contracts -- almost none have Reform says if ccTLDs don’t sign they don’t vote Lesson: Blackmail happens

Lessons from the Auerbach Lawsuit: 

Lessons from the Auerbach Lawsuit ICANN’s motives are obscure: Personal animus? Smoking gun document in file? Seems as if all ICANN’s legitimate interests are protected by background California law, no need for extras ICANN needs new lawyers? Members of Board need help in understanding their duties, especially non-US directors who may over-rely on lawyers, rather than big picture interests

Department of Commerce: 

Department of Commerce Smart folks with busy lives Courts are not the answer -- too expensive DoC’s NTIA has other priorities, will only act if forced to or if it is easy Make it easy for DoC