The Root of All Evil?

1
The Root of All Evil?

• A.Michael Froomkin
• Professor, U.Miami School of Law
• http//www.law.tm

2
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.

3
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

4
(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?)

5
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

6
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

7
Suppose ICANN Controls the Root

• Two cultures Engineering Lawyer
• Engineer focus on results (Does it float?)
• Laywer 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

8
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

9
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 (boundry conditions)
• Due process even lawsuits

10
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

11
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."

12
ICANN Rulemaking adhocracy

• Notice, formality, regularity, consensus issues
• Timing
• Role of working groups
• Voting rules
• Bylaws conflicts

13
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 theyd
  rather avoid.

14
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

15
Making Participation Meaningful

• Participation is a good in itself
• More input may make better decisions
• Its the right thing to do
• Participation is an instrumental good
• Creates visible legitimacy
• Protects decisions against 3rd party challenges

16
Whats the Answer?

• If this is a political problem then it requires a
  political solution.
• Of course, if its a technical problem it needs a

Al Gore?
Sec. Daley?
Jeb Bush?
Bill Bradley?
17
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

18
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
• Must forefront end-user role