ICANN: hypersensitivity or something else?

Yesterday I participated in the workshop on Governance Frameworks for Critical Internet Resources, where I talked about the Legal Framework of CIR using as example some legalities involving ICANN. It is important to note that in the beginning of my talk I expressly said that ICANN would be used as example to show broader issues, but the talk was not about ICANN. I also said that due to a requirement of the organizers of the panel I would only make a diagnosis without making any proposal. After giving a brief and tentative definition of Critical Internet Resources and explaining that what were the resources that were critical for the functioning of Internet was a contentious issue, I went into saying that there was no much disagreement in the fact that the Domain Name System was a CIR. Then, I , explained that the DNS would take us to ICANN and, once again, I repeated that the issue was not about ICANN but that ICANN perfectly exemplified the legal situation of the governance of many CIR (I took the opportunity to repeat that I believed that ICANN was doing a good job doing what was supposed to do).

Once started with ICANN I first explained that regardless how ICANN saw itself, the organization was technically a regulator (I actually called it the “ultimate regulator of the DNS”), due to being in charge of price setting for the resource, the registrars accreditation, new public offerings and having power of enforcement, and that it was unfortunate that ICANN did not see itself as one, because by recognizing the reality of being a regulator the organization could tackle the current problems and discontent by using the appropriate legal architecture. Not doing so would mean that ICANN would still be subject to attacks and criticism for not having proper delegation of authority to regulate a international resource, for not having a express and clear mandate emanated by a competent organ, for not having internal processes established by the same act of delegation and delimitation of the mandate, for not having adequate judicial review of its actions, and for lack of transparent political oversight (which I also said is a double edged sword). Going into ICANN, that translated into having its original authority and mandate given by a Memorandum of Understanding with the Department of Commerce of the US, having its internal processes decided by bylaws governed by the law of California, establishing relations to other NICs through some form of contractual agreement, and having inherited some relations originated in the delegations that the original IANA made to some NICs (the relation between ICANN and the US DoC is not the same anymore, but that fact was irrelevant to the discussion because ICANN was an example to show the legal complexities of CIR’s governance issues and the focus was not in the current status of the organization). Those arrangements implied that in case of conflict, some issues could be decided in Federal Court, due to the existence of a memorandum with a public authority delegating some regulatory powers, others related to compliance with the bylaws would have to be resolved in a Californian court, and those related to the contracts with the NICs would depend on certain conflict of law issues. After reminding to the audience that the talk was about the uncertainties surrounding CIR due to the lack of a proper legal setting and not about ICANN (the organization was the excuse and example to show the other fact) I ended saying that, as agreed with the organizers, I would not advance any proposal (which, of course I had). During question time I repeated the need to keep ICANN and its principles, but I also said that we needed to be creative to find a legal architecture that would preserve that while giving to the organization the needed delegation and mandate that would silence the critics.

However, and quite surprisingly, it seems that my talk did not go well with some people of ICANN and also, as far as I was informed, it was not properly reported. I guess that there is some form of communication between the members of ICANN and there the report said, I imagine innocently, things that I did not said, like “[Fernando Barrio] [s]aid there is not way of regulating the regulator”, when I actually said that the regulator is not properly regulated (as regulator) and there is a need to do so (which implies that there is a way to regulate the regulator). In a couple of places the “report” refers to my references to Californian law, but omits to say that explicitly said that that would be the venue if a conflict arises about the use or interpretation of the bylaws (ICANN is a non-profit incorporated in California). For some reason the reporter made references to California even when referring to a potential conflict about the Memorandum of Understanding and contractual issues with the NICs (in this case I said that it depended on a part of domestic law called “conflict of laws” and that the result and venue was uncertain, and could be California [like it could be any jurisdiction of the planet]). I clearly understand that it is difficult to follow somebody’s talk and make notes, which is specially true with me due to the way I talk and sometimes jump from one topic to another, so the reported bears no blame at all about the confusion, and that is the main reason for me normally write very succinct general summaries about others’ presentations unless a have a transcript in front of me. The reactions that followed, some members seemed quite uneasy about what I said, are in one way understandable due to the hypersensitivity from the people of ICANN for being again used as target by everyone, but if the characterization of me being “misinformed” is not based on the inaccuracies of the report but just on disagreeing with what I said, I think that we might be in front of a bigger problem, which is not being able to accept others’ views and that would be worrying in the ICANN context (where, in theory, the input of all the stakeholders is sought). I hope that the later is not the case because I still believe that with proper creative thinking we should be able to find the legal infrastructure that would ensure that ICANN can keep doing its job and have proper authority and mandate from the relevant parties, a clear internal process decided by the same act of delegation, and limited political oversight, while , as Vint Cerf said in his Legacy Letter to the ICANN Community, “evolv[ing] and strengthen[ing] its implementation of multi-stakeholder policy development”, for which it needs to be praised.