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The Root of All Evil? A.Michael Froomkin Professor, U.Miami School of Law

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Presentation on theme: "The Root of All Evil? A.Michael Froomkin Professor, U.Miami School of Law"— Presentation transcript:

1 The Root of All Evil? A.Michael Froomkin Professor, U.Miami School of Law

2 Two stories z(1) The classic story: chokepoints, taxes and controls z(2) The real story: chaos and adhocracy zThe second story is a problem in its own right. zIt also makes it impossible to disprove the first.

3 An Internet “Choke Point”? zIf your TLD is not in the root you are essentially invisible yNetwork effects yInertia yChanging is ‘fiddly’ or controlled by someone else upstream from you zAll this can (and probably will) change

4 (Ab)use of the Root zHow yFlow-down terms of service yLegal claims of ownership in names, right to list TLDs or SLDs zWhat yWho gets to be seen yAnti-cybsersquatting, anti-spam rules yPrivacy rules yContent controls (filters?)

5 Who Controls the Root? zToday: U.S. Commerce Department ySome issues as to legal authority yNot many issues as to power: NSI accepts that Commerce controls entry in root, entry of new TLDs yDisputes with NSI as to “ownership” of data relating to registrations

6 Enter ICANN z“Virgin Birth”? z“Original sin”? zDoes ICANN control the root today? NO. Commerce does. yCommerce says it intends to cede control to ICANN--but it is NOT required to yICANN acts as if it is in control

7 Suppose ICANN Controls the Root zTwo cultures: Engineering & Lawyer yEngineer: focus on results (“Does it float?”) yLaywer: uses Holmes’ “bad man” approach - ask not what is likely; ask what is possible (“How easily does it get out of control?”) zLawyers Care about process zLawyers are nasty suspicious people zConstitutions are written by lawyers

8 Bad Things? z“Taxes” on domain names & IP allocations zConditions on the use of resources yContractual model is highly insulated from review yFirst UDP (includes USE restrictions now); then privacy; then… zSome of these might be great rules zSome might not zWhere there is not trust you need process

9 The Real Evil: A Really Lousy Governance Model zGovernments are a product of a long evolution. They have rules... yOn representation (feedback control) xNotice xVoting yOn self-dealing (data corruption) yOn procedure (protocols) yOn external checks (boundry conditions) xDue process; even lawsuits

10 The ICANN Structure Is Seriously Defective z“With all due respect … we are less interested in complaints about process" and more interested in "doing real work and moving forward.” zThe procedure IS the real work at this stage zLike software, if you start with a bad architecture, you pay for it downstream

11 Sample Defects zByzantine structure zLegitimation crisis yCreation, Funding, Spending yExpectation / outcome mis-match yFlawed representational structures yThat manipulable “consensus” x“The ICANN board does not "see a global consensus demanding that ICANN hold all its meetings in public."

12 ICANN: Rulemaking adhocracy yNotice, formality, regularity, consensus issues yTiming yRole of working groups yVoting rules yBylaws conflicts

13 “All Those Lawyers Going on About Rules” zYou can run a system on trust - but only so long as the trust is there. zRules protect people. yNotice yConflict of interest ySeparation of powers yThey define the conditions for participation. zThey make deciders jump through hoops they’d rather avoid.

14 Internet Participation in ICANN (Not?) zPhysical attendance at meetings seems critical zThe medium has not been used well zWith the honorable exception of E.Dyson, the Board is invisible zIf you participate virtually, with delays, written rules are ever-more important

15 Making Participation Meaningful zParticipation is a good in itself yMore input may make better decisions yIt’s the right thing to do zParticipation is an instrumental good yCreates visible legitimacy yProtects decisions against 3rd party challenges

16 What’s the Answer? z If this is a political problem then it requires a political solution. z Of course, if it’s a technical problem it needs a… Al Gore? Sec. Daley? Jeb Bush? Bill Bradley?

17 A Technical Solution? yUnlike standards debates in that it is much harder to drive the market by making a better proprietary standard yLike standards debate in that a new technology can make old standards irrelevant

18 Internal Reform? zModel One: Retrofit yBill of Rights? yEntrenched Promises not to do some things? yCould address many/most “Root of Evil” concerns zModel Two: Reboot yWe can learn from this (are these the Articles of Confederation?) yNeed a better requirements sheet yMust forefront end-user role

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