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

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

3. What I learned from the IFWP zLesson: Need to be organized zFuture ICANN CEO destabilized the IFWP ycf. Milton Mueller’s book yNo one knew he was negotiating to run ICANN yLesson: ICANN fights dirty zLesson: Disclosure matters yIf we’d known then, we’d have acted differently

4. ICANN Formation zDoC made ICANN promise half the seats to elected public representatives zICANN didn’t zMutable documents mutate yGaps will be used against you xElections promised, vanished xBoard Squatters promised to vanish, stayed xccTLD re-delegations (e.g. ICP3,.au) zICANN Doesn’t (Can’t?) Keep Promises

5. Middle ICANN zUDRP - the decision-making process wasn’t observed zOn other issues - insiders can use process to block things zLesson: Some are more equal than others zLesson: ICANN manipulates terms (“consensus”) to suit insider interests

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

7. Lessons From Process Failures zConflicts of Interest Matter zBig Picture Lesson Debatable: ySome say it’s hopeless ySome say the answer is new personnel ySome say the answer is break it up

8. Lesson from ccTLD Experiences zICANN manipulates the rules on re- delegation (ICP 3), then doesn’t follow them (.au) zccTLD’s can’t get routine updates from ICANN, unless they sign ICANN’s “obey & pay” contracts -- almost none have zReform says if ccTLDs don’t sign they don’t vote zLesson: Blackmail happens

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

10. Department of Commerce zSmart folks with busy lives zCourts are not the answer -- too expensive zDoC’s NTIA has other priorities, will only act if forced to or if it is easy zMake it easy for DoC