Lessons Learned From the ICANN Process

& from the ICANN-critique process….

A. Michael FroomkinU.Miami School of Law ICANNWatch.org

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

Lesson: Need to be organizedFuture 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 FormationDoC made ICANN promise half the seats

to elected public representativesICANN didn’tMutable documents mutate

Gaps will be used against youElections promised, vanishedBoard Squatters promised to vanish, stayedccTLD re-delegations (e.g. ICP3, .au)

ICANN Doesn’t (Can’t?) Keep Promises

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

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

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

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 & pay” contracts -- almost none have

Reform says if ccTLDs don’t sign they don’t vote

Lesson: Blackmail happens

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

Smart folks with busy livesCourts are not the answer -- too

expensiveDoC’s NTIA has other priorities, will

only act if forced to or if it is easyMake it easy for DoC