Rewiring Internet Governance: Will U.S. Government Likely Be Forced to Jettison ICANN?

Writen By Frederick Harris for CircleID The survival thesis mentioned in Part 2 goes like this. ICANN’s imaginary mandate is global. But the mind set is provincial. The latter is defensive; focused on keeping power and therefore control over internet policy. But the evidence points to policy actions that contradict policy rhetoric. Discrepancies disclose the delusion. Here’s ICANN “core value” from Article 1, Section 2, Paragraph 6 (amended April, 2013): “Introducing and promoting competition in the registration of domain names where practicable and beneficial in the public interest.”

On 3 January 2012 the U.S. Government (NTIA) sent the following language to ICANN in connection with new gTLDs. “How ICANN handles the new gTLD program will, for many, be a litmus test of the viability of this [multi-stakeholder] approach.” Almost a year later, on 13 November 2013, ICANN published the following text on its web site: “The bottom-up, multistakeholder model of governance has addressed burgeoning policy issues in a remarkably agile and successful manner. As the Internet has taken on a larger role in the economy and society, some governments have grown increasingly uncomfortable with their perceived lack of control. [ICANN] recognizes that the single, open, global, interoperable Internet is under threat of failing due to emerging pressures on multistakeholder governance. [Help us] prevent the fragmentation of the global Internet.”

Is ICANN really “remarkably agile and successful? Is Internet actually under threat from some governments? Here’s reality: If Internet is tormented, the source of the threat is ICANN itself. The latter ignored warnings from four separate senate and house committees, plus the Federal Trade Commission, and NTIA, to go slow; look out for the public interest; protect the Internet; cushion small business; try a “small pilot project” for subsequent evaluation before a large scale rollout. Instead of listening to Congress ICANN took policy decisions that generated unwarranted complexity, semantic gymnastics, related legal headaches, forthcoming land rushes, inevitable cybersquatting, unnecessary trademark controversies, and avoidable predatory pricing, the latter which amounts to what economists call “asymmetrically dominated alternatives”(Ok et al, 2011). In other words, economic domination by private interests that encourage less than rational buying, selling, trading, reselling and auctioning of domain names which are ethereal goods without a physical presence and where there is no U.S. legal consensus as to whether domains names are even real property to begin with.

What should reasonable people make of this? ICANN resides in a Janus-like dream world where its delusional agility and success in dealing with “burgeoning policy issues” actually amounts to the biggest policy boondoggle in the history of the Internet; and where real world evidence shows itself in the double-talking promotions that are published on the web sites of ICANN’s corporate beneficiaries.

Policy clearly reduces to Lowi’s “who gets what”; but the problem runs deeper. The real politik behind ICANN’s predicament stems from shifting political assessments about whether the rest of the world concurs with ICANN’s ideology of the empire of business which blends into, and therefore corrupts, policy making. If, as ICANN claims, a global and interoperable Internet is failing because of “emerging pressures”, the stressors were created by ICANN itself.

Arguably the source stems from ICANN’s “cognitive toolkit” (Kurbalija, 5th edition, Diplo Foundation) which in governance terms defies common sense. ICANN has done some things reasonably well, meaning security and steadiness of the root zone which in a technical sense supports internet governance. However, in ICANN’s case stability and security are subordinate to its driving ambition to be king of the world insofar as “ruling the root” The result is “bad equilibrium”(Fukuyama, 2013) and policy perversity.

The practical effect of subordinating policy decisions to internal ideology is that bottom-up governance, however well meaning, contradicts political reality. When push comes to shove politics is about power. ICANN’s narrative coupled with policy blunders that ignore political sensibility anticipate ICANN’s sooner rather than later demise. I will explain why that’s a distinct possibility.

The ICANN Narrative

The Affirmation of Commitments by U.S. Commerce Department and ICANN on 30 September 2009 enfeebled U.S. Government control over ICANN. The government handed ICANN a long leash with two probable outcomes: ICANN could hang itself or conform to the letter of the agreement by devising progressive policies that met ICANN commitments on the one hand, but not at the expense of the public interest as distinct from the interests of economic elites.

To date ICANN has not gone to the gallows, but perverse policy choices have dragged Internet into a zero sum twilight guided entirely by laissez faire mania. This calls into question the competence of ICANN’s managers. Its theory of governance, if it ever had one, stems from political artlessness and historical amnesia. ICANN seems blissfully unaware that there is nothing of substance in the 2009 accord that severs it fully and finally from its master.

Indeed, the U.S. Government’s DNS “issues for congress” report (13 November 2013) states the following: “Congress has an impact on the issue of Internet governance, both via its oversight of NTIA and the DNS, and through its actions in other and more specific areas of Internet policymaking. For example, Congress continues to oversee and evaluate NTIA’s strategy of supporting ICANN’s multistakeholder model while opposing arguments for increased intergovernmental control”.

The text also states: “One of NTIA’s arguments for increasing government influence over ICANN policymaking (via the GAC) is that if governments feel their interests are not adequately addressed within the ICANN process, this perception will give support to the argument that the DNS and the Internet should be governed through a more formal intergovernmental mechanism.” In other words, for the moment NTIA is the congressional proxy for oversight. But the oversight mandate will likely change because ICANN’s policy model flatly contradicts the government’s political objectives vis-á-vis Internet.

Blunders and Blinders

Froomkin (2011) points out that when government ceded partial control over ICANN, the commitments affirmation introduced a variety of control variables that ICANN could introduce, anyone of which could alter the political calculus. But, severance from NTIA oversight wasn’t one of them. Granted, ICANN has exercised “more authority and more independence” (Froomkin). But its authority and perceived legitimacy has been undermined everywhere.

Froomkin notes that the 2009 accord between DOC and thus NTIA and ICANN allowed the latter to independently devise and impose by contract new rules and regulations. But such did not lessen the government’s “unique influence” over ICANN. Specifically, section 9.3 of the pact specified that ICANN would promote competition, consumer trust and consumer choice, and that ICANN’s contemplation of an expanded top-level (gTLD) name space also meant that in addition to security, resiliency and stability, ICANN (via GAC) would address malicious abuse issues, sovereignty concerns, and consumer rights protections.

That ICANN’s policy actions contradict its implied and specific promises-of-performance is readily discerned. Consider the following: 1) ICANN’s version of the “public interest” amounts to a world awash with privately run gTLDs, many of them from brand name entities that signal information silos controlled by big corporations. 2) ICANN’s cognitive toolkit connected to an appetite for money that obviated applications from not-for-profits focused, for example, on world-wide hunger, in-country genocide, unspeakable poverty, rampant disease, or child mortality. 3) ICANN’s clueless oblivion to the perceived cultural bias which obtains when the internet platform delivers technical virtuosity at the expensive of foreign political and cultural sensitivities.

All this speaks to the internet fragmentation that worries ICANN’s board, and with good reason. Its own policy blunders beg the larger question of the probable impacts of over extended ambition when politics on a large canvas confronts U.S. Congress and thus NTIA over root zone stability seriously impaired by incompetence. Sooner rather than later peer institutions may begin avoiding discredited ICANN. Foreign governments will likely begin demanding accountability. Congress might be compelled to discard ICANN which was precisely the outcome it sought to avoid. What is it about ICANN that warrants this?

The Global Narrative

An example of ICANN’s cognitive deficit in the global sand box derives from Walter Russell Mead who edits The American Interest blog. Mead clearly believes that U.S. hegemony, meaning the extent to which others are willing to accommodate U.S. policy interests, is in decline. The reason is provided by Francis Fukuyama, who is Mead’s online collaborator.

The “End of History and the Last Man” thesis broadly defines Fukuyama. But, in a recent (8 December 2013) essay, Fukuyama speaks to “the decay of American political institutions”. His explanation resonates in connection with the oversight narratives of both ICANN and NTIA. According to Fukuyama, governance methods in the U.S. subordinate accountability. This clearly runs contrary to U.S. policy intentions. There are reasons for this, one of which I previously referred to as a “dysfunctional governance predicament that somehow skews oversight.” Fukuyama also mentions Lowi’s “interest group liberalism” meaning “who gets what” as a “pluralist” political reckoning derived from mid-20th century thinking which has somehow transformed the narrative.

Fukuyama states: “The [theory was that] a cacophony of interest groups would collectively interact to produce a public interest, just as competition in a free market would provide public benefit through individuals following their narrow self-interest. Further, there was no justification for government to regulate this process, since there was no higher ground that could define a “public interest” standing above the narrow concerns of interest groups…. Alas, ‘interest groups’ and ‘private associations’ are two ways of describing the same basic phenomenon. So how do we reconcile these diametrically opposed narratives, the first claiming that interest groups corrupt democracy and harm economic growth, and the second asserting that they are necessary for healthy democracy?”

The above simplifies Fukuyama. But the main point is this. “The United States is trapped in a bad equilibrium. Because Americans historically distrust the government, they aren’t typically willing to delegate authority to it. Instead, as we have seen, Congress mandates complex rules that reduce government autonomy and render decisions slow and expensive. The government then performs poorly, which perversely confirms the original distrust of government.”

ICANN Perversity Foreshadows Failure

As mentioned above, ICANN’s policy obstinance is the reverse mirror image of what the DOC, NTIA and Congress intend to elude. Fukuyama’s “disequilibrium” thesis reflects ICANN. Shapiro’s “delegation dilemma” about oversight quarrels pinpoints the source. Bred in the bone ideology that reflects a distrust of government ironically diminishes internet autonomy through wrong-headed policies that invite information oligopolies in the name of “openness”. ICANN’s public persona is mindful of A.M. Klein’s “mad poet who stares at a mirror all day long, as if to recognize himself”.

The evolution of Internet as a technical and social phenomenon emerged from antecedent occurrences, among them technical know-how and of course research and development money via DARPA and others. But the nexus that joins engineering dexterity to stability has not translated into competent governance. If it were otherwise, ICANN would have reckoned with political reality. As Kahler (2009) points out, contemporary guidance is about “networked politics” and other “new forms of governance” where frameworks like bottom-up stake holding hitherto regarded as consensual (and thus sacrosanct) are disclosed for what they are: political vehicles that subordinate policy to conflicts over hierarchy and status. The above ‘intimations’, large and small, demonstrate that a mature institution with competent management would have avoided the “asymmetrically dominated alternatives” that have eradicated ICANN’s credibility and eroded confidence that the U.S. has a policy handle on reasonable internet supervision.

Summary

In Part 3 I have outlined the broader political environment which ought to have led ICANN’s cognitive toolkit in the direction of adding new gTLDs carefully, gradually and mindful of perceived bias. In their stead, ICANN chose a radical, unwarranted and unprecedented expansion trajectory which leads to serious governance disequilibrium.

In Part 2 the argument exposed ICANN’s trajectory which also reflects economic fabulism. As critics have feared, internet governance has become a smoke screen that reminds one of what McChesney (2013) refers to as “the great conflict between openness and a closed system of corporate profitability, the forces of capital have triumphed whenever an issue matter to them. The Internet has been subjected to the capital-accumulation process, which has a clear logic of its own, inimical to much of the democratic potential of digital communication.”

The “great conflict” incorporates ICANN’s provincialism and thus its defensive posture. For all its imagined power ICANN governance amounts to weasel worded rhetoric coupled with never ending discussions, expensive conferences, and meetings whether required or not, nearly everywhere in the world, all of which in the end game dwindle to kowtowing to big money interests. Those “emerging pressures on multistakeholder governance” lamented by ICANN’s board are real. The board created them.

In Part 4 I will continue looking at ICANN’s policy actions to try and uncover the roots of the conflict between that which professes openness, and ICANN’s governance model which amounts to private sector hegemony instead of reasonable economic policies that serve the entire internet community.

Read Part 1 & 2 Below

Rewiring Internet Governance: Choice and Control (Part 2)

Rewiring Internet Governance: Step One Is About ICANN (Part 1)