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Can an Industry and Government Partnership in ICANN Survive ?

Self governance and the Internet's naming and address allocation systems

Richard Francis

Internet historians who look back to 2002 in the future may have some sympathies with the Miami Law Professor, Michael Froomkin who wrote in ICANN Watch last year

Who cares what ICANN was supposed to be for half an eternity ago in Internet time. (Maybe we've learned a thing or two since then)...the critical element for ICANN is technical coordination...the public interest is served by delegating resources, not hoarding them, and by presiding over an orderly de-centralization of policymaking, away from current single point of near-total failure1

The conclusion of twelve months' intensive debate initiated by ICANN's President Dr Stuart Lynn in his February 2002 Paper: ICANN - The Case For Reform 2 is perhaps that neither stronger government regulation nor industry self-regulation alone, will deliver stable administrative and policy management of the Internet's naming and address allocation systems.

Dr Lynn said in his Paper:
I have come to the conclusion that the original concept of a purely private sector body, based on consensus and consent, has been shown to be impractical. The fact that many of those critical to global coordination are still not willing to participate fully and effectively in the ICANN process is strong evidence of this fact. But I also am convinced that, for a resource as changeable and dynamic as the Internet, a traditional governmental approach as an alternative to ICANN remains a bad idea.

Resolution # 102 passed at the theITU Plenipotentiary Conference in Marrakesh last October3 and the Workshop called by the ITU in early March 2003 on Member States' Experiences of ccTLDs 4 , confirm that the alternative 'old world' of the International Treaty organisation could take over if the ICANN experiment in governance fails. The US Department of Commerce MoU with ICANN expires in September. By then we will know whether ICANN will survive.

In the words of Graham Smith of Bird & Bird in the Preface of the Third Edition of Internet Law and Regulation we are at the tail end in the UK of a feverish bout of legislative activity. A glut of new legislation, mostly emanating from Brussels, now affects the Internet and eCommerce.5

This paper will examine the crucial role of the ICANN Governmental Advisory Committee in formalising a 'soft law' solution to the challenge of integrating the views of Industry, users and governments to achieve effective self governance of the Internet's naming and address allocation systems.

If it proves impossible to persuade governments that self governance within the processes of ICANN 2 remains a runner, the only alternative will be a 'hard treaty' solution and ITU is more than willing to show how this is done. Where the treaty solution leads, a feverish bout of legislative activity to take control of national ccTLD Registry databases would likely follow.

February 2003 1 ICANNWatch 22 April 2002 2 3 4 5 Internet Law and Regulation, Third Edition, Sweet & Maxwell , London 2002

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