Inside ICANNWatch  
Submit Story
Lost Password
Site Messages
Top 10 Lists
Latest Comments
Search by topic

Our Mission
ICANN for Beginners
About Us
How To Use This Site
Slash Tech Info
Link to Us
Write to Us

  Useful ICANN sites  
  • ICANN itself
  • Bret Fausett's ICANN Blog
  • Internet Governance Project
  • UN Working Group on Internet Governance
  • Karl Auerbach web site
  • Müller-Maguhn home
  • UDRPinfo.com;
  • UDRPlaw.net;
  • CircleID;
  • LatinoamerICANN Project
  • ICB Tollfree News

  •   At Large Membership and Civil Society Participation in ICANN  
  • icannatlarge.com;
  • Noncommercial Users Constituency of ICANN
  • NAIS Project
  • ICANN At Large Study Committee Final Report
  • ICANN (non)Members page
  • ICANN Membership Election site

  • ICANN-Related Reading
    Browse ICANNWatch by Subject

    Ted Byfied
    - ICANN: Defending Our Precious Bodily Fluids
    - Ushering in Banality
    - ICANN! No U CANN't!
    - roving_reporter
    - DNS: A Short History and a Short Future

    David Farber
    - Overcoming ICANN (PFIR statement)

    A. Michael Froomkin
    - When We Say US™, We Mean It!
    - ICANN 2.0: Meet The New Boss
    - Habermas@ discourse.net: Toward a Critical Theory of Cyberspace
    - ICANN and Anti-Trust (with Mark Lemley)
    - Wrong Turn in Cyberspace: Using ICANN to Route Around the APA & the Constitution (html)
    - Form and Substance in Cyberspace
    - ICANN's "Uniform Dispute Resolution Policy"-- Causes and (Partial) Cures

    Milton Mueller
    - Ruling the Root
    - Success by Default: A New Profile of Domain Name Trademark Disputes under ICANN's UDRP
    - Dancing the Quango: ICANN as International Regulatory Regime
    - Goverments and Country Names: ICANN's Transformation into an Intergovernmental Regime
    - Competing DNS Roots: Creative Destruction or Just Plain Destruction?
    - Rough Justice: A Statistical Assessment of the UDRP
    - ICANN and Internet Governance

    David Post
    - Governing Cyberspace, or Where is James Madison When We Need Him?
    - The 'Unsettled Paradox': The Internet, the State, and the Consent of the Governed

    Jonathan Weinberg
    - Sitefinder and Internet Governance
    - ICANN, Internet Stability, and New Top Level Domains
    - Geeks and Greeks
    - ICANN and the Problem of Legitimacy

    Highlights of the ICANNWatch Archive
    (June 1999 - March 2001)

    ICANN Staff and Structure 'Private Ordering'
    posted by jon on Tuesday April 09 2002, @07:19AM

    Steven Schwarcz at Duke Law School has written an interesting paper called Private Ordering in which he discusses government delegation of regulatory authority to private organizations. ICANN, he suggests, is an example of "commercial private ordering" for which traditional legitimacy safeguards -- such as administrative-law processes, elections, and consensus requirements -- would be too costly and cumbersome. At the same time, Schwarcz urges, there must be some external mechanism designed to ensure that ICANN safeguards the non-efficiency goals it was created to advance. As a "direct" solution to the problem, he suggests that ICANN be required to report periodically to the Department of Commerce on its treatment of goals including protecting intellectual property and privacy, preventing fraud, fostering transparency, ensuring competition, and facilitating dispute resolution. The U.S. government should withdraw its support if it concludes, upon periodic examination, that ICANN is not adequately advancing those substantive goals.

    The paper is well worth reading. Personally, I have a variety of difficulties with its analysis: The paper relies on a distinction between "traditional" and "commercial" private ordering that strikes me as misleadingly simple, though I'm not familiar with all of the literature Schwarcz cites. At one point, he appears to use the phrase "commercial private ordering" to refer to the creation of private structures using market incentives for resource allocation, but ICANN doesn't fall in that category. In some respects, ICANN may be closer to what Schwarcz calls "traditional private ordering," for which his analysis would be different.

    More immediately, I'm skeptical of the proposal is that ICANN should gain legitimacy by having government regulators periodically scrutinize its substantive choices to make sure that they serve its stated goals. Under such an approach, Schwarcz suggests, the public can feel secure because it knows that Commerce will revoke the delegation if it thinks that ICANN is doing a bad job. The government's periodic decision about whether ICANN is making the "right" substantive choices, though, would be essentially political, and as such subject to political vagueries. Even in the best of circumstances a requirement that Commerce be ready to revoke the delegation if it feels ICANN is making bad decisions is unrealistic -- because the stability costs of revocation are high, the threshold for revocation has to be high as well. As we've historically seen in arenas such as FCC broadcast license renewal, it is in the nature of government that, as a practical matter, the regulator will not in fact revoke such an authorization unless the delegatee's performance is so monumentally problematic as to bring it to crisis.

    Still, it's a thought-provoking paper. Read it.

      ICANNWatch Login  


    [ Don't have an account yet? Please create one. It's not required, but as a registered user you can customize the site, post comments with your name, and accumulate reputation points ("karma") that will make your comments more visible. ]

      Related Links  
  • Private Ordering
    This discussion has been archived. No new comments can be posted.
    'Private Ordering' | Log in/Create an Account | Top | 10 comments | Search Discussion
    Click this button to post a comment to this story
    The options below will change how the comments display
    Check box to change your default comment view
    The Fine Print: The following comments are owned by whoever posted them. We are not responsible for them in any way.
    Accountability is commonsense
    by Richard_Henderson on Tuesday April 09 2002, @11:30AM (#5775)
    User #3269 Info | http://www.atlarge.org/

    The administration of the DNS is a world responsibility to safeguard a resource that belongs to the whole world.

    Icann HAS to be accountable to someone.

    The requirement to be regularly monitored against "performance-targets" and responsive to measures needed to adhere to such targets is surely essential.

    I agree that there is a separate issue over WHO sets the targets, but surely it should not be ICANN themselves (though they would have a significant input).

    In terms of political reality, DoC can always pull the plug on ICANN if they want.

    I suspect that the regionalisation and diversification of many of these functions may take control beyond DoC in the end though.

    I repeat: The administration of the DNS is a world responsibility to safeguard a resource that belongs to the whole world.

    ICANN therefore cannot be unaccountable.

    [ Reply to This | Parent ]
    Re: Belongs to whom?
    by Muhhk on Tuesday April 09 2002, @10:35PM (#5778)
    User #3085 Info
    "The administration of the DNS is a world responsibility to safeguard a resource that belongs to the whole world."

    "Says who?"

    Isn't the need for a globally-unique and universal naming system obvious (see phones and post)? Isn't it therefore logical to require some sort of coordinating body to arrange the very top layer of this heirarchical system? As the system is global, isn't it then logical to say that is not a requirement that the coordinating body be connected with any particular country?
    [ Reply to This | Parent ]
  • 3 replies beneath your current threshold.

  • Search ICANNWatch.org:

    Privacy Policy: We will not knowingly give out your personal data -- other than identifying your postings in the way you direct by setting your configuration options -- without a court order. All logos and trademarks in this site are property of their respective owner. The comments are property of their posters, all the rest © 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008 by ICANNWatch.Org. This web site was made with Slashcode, a web portal system written in perl. Slashcode is Free Software released under the GNU/GPL license.
    You can syndicate our headlines in .rdf, .rss, or .xml. Domain registration services donated by DomainRegistry.com