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"We have been vocal in arguing that ICANN ought to make policy only in narrowly defined subject matter areas. But it makes no sense to say that ICANN should not address issues that are covered in any way by local law. The point of ICANN is to determine when there is widespread agreement that we need global policies -- and to agree to such uniform (consensus based) policies by contract. Far from avoiding controversy, the staff's approach in this Report causes trouble by suggesting that the ICANN policy development process cannot lead to substantive results.
ICANN must be able to make substantive policies. .
"Harmonization" of local laws is not ICANN's mission. But the point about consensus policies is that they are global rules that most affected parties have contractually agreed to go along with. The idea is that, through the hard work of consensus generation and documentation, ICANN will be able to create a few global rules that provide more predictable policies for the domain name space than whatever rules would result from a choice of (local) law analysis applied to every different situation. For example, the definition of "bad faith" for purposes of a UDRP proceeding is not a matter of local law -- it is a matter of establishing the standard pursuant to which contractual mandates on registrars will be used to enforce the result of a UDRP decision. It cannot be the case that ICANN can only make globally uniform contractually-binding policies if there happens to be either (1) no local law bearing on the subject or (2) some pre-existing and globally uniform local law on the subject. Zero policies would result if those criteria were the measure of ICANN's "scope".
For example, every question posed by the whois debate is a subject of various national laws. Harmonization of local law may not be possible -- but harmonization is not necessary to come up with a standard rule that is contractually binding on all those under contract with ICANN unless and except to the extent they are subject to some specific, conflicting national law. If ICANN finds a way in the whois discussion to give law enforcement what it needs, while protecting privacy to some degree, then governments may defer to the ICANN regime.
The Staff report suggests that creation of a PDP to address the WIPO-2 recommendations should be a higher priority than revisions to the UDRP. But WIPO-2 also deals with issues that are the subject of local law. We agree that the GNSO should set priorities with an eye to where consensus may be achieved. But it is more likely that we will find consensus on a package of substantive UDRP reforms, and on a new set of privacy/accuracy/access rules for WHOIS, than that we will get widespread agreement to the proposals made in WIPO-2.
ICANN must be able to change and terminate the policies it has now.
The Report takes the position that "the UDRP is a consensus policy, and should be revised only by consensus." What happens if a consensus supporting an existing policy evaporates but no new consensus can be reached? To say that the original UDRP policy (or whois policy) must stay in place unless there is a consensus for a specific new policy establishes an insurmountable barrier to change. If ICANN persists with this approach, we will have locked in DOC policy choices made several years ago. This means, among other things, that participation by the At Large or individual registrants in ICANN processes will be entirely meaningless.
It would make much more sense for ICANN to periodically sunset all consensus policies, on specified dates, and then to require renewed consensus agreement for future rules. This approach would force everyone to come to the table. If consensus could not be achieved, registries and registrars would be able to compete on the basis of differing policies. But it is likely that consensus would be achieved on some issues. After all, broad agreement on the first version of the UDRP resulted from widespread desire to have some uniform cybersquatting policy rather than none at all.
It will be important to keep all the UDRP issues on the table during this sunset process, because the combination of policies that can achieve broad agreement cannot easily be predicted in advance. Accordingly, a "staff manager’s issue report" should not handicap particular issues, but should seek instead to set forth an objective description of the parties’ positions.
Others will no doubt explain why some substantive UDRP reforms are sorely needed and long overdue. For our part, we urge ICANN staff not to try to duck controversy by artificially defining ICANN’s "scope" in terms of "local law" -- or by locking in existing policies that may or may not have been based on consensus initially, may no longer be supported by widespread agreement, and may not treat similarly situated parties similarly. If the Report’s Catch 22 analysis were to prevail, there would be no point in participation in the policy development process. We think it is too soon to give up on the consensus policy regime.
We urge ICANN to stick to its job of creating substantive contractually-based consensus policies in those areas where global standards are necessary, to eliminate all policies included in its contracts that are not clearly supported by a continuing consensus, and to apply its policy development process equally to all similarly situated registries.
David Johnson is working with software startups, and was previously a partner with Wilmer, Cutler & Pickering. Susan Crawford is a law professor at the Cardozo School of Law."
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ICANN's Newest Catch 22