'Private Ordering'
Date: Tuesday April 09 2002, @07:19AM
Topic: ICANN Staff and Structure

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.

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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.

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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?
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