Multi-stakeholder Internet governance is captured and presumed dead

It’s time for a reset before it’s too late.

Technical management of the Internet was delegated to ICANN by the U.S. government because it was believed that the private sector would be more agile and responsive to the needs of globally distributed stakeholders. However, this optimism and the faith it has produced has proven to be misplaced since ICANN’s multi-stakeholder governance continues falling far short of the basic expectations set when it was created.

Failing to meet fundamental expectations

ICANN’s multi-stakeholder governance has failed to develop and deploy a system for the availability of registrant identifiers — so-called Whois data — in a reliable, accurate, and consistent manner. The consequences of this failure have been well-documented by law enforcement, humanitarian agencies, and child safety organizations, as well as anti-human trafficking and victims support groups from around the world while many people, primarily women and children, are being harmed or even killed as a result.

This is shameful on ICANN’s part, particularly considering that, even before the creation of ICANN, the public availability of registrant data has been a primary objective set by the U.S. government for private sector management of the Domain Name System (DNS) and it’s multi-stakeholder governance. Yet ICANN torpedoed the previous Whois system, ostensibly due to concerns about the GDPR, a non-U.S. regulatory regime. In reality, Whois was destroyed without any viable replacement because contracted registry operators and registrars have always hated their responsibility for maintaining accurate and accessible registrant data and, since the beginning of ICANN, they have availed themselves of any opportunity to rid themselves of it.

The best that ICANN’s multi-stakeholder governance has been able to do in more than four years is a proposed plan which enjoys little support — even from the stakeholders that authored it — and we are years away from any type of Whois replacement being implemented. This performance is the antithesis of “Internet speed” and isn’t any better than a government agency could have done — and may in fact be far worse.

Ignoring stakeholders — except for some registry operators and registrars

ICANN’s multi-stakeholder governance is demonstrably non-responsive to stakeholders outside of its largest contracted parties. This is nothing new and John Gilmore observed in a 2002 salon.com interview that, “(t)hey (ICANN) hold ‘open public meetings’ where the public is free to shovel its comments into a dumpster. But then they ignore the comments and do what they want in closed-door meetings.”

Perhaps no recent examples demonstrate this phenomenon more than ICANN’s handling of stakeholder objections to removing essential consumer pricing safeguards from both the .com and .org registry agreements. In both cases, thousands of objections poured in — more than 9,000 in the case of .com and more than 3,400 in the case of .org — which ICANN ignored in order to give those registry operators the pricing power they wanted.

However, these were both highly questionable moves. Pricing power was granted for .org by ICANN right before an attempt was made by the Internet Society to sell the .org registry for more than a billion dollars to former ICANN insiders backed by veiled private equity interests. This sale fell through when ICANN’s board unexpectedly declined to approve the necessary change of control for unknown reasons. Although some insiders complained about the California Attorney General’s objections to the sale as “a troubling threat to ICANN,” there is no evidence that this had any influence on the board’s mysterious eleventh-hour decision. It should also be noted that the home base for non-profits on the Internet doesn’t belong to ICANN or any of its contracted parties and, consequently, it isn’t theirs to sell.

In the case of .com, pricing power was granted by ICANN in conjunction with receiving a $20 million commitment from the registry’s operator. There have been attempts to whitewash this move as simply a “pass-through” of pricing flexibility granted by the U.S. government, but the U.S. government’s action here was itself irresponsible since it was made without any accompanying economic analysis, competition review, public comment or other substantive due diligence that might have demonstrated how additional .com pricing power serves the public interest.

When the objections of thousands of stakeholders can be denied and disregarded without any justification, it is time to admit that we aren’t actually stakeholders — there are contracted registry operators and registrars and everybody else is merely an observer.

Escaping Accountability

ICANN’s organizational bylaws are not serving as an effective safeguard against corruption and other misconduct. They are violated with impunity (e.g. the contested auction of the .web new top-level domain and ICANN’s acting as a registrar for reserving and seeking to auction the o.com domain name). This has resulted in some efforts costing millions of dollars and lasting years that seek compelling ICANN to follow its own rules.

But these sorts of strenuous efforts shouldn’t be necessary for ICANN to comply with its bylaws, particularly since assurances were offered in sworn testimony to Congress by ICANN CEO Goran Marby, ICANN board member Becky Burr, and longtime Business Constituency policy chair Steve Delbianco, as well as others, that corporate governance frameworks such as bylaws and articles of incorporation would safeguard against misconduct. Yet, as circumstances now make clear, these assurances from such influential leaders have proven meaningless.

Resetting Internet governance that puts the public interest first

So what is ICANN doing except for generating and spending enormous amounts of cash at the expense of companies, non-profit organizations and all manner of Internet users worldwide?

There is no fixing our current predicament — there are so many debacles piling up that it is nearly impossible to keep track. The public interest isn’t being served and ICANN’s multi-stakeholder governance participants are merely casual observers that have no real say in matters affecting them.

But you don’t have to believe me. Just talk to members of ICANN’s Business and Intellectual Property constituencies who have taken to openly calling ICANN the “Contracted Party Association.” Or look at the many participants that are reevaluating their participation in such a broken and ineffective system or that have already given up. For example, one major U.S. technology company recently went so far as eliminating the position of its ICANN representative.

Addressing the failure of ICANN’s multi-stakeholder governance requires the U.S. government to hit the reset button by stepping in and reclaiming active control of its legacy domain name registries — .com, .net, and .org — which are the only parts of the DNS currently operated by ICANN that matter (Numbering and Protocols are mostly managed by organizations other than ICANN, which only coordinates these aspects of the DNS).

These registries were created in 1985 solely by the U.S. government and long before ICANN or Network Solutions, Verisign’s predecessor, entered the picture. The U.S. government has never delegated any of its rights to these registries, only responsibilities related to their operation, and it certainly has never granted anything approaching ownership of these critical Internet infrastructure assets to ICANN or any other entity. Nor could it have, since any such action by the U.S. government would require Congressional authorization and no such statutory approval has ever been introduced or even proposed let alone enacted. 

This isn’t to say that the U.S. government should somehow take over ICANN or try to re-assert direct control of the DNS and neither would ICANN automatically cease to exist. If nothing else, ICANN has proven itself quite adept at fabricating new top-level domains that serve no real purpose except to generate hundreds of millions of dollars in speculative revenue for the organization from application fees and auctions of contended top-level labels — so let them continue doing so for as long as the market will bear. 

After reclaiming control of its legacy registries, the U.S. government should immediately move to foster market-based sanity by conducting an open and competitive bidding process for the concession privilege of operating these lucrative registries. Some may try to argue that any change to the status quo risks possibly destabilizing the global Internet but this is a false choice that should be dismissed by recognizing that the real threat to a stable global Internet is the status quo.

The world doesn’t need another unaccountable global organization like FIFA or the International Olympic Committee that manufactures money and fosters corruption while masking its shortcomings and misconduct in a halcyon feel-good glow, in this case a single, unified, interoperable Internet. Finally, ICANN is too corrupt, compromised, and captured to serve as an effective bulwark against an Internet takeover by the United Nations or International Telecommunications Union instigated by Russia, China, Cuba, Iran or anybody else and it has demonstrated repeatedly that it has no interest in doing so anyway.

ICANN’s multi-stakeholder governance is already dead, there are no stakeholders except contracted parties, and it’s time for the U.S. government to hit the reset button now — before it’s too late.