[At-Large] Fwd: Re: Follow-up on an enquiry during Durban Public Forum

Evan Leibovitch evan at telly.org
Sun Nov 10 18:03:21 UTC 2013

On 10 November 2013 10:27, Karl Auerbach <karl at cavebear.com> wrote:

> It is long past time, indeed it is decades past time, that the contractual
> tree that underlies ICANN's regulatory structure ought to recognize and
> declare that the ultimate purpose of that structure is to benefit those who
> register and those who use domain names.

I think the term I'd use to describe my reaction to this is "violent

> ICANN's focus is on the structure of registries and registrars.
> An inquiring outsider could understandably reach the conclusion that
> in ICANN's systems registrants and users are not of particular value
> or concern.

Actually, insiders can come to that conclusion too. The more one looks at
ICANN from the inside -- its structural composition and corporate culture
-- one reaches the conclusion that the robustness of the financial chain is
all that matters. ICANN is dependent on the revenues from gTLDs and has
thus been captured by their priorities. It benefits most from the maximim
proliferation of domain names, whether or not that proliferation benefits
either providers or users of Internet-based services. At the highest level,
ICANN's choice to (massively!) expand the namespace, before cleaning up
what already exists, messages its priorities far clearer than any press

In this environment, end users are irrelevant to ICANN's because they are
not in the financial food-chain.

Right now this is set to perpetuate, despite Fadi's attempts to shift
slightly by at least acknowledging that non-financially-interested parties
matter. Look at the current trend of the NomCom to stress corporate
management over Internet policy people for the ICANN Board. This emphasis
ensures that a user-centric ICANN is a long way off, if it ever has a
chance at all.

> There is much talk about registrants and domain name users, but it is talk
> - it is vapor blowing in a light breeze.  It is pleasant to see but lacking
> in substance.

Well, at least there is talk. Until recently there was barely even
acknowledgement that end users existed, let alone mattered.

In the law of contracts there is a principle of law known as Third Party
> Beneficiary Rights.  This is a means through which third parties, who are
> not themselves direct parties to a contractual relationship can obtain
> powers to enforce and compel the obligations of that contract upon the
> direct parties.

This is one channel, but since it depends on one country's law and not
international treaty, you're effectively demanding that such rights need to
be enforced through the courts and not ICANN's internal mechanisms. That --
as always seems the case within ICANN -- limits participants to those with
big cash. It also doesn't address how to build in user-centric policy
making from the start, thereby relegating ICANN to an endless
stimulus-response cycle of tossing out global policy and hoping it survives
American legal challenge.

I like your objectives but think we need better tactics -- and especially
ones not dependent on any one country's court system.

- Evan

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