23 июль 2019
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Более глубокая проблема, о которой не говорит Линн, заключается в том, что легальный статус ICANN на сегодня не ясен. Это небольшая инкорпорированная в США некоммерческая организация, которая выполняет некоторые технические функции, часть из которых важна для сетей во всем мире, исключительно на том основании, что никто особо против этого не возражает.

Я надеюсь, что могу запостить сюда очень понравившийся мне комментарий Фрумкина по этому поводу (прошу только учесть, что Ф. комментировал не столько формальное предложение, сколько неформальную "объяснительную", написанную Линном после ряда недоуменных вопросов. Саму "объяснительную" постить не буду, т.к. она а) длинная и б) предсказуемая для всех, кто в курсе).

From: "Michael Froomkin - U.Miami School of Law" <froomkin@law.miami.edu>
Date: Wed, 27 Feb 2002 08:09:51 -0500 (EST)
To: Dave Farber <farber@cis.upenn.edu>

Dave. Thanks for the chance to reply to Dr. Lynn's latest.

Dr. Lynn's message typifies why ICANN is in trouble.

The founding agreements that led to ICANN are anything but a red herring.
Of course the White Paper is not sacred, but there was near consensus
around it, a near consensus which was the result of a great deal of
discussion in very varied communities. The Lynn paper seeks to throw it
all out, pretty much single handedly, and does so in a way that does
violence to the substance and spirit of the original deal -- and without
much thought for what motivated it either. ICANN's new grab at more power
and more money is in any case the attempted culmination of an ongoing
process--see, for example the many changes in ICANN's bylaws in just three
years, documented by Ellen Rony at
http://www.domainhandbook.com/archives/comp-icannbylaws.html .

ICANN was created to be private--and very limited, and there were really
good reasons people wanted it that way. It was supposed to coordinate the
tasks that need centralization (keeping a master list of the unique TLD's
in the root, doing the various ministerial IANA tasks to keep data current
and to assign protocol numbers). Instead of doing this fairly simple job
well, it decided to use its power to withhold changes requested by ccTLD
until they agreed to its "pay and obey" contracts. And it was supposed to
take on the very difficult task of finding a way to get agreement on the
issue of what new TLDs should be created and how we should decide who
would enjoy the spoils. At this, very difficult, task, it largely failed.

Contrary to Dr. Lynn's vision, ICANN does not manage the Internet, and
given its track record that's a good thing. It doesn't have
responsibilities for security. It is not a manager at all. It is not a
policy maker. Its job is to make standards and engage in technical
coordination. Standards have power primarily by their merit. If people
make a choice to use a different standard, that's the market telling us
something, and we should listen. Technical coordination is a limited
role, largely clerical, keeping lists of unique names for example. I
admit, however, that ICANN probably needs to do a little more than that --
setting very basic baseline rules for what it takes to run a registry,
maybe, and baseline norms for them, such as rules for backups. In
addition, ICANN should framing the conversation we need to have about how
many TLDs can safely be added to the root, and the discussion about what
fraction of that total we should add per year and to whom we'll delegate
the jobs of picking and running the new TLDs to be added. But that's
about it. ICANN isn't supposed to run the root servers. The fact that
other people run the root servers is one of the fail-safe checks on ICANN.

One of the most notable features of Dr. Lynn's plan is that it would
systematically remove every single external check on ICANN, be it
technical (root servers), political (ccTLD autonomy), internal (the
Independent Review Panel that Dr. Lynn has had a year to implement and yet
not managed to get done), legal (the Dept. of Commerce veto), judicial (no
pesky members who might claim they have rights), electoral, or financial.
The plan also discards as unworkable the idea that ICANN should be
consensus-based. Rather, once governments have pressured the major actors
(ccTLDs, root server operators, RIRs, etc.) to sign ICANN's "pay and obey"
contracts, the new, muscular, ICANN is to be a coercive top-down
regulator. The new ICANN will impose the rules it thinks best in its own
discretion, yet be self-perpetuating and without any accountability to
external forces save that provided (?) by having five of fifteen directors
named, not by the Internet community, but by world governments through
some regional mechanism to be announced.

No. The more powerful ICANN is to be, the more important it is to have
both internal and external checks, balances and accountability devices.
Thus, for example, because ICANN is a single point of failure astride an
Internet chokepoint, it is esse ntial that its funds be low. That's a
feature, not a bug. It limits mission creep -- or, if the Lynn roadmap
were adopted, mission gallop. The Lynn roadmap calls for an additional 10
or more staff members, bringing the headcount up to 30 or so. What are
all those people supposed to do?

Motivating the Lynn `roadmap' paper -- although you have to collect up
all the bits to see how central it is -- is a vision of a new, bigger,
much stronger ICANN with myriad regulatory duties. ICANN exists not
because there was a felt need for a huge new bureaucracy to make new
rules unaccountable to anyone but itself, but because the consensus on
which IANA had run was breaking down and Jon Postel needed legal cover
at least, and a way to try to more quickly forge consensus or
near-consensus in a way that existing structures didn't allow. The
needs have not changed (and appeals to 9/11 in this context are both
irrelevant and demeaning).

The trend in the EU and elsewhere is towards trying to cure democratic
deficits, not create new ones. ICANN cannot have it both ways --
either it embraces the public voice, unmediated by the input of despotic
governments (recall that the governments of the world just elected Syria
to the UN Security Council), and tries to make the case for why it
should have a policymaking role on matters that cut to the core of
communication and citizen participation (think "e-government") in modern
democracies. Or, if we are to accept Dr. Lynn's focus on the process of
elections rather than their outcomes (for the outcome of the last
elections seems pretty good, for all that Dr. Lynn's critique of the
procedural theory has merit) then the inescapable conclusion is that
ICANN must be limited to the narrow technical mission Dr. Lynn rejects.
It will be less fun for the staff, less profitable for ICANN's insiders
and other beneficiaries, but far better for everyone else. (It also
avoids lots of messy legal issues, reducing threat of litigation and
thus lawyer costs.) This note from Dr. Lynn, and the "roadmap" that
preceded it, show that ICANN doesn't get it. I fear the current
management may never get it.

I do agree with one thing, though: the next step is to initiate a
positive dialog -- but the terms of the discussion should center on what
are the minimal set of tasks we need ICANN to perform, and what is the
minimal organization that could carry them out in a professional manner.
I tried to start that discussion in my testimony to the Senate almost
exactly a year ago,
http://personal.law.miami.edu/~froomkin/articles/senate-feb14-2001.htm.
Today, Susan Crawford and David Johnson sketched out their vision of an
ICANN 2.0 at
http://www.icannwatch.org/essays/022602-johnson-crawford-icann2.htm.
I'm sure others have much to add to this discussion, and now's the time.

28.02.2002
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