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J'accuse: ICANN's ‘Government sponsored extortion’ unconstitutional

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Governance expert Michael Froomkin has published a draft of his eagerly-awaited analysis of ICANN today, a document which could prove to be a catalyst for new legal activities aimed at clipping the activities of the Internet quango.

Froomkin warns that unless the relationship between the United States Department of Commerce and ICANN is clarified, the ICANN model could be adopted for the oversight of B2B commerce or distance learning in the US.

He describes the paper entitled Wrong Turn In Cyberspace: Using ICANN to route around the APA and the constitution as an attempt to answer to "the central, if perhaps parochial, question: whether a U.S. administrative agency is or should be allowed to call into being a private corporation and then lend it sufficient control over a government resource so that the corporation can use that control effectively to make policy decisions that the agency cannot - or dares not - make itself."

Froomkin is an authority on the legality of government agencies and a professor at the University of Miami Law School.

"Depending on the precise nature of the DoC-ICANN relationship, not all of which is public, DoC's use of ICANN to run the DNS violates the Administrative Procedures Act (APA) and/or the US Constitution," he notes.

It's a long and detailed draft, divided into two parts, and includes a concise layman's history of Internet domain name and number governance. We touched on Froomkin's arguments in our earlier story, which you can find here.

Froomkin adds some urgency to the debate by pointing out that ICANN - incredibly - has been cited as the model for regulation of distance learning and e-commerce over B2B closed networks. "The specter of a series of ICANN clones in the U.S. or in cyberspace should give one pause, because ICANN is a very bad model, one that undermines the process values that motivate both the APA and the due process clause of the Constitution," he writes.

That's because ICANN is, as Froomkin puts it, "an essentially unaccountable private body that many feel has already abused its authority in at least small ways and is indisputably capable of abusing it in big ways.... So far, ICANN appears to be accountable to no one except the DoC itself, a department with a strong vested interest in declaring its DNS "privatization" policy to be a success."

He adds "by lending ICANN its control over the DNS, DoC created a system in which social policy is made not by due process of law, but by something that begins to resemble government-sponsored extortion."

To support this point of view, Froomkin notes the "pay to play" aspect of ICANN meetings, which naturally favour the wealthier participants rather than NGOs. At its Vienna meeting ICANN recently suspended Internet broadcasts of the proceedings until viewers agreed to share the cost of the broadcast, which was four times the going rate. ®

You can download the draft in PDF format here

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