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Congress to examine ICANN constitutional breaches

Mr Auerbach and Mr Froomkin go to Washington

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Two of ICANN's most formidable shin kickers got their chance to testify before Congress yesterday, and further hearings into the constitutional legality of the Internet quango may result from the hearing.

Although ICANN CEO Mike Roberts for the most part triangulated his way out of trouble yesterday, the critics left their mark: further hearings into potential due process issues were suggested by Senate committee members in their summing up.

Karl Auerbach, who was elected to the ICANN board and Michael Froomkin, the University of Miami Law Professor who devised a cookbook of legal challenges to ICANN, both finally got their chance to testify.

Congress heard Froomkin's argument that ICANN violated constitution powers, and Auerbach testified that even as a formal director of the organisation, he was denied access to meetings and information.

The pair had a tough job: Senators vary wildly in their understanding of the arcana of Internet governance, and towards the very end of the two hour hearing (which you can listen to here, one Senator asked "what do you mean by 'root'"?, after the term had been used for (we guess) the fifteenth time. That's not an illustration of stupidity, but of the language canyon that ICANN's critics need to bridge in tailoring their arguments to the general public.

Inside, looking out

Auerbach made the most of the opportunity, giving Senators a whirlwind tour of ICANN shenanigans. He described the recent disappearance of the Members at Large (MAL) list of voters who'd participated in the last election. He described ICANN as a regulator that's free from scrutiny and vulnerable to capture by powerful interest groups. And he testified that his recently-acquired status as an elected director hadn't helped him find out more about what ICANN was up to.

"Even as a director I have difficulty discovering what ICANN is doing. There are parts of ICANN to which I am denied access," he said. "I learnt more from the people in my community [who scrutinise ICANN] than I do internally."

Nevertheless, he said as an ICANN director he carried the same burden and liabilities as any director. Referring to the Domain Name Support Organisation subgroup, Auerbach said: "I am responsible for its assets, debts and actions as a director - but its assets and liabilities were not on the annual statement"

"We take our openness and transparency responsibility very literally," responded ICANN CEO Mike Roberts, in the truest - literally, of course - statement of the day.

The pair had a stroke of luck with a perplexed Senator Boxer, who explained that someone had put a rogue website up in her name, and she'd discovered she couldn't do anything about it. Auerbach stepped in to point out that ICANN's resolution process, the UDRP, precisely left the individual powerless, while swinging the balance of power to trademark holders - "you can't even use the UDRP unless you've got a trademark" - and more broadly, the existing registrars.

Auerbach surely scored with his description of last year's At Large election process, beginning with the ballot stuffing which gave hand-picked ICANN reps the balance of power, through to the control over the communication media - "ICANN controlled every channel between the electors and the candidates... imagine if you could not get the names of the people on the voter roles in your state" - through to the well-documented failures of ICANN's registration and vote counting machines. "158,000 people signed up... a transaction rate of 3 or 4 every minute. I don't know of any computers that slow today."

The Empire Strikes Back

Froomkin zeroed in on the unconstitutional aspect of ICANN, summarising it as a "good government" issue. He pointed out that ICANN was a regulator with global influence, but without constitutional oversight. The .iii doman had been rejected on the hoof last year, he pointed out, "simply because someone on the board decided it was too hard to pronounce.|

"The global concern here is not just in this process ... a way in which agencies can bypass procedures to create a regulator in all but name, that uses control over a federally dominated resource to make people sign contracts with it, pay it money, and do what it says. And then not be subject to due process, not be subject to an ordinary court challenge, and not be subject to oversight. That's cutting Congress - cutting the American people - out of the regulatory process."

This wasn't the day for deeply contrarian rhetoric. Neither Auerbach nor Froomkin pointed out that the root, as such, doesn't need an ICANN at all. The world could switch to liberated root servers, and very well not notice the difference. Auerbach said he thought an ICANN was necessary, although we all know he knows that this isn't really true, and we all know he's right, too. As he pointed out, someone needs to administer the numbers, but DNS is an extra service. Froomkin proposed farming out the decision making among different countries and interest groups on a round robin basis, leaving ICANN as a shell administrator.

Which touches on the international legitimacy of ICANN. Here Froomkin thought that for now, it was best safeguarded by Americans:-

"I have to confess, and it's not politically correct to say this and my Euro friends won't like it, but with due process, first amendment rights and constitutional protection I'm more comfortable with the US government overseeing ICANN. My experience of international organisations is that they're democratic or representative."

"Ultimately in the short term [US control] it gives us the fair play guarantees we need." Well, assuming there are enough lawyers here who share Froomkin's forensic analysis of the abuses of power and citizens rights, and enough good folk in Europe prepared to trust him.

He's painfully right of course - the international institutions don't exist that allow the transparency of decision making, and judicial appeal that the US constitution provides. (Provides, note, not guarantees)

As a fluent French speaker, Froomkin also knows how well any pitch to maintain oversight over ICANN will play in say, Paris. But Europeans keen to view ICANN as another wing of the American Empire will only be encouraged by this splendid aside from Senator Boxer when the international dimension was raised:-

"We think of the United States as cutting edge. If we don't take ball and run with it I don't know what would happen!" she said.

Goodness, Senator, you're quite right - without this American know-how, the rest of the world would be plunged into a medieval darkness! ICANN really is the Great Library of Alexandria.

When we heard this we began to wish that Auerbach and Froomkin had raised the alternate root card, but yesterday that remained a dog that didn't bark. ®

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