[WSIS CS-Plenary] ICANN/ITU "legitimacy"

[Milton Mueller]

Rony:
Your equanimity about ICANN probably stems from a lack of familiarity
with its actual operations and decisions. More about that later.

First, to get this out of the way, I would agree wholeheartedly with
you that, in domestic politics, authoritarian governments represent much
larger threats to freedom of expression than any private organization,
including ICANN. If your point is that ICANN is a less repressive
environment to the citizens of China and Tunisia than the govts of China
and Tunisia, then of course you are correct. But that is not saying
much. But such a comparison does not exempt ICANN or any other private
governance agency from achieving legitimacy and accountability on a
global basis. 

Shifting to a global perspective, while ITU can repress criticism of
member states in its own meetings, it has absolutely no power over the
domestic free speech or telecommunication policies of its members other
than what the members agree to give it. ICANN, on the other hand, has
global authority of a much stronger kind, although admittedly over a
much narrower area of policy (DNS). 

Now, you said that:
>>> rkoven at compuserve.com 4/10/2005 10:41:15 AM >>>
>Regardless of relative "legitimacy," I am not aware of instances 
>in which ICANN has lent itself to censorship, while ITU does so 
>almost routinely, whenever one of its member states invokes its 
>interest.

There are two or three such instances, depending on how you count them.
First, ICANN's domain name dispute resolution policy routinely takes
domains away from people in order to silence dissent. This is done in
spite of national law. See my research documenting this at
http://dcc.syr.edu/marklepage.htm Efforts to amend the UDRP to fix
this problem have been blocked both by vested interests and by ICANN's
own lack of capcity to revise its policies. 

Second, ICANN's WHOIS data requirements are designed to sacrifice
legitimate privacy rights regarding personal contact data in order to
make it possible for law enforcement, trademark and copyright lawyers to
engage in surveillance. This is mostly a violation of privacy, but as we
know privacy violations can have a chilling effect on speech. 

Third, ICANN's policy toward new TLD creation can limit or constrain
speech, e.g., by refusing to create TLDs that offend some people (which
it has done), by simply refusing the create new TLDs at all, or by
regulating the kind of activity that can take place under a TLD. These
are not of course bald, repressive actions comparable to Tien An Men
Square, but they matter.

More broadly, ICANN's mission statement contains no commitment to
preservation of freedom of expression. Wouldn't it be nice if it did?

>It seems to me that civil society's professed attachment to 
>freedom of expression would be better protected in an 
>environment that is essentially private in its practices, like 
>that of ICANN, than in one like the ITU,
>with its basically intergovernmental  nature, structure, funding, 
>and ethos

The issue is not "private" or "public" per se, but how much power the
institutions have. ICANN is a private entity that has been given
governmental powers. Its powers over the domain name industry are global
and contractual in nature, and thus far exceed those of the ITU, which
cannot do anything without consensus among governments. That need for
consensus accounts for both the bad things about ITU (demands to censor
criticisms of member states) and the "good" things (each state can go
its own way, and need not be bound by what the other state does.) 

In our (IGP) discussions of "legitimacy" we are trying to find a way to
maintain ICANN's open, civil society based governance model while
improving its accountability and legitimacy. Knee-jerk defenses of ICANN
based on false dichotomies are unsustainable in the long term and may
result in destruction of the CS-based goverance model. ICANN's first
line of defense was the false and hypocritical argument that it did not
do governance. That line has collapsed. We are now trying to get it to
do governance legitimately and democratically.

>Whenever the question arises, the ITU obviously feels it 
>must adhere to the defense of the national sovereign interests 
>of its member states rather than the interests of universal 
>values like freedom of expression.

True. But if our own government would bother to stand up for freedom of
expression (which it rarely does any more) in the international
environment, then the intergovernmental system would have to adapt to
its demands. 

>I think it is time to drop discussions of "legitimacy" and to take 
>instead a pragmatic approach based on considerations of which
> arrangements would likely be the least threatening to the free flow 
>of information and ideas. Past performance might serve as a guide.

Agree, we should be guided by principles regarding human rights.
But governance arrangements that are not perceived as legitimate by
large parts of the world's population will not survive, and thus cannot
do any good for the principles of freedom of expression and other human
rights. 

--Milton Mueller