ICANN and the Registrars
ICANN, the organization that runs the domain name system for the Internet, is a strange organzation that mainly operates outside public view. It manages several tasks that are necessary to ensure that names, addresses, and other designators that the Internet depends on are unambiguous and consistent around the world. This is a task that Jon Postel once performed for ARPANET in his spare time, but as the Internet has commercialized and grown, this job has become enormous, so ICANN was formed to take it over.
Like much of the Internet, domain name management is a multi-stakeholder, consensus-driven process, or should be. This is not just because of some Woodstock generation vision about peace and harmony (although the greybeards of IETF have a lot of that going on) as much as a pragmatic reality. There is no consistent legal underpinning to the Internet, as it reaches the entire planet and operates under 180+ national jurisdictions, so nobody can actually force anybody else to behave the way they may prefer over its entire span. In the absence of force, we’re left with consensus and informal agreement.
That’s on the one hand; on the other, ICANN has contractual relationships with domain registrars that stipulate the same sorts of rights and responsibilities that most contracts do. The Internet is a commercial system, domain registrars are businesses, and businesses don’t invest capital without knowing what they own, what they can do, and what they can’t do. These contacts are binding under U. S. law.
So how do you write a contact that preserves the traditional rights that make the modern economy possible and still respect the traditions of consensus and multi-stakeholderism? This isn’t an easy task, but ICANN seems intent on making it as fractious as possible by giving itself the power to unilaterally alter the terms of its standard registrar agreement any time it wants. Any contract that can be altered by one party acting on its own but not by the other isn’t really a contract, is it?
ICANN would do well to show more respect for the consensus that makes the Internet possible by behaving in a less high-handed way. Registrar contracts may well need revision from time to time to stay in step with the evolution of the Internet and changes in the domain structure. But these changes can and should be done in a way that respects the consensus process. If ICANN sees itself as a convener rather than an all-powerful authority, it can accomplish harmonization and progress without violating the assumptions that registrars make when they invest in their businesses.
How about a little more voting and a little less of the top-down, whimsical behavior?