Approval process for gtld service changes

[Harold Feld]

Marc makes many good points regarding the problem of ICANN as a regulator by
contract.  Often we find ourselves confronted with a shell game.  When consumers
or others seek vindication of their rights in ICANN, ICANN shrugs and says it is
not a regulator and that remedies lie with governments or in contract remedies.
 but the structure of ICANN's contracts allows a willful registry or registrar
to "hide the ball" by pointng to a different contracting party as responsible
for the conduct te registrant complains of. Like the game where a ball is hidden
under one of three cups, and the sly swindler always manages to hide the ball
under a different cup than the one the one selected, so do ICANN, the
registries, and the registrars seem to evade the "ball" of responsibility by
pointing to someone else.

Thus, registries maintain that contracts imposed by ICANN bar them from certain
courses of action, registrars likewise claim that contract provisions imposed by
ICANN prevent them from acting, and ICANN says it is not a regulator and that
any remedy lies in the contracts which it claims are negotiated freely.

Nevertheless, I cannot agree with Marc's conclusion.  Rather like the gambler
who returns nightly to a crooked game because "it's the only game in town," so
does Marc propose to return to ICANN for relief beause ICANN "as the only game
in town" seems to be the only ones who can stop the problems.

I draw the opposite conclusion.  The more registries are left to their own
devices, the more likely it is that governments will act to protect their own
citizens.  For example, the registrars seeking to stop WLS in the U.S. district
court were told that because the WLS went through the ICANN process, they had no
remedy in court (this is a bit of an oversimplification).

I cannot say how other governments will feel.  But I would hope that if
governments see that there is _no_ process to protec their citizens, then they
will act.  by contrast, if it looks like there is a process, then I think
governments are more likely to defer to ICANN.  Better no process than a broken
or crooked one, at least in my opinion.

WRT to the reference to consultation in the latest draft -- I believe Milton has
captured my my thoughts on the matter.  i approve the latest draft.

Harold


--
Harold Feld
Associate Director
Media Access Project