2015-11-04

ICANN, Domain Industry, Special Interests, and the Global Public Interest

BackgroundThe NETmundial Multistakeholder Statement says the “Internet is a global resource which should be managed in the public interest.” Resolutions appended to the ITU’s core treaties say that IP-based networks must be interoperable and globally reachable in the public interest, and that governments must provide a clear legal framework “to ensure adequate protection of public interests in the management of Internet resources, including domain names and addresses.” ICANN’s Bylaws and Affirmation of Commitments employ the term three and five times, respectively. ICANN’s GAC has invoked the term to justify some of its positions, and applicants for new gTLDs are asked to undertake Public Interest Commitments. But what does the “public interest” really mean with respect to critical Internet resources? There has been no collective effort to clarify the standard to be followed. ICANN’s new Strategic Plan prioritizes developing ”a common consensus based definition of public interest” for the organization.--see description of IGF 2015 Workshop No. 52, The Global “Public Interest” in Critical Internet Resources (emphasis added)

Context: CCWG-Accountability--Cross Community Working Group on Enhancing ICANN Accountability--from its public mail list, November 2, 2015 (emphasis added):

Trying to come up with a definition of "global public interest", whether by the Board, the Community or the Sole Designator (?) seems like an effort that will either be endless or perilous. Baking it into the Bylaws seems like an awful idea.--Greg Shatan, President, IPC

I agree, this could lead us down a very tortured path.--J. Beckwith Burr

As a point of information, ICANN’s Development and Public Responsibility Department (DPRD) has already started conversations within the community on how to definepublic interest” within ICANN, with the anticipation that this multistakeholder definitional work will proceed in earnest soon.  This has been forecast in ICANN’s Strategic Plan.--Samantha Eisner, ICANN Staff Attorney

ICANN--the Internet Corporation for Assigned Names and Numbers--and the Public Interest: a Contradiction in Terms?

"ICANN is an organization rooted in the private sector (including civil society) with governments in an advisory capacity. In the Affirmation of Commitments of 2009, ICANN committed itself to act in the global public interest. ICANN is a bottom-up organisation which has its origins in one country and is driven by a community that is dominated by the domain industry and other special interests. So it is not always easy to ensure that the decisions taken by ICANN are in the global public interest. But more and more people in ICANN have realised that efforts should be strengthened to increase the diversity of stakeholders in ICANN so that more diverse interests are better represented. It is also the role of governments in ICANN to make sure that a minimum level of diversity of views is brought in to ICANN and that a good balance is struck between different special interests so that, in the end, something like a globally aggregated public interest can be identified. In addition, a discussion has started in ICANN about how to better understand the notion of global public interest and how to improve its accountability mechanisms so that the global public interest is better reflected in its decisions. There is still much work ahead, but ICANN’s current efforts are going in the right direction." -- Thomas Schneider, Swiss cyber-diplomat and the Chairman of ICANN's Governmental Advisory Committee (GAC); Geneva Digital Watch: Issue 5, November 2015 (pdf),(links and emphasis added).

Affirmation of Commitments by the United States Department of Commerce (DOC) and the Internet Corporation for Assigned Names and Numbers (ICANN), September 30, 2009: “ … This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination … DOC affirms its commitment to a multi-stakeholder, private sector led, bottom-up policy development model for DNS technical coordination that acts for the benefit of global Internet users. A private coordinating process, the outcomes of which reflect the public interest, is best able to flexibly meet the changing needs of the Internet and of Internet users. ICANN and DOC recognize that there is a group of participants that engage in ICANN's processes to a greater extent than Internet users generally. To ensure that its decisions are in the public interest, and not just the interests of a particular set of stakeholders, ICANN commits to perform and publish analyses of the positive and negative effects of its decisions on the public, including any financial impact on the public, and the positive or negative impact (if any) on the systemic security, stability and resiliency of the DNS … a multi-stakeholder, private sector led organization with input from the public, for whose benefit ICANN shall in all events act… ICANN commits to maintain and improve robust mechanisms for public input, accountability, and transparency so as to ensure that the outcomes of its decisionmaking will reflect the public interest and be accountable to all stakeholders … ensuring that ICANN is acting transparently, is accountable for its decision-making, and acts in the public interest …. “

Public Interest: Anything affecting the rights, health, or finances of the public at large. 

Public interest is a common concern among citizens in the management and affairs of local, state, and national government. It does not mean mere curiosity but is a broad term that refers to the body politic and the public weal. A public utility is regulated in the public interest because private individuals rely on such a company for vital services. (source: West's Encyclopedia of American Law, edition 2. S.v. "Public Interest." legal-dictionary.thefreedictionary.com)

The Institute of Chartered Accountants in England and Wales argues that applying a detailed definition [of "Public Interest"] is likely to result in unintended consequences, in Acting in the Public Interest (2012). Instead, each circumstance needs to be assessed based on criteria such as the relevant public, wants, and constraints. The key to assessing any public interest decision is transparency of the decision-making process, including balancing competing interests. (Wikipedia)

Meaning of public interest | ALRC | Australian Law Reform Commission: "... Should public interest be defined?
8.35 ‘Public interest’ should not be defined, but a list of public interest matters could be set out in the new Act. The list would not be exhaustive, but may provide the parties and the court with useful guidance, making the cause of action more certain and predictable in scope. This may in turn reduce litigation.
8.36 In Hogan v Hinch, French CJ stated that when ‘used in a statute, the term [public interest] derives its content from “the subject matter and the scope and purpose” of the enactment in which it appears’. 8.37 In the UK, the Joint Committee on Privacy and Injunctions concluded that there should not be a statutory definition of the public interest, as ‘the decision of where the public interest lies in a particular case is a matter of judgment, and is best taken by the courts in privacy cases’.
8.38 Including a non-exhaustive list of public interest matters seems more helpful than a definition of public interest, which might necessarily have to be overly general or overly confined and inflexible...."

See also: The Global “Public Interest” in Critical Internet Resources | DigitalWatch: notes from an IGF2015 session and YouTube video of that session. Domain Mondo's notes: Larry Strickling suggested "framing" or public interest described via a series of attributes. Others: public interest contrasted with naked private interests or interests of private gain; Framework of Principals; Right Participation in making decision; and Definitions vs Examples.



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