Overview.
The role that is being played by the ICANN as the ruling manager of Internet connectivity is very important, due to the fact that it is through the Internet that important activities such as world trade and e- learning are carried out. So far, the ICANN body has been under the management of the US government, but recently, the UN issued proposals that the US should cede this role. Therefore, this paper seeks to analyze the principles of ICANN in relation to its operations. In the end, the paper gives its verdict on the proposal made by the UN, after that all the underpinnings of ICANN regulated Internet connectivity have been discussed.
Introduction.
There are principles that govern the operations of the Internet and have therefore been enshrined in the Section 4 (b) of Article 3 of the ICANN by laws. These principles or laws are always made subject to reviewing by the public commissions, following the stipulations that were set in place on May 26th- 27th 1999, at the Berlin Board Meeting.
The principle of subsidiary
The policies in this stipulation posit that these rules should be locally set, with only one exception that it can be demonstrated that an issue at hand has a far reaching global impact, and therefore, needs resolving that will require international framework. This principle is normally geared towards guiding and controlling relations between governments, without necessarily imposing policies that are binding so as to boost the exchange of information, global trade and learning in an international spectrum (Bernadotte, 1999 pp. 120).
The principle of public policy.
According to this principle, the overall public authority that deals with the regulations of the ICANN, rests on the public authority of the government, and how this public authority acts out in the face of trying to carry out these undertakings. All these are spelled out by the government. Additionally, all these rulings and stipulations have been thus crafted or designed, following recognition that every country has a distinct economy, political and cultural identity, and therefore, this is carried out by having every country to be represented in the ICANN and by ensuring that all these countries have chosen a certain registry for any ICANN body, or the subsidiaries of the ICANN. This ensures that the governments involved are able to ensure that the the ICANN policies and services are being administered in the interest of the public, and that the legal framework, laws and regulations of any country have not been contravened. To this point, it is incumbent upon the respective governments to ensure that there is fair competition and fairness in the exchange of information, goods and services. In order to give interests of the public policy some effect, the governments involved may take to peg all the communications on the ICANN registry, as is spelled out in Clause 10 of the ICANN laws (Ibid, pp. 110).
Solving of the national issues.
This clause maintains that the selection of the delegations who are to take part in this activities are to be done locally, in harmony with the rules of these respective nations. The principle also seeks to ensure that the views of the local stakeholders are incorporated into the registry, due to the fact that they represent different views of different nations.
In the course of any hitch occurring, the ICANN body is to consult with the the diplomatic heads of the respective countries, the members of the Governmental Advisory Committee, and also with the communications administrators, so as to reverse the situation and bring about normalcy. This is normally an endeavor to ensure that even in the face of problems, there is continual flow of information, since Internet connectivity and information is really expedient for learning (that is, e- learning), exchange of information, and also for the maintenance of international trade.
The Independent Third Party Principle.
Another principle is the Independent Third Party (IRP), which stipulates that there should always be independent spates of reviews being carried out by an independent body that is autonomous from the board members of ICANN, in terms of both the effecting of the appointments and its activities. This primary principle spells out that a panel of three are appointed to run the implementation of the ICANN programs. This stipulation was reached at after that it was found out that one person would usher in massive cases of arbitrariness, while two people would always be susceptible to being barred by deadlocks and impasses. In the same vein, a group of four was discarded after it was seen that it would cause a lot of inefficiency.
Since the three panelists serve on a voluntary basis, it was seen that this form of a situation would cause the panelists to lack essential time for carrying out the implementations, recommendations and the policies of the ICANN. To extirpate conflicts of interests, a group of nine is always appointed with a dominant task of resolving the cases of individual claims. The group of nine has always been recommended after that it was seen that it enabled the representation of geographical diversity, and the variations that are found in different countries’ legal systems. It is out of this group of nine that the three are formed (Williams et al, 1994 pp. 122).
The appointment of the IRP members.
In order to make sure that the panelists who have been nominated command recognition, approval and respect, it is incumbent, according to this principle, that the panelists must have been been subjected to the approval of the ICANN board’s 2/3 supermajority Ibid, pp. 43). The same group must then confirm the panelists after the nominations, before the rest of the ICANN board of directors can get to do the same. To ward off cases of conflicts of interests during the nomination, it is also stipulated by this principle that the nominating committee must be composed of the non members of the ICANN board of directors. This is normally carried out so as to ensure that the panelists have independence and autonomy in their operations.
The criterion used for nominating the panelists.
The choosing of the panelists was enshrined in the ICANN principles that it is to be based primarily on the track records that have been demonstrated by the by the potential recruit, the reputation of the same, and the accomplishments that have been actualized by the interviewee. To this end, although the ICANN principles stress on the need to fine-tune the nomination program with the geographical diversity and the mosaic nature of the legal framework so as to effect the quota system yet the principles of the ICANN nominations maintain that this is only to be carried out to a limited level. This is because, the ICANN continues, the complete factoring of geographical and legal diversity may in the long run interfere with the goals of ICANN which is mainly sensitive to the choosing or the nominating of the panelists which is mainly pegged on the professional qualifications and on the competence of the potential panelists.
Nevertheless, this is not to be misconstrued as to mean that the diversity of cultures is not always upheld in the nomination process. This is because, the secondary factors that are taken into consideration are geared towards the enhancement of diverse geographical representation, and the recognition of diverse legal codes and systems (ProQuest, 2006 pp. 166). Therefore, all these factors are taken into consideration by the ICANN nominating team so as to effect these policies into actual realization.
The longevity of the term and the tenure of office.
Presently, in a de facto sense, the IRP policies maintain that the IRP members are to be accorded with an office tenure that stretches to six years. However, it is yet unspecified how long an IRP member who had occupied an office initially, should be in office. The ICANN laws only adumbrates that initial IRP members should stay in the office for much longer durations, compared to the panelists. The actual stipulations that have been spelled out by the ICANN principles posit that the three initial members of the committee of the nine should serve for a space of six years. In the same wavelength, the other three of the nominated panelists are to work in their capacity for three years. The rest three are also to work for a space of two years. Therefore, based on these stipulations, after every two years of the initial nomination, the terms of three members expire (Patton, 2002 pp. 134).
However, there have been calls that there should be the abrogation of these stipulations. The proponents to this cause argue that longer terms in office holdings enables members to learn more. To this end, it is maintained by the proponents that longer terms for the IRP panelists equips the same with experience, and that this also enhances competence. In the same vein, the group maintains that it is only by according the IRP panelists with a longer term that the panelists will be able to take on well, the concept and the application of independence and autonomy in decision making. In addition to this, the same group points out that the six and the four years term are too short and therefore, are very discouraging for the panelists, and especially given the fact that these panelists work on voluntary basis.
The independent review act.
The ICANN has bylaws that spell out the duties of each of the committee and the prohibitions that are expected of these committees to uphold. To this end, to ensure that each and every stipulation of the ICAN N have been followed through to the latter, the ICANN in its by laws offers for an opportunity in its legal frame work that enables the creation of an independent committee that can review, not only the failures of the ICANN board members, but also to carry out the reviewing of the past actions that have been carried out by the same board, in an attempt to ascertain the efforts and the achievements that have been accrued by the ICANN board. In the same wavelength, the reviewing is normally carried out in relation to the powers that had been bestowed on the ICANN board, and the resources that have been made at the disposal of the same group.
Conditions for factoring a claim.
The ICANN principles cater for the affected parties to air their complaints so that they can be reimbursed for the damages that have been incurred by the same group. To this end, the ICANN has the “Affected party” stipulation in its bylaws, as is seen in the Section (b) of article 3 (Bernadotte, 1999 pp. 122). However, critics point out that the term “the affected party” is too broad and open a term, that any Internet user is able to claim having been (negatively) affected by the ICANN’s board members’ decision. The committees’ 2007 recommendations propose that the conventional legal framework must be reviewed or revised, so as to keep autonomous, the reviews, and also to make available and accessible to the ICANN, the complaints of the corporations and/ or the individuals who, through the action and / or inaction by the ICANN, have been affected.
The availing of the input review claimants before the internal reconsideration process and system of the ICANN.
It is an injunction by the ICANN principles and policies that prior to filling for an autonomous review or examination by IRP, that it is incumbent that the entities or/ and the individuals must first and foremost exhaust the process of the internal reconsideration of the ICANN. However, if thirty days pass with the failure of processing, the internal recommendation having been concluded, the entity or the individual complaining may go ahead with filling for claims for independent investigations (Ibid, pp. 89).
To this end, it is required by the ICANN committee that the complainants must first exhaust the reconsideration process of the ICANN, before forwarding their claims to the IRP. The main idea behind this is that this should be geared towards promoting efficiency, since this allows the ICANN board to settle disputes by themselves prior to reaching the IRP. In the same wavelength, this is aimed at reaching clarity in record decision making and factual findings upon investigations which are developed during the internal reconsideration of the process carried out by ICANN.
So as to realize these ends, it is required that complaining parties be given chance to apply directly if the internal reconsideration process by by the ICANN does not reach conclusion within the stipulated thirty days.
The public on the IRP proceedings.
All the claims, decisions arrived at, and procedures that are carried out by the IRP, are all to made accessible through the Internet (Prostoaca, 2006 pp. 90). Nevertheless, the IRP retains authority to to provide the requests of the party that had made the petitions, so as to keep certain information as confidential (these confidential issues mainly include the trade secrets). As far as matters that remain undisclosed by the IRP are concerned, the IRP gives explanations in generic terms, the essence of the information, and the reason behind the non disclosure.
The aim in this principle is to achieve transparency and openness to the highest level possible, while taking to stock the fact that some rare cases may have the complainant wishing to hand in the confidential information. Accordingly, the ICANN committee maintains that the IPR must in the face of all this, consolidate its authority to keep this information as confidential as possible, while pointing out openly to the public, the nature of this information, and the reason behind its concealment (Ibid, pp. 107).
The principles governing the powers of the IRP.
The stipulations of the ICANN spells out that the powers of the IRP will enable it to carry out the following actions. First and foremost, the IRP has thee power to provide advisory information on the claims or the accusations that touch on the inaction or action by the ICANN, or those that stem from the decision that were made by the ICANN decision making board, in contrast to the articles of incorporation and the laws of the corporation.
Secondly, the principles maintain that the IRP has the authority to ask for or elicit additional submission of the written materials from the board, the claimant, and/ or the organization issuing the support to the claimant, or from other parties that are involved. Thirdly, the IRP stipulations spell out that the IRP is also in possession of the power to spell out that the ICANN board should refrain from or enacting any form of action, or decisions, or policies until the reviewing of the acts and the opinions of the IRP by the board have been scrutinized.
The committee maintains on the other hand that that the IRP should remain and act as an independent body with its authority and mandate being hinged upon the actions, activities, aura, and professional stance of the members. Similarly, the committee also maintains that the IRP should also have its authority and mandate predicated upon the persuasive powers of its decisions, and deductions (Smith, 2006 pp. 113).
In the same spectrum, the same committee maintains that the IRP by no means, should maintain the possession of the authority to impose or negate decisions that had been reached by the ICANN decision making board, due to the fact that this will definitely lead to the formation in a de facto sense, of unaccountable and inegalitarian board. The committee explains that this is on the other hand will lead to a culture of impunity among the IRP members, and at the same time, this state of affairs is also likely to cause legal problems within the ICANN, due to superimposition of power, authority and duties (Schonberg, 2003 pp. 67).
Still on this matter that touches on the sharing of power,and the distribution of authority, the committees’ recommendations is that the ICANN should take and maintain presidency over the affairs of and authority of the ICANN. The committee points out that this is due to the fact that it is still the ICANN board (and not the IRP) that is always chosen, designated and subsequently supported by the members and other auxiliary organizations, and so, rationally remains accountable to them (Ibid, pp. 75).
Additionally, the committee concludes on the above recommendations and appeals, by saying that the role of the IRP should remain that of evaluating, and when it is applicable, investigate the claims that have been made by the complainant(s), who accuse the ICANN board of having contravened its laws and policies, of incorporation, in an attempt to reach deductive or feasible decisions, and to publicize its rulings and the reasons for having reached at such rulings. The committee further maintains that by carrying out all these recommendations in totality, only then will decisions be taken as binding by the board, which at the moment remains with the overall authority and powers to act on all the conclusions that have been made.
Payment of the members of the IRP.
As at now, the members of IRP are at least being reimbursed for the expenses they incur while in the line of duty. Some of these expenses that are reimbursed include mostly, the commuting or transportation costs. The stipulations of these state of affairs are being worked at so that in the near future, the IRP members be paid reasonable amounts which are proportionate to the professional services that have been rendered by the same. This proposal has been put across by the committee, following the fact that it is emerging clearly that the financial base of the ICANN is rapidly and steadily growing with every financial year (New York Times Company, 1997 pp. 109).
It is on this premise that the committees in September, 2007 made a ruling that stated that members of the IRP should be fully paid, due to the fact that they offer high quality professional services. In the face of all these developments, the committee made it clear that it knew of the shortage of funds and therefore, made suggestions that it would put up with the implementation of this proposal in peace meals (Ibid, pp. 90). On the same issue of payment, the committee remained categorical that even the ICANN panelists should be reimbursed for the expenses that they incur, and that by 2012, ICANN must have come up with a framework that will see the panelists begin to get paid, and that although the payments are to start from a meager point of scale, yet the same is expected to increase gradually, and in a steady manner.
How the IRP conducts its proceedings.
The ICANN conducts its developments and proceedings by e mailing and / or otherwise, through the Internet. Conversely, the ICANN also may take at times to conduct its proceedings through the telephone, depending on the context of the situation. All these are carried out as a way of maintaining and enforcing a culture of frugality, with an overall aim of keeping low costs, expenditure and burden that is always encountered in the course of carrying out an independent review.
However, recommendations have been put across by the committee, saying that in order to further abate the costs so as to have minimal expenses, the IRP, like the rest of of other departments under the aegis of ICANN, should also carry out its duties through the Internet, e mailing, or/ and when necessary, through the telephone (Ibid, pp. 66).
All these recommendations and practices are just geared towards making sure that the duties, the goals and policies of ICANN are carried out to the full, the scarcity of financial resources notwithstanding. Totally agreeing with this sentiment is the recommendation that was put across by the committee that this was necessary in order realize the key goal of keeping low costs, in the face of expenses coming from parties complaining, and also from operational problems. To totally realize these ends, the committee maintained that instead of the IRP conducting face to face meetings with either the individual or corporate complainant, there should be a change from this approach to the adoption of the use of e mailing and the Internet to extirpate the rate of expenses.
Verizon’s attempts to bar peer to peer connections with a filtering software and how this goes against the principles of ICANN.
*Verizon’s attempts to bar peer to peer networking comes after revelations that it was possible to use the typology of data to enhance or to debilitate the protocol that touch on peer to peer groups. This was discovered after that a wide range of researches had been carried out by the Telefonica and Verizon, in conjunction with the Yale University. This led to the establishment of software programs that can be used to bar the peer to peer networks. In this case, the Verizon is using the Pendo networks to achieve this feat.
This goes against the principles of ICANN which are geared towards ensuring that there is free global exchange of information. The problem with this type of situation is further seen in the fact that those who use the Verizon network’s P4 software on the basis of peer to peer network or traffic, account for more than 50% of the Internet users.
Verizon is seeking to also plummet the protocol known as the P2P which has been known to produce and distribute the biggest files of data through the requesting of sections of one file that comes from diverse hosts from all areas of the Internet. The problem that this state of affairs poses is that there are myriads of application that subscribe to the use of this bandwidth. This in turn is going to slow down peer to peer network or traffic, although this was initially an attempt by the Verizon company to manage and to increase the speed its network. This stands in total violation to the principles of the ICANN board which seeks to enhance free flow of information, in a crossborder sense.
More violations of the principles of the ruling Internet body, the ICANN, comes in the wake of the fact that through the liaison between the Verizon and the Time Warner Cable, plans are underway to for using the tiered model so as to deter the Internet users from using the P2P files. This in turn has made it possible for for cyber criminals to with impunity, use their knowledge to delete videos that are still playing.
The above problem seems to be hydra headed due to the fact that a part from the above problem, the above undertaking of using tiered models to ward off cases of sharing P2P files has made the anti virus program known as the Avast, to wrongfully flag off micro betas, taking them for spy wares. This has also led to increased cases of spying and cyber crimes.
Also, the fact that the P2P protocol elicits in a random manner, for pieces and bits of content without having ascertained the the exact physical location of the data, this has led to massive cases of increased cases of Internet piracy. This has delivered multiple catalogs of lawsuits that touch on Internet piracy, in relation to patenting rights, as is presently being seen in the case that involves the Prince company and the Private Bay, a multinational corporation that has branches in the US and France, though its capital base id found in Sweden.
Another problem that opposes the principles of the ICANN as the ruling Internet body in relation to the attempts that are being carried out by the Verizon, is that the same Verizon made a mistake in the face of carrying out attempts to extirpate the file sharing on the peer to peer basis. Although this was an artifice or methodology to carry out network management, yet this led only to the inability on the side of the Internet users to share the files. This in turn has led to the plummeted ability needed for the utilization of the Internet, and also due to the fact that this has led to the neglection of some of the Internet applications that touched on the user to user basis and content. The above limitation is sadly still being enforced in spite the fact that the sharing of files is already being used in a very wide range of applications that are considered by governments as lawful, legit and appropriate.
According to Boucher (Ross, 1995 pp. 58), the Verizon company keeps on ushering in network bandwidth that have a lot of limitations. This according to experts is only likely to increase the demand for services so that it be above that of the demand for infrastructure. These experts further posit that this type of situation is likely to lead to the leading network providers and constructors such as the Internet Service Providers (ISPs) to start revising the price of their services upwards. In the same wavelength, these leading Internet providers are likely to start using the open and the closed clauses so as to hike prices. The open clause accords the Internet providers the power and the authority to impose constraints and subsequently make statements to explain the reason behind these actions. The closed clause on the other hand, enables the same companies to impose these constraints, without necessarily having to divulge on the reasons for these specific limitations. This is diametrically opposed to the principles of the ICANN which seek to make transfer of information as cheap as possible.
More and more constraints are likely to be seen by the virtue that Verizon is taking steps to reduce the demand of the bandwidth in order to curtail file sharing on the peer to peer basis. This effort is geared towards using the biotorrents so as to carry on with the plan to introduce the limitation of five gigabytes per month. This concept is far much against the principles of the ruling Internet body, ICANN, which seeks to instill the concept of fairness in Internet connectivity and use. This is so since, the concept or the principle of fairness due to the fact that customers are kept from being able to utilize or use comprehensively, and in totality, the bandwidth that they have been continuously and regularly paying for, with any system software that they wanted (Ibid, pp. 33).
Prioritization of data packets among vendors.
Prioritization of data packets from one vendor to another enables the prevention or the blocking of specific traffics of networks from interacting with other particular sources, so that there is no free exchange of information from one site to another. This matter poses a significant crisis in the digital economy since it, in essence, contravenes the standards of the ICANN. this is true by the fact that this will extirpate the free sharing and transfer of information, which is totally antithetical to the policies of the ICANN which seeks to bolster and affect the transnational transfer of information.
In the same wavelength, these network constructors and operators are maintaining that they are forced to carry out these undertakings, following the build up in expenses for the upcoming generations, such that these same group is forced to monetize its regulations of the network infrastructure. Since the ICANN principles are geared towards heightening the accessibility of information through the Internet, the above situation is diametrically opposed to its ends due to the fact that the imposition of additional pricing on Internet infrastructural management is going to increase the costs of accessing and using the Internet. In another sense, this is also going to frustrate the efforts of the ICANN due to the fact that increased costs of Internet connectivity and use is only going to reduce the number of cases of Internet access.
This state of affairs is further elaborated on by different groups such as the Internet service providers, entertainers, special interest groups and free speech, who posit that although this undertaking by the network operators taking to extirpate Internet neutrality could be geared towards the preservation of the core values of the Internet, yet the same group posits that this activity is going to reduce the preservation of social utility. In this sense, facilities needed for Internet entertainment and recreation will have been further reduced in their usage. It is on this backdrop that this group has dismissed these plans and undertakings as not being practical or/ and desirable at all.
Effect of global economy on free data and blocking of certain information.
The global economy in many cases is known as international trade, and is characterized by the free flow of capital from one geographical territory to another, due to globalization. In turn, this concept and reality of globalization is driven by two main forces which are, technological advancement and the free flow of knowledge and information from one country to the other. In all cases, the global economy thrives on the concept and principle of the Non Discriminatory Access, and the Neutral Internet. These concepts allows the existence of free flow of information (Schonberg, 2006 pp. 87).
However, new developments have come in through the World Trade Organization (WTO), and its TRIPS and DOHA agreements, which resulted in the creation of the laws on patenting and other Intellectual Property Rights. These stipulations have been set in place to make sure that the rights and the claims of the designers and the constructors are protected in the international trade. To this effect, the observation of the concept of trade marks, Internet copy right laws and the anti piracy act have been developed. Apart from this development, filtering and blocking of information that is considered by the manufacturers to be classified and necessary for the preservation of copy right laws, have been allowed and are subsequently having a wide range of usage.
The concept of neutrality which is very instrumental in the enhancement of the global nature of Internet connectivity has also seen gradual cases of increased withdrawal, and instead, presently, there has been increase in the coordination of names and addresses in both local and international connectivity for regulatory purposes.
Recommendations on the role of the US.
Having seen the principles and the guidelines that underpin the operations of the ICANN, it is advisable that the ICANN remain under the tutelage of the US government, due to the fact that this government is very transparent and is also ranked as one among the most stable governments in the world. Thus, this prospects is not likely to cause much hindrance in the submission of other public laws and interests, when integrating them with those of other nations that subscribe to ICANN. In the same vein, America is a mosaic of many races and at the same time, is also a nation of many nations. This cuts down the likableness of there being cases of conflicts of interests in the running of the ICANN. In addition to the above reality, by the virtue that America enjoys a population that has multiplicity of races, the US government remains the most ideal type of agent that should run ICANN.
The vast number of resources that are under the US possession is also an issue that needs to be factored by the UN in its considerations. This is because, given that ICANN has a miniature financial pool, it is advisable that ICANN be situated in a developed economy like the US, since this country has a lot of opportunities, including vast manpower which will be needed for the running of the tasks of ICANN that are carried out on voluntary basis.
Conclusion.
Since it is clear that the US government has made a lot of numerous strides in maintaining the stability of the Internet, it is important that the UN rescind its decision to have this role be assumed by another body. The UN should just ensure that every country runs its own code and Internet address so that respective governments can regulate Internet connectivity and gain from the same.
Work cited.
Bernadotte, Everly et al. Modernization and Internet connections, Chicago: University of Chicago Press, 1999. This book is important due to the fact that it tackles all the advantages that have come with the advancements of the Internet. At the same time, the complications are also spelled out.
New York Times Company. Current trends in Internet connectivity. New York: New York Times Company, 1997. This book lists the laws and the stipulations that have been set up to regulate the Internet providing companies.
Patton, Michael. Qualitative research on Internet connectivity. London: SAGE, 2002. The main topic that has been dealt on herein, is the various ways in which Internet connectivity can be enhanced.
Prostoaca, Andrei. Online access panels and market research. Colorado: Birkhauser Publishing, 2006. The author of this book thoroughly delves into various ways and means that can be used to bolster Online accessibility.
ProQuest. Internet connectivity today. New York: EBSCO Publishing Firm, 2006. This book looks at the modern day types of Internet connections.
Ross, David. Inclusions in Internet connectivity. New York: SUNY Press, 1995. This book lists the new laws and the stipulations that have been set up to regulate the Internet providing companies.
Schonberg, Karl. Pursuing national interests and Internet connectivity. Michigan: Greenwood Publishing Group, 2003. The author discusses on how it is that Internet connectivity can still be used to enhance national interests in the face of the stiff global market competition.
Smith, Melanie. The politics of Internet connectivity in a changing world. New York: Channel View Publishing, 2006. This book is important in this discussion due to the fact that it tackles the role of government policies and the place of the law in the course of establishing Internet connectivity.
Society of comparative Legislation. Law and connectivity. London: British Institution of International and Comparative Law, 1992. This book spells out the role of the law and how it affects Internet connectivity and behavior.
Williams, Michaels, et al. Connectivity and law, religion, culture and politics. New York: Calvert Publishing, 1994. This book has been very important in this discussion due to the fact that it has explained in an in depth manner, the relation among the Internet, the law, culture and administration of a country, and how these factors affect one another.
