Important blog post about the ICANN Accountability CCWG

[Milton L Mueller]

It still shocks me slightly that after all these years and the AOC language that there's been no significant effort to do a study of the term's usage in telecom regulation and other arenas, cross-nationally not just in the US,

MM: I’ve studied its history. It is a U.S. term. As I noted earlier, “business affected with a public interest” and “public interest, convenience and necessity” are terms with origins in the emergence of independent regulatory commissions in the U.S.

The reason you don’t see functional working definitions is that because after about 60 years of discussion, litigation and theoretical debate about its meaning the ultimate conclusion in the U.S. was that there is no definition, it’s up to the legislature to decide. (See Nebbia v. New York, 1934, a Supreme Court decision). THERE IS NO GENERALLY APPLICABLE DEFINITION OF THE PUBLIC INTEREST that one can simply apply to any given policy area. It is rather a process of political contention and negotiation.

In the early days, it was thought that there were a few special classes of business that were affected by public interest. There was an attempt by economic theory to define what these were: natural monopolies, common carriers, special kinds of dependency, whatever. All of those theories failed to explain why some things were regulated and others weren’t. Nebbia v NY set that all to rest and just said, WTF, if the political process produces a legislature that wants to regulate something, and the regulation isn’t arbitrary or discriminatory, then go ahead. There is no special class of business affected with a public interest. The courts were, therefore, conceding the definition of “the public interest” to the political process.

That’s why I don’t like it. It’s a blanket opening for the legislative power to do anything it can do and wants to do at any given moment in time. As such, it runs directly counter to rights-oriented paradigms, which say that there are certain things legislatures and majorities can’t do even if they think it is in the general interest. For people with a completely unmoderated faith in the state and state control, perhaps this is a fine thing. “The public” as it acts through the state can always be trusted to do the right thing. Some of us question that.

Ultimately, the public interest has to be defined in terms of something else. To Delbianco it means availability and integrity of DNS (note that he drops one of the three standard definitions of security: confidentiality). The U.S. Federal Communications Commission in the 1980s defined their public interest mandate as “competitive markets.”  Ha, take that, you progressives! I’m sure Parminder would define it differently.

The key issue for me is the scope of ICANN’s authority. Isn’t it better to have a very specific, well-circumscribed scope and mission for ICANN? Then we can just rule out a whole lot of regulatory activity as out of scope. If ICANN has a public interest mandate, on the other hand, it can do anything and everything its “community” wants it do, including regulate or censor content, redistribute wealth, subject all registrants to pre-emptive surveillance, etc.  And given the current political climate, I suspect that it will end up doing many of those things.

That is why we should not conceive of ICANN’s authority as containing a mandate to pursue “the general welfare” or “the public interest.”

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