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ICANN's Governance Conundrum

Michael D. Palage

After reading Steve Delbianco's recent CircleID article entitled The Tale of Two Governance Models I was torn. On one hand I agreed and supported Steve's comments about the strength of the bottom-up consensus driven model upon which ICANN was originally founded. As I am about to begin my thirty fifth ICANN regional meeting over the last eleven years, it is a model which I still believe in and fiercely fight to defend. However, on the other hand I look back over the last eleven years and see how a humble primarily technical coordinating body which operated on consensus, appears to be morphing into a market regulator with no apparent safeguards to hold it accountable to anyone in either the public or private sectors.

While Steve DelBianco , Anthony VanCovering , Paul Levins and others within the ICANN community have recently been critical of the International Telecommunication Union governance model, I have a slightly different perspective. Over the last several years I have had the opportunity to work as a consultant for two United National agencies, the Universal Postal Union (UPU) and the International Telecommunication Union (ITU), in connection with new generic Top-Level Domain (gTLD) initiatives. While there are clear differences between the ICANN and UN models, in my opinion each has their own respective strengths and weaknesses. While much attention has been paid to the UN weaknesses, I thought it constructive to add to the marketplace of ideas and identify some of the inherent weaknesses in the ICANN model and how the recent actions of the ICANN Board may compound this problem.

There is probably no better succinct statement of ICANN's original mandate as a bottom-up consensus driven technical coordinating body than the following statement by then ICANN Board Chair Ester Dyson before the US House Judiciary back in 1999. In addressing allegations that ICANN was NOT a regulator she stated:

If they come into existence, these contracts will be the product of voluntary agreements; since ICANN has no governmental power, and indeed no existence outside the context of community consensus, it cannot coerce cooperation. If such a series of contracts is created, that will be both evidence of the success of this consensus-development process and a strong incentive for those who wish to benefit from connection to this network of networks to comply with ICANN policies — which will by definition be nothing more than a reflection of community consensus.

When one looks at the proposed registry agreement in the current applicant guidebook, it is hard to reconcile this agreement with the original statements of Ester Dyson. In fact, the current document resembles more a one-size fits all adhesion contract in which the registry operator must provide a total indemnification to ICANN, although on the positive side they are not asking for one's first born child as collateral. Unfortunately, ICANN's general counsel has systematically removed the cross indemnification provisions that used to exist in the original voluntary registry agreements that his predecessor drafted and executed.

While the ICANN Board is driving toward closure on the remaining unresolved issues in connection with the new gTLD application process, the following inherent weakness in the ICANN governance model has been exposed.

ICANN's policy development process remains largely driven by actors with an economic interest, and there are times when those economic interests dictate the blocking or impeding of consensus development.

Unfortunately there has never been a full and frank discussion of this governance Achilles heel within the ICANN community. Although the United States Government and ICANN acknowledged the importance of this issue in Paragraph four of the Affirmation of Commitments which states:

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.

I am not naïve and do not believe that ICANN as an organization should be paralyzed into inaction in the absence of consensus. While the ICANN directors have a fiduciary duty under California law to act in the best interest of the corporation, as a trustee of a global resource it needs to be asking itself how can it remain true to its bottom-up consensus drive roots when it acts in the absence of consensus. I respectfully submit that the answer lies in the Government Advisory Committee which under the ICANN bylaws are required to "provide advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN's policies and various laws and international agreements or where they may affect public policy issues."

While the Thursday ICANN public forum in Cartagena will see an endless procession of prospective applicants calling for the ICANN Board to finalize the Applicant Guidebook, I have a more modest goal. I would like to see the ICANN Board commit to its obligations set forth in the Affirmation of Commitments and produce a report analyzing the positive and negative effects of its decisions on the public. Once this report is published the ICANN Board and the Government Advisory Committee can then engage in a "good faith" consultation "in a timely and efficient manner, to find a mutually acceptable solution" to any differences in connection with the new gTLD implementation process as required by the bylaws.

As a consultant working with several new gTLD applicants I would like ICANN to begin closure on the new gTLD implementation process. However, there is a right way and a wrong way to achieve this goal. Hopefully, ICANN will choose the path set forth in the Affirmation of Commitments and its bylaws.

By Michael D. Palage, Intellectual Property Attorney and IT Consultant

Related topics: Domain Names, ICANN, Internet Governance, Policy & Regulation, Registry Services, VoIP

 
   

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Comments

Not critical of ITU Paul Levins  –  Dec 04, 2010 6:02 AM PDT

Mike

I'm not critical of the ITU model.  My point was simply that if Dr Toure means what he says about not wanting to take over the Internet or otherwise expanding the ITU's role, then on behalf of the ITU he should commit to that in writing by way of a formal document.  My point was, that will provide some level of certainty and stop this seemingly endless concern every time the ITU comments on an Internet matter.

Paul

Mike,You cite this Affirmation of Commitments provision Richard J Tindal  –  Dec 04, 2010 9:36 AM PDT

Mike,

You cite this Affirmation of Commitments provision — "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"

I read this as a post-implemenation analysis of actual positive and negative effects resulting from a policy decision.  Your interpretation that it's a pre-implementation analysis doesn't seem consistent with the language used in the AoC.

This provision is clearly pre-implementation — "ICANN commits to provide a thorough and reasoned explanation of decisions taken, the rationale thereof and the sources of data and information on which ICANN relied." --- but the provision you cite seems to be post-implementation.

Perhaps Paul can comment as he was involved in AoC drafting.

Richard

Nice try, Richard George Kirikos  –  Dec 04, 2010 10:21 AM PDT

Nice try, Richard, but the complete language is clearly pre-implementation (Michael quoted the full text). What point is there to do analysis only after a decision has already been made, when the proverbial horse has already left the barn? As the text says, "To ensure that its decisions are in the public interest" that analysis must obviously be made before that decision is delivered.

I'm constantly amazed at the extreme interpretations that some advocates of positions are using, in order to further their agendas. It's clear that Strickling shares the obvious meaning of the AoC text, that it means pre-decision, not post-decision, given his recent letter to ICANN. If ICANN wants to play word games, thinking that the DOC/NTIA is bluffing, I dare them to interpret that language any other way. It would be the end of the IANA contract, and I think they already know it. They should be eating humble pie right now, and at least enjoying the fact that they're overpaid and underworked. The "overpaid" part can easily disappear if the IANA contract is terminated.

If your interpretation is correct then ICANN Richard J Tindal  –  Dec 04, 2010 10:43 AM PDT

If your interpretation is correct then ICANN is already in breach of AoC for failing to produce an analysis of costs and benefits of IDN TLDs.  Do you agree?

RT

Yes, I agree they've likely been in George Kirikos  –  Dec 04, 2010 11:20 AM PDT

Yes, I agree they've likely been in breach of the AoC on multiple occasions alread, as they've been extremely sloppy in not doing the required cost/benefit analysis for many other decisions besides the one you mentioned. However, implicit in any agreement is a term you often see made explicit, namely:

The failure of a Party to insist upon adherence to any term of this Agreement shall not be considered a waiver or deprive the party of the right thereafter to insist upon strict adherence to that term or any other term in this Agreement.

Just because the DOC hasn't enforced that term in the past, because those were non-controversial decisions, doesn't imply that the DOC has waived its rights. The Strickling letter is even telling them this, i.e. "new TLDs are controversial, and we're insisting you do it correctly this time."

As to whether my interpretation is "correct", consider how a "bulletproof" long version of that section of the AoC could have been written:

1) ICANN is in the business of making decisions.
2) The basis of decisions can vary.
3) The basis of ICANN's decisions shall be limited to only those that are in the "public interest."
4) Decisions involve uncertainty and expectations of future outcomes.
5) The "public interest" is served when the public's expected benefits from a decision exceed the expected costs imposed upon the public.
6) ICANN shall only make informed decisions.
7) In order to make an informed decision, ICANN must research the costs and benefits before coming to that decision.
8) To ensure transparency, ICANN shall publish the basis for their decisions before making that decision.

And so on. Perhaps the AOC would have been 200 pages long, had this been over-lawyered. Or, they could have simplified it to the language that exists in the AoC, which is certainly equivalent.

Over-lawyering is sometimes good.... George Kirikos  –  Dec 04, 2010 11:22 AM PDT

Of course, precise language is important when it comes to some contracts, e.g. between ICANN and registrars/registries and others who engage in massive gaming. But, when the DOC has a huge stick (termination of the IANA contract), they don't need to be as precise.

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