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Inter Mundos: ICANN's Accountability is a Matter of Human Rights

Roy Balleste

The debate over the IANA Functions transitions has captivated the minds of all stakeholders. The U.S. Commerce Department's National Telecommunications and Information Administration (NTIA) has announced that they intend to transition key Internet domain name functions to the global multistakeholder community.1 Thus, we find ourselves in the midst of a transition between worlds. All stakeholders are pondering the following questions: what should be the appropriate transition? What should be our goal? However, I believe another is of higher importance: will ICANN offer the correct mechanisms for a fair and democratic model of governance that responds to human needs and aspirations? While a lot of promises can be made, there is nothing like action to prove your intentions.

NTIA's announcement presented the first step to transition stewardship of the Internet Assigned Numbers Authority (IANA) functions to a yet-to-be-determined entity. This entity would function based on a currently undetermined model of governance. For now, ICANN will convene global stakeholders to develop a proposal to transfer NTIA's current role.

This will be the job of the not-yet-formed NTIA IANA Functions' Stewardship Transition Coordination Group. The NTIA tasked ICANN with convening a multistakeholder process to develop the proposal for the transition. How will ICANN fit into this future structure? Will it police itself? Will we establish something new in lieu of the NTIA? What will that entity look like? How can we guarantee maximum accountability and transparency?

The Internet is experiencing a sad and depressing transition of unnecessary control. Internet users cannot assume that governments, unlike other participants in the process, should be given wider latitude, as if they had never done anything wrong. But it is to national governments that users look for responsible guidance and authority, acting in the best interests of humanity, and without resorting to the use of coercion.2 In other words, can we say that governments are good trustees of the Internet? After all, we expect governments to be the equalizers of fairness. Sadly, most individuals would hesitate to agree that all governments are living up to that expectation. Doubtless, a number of governments are notoriously repressive, who call themselves democratic but have chosen to ignore human rights in order to benefit the narrow self-interests of groups or individuals. A good model of governance supports the view that all stakeholder groups include well-intentioned individuals, and that governments have loyal public officials who protect, to the best of their abilities, the interests of the nations and individuals they represent. While it is much easier to just focus on security and militarization (not to say that both are not sometimes necessary), the ultimate goal should be the promotion of the benefits owed to all human beings, in fact.

Any model of governance focused on national frontiers within the Internet only considers the negative aspects of the Internet, over-emphasizing control, focuses too narrowly on the short-term, and fails to resolve greater challenges. Some governments hold the idea that the Internet is some kind of frontier to be restricted by imaginary borders.3 However, in this day and age, there are frontiers that will never be crossed. For example, science has shown that the frontiers established by interstellar travel may continue without end. Indeed, we measure distances in outer space in billions of light years. When we think in billions of light years, any notion of borders in the real world dwarfs ideas of geographical limits.

The greater — and much simpler — consideration, in fact, is the preferable guiding light: the application of human rights standards to any acceptable model for the governance of the Internet. Public participation has to be tempered by public accountability. The present system is not devoid of legitimate forms of participation. On the contrary, ICANN has continued to evolve in this direction over the years. But an acceptable governance model must maintain existing mechanisms, while policing power players that seek unfettered control of the day-to-day operations of the Internet. Should ICANN consider better protection for human rights? This should to be an easy question, with an easy answer. CEO Fadi Chehadé has stated multiple times his desire to receive input from the community. If ICANN is going to accept input from the community, then one matter must be given priority above all others: human rights. While some of my colleagues at the NCUC have noted the importance of human rights mechanisms in the IANA Transition process, I believe that something more permanent is necessary. For example, ICANN includes the following advisory bodies:

  • Internet engineering task force
  • Security and stability advisory committee
  • Root server advisory committee
  • Governmental advisory committee

I would propose establishing a new and permanent Human Rights Advisory Committee. The global desire to protect freedom was enhanced after World War II, when Eleanor Roosevelt was appointed on December 21, 1945, to the United States Delegation of the United Nations General Assembly.4 The following year, Eleanor was charged with drafting the Universal Declaration of Human Rights, later adopted by the General Assembly on December 10, 1948. The work of Eleanor Roosevelt was summarized by her words in 1958, while pondering humanity, with a question:

"Where, after all, do universal human rights begin? In small places, close to home… the school or college… the factory, farm, or office… Unless these rights have meaning there, they have little meaning anywhere..." 5

While assessing these words, another consideration arises: the reconciliation of human rights with a model of internet governance. Indeed, the need for the protection of human rights is never hypothetical — neither the needs nor wants of humanity. After all, law and its structures should serve human beings, not the other way round. In our present day, we run the risk of falling into the "emergency trap." For example, a state of emergency during times of conflict always provides dangerous opportunities for abuse. The line between security and the infringement of human rights can be distorted, despite often well-meaning claims of good intentions. Fear and misinformation are extremely powerful tools. In the hands of an oppressor, they can cause devastating results. It is significant, for instance, that the International Covenant on Civil and Political Rights clearly opposes the mere use of fear to justify the derogation of rights.

The Internet has become a story in which the user may feel part of an allegorical exercise, away from what should be the limitations of reality. This is why the users of the Internet must understand that they are not passive travelers in a long journey. On the contrary, the direction and goals to be achieved can be steered in the correct direction when the users become savvy consumers who know what is and should be in the best interest of all.

1 NTIA Announces Intent to Transition Key Internet Domain Name Functions, available at http://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions.

2 Harold D. Lasswell and Myers S. McDougal, Jurisprudence for a Free Society 1245 (1992).

3 Roy Balleste & Joanna Kulesza, Signs and Portents in Cyberspace: The Rise of Jus Internet as a New Order in International Law, 23 Fordham Intell. Prop. Media & Ent. L.J. 1311 (2013).

4 See Anna Eleanor Roosevelt Biography, The Franklin D. Roosevelt Presidential Library and Museum, http://www.fdrlibrary.marist.edu/library/er_humanrights.html

5 Eleanor Roosevelt, In Your Hands: A Guide for Community Action for the Tenth Anniversary of the Universal Declaration of Human Rights, (Mar. 27, 1958), Address Before the United Nations.

By Roy Balleste, Professor of Law & Law Library Director
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The addition of HRAC to the ICANN Avri Doria  –  Jul 11, 2014 5:02 AM PST

The addition of HRAC to the ICANN mix would be a giant step forward for ICANN.

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