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ICANN 51 Focus: Making ICANN Directly Accountable to the Broader Internet Community

Philip S. Corwin

ICANN 51 taking place in Los Angeles this week may not have its customary evening Gala, but it opened with rousing remarks by U.S. Secretary of Commerce Penny Pritzker in the first-ever ICANN appearance of the head of the Cabinet agency from which it was born and which has exercised continuous oversight of its key IANA functions.

The themes of the growing importance of Internet Governance and the U.S. government's steadfast commitment to defense of the multistakeholder model, as well as the connection between maintenance of an open Internet and fostering free speech and economic growth, were key elements of Secretary Pritzker's address:

We come together at a time when Internet governance is as important as ever. The fact is that we must do everything we can to protect and preserve this revolutionary platform that is the essential connector of people, economies, and communities across the planet… Facilitated initially by U.S. government investment through DARPA, the Internet as we now know it was built off of one inventive leap on top of another — And through the amazing genius ranging from Vint Cerf to Bob Kahn to Steve Crocker to Tim Berners Lee to Marc Andreessen to so many others. Their work has given us the most dynamic communications and connective platform that the world has ever seen… We live in an era when all an entrepreneur needs to start, build, and promote a business is a mobile device and a Wi-Fi connection. Put simply, the Internet is a fundamental gateway to new growth for developing nations and continued prosperity for developed nations. The Internet is also a vital platform for free expression and the exchange of ideas. And that is why I stand before you today to make this fundamental promise: the United States will protect and preserve a free, vibrant and open Internet... we are at a critical moment for ICANN and the important work you do. This means that how we govern and use the Internet is of global importance. This means that consensus decisions related to the Internet domain name system made today in Los Angeles can shape lives and livelihoods in Africa, Asia, Latin America, and elsewhere not just today but long into the future. All of us are stakeholders in a strong and vibrant, global Internet. The Internet has thrived precisely because citizens around the world have a voice in how the Internet is governed. That is why we — the United States government — support multistakeholder processes. This is our bedrock principle for Internet governance. Let me be clear about this. The United States will not allow the global Internet to be coopted by any person, entity, or nation seeking to substitute their parochial worldview for the collective wisdom of this community — you, the community of stakeholders represented so well here today. As such, that is why six months ago NTIA announced the decision to transition its stewardship role over the Internet Domain Name System to the global multistakeholder communities… We all know that multistakeholder governance, and institutions like ICANN, are under intense and unprecedented pressure and scrutiny. Yet we are confident that the multistakeholder model offers the greatest assurance that the Internet will continue to thrive. And we must work together to ensure that the Internet remains an engine for economic growth, innovation, and free expression. We must continue to work hard to sustain multistakeholder governance, because it has enemies who want to reduce Internet governance to a meeting of governmental technocrats promoting narrow national interests. We must make clear this approach is the best tool to secure the openness and the vibrancy of the Internet. We must ensure that ICANN can build on its efforts to strengthen the multistakeholder process and can become directly accountable to the customers of the IANA functions and to the broader Internet community. Next week, at the International Telecommunication Union Conference in Korea, we will see proposals to put governments in charge of Internet governance. You can rest assured that the United States will oppose these efforts at every turn. We know that those interested in government control tend to be countries that censor content and stifle the free flow of information. We will be clear that these steps are contrary to our belief in the value of free speech — whether on the Internet, in society, in the public sphere — both here at home and abroad. We will remind all players — in each instance — that the multistakeholder model will preserve and protect a strong and resilient Internet. In closing, the world is watching ICANN, and some are waiting for us to fail. But we cannot — and must not — let that happen. We have to get this transition right. (Emphasis added)

Secretary Pritzker's words provide an appropriate framework for the important work ahead as the ICANN community grapples with creating the right processes to guide the IANA functions transition and the creation of enhanced ICANN accountability measures. So far the atmosphere at this meeting is the least confrontational and most cooperative of any recent ICANN gathering. That is in large part due to ICANN's October 10th announcement that it is retreating from the August 14th staff-produced proposal for the accountability process and instead will step back and let the community shape it. As stated in its announcement:

Following the community requested 21-day second round of comments, ICANN received 17 comments. Based on the input received from these comments, staff believes that the strong community comments in the second round of comments support integrating the originally proposed structure (CCG/Coordination Group) into establishing a Cross Community Working Group (CCWG) that incorporates some key elements that have arisen in the dialogues. Additionally, given the input over the course of the dialogue on this process, it's suggested that the CCWG has two work steams, one focused on accountability in view of ICANN's changing historical relationship with the USG, and the second, on the broader accountability issues the community would like to bring to the forefront.

Drilling down into that "suggestion that the accountability process have two work streams, the document provides this additional perspective:

To ensure that over time there's a mechanism to ensure coverage of all areas, including topics outside of the immediate scope of the process, a suggestion is that the CCWG establish two work streams or subgroups: one focused on the scope of the work on enhancing ICANN accountability in light of the changing relationship with the USG within the time frame of the transition (Work Stream 1); and a second focused on addressing topics on accountability outside the scope of Work Stream 1, which are longer term (and may include, for example, recommendations from the recent ATRT2 addressing current accountability mechanisms such as the Ombudsman, the Reconsideration process and the Independent Review process) (Work Stream 2). This could be reflected in the CCWG's Charter.

Again, this is merely a suggestion and it will be ICANN's stakeholders who will determine whether establishing two separate work streams is advisable and, if so, what the proper dividing line is between accountability measures directly related to the IANA functions versus those of a more general and overarching nature.

Another key aspect of the revised accountability process is the discretion permitted the Board to accept or reject proposed enhanced accountability measures and whether such decisions will be made subject to a clearly articulated standard. In this regard the announcement states only that the Board is considering the issue and will make its thoughts available at some point:

Role of the Board

There were several comments relating to the role of the Board, in particular regarding the acceptance of recommendations from the process. This topic was also addressed in the 18 September 2014 letter [PDF, 500 KB] responding to the SO/AC/SG/C Leadership letter of 4 September. This is a matter for the Board to address, and the Board is considering how it can provide assurance to all stakeholders that it will seriously consider and respect the recommendations arising out of the review. More information on that issue will be forthcoming.

Given the uncertainty about this and other key elements of the revision, the three constituency groups that filed a Reconsideration Request challenging the August 14th staff proposal have decided, for the moment, to leave it in place and consider the question of its withdrawal at the end of ICANN 51.

The timing of the interrelated reports and recommendations on the IANA transition and enhanced accountability will also be discussed this week. Producing well-considered and credible documents may well be incompatible with completing the transition by the September 2015 termination of the first phase of the current IANA contract, necessitating a two-year extension — although that would not imply that the process would need an additional 24 months. The Community Working Group (CWG) on the IANA transition will be meeting later today in LA, and is wrestling with a demand by the IANA Coordination Group (ICG) that it publish a draft transition proposal for public comment by mid-November so that a final community plan can be submitted to the ICG by mid-January. Based on my own working group experience it seems absurd to think that any of them could produce a draft suitable for public comment in less than thirty days, yet that dubious deadline has been driven by working backwards from September 2015, acknowledging that any proposal meeting that deadline must reach NTIA by next June and factoring in the minimum time requirements for the intervening steps. Given the clear statements by Assistant Secretary Strickling, Chairman Crocker, and others acknowledging that the transition and enhanced accountability are intimately interrelated, and the community's clear statement that the IANA transition should not proceed before an acceptable accountability plan is developed and reaches a requisite stage of implementation, placing undue time pressure on the IANA CWG seems both unnecessary as well as unwisely incompatible with getting the end product right. Any "delays" tied to reasoned and deliberative consideration may well be decried by a handful of GAC member nations who are not fully committed to the multistakeholder model — but some of them were already voicing views over the weekend that the IANA transition is insufficient and that the next matter to be considered must be terminating ICANN's status as a California non-profit corporation. Trying to appease them is a fool's errand and at some point they must be told that enough is enough.

As important as the IANA transition and accountability are, they are hardly the only important issues to be addressed this week. In a Sunday meeting with the GNSO Council CEO Fadi Chehade conceded that 2016 revenue projections were "very high" due to lackluster registrations in new gTLDs — and that consequently ICANN had cut its 2016 budget by $10 million, that further reductions were possible, and that an absolute cap on expenses of annual CPI increases up to a maximum limit of five percent would be imposed for the next four years.

Addressing the World Economic Forum's NETmundial Initiative, in which ICANN had played a large formative role, Chehade stated that it "will continue to bubble forward", that Brazil's CGI.BR was becoming more involved, but that he would be throttling back his involvement with extraneous Internet Governance and other non-core issues to no more than twenty percent of his time in order to refocus on core ICANN management responsibilities.

Finally, in regard to the ever-important issue of contractual compliance enforcement, ICANN has just announced the appointment of its first-ever Chief Contract Compliance Officer whose duties will include "exploring ways that ICANN can work with others to help safeguard registrants and the global Internet community in ways that may go beyond pure contractual enforcement" and to whom a newly created position of Consumer Safeguards Director will report.

ICANN 51 will be grappling with major issues and challenges this week. It's noteworthy and very welcome that it will be doing so in what feels like a substantially improved atmosphere of cooperation rather than the confrontation and consternation that has permeated and come close to poisoning recent meetings. The goal for everyone gathered here in the City of Angels should be to disappoint those who are hoping for ICANN's failure and to take concrete and well-considered steps to make ICANN a better model for the virtues of multistakeholder Internet Governance.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own. Visit Page
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It's In America's as well as the World's Interests Michael Castello  –  Oct 13, 2014 1:52 PM PDT

That's a great statement by Penny Pritzker. There are profound instances where our national security could be at risk. Solid oversight is needed for the transition of IANA, but also of ICANN, for true multistakeholder governance to take root.

just saying thank you DJ Chuang  –  Oct 13, 2014 4:32 PM PDT

Thanks for posting this so punctually, appreciate your attention to detail! Hope to see more #icann51 chatter and updates.

An European Internet ? Jean Guillon  –  Oct 14, 2014 1:05 AM PDT

I also heard that but if you read French, have a look here and learn why an European Internet could be a much better solution.

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