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The Empire Strikes Back: ICANN Accountability at the Inflection Point

Philip S. Corwin

"When you come to a fork in the road, take it." —Yogi Berra

The members of the ICANN community engaged in the work of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-ACCT, or just plain "CCWG" for this article) has been engaged since late 2014 in designing an enhanced ICANN accountability plan to accompany the transition of oversight of the IANA root zone functions from the National Telecommunications and Information Administration (NTIA) to the global multistakeholder community. On August 3rd the CCWG released its 2nd Draft Report (Work Stream 1) for a public comment period that closed on September 12th.

But, regardless of the overall content of those comments, one may be treated as more equal, or at least as warranting more consideration, than others — that of the ICANN Board. And the first weeks of September 2015 led the process toward a make or break it decision point, culminating in a late month face-to-face (F2F) meeting in Los Angeles, that will determine whether the ICANN community will remain unified behind strong and binding accountability measures — or will become divided and distracted, lose sight of its goals, and fumble an opportunity that will not recur again. Based on its performance to date, and to ongoing email conversations among CCWG members, the author is optimistic that the CCWG will not abandon its goals or guiding principles.

The purpose of this article (click to download expanded full length PDF version) is to inform members of the ICANN community as well as policymakers and other interested parties of the maneuvers and details underlying these recent and critical turns of events as we move toward the end game on determining the contours and substance of enhanced ICANN accountability.

Key Takeaways

The quest to impose substantially greater accountability on ICANN by its community is approaching a historic juncture that will decide this matter for years to come. Not altogether surprisingly, ICANN's Board is raising major questions about the latest version of the CCWG Accountability proposal that seem to constitute a broad pushback, particularly against the Sole Membership Model (SMM) that would confer significant community powers under California law.

The major points made in this article are:

  • Regardless of the wisdom of the IANA transition, there is no turning back and the moment must be seized.
  • The CCWG Proposal analysis prepared by ICANN's outside counsel, Jones Day, amounts to a broad dispersal of fear, uncertainty and doubt (FUD). Ironically, many of the alleged (and very overblown) concerns regarding capture, instability, paralysis, and being untested could just as readily be lodges against the Board's alternative proposal.
  • The outside legal assistance secured by the CCWG has been absolutely invaluable in constructing a strong and sound accountability proposal, as well as confronting and refuting the Jones Day analysis.
  • The three hour Board reaction call held with the CCWG on September 2nd was a substantive train wreck destructive of trust between the groups, and a repetition should be avoided like the plague. So far the event seems to have had a sobering effect on all sides.
  • There are legitimate issues regarding how much weight the CCWG should accord to the Board's views, given that it is the prime target of accountability measures.
  • The CCWG has now scheduled a two-day face-to-face meeting in Los Angeles on September 25th-26th. It is not yet entirely clear what the meeting's agenda and purpose will be and to what extent the CCWG will interact with the Board. This meeting, which the CCWG has vowed will not be a negotiating session with the Board, carries substantial risk as well as opportunity to make key decisions and move toward completion.
  • The Board's formal comments on the accountability proposal contain some suggestions for fine-tuning the CCWG's proposal that may be worthy of consideration. But the heart of the Board's proposal is a very different membership model which could bring complaints against a much narrower range of potential Board transgressions, and would allow the Board far greater discretion in fashioning a "remedy", or even declining to do so. Unless a convincing case can be made that this alternative approach will result in substantially greater accountability enforcement that that developed by the CCWG, it should be rejected.
  • In addition, the Board proposes to essentially dissolve the CCWG post-transition and disperse "work stream 2" accountability measures to a variety of internal ICANN processes, where many will likely disappear and never be fully developed and implemented.
  • The time required to work out substantial differences, or at least seek to do so, may render it difficult or impossible to complete the IANA transition by September 30, 2016, the current end date of the IANA functions contract between ICANN and NTIA. This would require NTIA to extend the contract by at least another year, pushing it into the next U.S. Presidential Administration.
  • Analysis of the Board's proposal by the CCWG legal advisers finds it to be narrower in scope, less robust, more cumbersome, and with enforceability of arbitration decisions far less certain. Its adoption would leave the organization close to the status quo at a time when community members yearn for transformative change that empowers the MSM.
  • Ultimately, the CCWG has time, leverage, and the U.S. Congress on its side and can achieve effective and transformative accountability enhancements — if it doesn't blink first.

The Proper Standard of Deference

In its initial analysis of the analysis of the CCWG Proposal prepared by ICANN's outside counsel, the two law firms advising the CCWG noted something particularly important within an exercise whose objective is to strengthen and secure the benefits of the multistakeholder model (MSM) for a considerable time going forward — "the conclusions of CCWG's deliberative bottom-up consensus seeking multistakeholder process deserve a significant degree of deference" — including, one presumes, deference by the Board.

It is the multistakeholder community that has produced the CCWG's accountability plan, and this entire transition exercise is in supposed defense and perpetuation of that the much vaunted MSM. So a broad rejection or reworking of the plan would be an indictment of the MSM and cited as evidence that it just wasn't up to the task it was given. By contrast, deference to it would constitute and embrace and validation of the MSM.

The author believes that the CCWG proposal is perhaps the highest expression of the capabilities of the MSM to date, and overall a remarkable piece of work to be produced so quickly. As for the Board's proposal, it is the product of the Board and its lawyers. It may be sincere and well-intentioned, but it is not the product of a multistakeholder process; at best it is one input to it.

Clearly, the only answer consistent with devotion to the MSM is to adopt the CCWG proposal as the baseline for further discussion and development. While individual components of the Board's submitted Comments Matrix may improve and enhance the CCWG proposal and certainly should be considered on their merits, on the central question of whether to go with the SMM or the Board's multistakeholder enforcement model (MEM) the burden of proof is on the Board and any other MEM proponents to demonstrate that it better enables the accountability desired by the community than the SMM. If it does not — and initial analysis finds it inferior in almost every aspect — it should be rejected, as this is no time for the CCWG to be diverted from project completion. And the project is substantially enhanced accountability.

Which Fork in the Road Will Be Taken?

How the gap between the Board and CCWG shall be bridged may come down to a question of who blinks first. Not every disagreement is subject to compromise, and the central questions of the SMM and an IRP enforced by assured judicial access seem to fall in that category.

Certainly there will be pressures and divisions on all sides.

The transition of IANA stewardship has already seen some considerable gap between the Numbers and Protocols technical communities — which are impatient for a change they already believe way overdue — and a Names community for which proceeding ahead is highly dependent on an acceptable accountability framework.

While the CCWG has strong internal consensus on its draft Proposal, there remains some internal dissent — especially on the SMM and an IRP that uses court access as ultimate backstop — and the Board may hope to exploit such divisions.

That brings us to the Board, which appears very reluctant to see the Proposal adopted in its present form — but which also must realize that any significant time devoted to reaching a mutually acceptable resolution of outstanding divisions could throw the Bylaws adoption completion date beyond the September 30, 2016 terminus of the current IANA contract term and squarely into the midst of a heated U.S. election.

Ultimately, while the Board and CCWG share many objectives, it is the CCWG as embodiment of the MSM that both are striving to save which gives it superior leverage in this accountability end game, so long as it retains cohesion behind the SMM its careful and informed deliberations have produced. For those who profess to support the MSM, the best means of demonstrating that commitment is to support the stakeholders comprising the CCWG as they move toward finalizing their SMM proposal.

We have reached a fundamental fork in the road. And now we must take it.

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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Share your comments

The longer PDF version is well worth Kevin Murphy  –  Sep 24, 2015 5:11 AM PST

The longer PDF version is well worth a read.

Appreciate your excellent analysis and encouragement, Phil. Steve DelBianco  –  Sep 24, 2015 6:50 AM PST

Appreciate your excellent analysis and encouragement, Phil.

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