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The ICANN Accountability End Game

Michael Roberts

It was predictable, and inevitable, I suppose, that the end game of a search for a more accountable ICANN would devolve to a lawyer's contest. When there is money on the table, and when global politics are invoked to one degree or another, it is the lawyers who are tasked to translate lofty goals into precise words on paper that will survive the inspection of judges and courts. And ambitious politicians as well.

All of which does little to lessen the offensiveness of the process to many in the community who have nurtured the growth of an open Internet from an academic experiment to a worldwide communications and information system.

In the long run, human institutions that go awry end up on the garbage dump of history, as the saying goes. While we may not wish that outcome on ICANN, it could easily happen. Thus, cynicism would have us conclude that the elusive goal of an accountable ICANN, whatever that means, will never be reached — as with many human aspirations — and the outcome of the present contest, which seems ever more adversarial, doesn't matter. We can do better than sink to that level.

The atmosphere around CCWG has become superheated with rhetoric, much of which is adding nothing to reasoned debate. In the 2nd Inaugural, Lincoln said, "Both parties deprecated war, but one of them would make war rather than let the nation survive, and the other would accept war rather than let it perish, and the war came." Do we really have echoes of that kind of thinking at work in CCWG?

For better or worse, my history with ICANN goes back to the beginning, and with that background, I have a few suggestions. You can judge for yourself how modest or immodest they are.

  • Accept that the near term goal of enhancing ICANN accountability is a limited goal. A goal not for the ages, but for meeting the tangible threats of the next decade or so. Do some realistic gaming of genuinely plausible situations, and their possible remedies.
  • Caution all lawyers that they are not in a courtroom, and that winning is not part of their relationship with you. Dispense with rhetoric about deference, which is courtroom talk when judicial precedent is available. You are not in a courtroom, and you do not have useful precedent to guide you. Neither the CCWG, nor the ICANN Board, has a legal stature deserving of this behavior.
  • Remember how fragile the legitimacy of all parties to this endeavor is. Neither side has gone through a democratic process to establish themselves with voices of authority. In an Internet of billions of users, be humble when you purport to speak for their interests.
  • Be careful about invoking MSM. It was invented out of whole cloth a very short time ago. No one can point to a learned de novo paper describing its particulars. It is a practical way to describe the multiparty consensus process first forged in the IETF and now adapted and adopted for use more widely. Don't destroy its value by attempting to use it for something it isn't suited to do.
  • Keep in mind that when this is over, when the smoke clears and the lawyers' meters stop running, ICANN will need all hands to keep the ship afloat and moving forward.
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