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GAC Empowerment in Post-Transition ICANN

Philip S. Corwin

On March 20th, Wall Street Journal (WSJ) Op-ed writer L. Gordon Crovitz published an article titled "Stop Obama's Internet Giveaway".

In his opinion piece Mr. Crovitz opposed any near-term transition of the IANA functions:

The plan was supposed to ensure that U.S. control could never be replaced "with a government-led or intergovernmental organization solution." Yet it does precisely that, giving foreign governments new powers over the Internet Corporation for Assigned Names and Numbers, or Icann, and a path to full control… Congress has used budget bills to defund any action by the Obama administration to end the U.S. contract with Icann, at least through this September… The Internet as we know it won't survive if other governments get their way. At least until there is a new president, it's up to Congress to insist that the U.S. remains the essential steward of Internet freedom.

In the course of his article Mr. Crovitz also stated, "Icann already has been kowtowing to authoritarian regimes," alluding to former CEO Fadi Chehade's December 2015 decision to become a Co-Chair of the Advisory Committee to China's World Internet Conference.

He then continued:

Senators, including Ted Cruz, asked whether this participation in China's version of Internet governance "makes Icann complicit in the Chinese censorship regime." Mr. Chehade's reply was that if Congress retains U.S. oversight of the Internet, this "would have grave repercussions on the U.S."

Philip Corwin, an Internet governance lawyer, noted on the CircleID website that this "less than complete and somewhat argumentative response may have implications for congressional review" of the plan to hand over oversight of Icann.

So far, Congressional concerns regarding Mr. Chehade's WIC decision have not spread beyond Senator Cruz and his two colleagues. No questions on this subject were posed in last week's House Energy and Commerce Committee hearing on "Privatizing the Internet Assigned Number Authority".

Given that I was quoted in this opinion piece, I wanted to make sure that WSJ readers did not presume that I shared Mr. Crovitz's view that Congress should further extend the appropriations block on the IANA transition based upon the view that the Accountability proposal would lead to a governmental takeover of ICANN. I therefore dispatched a Letter to the Editor to make that clear.

As my letter has not yet been posted in the WSJ, and there is no assurance that it will, I am publishing it now on CircleID to clarify the record. The text is below.

* * *

VIRTUALAW LLC

Philip S. Corwin, Founding Principal
1155 F Street, NW Suite 1050
Washington, DC 20004
202-559-8597/Direct
202-559-8750/Fax
202-255-6172/Cell
psc@vlaw-dc.com


March 21, 2016

The Editor
Wall Street Journal
1211 Avenue of the Americas
New York, NY 10036
Wsj.ltrs@wsj.com

In Gordon Crovitz's March 20th column, "Stop Obama's Internet Giveaway", he quotes a passage from my March 2nd CircleID.com article in which I was critical of former ICANN CEO Fadi Chehade's less than complete response to a letter of inquiry from three U.S. Senators, including Ted Cruz. I had preciously questioned the propriety of the December 2015 announcement that Mr. Chehade, while still an ICANN employee and absent advance notice to the ICANN Board, had agreed to be Co-Chair of the Advisory Committee to China's World Internet Conference (WIC). WIC appears to have the aim of supplanting ICANN's multistakeholder model (MSM) with multilateral government dominance; and to oppose the version of Internet Governance (IG) that abhors the type of state information censorship exemplified by China's "Great Firewall".

While the quotation is correct, and while I respect Mr. Crovitz's viewpoint, I wish to make clear that I am not opposed to the final IANA Transition and accompanying ICANN Accountability Proposals. The package just adopted at ICANN 55 in Marrakech is a sound blueprint that, while composed of interdependent compromises, will nonetheless provide a substantial improvement in the accountability of ICANN's Board to its multistakeholder community if faithfully implemented over the coming months. After nearly two years of work, telling ICANN's community to go back to the drawing board would be a dispiriting rebuke that could undermine global support for multistakeholderism and strengthen the hand of those seeking governmental IG domination.

I do not regard the proposals as creating a substantial danger of multilateral takeover. Entwining members of the Governmental Advisory Committee (GAC) in the newly Empowered Community binds them more closely to ICANN's MSM. Further, governments will remain restricted to a purely advisory role on policy matters. As one who participated in shaping the final language of the Recommendation relating to Board consideration of GAC advice, I believe that the single additional Board member vote required to reject GAC advice is more than offset by stipulating in ICANN's Bylaws that the only GAC advice to receive such procedural treatment is that which is near-unanimous and lacking any formal objection by any nation, including the United States and its democratic partners. In addition, a GAC "carve-out" prevents governments from blocking community accountability actions triggered by Board acceptance of GAC consensus advice.

As NTIA leads its own interagency review, Congress should certainly continue to examine the Proposals over the coming months to assure that they meet all of the NTIA's stated principles and restrictions, as well as any additional Congressional concerns, and that they are being fully and faithfully implemented.

But Congress should not extend the current appropriations freeze on the IANA transition based upon any belief that the ICANN community-developed blueprint contains a "path to full control" by governments over ICANN's technical functions. To the contrary, implementation of that blueprint should result in increased governmental integration into an ICANN governance model that places technologists, business, and civil society in a position that is superior to that of nation states.

Sincerely,
Philip S. Corwin

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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More than a clarification Steve DelBianco  –  Mar 25, 2016 4:48 PM PDT

Phil, your explanation goes further than just correcting the record about your quote.  You've given a good evaluation of how the power of government advice has been checked in the new accountability proposal.

I share your view that we've struck the right balance — where governments are multi-equal stakeholders in the global community that will hold ICANN accountable in the future.

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