CircleID

ICANN has made great strides in implementing steps to improve the organization's transparency, accountability, openness - according to their most recent Status Report [PDF]. The report describes the requirements of their MOU with the Department of Commerce and what the organization has done to toward achieving these goals. However, even though the Report makes it sound as if ICANN is on the right track, some troubling issues lay underneath the surface of the Report.

A key example of how the Status Report may conceal as much as it reveals is in its discussion of the process for selecting new TLDs. With regard to the TLD selection process, the Report states that "an independent team will evaluate the applications [for new TLDs] against specified selection criteria" and that an international panel is now being selected to provide expert opinion.

However, the discussion of the TLD selection process raises more questions regarding transparency and openness than it answers. For example, how will the panel members be picked? Although the criteria for panel members are explained, the process of choosing among qualified candidates is opaque. Also unclear is how the panel will function. By vote? By consensus? By other means? How will minority views be considered and reported?

ICANN's Status Report provides no indication whether any of the panel's deliberations will be open to the public. Although it would be reasonable that portions of the deliberations concerning sensitive business information be closed, it would be quite ironic if a panel that represents a commitment by ICANN to openness were to operate in virtually complete secrecy.

ICANN's Status Report states that the organization has made public "specifically defined" criteria "by which the applications would be measured." The problem is that neither the announcement discussing the criteria nor the Status Report provide any quantified metrics and standards for such measurement. For example, one of the criteria is to provide "evidence of broad-based support from the Sponsored TLD Community for the sTLD..." However, no indication is provided as to how such evidence should be presented (letters of support, etc.) or how much evidence is required to meet the criteria.

Similarly, the criteria include such vague requirements as favoring "sTLDs that serve larger user communities and attract a greater number of registrants. Consideration will also be given to those proposed sTLDs whose charters have relatively broader functional scope." No indication is provided as to the standards against which "larger" and "relatively broader" would be measured.

Because neither the Report nor criteria announcement provide an explanation of how compliance with the specified criteria will be measured and evaluated or even assurance that the same evaluation standards will be applied to all applications, the panel's evaluations could potentially be arbitrary and capricious. Furthermore, ICANN provides no clue as to how they will make decisions based on the panel's recommendations.

ICANN's claims of improved transparency are also undermined by their statement that, after they receive the panel's recommendations, their staff "will negotiate specific terms and conditions with each Registry Operator."

Thus, ICANN is free in the negotiation process to take full advantage of their unique power in granting TLDs. Furthermore, ICANN could potentially use the negotiating process to effectively deny a TLD to an organization that received a favorable recommendation from the review panel. Although negotiating the best deal possible is often appropriate in the private sector, it is a highly questionable practice when conducted by a public benefit non-profit corporation operating under a grant of authority from the US government.

Overall, ICANN's goals appear to be nobler than their operations.

For more information, please see ICANNfocus.org

By Bruce Levinson, Senior Vice President, Regulatory Intervention

Related topics: DNS, ICANN, Top-Level Domains