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The JPA is dead, and in its place is the Affirmation of Commitments. Much debated, this change is anticipated to bring more global participation into ICANN's governance. Increased globalization may turn out to be beneficial for the Internet community, if it helps to shore up ICANN's institutional weaknesses. But the Affirmation leaves important questions unanswered, beginning with ICANN's fundamentally weak accountability. It remains unclear whether or how the Affirmation makes ICANN more accountable.

To be clear, the kind of accountability I have in mind is emphatically not "enhanced participation" in policy making. Improving the extent to which ICANN's policy-making processes are accessible to the public is good.  Such participation takes advantage of the talents and perspective of many members of the Internet community and throws some light on ICANN's decisions. But participation alone is not accountability; it is too easy for ICANN to take a show of hands and ignore the results. Real accountability would require ICANN to disclose its actions to an independent body with the power to measure those actions against objective benchmarks and to deliver consequences and not just advice. By that definition, ICANN has a long way to go.

Recall that in April 2008 the U.S. Department of Commerce (DOC) issued a statement following its midterm review of ICANN's performance under the JPA. There the Department concluded that "most participants agree that important work remains to increase institutional confidence through implementing effective processes that will enable: ... accountability ...." That widely-expressed criticism represented a failure by ICANN to live up to its own commitments. Its Board of Directors had approved an Affirmation of Responsibilities as Annex A to the Joint Project Agreement in 2006, and among those self-described responsibilities was accountability.

DOC's report should have prompted ICANN to improve its accountability rapidly, especially when the JPA came up for renewal only 18 months later. Yet its only significant effort to respond was to publish a draft Implementation Plan for Improving Institutional Confidence. The Plan contained measures aimed at improving accountability, including establishing a closer relationship between ICANN and GAC, providing a detailed analysis of public comments received by ICANN, and standardizing its consultation documents. One could ask whether these measures are the ones most needed to improve ICANN's accountability, or whether they would be effective at all, but the Plan doesn't really matter because ICANN has been typically slow to act on it.

ICANN's lack of accountability was a leading concern expressed by several major organizations in response to DOC's April 2009 notice of inquiry regarding the expiration of the JPA. As the Internet Governance Project stated, "external accountability is still the main problem with ICANN." Similarly, the International Chamber of Commerce wrote that "enhanced accountability to the Internet community is essential to the next phase of ICANN's evolution." AT&T added that "'[t]he concept of "bottom-up decision making' by affected stakeholders in this regard helps ICANN stay on task, but it must be accompanied by meaningful accountability."

These are serious concerns expressed by leading organizations in the Internet community, but moving from the JPA to the Affirmation did little to address them. What the Affirmation does say about accountability leaves significant questions unanswered. It adds a new commitment by ICANN to act in the public interest and states ICANN's commitment to conduct two kinds of periodic reviews. Adding the words "in the public interest" or "for the benefit of global Internet users" to ICANN's previous commitments may turn out to be worthwhile reminders that ICANN was not created and does not hold decision-making power over the technical coordination of the Internet DNS for purely self-interested purposes.  Certainly, this concept of stewardship could be made more useful if it were connected with a genuinely independent review of ICANN's actions. But these words do not make ICANN more accountable by themselves, nor will periodic reviews of ICANN's commitments to good governance and DNS stability and security by "volunteer community members" unless such reviews amount to something different than reviews by ICANN Board members and their friends. ICANN's draft proposal on Affirmation Reviews attempts to interfere with any genuine independence of the review teams at so many points that it is at best unclear how useful such reviews will be in bolstering ICANN's accountability.

Making ICANN genuinely accountable is a problem that is growing in urgency, as the Internet grows in global importance. Until ICANN becomes genuinely accountable by being bound to disclose its actions to an independent body with the power to measure those actions against objective benchmarks and to deliver consequences and not just advice, there will still be work to do.

By R. Shawn Gunnarson, Attorney at Law, Kirton & McConkie

Related topics: ICANN, Internet Governance