Late on the evening on April 22nd the CWG-Stewardship on the IANA Naming Functions issued its second Draft Proposal for a 28-day public comment period that closes on May 20th. Information about the Proposal can be found in a news announcement and at the public comment page.
ICANN has scheduled a 90-minute explanatory webinar on the proposal on Friday, April 24th at 6:00 and 14:00 UTC. Individuals who wish to participate should refer to the Webinar announcement for registration instructions.
ICA is concerned that the 28-day comment period, cut by thirty percent from the standard 40-day period used for other ICANN matters, may be insufficient to address a document of this importance and length. That is particularly true because several sections of the 90-page draft are marked as “Under Development” or “Draft and Under Development” indicating that this remains an incomplete work in progress.
Indeed, the explanation provided by the CWG notes that, “During the Public Comment period, the CWG-Stewardship will continue to assess the implications of the proposed post-transition structure (section IV) and the fulfillment of NTIA requirements (section V). These sections depended largely on the completion of Section III and therefore are in outline form only at this time.” (Emphasis added)
The referenced Section III of the Proposal is the very important “PROPOSED POST-TRANSITION OVERSIGHT AND ACCOUNTABILITY”. In this regard the CWG explains that the critical details will be based on the unfinished work of the separate CCWG-Accountability:
DEPENDENCIES ON THE CCWG-ACCOUNTABILITY
The CWG-Stewardship’s proposal has dependencies on and is expressly conditioned upon the CCWG-Accountability process. Specifically, the proposal requires ICANN accountability in the following respects:
The CCWG-Accountability is expected to deliver its own draft proposal for a similarly truncated public comment period later this month. However, the CCWG has penciled in a possible second comment period on the Accountability proposal that could begin around July 1 — while the CWG has no plans for a second comment period on the Stewardship proposal even though the draft that was just published has large holes in it.
The CWG’s current plan going forward is to analyze the comments following the close of the input period and then deliver a final draft for review, consideration and approval by ICANN Supporting Organizations and Advisory Committees around June 8th, with submission to the IANA Coordination Group (ICG) scheduled for just seventeen days later on June 25th.
At some future point the final package assembled by the ICG will have to be reconciled and combined with the final Accountability proposal and delivered to the ICANN Board for review and approval, an event currently projected to occur around August 30th. After that, implementation of those accountability measures required to be in place prior to the IANA transition would start, and the NTIA would review the full package and decide whether it effectively met the principles contained in its March 2014 announcement of the IANA transition.
Congressional appropriations language remains in effect that prohibits the NTIA from facilitating the transition prior to September 30th and requires that it provide Congress with 45 days advance notice of any intent to transfer oversight of the IANA root zone functions.
On the evening of Tuesday, September 9th, Congressional leaders unveiled a 1,603 page, $1.01 trillion FY 2015 appropriations bill to fund the U.S. government through the end of September 2015. One provision of the omnibus bill would delay the IANA transition until after the September 30, 2015 expiration of the current contract between the NTIA and ICANN.
Language in the bill states:
SEC. 540. (a) None of the funds made available by this Act may be used to relinquish the responsibility of the National Telecommunications and Information Administration during fiscal year 2015 with respect to Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the Internet Assigned Numbers Authority functions.
(b) Subsection (a) of this section shall expire on September 30, 2015.
That language, a modified version of the “Duffy Amendment” that was contained in the House version of the National Defense Authorization Act, would allow NTIA to start spending funds on a transition after exercising its first option to extend the contract.
In addition, the explanatory report language of the Commerce-Justice-State portion of the omnibus spending bill, in which the above language is contained, states the following:
Internet governance.-The agreement reiterates House and Senate language regarding the Internet Corporation for Assigned Names and Numbers (ICANN) and Internet Assigned Numbers Authority (IANA) matters and modifies Senate language by directing NTIA to inform appropriate Congressional committees not less than 45 days in advance of any such proposed successor contract or any other decision related to changing NTIA’s role with respect to ICANN or IANA activities. In addition, NTIA shall submit a report to the Committees on Appropriations within 45 days of enactment of this Act regarding any recourse that would be available to the United States if the decision is made to transition to a new contract and any subsequent decisions made following such transfer of Internet governance are deleterious to the United States.
This language appears to require NTIA to inform Congress 45 days prior to extending the IANA contract or taking any other decision in regard to it; as well as to submit a report to Congress within 45 days after the spending bill’s enactment regarding whether the US would have any post-transition recourse if subsequent decisions were deleterious to the U.S.
This final bill language has already been negotiated with and accepted by Senate Democratic and House Republican leaders and is likely to be enacted and sent to President Obama by the weekend. It is unlikely that the White House would veto the bill and risk a government shutdown over this IANA language (although other provisions could become sticking points between the Administration and Congress).
Rumors were already circulating in Washington that NTIA was prepared to extend the current IANA contract by at least six months in recognition of the fact that it may be impossible for the ICANN community to design and stress test enhanced accountability measures by the end of the current contract term, much less have them in place by then. So the bill may have little effect on the actual timetable for the transition. It remains to be seen what reaction to its enactment comes from ICANN, the ICANN community, and other nations.
On November 10th the US District Court for the District of Columbia granted ICANN’s motion to quash a writ of attachment and a related motion for further discovery in a politically charged case in which private plaintiffs sought to seize control of Iran’s .IR country code top level domain (ccTLD). The litigation was brought under a US law that allows victims of terrorism and their families to seize the assets of foreign nations that funded the related terrorist acts. While most of the plaintiffs were targeting Iran the decision also covered the ccTLDs for Syria and North Korea.
In its Order in the case of Stern v. Islamic Republic of Iran the Court wrestled with the issue of whether a ccTLD could be attached in satisfaction of a judgment. In reaching its decision, the Court stated:
There is little authority on the question of whether Internet domain names may be attached in satisfaction of a judgment. Indeed, no reported decision of any American court appears to have decided the specific issue of whether a ccTLD may be attached. The Virginia Supreme Court’s discussion of these issues in Network Solutions, Inc. v. Umbra Int’l, Inc., 529 S.E.2d 80 (Va. 2000) is helpful in illuminating the questions presented. There, the court held that a domain name could not be garnished by a judgment creditor under the relevant Virginia statute because it was “inextricably bound” to the domain name services provided by the registry operator. Id at 86. The court elaborated: “[W]hatever contractual rights the judgment debtor has in the domain names at issue in this appeal, those rights do not exist separate and apart from [the registry] services that make the domain names operational Internet addresses.” Id. The court further observed that allowing garnishment of a registry’s services as part of garnishing a right to a domain name would mean that “practically any service would be garnishable.” Id. at 86-87.
The Court finds this reasoning persuasive as applied to District of Columbia attachment law as well. The ccTLDs exist only as they are made operational by the ccTLD managers that administer the registries of second level domain names within them and by the parties that cause the ccTLDs to be listed on the root zone file. A ccTLD, like a domain name, cannot be conceptualized apart from the services provided by these parties. The Court cannot order plaintiffs’ insertion into this arrangement. (Emphasis added)
As can be seen, this Federal Court decided this 2014 case involving a top level ccTLD by relying on a 2000 Virginia Supreme Court decision involving a second level domain at a generic top level domain (gTLD).
But, while analogizing the operation of a ccTLD to the provision of services, the Court did not decide that TLDs or, by analogy, second level domains were not a form of property.
In footnote 2 of its decision the Court makes that distinction quite clear by again citing the 2000 Network Solutions case:
The Court notes that judicial decisions have construed domain names to be a form of intangible property. See, e.g., Kremen v. Cohen, 337 F.3d 1024, 1030 (9th Cir. 2002). But the conclusion that ccTLDs may not be attached in satisfaction of a judgment under District of Columbia law does not mean that they cannot be property. It simply means that they are not attachable property within this statutory scheme. Indeed, in Network Solutions, the Virginia Supreme Court nodded to this precise point in stating that it was not “essential to the outcome of this case to decide whether the circuit court correctly characterized a domain name as a ‘form of intellectual property.”‘ (Emphasis added)
This decision thus leaves open the possibility that domains may constitute a form of intellectual property that cannot be attached to satisfy a judgment. Reaching that conclusion in future litigation might provide domain owners with arguments for greater parity with trademark rights while protecting their assets against attachment and other legal processes.
ICANN issued a press release in response to the decision in which John Jeffrey, its General Counsel and Secretary, stated, “We are pleased that the court ruled in our favor on the grounds that the ccTLDs are not property, subject to attachment. The court’s ruling demonstrates a technical understanding of the DNS, and the role of ccTLDs in the single, global, interoperable Internet.” Unfortunately, that declaration misstates the judicial opinion, which took no position on whether ccTLDs were some form of property, but simply determined that their service-like aspects protected them from judicial attachment.
It is not known at present whether plaintiffs in the case will seek to appeal this important decision. In addition to adding to the slim body of court decisions regarding the legal status of domains, the ruling also defuses a huge potential political problem for both ICANN and the United States in the midst of ongoing ICANN community discussions of the IANA functions transition and related enhanced accountability measures for ICANN. If a US Court – especially one as prestigious as the DC District Court – declared that it had the authority to order the transfer of a nation’s ccTLD to private litigants it would undoubtedly trigger a global outcry against ICANN’s continued status as a non-profit, private-sector led corporation under California law. That in turn could strengthen the hand of those nations that would prefer to see ICANN’s functions transferred to the International Telecommunications Union or to a newly created UN agency under intergovernmental control.
There has been a lot of domain industry press attention lately to domain thefts. We don’t know for sure if this problem is becoming more acute or is just being reported on more often. But, regardless of the level of activity, we know that there are inadequate recovery and punitive remedies available at present for domain owners who experience theft of their valuable domain assets. Something is very wrong when a hacker can surreptitiously transfer a valuable domain and there is no reliable or cost-efficient means for recovering it.
ICA’s Board is therefore considering initiation of a Domain Theft Project (DTP) to address this issue, in the belief this is exactly the type of issue that ICA was established to address.
One component of the DTP would be to discuss the situation with leading registrars as well as ICANN’s Registrar Stakeholders Group to gather more information on the severity of the problem, as well as to better determine how these thefts are accomplished and what best practices on the part of both registrants and registrars might prevent them.
In addition, assuming that there will still be thefts occurring even if stronger preventative measures are adopted by registrars and registrants, the DTP will carefully explore at least three potential avenues of better redress for registrant victims of domain thieves:
1. Amending the UDRP to allow it to be used for the recovery of stolen domains. The exploration of this potential avenue will be very carefully conducted to assure that any potential UDRP revisions do not create new opportunities for scam artists to abuse the UDRP for domain hijacking. But UDRP reform will be on the table and under discussion within ICANN as of April 2015 as part of the review of new gTLD Rights Protection Measures (RPMs), so if an acceptable proposal can be developed it can be advocated for adoption within that review and reform context.
2. Amending Federal law to establish clear civil liability for illicit access to the computers of a registrar, and to also clarify that available equitable relief includes restoration of the domain to its original owner. This would likely involve the House and Senate Judiciary Committees. The biggest challenge here will probably not be getting the concept looked upon favorably but the larger context of amending the underlying statute, which inevitably brings in other players and complex issues. There’s also the reality that getting anything through Congress these days, no matter how worthy, is a big challenge. But the DTP’s initial focus would be on drafting a bill and seeking its introduction to focus attention and foster discussion.
3. Amending the Registrar Accreditation Agreement (RAA) to require registrars to preserve and publish title history. This may be somewhat difficult because the registrars are understandably inclined to push back against anything that involves more work or that may increase their liability. The RAA was also just amended in 2013 and that process involved one-on-one negotiations between the registrars and ICANN, with limited access and information provided to third parties. Nonetheless ICA has good contacts with the registrar community and can start discussions to explore their receptiveness, as well as whether they have ideas about other approaches. Perhaps one result will be to encourage registrars to compete in the marketplace on the basis of which provides the best anti-theft security.
In addition to the above initiatives, changes in Federal criminal law may also be worth exploring. ICA member and domain attorney Stevan Lieberman has recently dealt with the FBI and Department of Justice on this and is willing to contribute his experience and legal expertise and take the initiative on this potential aspect of the DTP. Steve’s experience in assisting the victim of the MLA.com domain theft, as well as other incidents, are detailed in this recent Huffington Post article — http://www.huffingtonpost.com/2014/09/29/domain-theft_n_5877510.html. Other ICA members have also volunteered to serve on the DTP, and we welcome further interest and participation.
Meanwhile, another recent article provides details regarding growing domain theft activity based in China —http://domaingang.com/domain-news/rise-dragon-domain-theft-china-gaining-momentum/. That suggests another avenue of possible effort – given the US Trade Representative’s efforts to curb IP piracy based in China and other nations, we could explore encouraging similar efforts against domain theft activities.
The DTP can also encourage greater attention to this problem by both domain industry and general media outlets. Public attention and information will be a key component of preventative best practices as well as making the case for needed reforms. This is a problem that affects more than just the domain investment industry; small businesses are particularly vulnerable and can suffer devastating losses when their customers can no longer reach them at a website they have used for years.
The DTP will also collect anecdotal information about individual domain thefts, including details of how the theft occurred, how long the time period was between the theft and its discovery by the registrant, and whether the domain(s) was recovered. We will need to build a database of actual domain theft incidents to make a case for changes in Federal law and ICANN policies, as well as to help determine whether the measures we are contemplating will be effective and comprehensive.
This is an ambitious project and its goals will proceed on different timetables and take considerable effort to achieve. But we know that the current situation is not tolerable – and if domain investors don’t take the lead for change then who will?
Bowing to unprecedented community pressure in the form of a unanimous letter questioning its staff-developed Accountability Process, as well as a reconsideration request filed with the Board, on September 5th ICANN issued a notice titled “Public Comment Invited: Enhancing ICANN Accountability Process”. The notice opens a 21-day public comment period on that staff proposal.
However, ICANN staff apparently cannot resist asserting some form of top-down control even what that very conduct is at issue, and the notice and accompanying explanation contain attempts to restrict and unduly channel the scope of community comment.
The explanation instructs that the scope of the comments should be narrowly focused:
This public comment period is focused on addressing questions about the design of the Enhancing ICANN Accountability Process – not about the potential solutions or outcomes of the review….issues and solutions are not under discussion here. The question for this public comment discussion is: Are there any final modifications or improvements needed to the Enhancing ICANN Accountability process design to allow for this discussion to proceed?
The question that ends that excerpt clearly asserts that the staff-designed plan should be the starting point for comments focused on “modifications and improvements” to it. But many in the community feel that the staff proposal is unduly complex and deliberately designed to dilute its views, while granting ICANN’s Board excessive latitude to reject any and all recommendations that are eventually produced. A fully open comment period should allow suggestions for replacement of all or part of the staff’s proposed Process. Besides, how can you untangle the design of a process from the issues it is addressing and their potential solutions?
Additionally, notwithstanding its admonition to focus on process, ICANN itself uses the notice to assert limitations on the substance of what may be produced by whatever final Process is ultimately adopted. And it relies on its characterization of statements made by the U.S. government at this past week’s Istanbul IGF meeting as the foundation for that assertion. The explanation asserts:
This process is intended to deal with focused systemic issues caused by the changing historical relationship with the United States, including for example, by stress testing against internal or external captures or takeovers, and safeguards against capture at all levels, which is a pre-condition of the IANA stewardship transition. Statements made by the NTIA since posting clarify that this process is limited to ensuring ICANN remains accountable in the absence of its contractual relationship with the U.S. Government. This process could potentially include an evolution of the AoC, but does not replace or duplicate existing ICANN accountability processes such as the Accountability and Transparency Reviews that deal with routine execution of tasks.
ICANN is an evolving organization with existing review mechanisms that ensure it continues to evolve to events not related to the changing relationship with the U.S. Government.
…In the previous public comment and public sessions, community members have identified many possible solutions of how to enhance ICANN accountability, such as the development of new community driven redress mechanisms. These proposed issues and solutions as they pertain to the changing relationship with the US are expected to be addressed by the process. (Emphasis added)
Likewise, the notice further asserts that a major factor underlying the opening of the comment period was:
The emphasis made by the U.S. government at ICANN’s Town Hall Meeting at the Internet Governance Forum (IGF) in Istanbul that the enhancement of ICANN’s accountability mechanisms be narrowly focused on those related to the IANA Functions Stewardship Transition, that is reiterating its focus is on the changing historical contractual relationship with the US, and that both the transition and accountability processes be delivered simultaneously by September 2015 when the IANA contract expires. (Emphasis added)
It is quite difficult to parse these statements and comprehend what ICANN actually believes is in scope for this comment period. A narrow focus on the termination of the clerical role played by the U.S. in reviewing proposed IANA functions root zone changes seems completely at odds with envisioning comments on the Affirmation of Commitments (AoC). The accountability concerns that drove the recent unprecedented community actions are based in the widely held views of many stakeholders that ICANN’s existing accountability measures are inadequate — and that ICANN may exercise its right to terminate the AoC between it and the U.S. once the IANA transition is completed. Even if AoC termination does not occur, ICANN may face growing pressure to expand the counterparty end of the AoC so that it is no longer an agreement solely between it and the U.S. And, as the AoC is the basis for the periodic Accountability and Transparency Reviews, one cannot discuss one and ignore the other.
Another confusing aspect of the guidance is its concession that new community driven redress mechanisms are within the scope of the Accountability Process. Overall, the coming termination of the unique U.S. oversight tied to periodic re-awarding of the IANA functions contract is the most fundamental change to ICANN since its creation, and a fair and open process would deem almost any suggestion for enhanced accountability as within scope.
So far as U.S. remarks made this past week in Istanbul, the IGF 2014 website does not appear to provide a transcript of the September 2nd Town Hall meeting referenced above, and ICANN’s own IGF webpage contains no mention of the event, so it is not clear whether ICANN’s characterization of Secretary Strickling’s remarks is fully accurate. But it is not unusual for U.S. officials to tailor their remarks for overseas audiences, and the one that gathered in Istanbul would probably equate any extension of the IANA contract beyond September 2015 as indicative that the U.S. may not intend to complete the transition.
In any event, ICANN’s characterization of Secretary Strickling’s remarks is at some considerable variance his last official statement on this subject made in the U.S. and posted at the NTIA website, his July 22nd remarks at the American Enterprise Institute. He told that audience:
We have not set a deadline for this action. While the current contract with ICANN expires in September 2015, we have repeatedly noted that we can extend the contract for up to four years if the Internet community needs more time to develop a proposal that meets the criteria we have outlined. In the meantime, our current role will not change…Also this spring, in response to community discussions at its Singapore meeting, ICANN announced a separate process to address ways to improve its overall accountability. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. This important accountability issue will and should be addressed before any transition takes place. (Emphasis added)
As can be seen, in those remarks Secretary Strickling reiterated that September 2015 is a goal and not a deadline ( a point he also emphasized in Congressional testimony); and that the accountability process, while separate from the IANA transition discussions, should address ICANN’s “overall accountability” and should be completed before the transition is made final.
There is a transcript of a separate IGF Istanbul session on Core Internet Values in which Secretary Strickling made some interesting observations on the current process:
Now I think as we move forward, our commitment to the multistakeholder process, I hope people feel, has been very concretely demonstrated by our announcement in March to transition out of our remaining role in terms of our stewardship of the IANA functions. And I do think that this is really putting our many where our mouth is, in terms of the United States support of the multistakeholder process. We’re watching with great, almost amusement as the community takes this on. I think it’s a real test to the community of the multistakeholder model and can they organise themselves? Can they now focus on the important issues and get to consensus? I think upon the successful completion of this, and I do expect a successful completion, this process will be much stronger for what the community is going through right now as they try to wrestle with all of the different issues that are emerging about how broad the analysis has to be and how they go about bringing together all the different interests of ICANN in one place on what is perhaps the most fundamental Question ICANN has had to face since its creation back in 1998. (Emphasis added)
Indeed, the ICANN community has organized itself as never before around the fundamental questions of what kind of robust and enforceable accountability measures ICANN requires in the aftermath of U.S. withdrawal from IANA functions oversight, and the design of the process for determining that. And the community has done this in spite of, and in reaction to, continued efforts of ICANN staff to control the structure, scope, and timing of the Accountability Process. The stakes are very high — as Secretary Strickling confirmed, this is “the most fundamental Question ICANN has had to face” since its creation.
So what happens next? True to form, ICANN staff is pressing ahead with its staff-designed Process instead of properly putting it on hold during the comment period, declaring:
The Enhancing ICANN Accountability mechanisms will remain operational through this comment period but will not address the substantive issues of enhancing ICANN accountability in the absence of the U.S. Government contract until the end of the 21-day public comment period. Any changes to the process structure instituted following the 21-day public comment period will be implemented accordingly. (Emphasis added)
Meanwhile, the segments of the community that filed the Reconsideration Request for Board review of staff actions have wisely elected to leave it in place and not withdraw it until they can see whether this comment period results in meaningful alterations of the Accountability Process.
It must be noted that the community is being given only three weeks to comment on an Accountability Process of which it has no clear or common understanding. On September 3rd the same stakeholders that signed the unanimous letter questioning the Process submitted a detailed letter of inquiry asking for specific information about it. That letter contains twenty separate questions, many of which include multiple additional sub-questions, and there is no guarantee that a response will be received from ICANN staff during the comment period. How can one submit final comments on a Process that is not fully understood?
In addition, the comment period closes at midnight on Saturday, September 27th – and the opening meetings of the ICANN 51 meeting in Los Angeles start on Saturday, October 11th, just two weeks to the day after that. So time is very short and the community is unlikely to have detailed answers to its questions about the staff plan until late in the comment period, if then.
Given the present situation the best course for the stakeholders who came together and brought the pressure to obtain this comment period is to continue to press forward and build consensus on key aspects of the Accountability Process they want and the scope of what it should address – and ignore ICANN staff attempts to impose any artificial deadlines or limitations on the scope, or the substance and timing, of the Process. After all, if the community had accepted ICANN’s August 14th process as the fait accompli that staff intended, instead of coming together and pushing back, there wouldn’t even be a public comment period opening now.
Although ICA is not in attendance at the Internet Governance Forum meeting currently taking place in Istanbul, Turkey an ICA-endorsed session on “Accountability in Multistakeholder Governance Regime ICANN” will be taking place on the morning of September 3rd. ICA was one of several host organizations that endorsed the proposal for this session, along with CGI.BR of Brazil, the Public Interest Registry, InternetNZ of New Zealand, and the Internet Governance Project.
The session will address the following questions:
Panelists at the session will include NTIA head Larry Strickling, VeriSign Vice President Pat Kane, and ICANN Ombudsman Chris LaHatte, along with others from the technical community and civil society. Robin Gross of the IPJustice organization will moderate.
Achieving enhanced accountability for ICANN Board and staff actions is an important component of protecting the rights of domain investors, especially as the U.S. contemplates relinquishing its IANA functions oversight role that put real teeth into enforcement of the Affirmation of Commitments (AoC). ICA will continue to work within the Business Constituency and with other members of the broad ICANN community as the Accountability Process moves forward in order to ensure that any transition of the IANA functions is accompanied by meaningful enhancements of available accountability measures — and perhaps by new means of redress as well.
In a rapid follow-up to the unprecedented joint letter sent on August 26th by all members of the ICANN community questioning the proposed Accountability Process imposed by ICANN staff, three of the groups that signed that letter have now submitted a formal Reconsideration Request (RR) to the ICANN Board. The August 29th RR – submitted jointly by the Business Constituency (of which ICA is a member), Registry Stakeholders Group, and Non-Commercial Stakeholders group – requests that ICANN “confer with the community as soon as possible to address these concerns and amend its plan in such a way that the community input is taken into account as the plan goes forward. Specifically, ICANN should make modifications and clarifications to its plan to reflect the widely shared concerns of the community that can reasonably be implemented.”
The RR process is one of three currently available accountability measures available to ICANN stakeholders. The others are an Independent Review Panel (IRP) and the filing of a complaint with the Ombudsman. ICANN’s Board has contended that the findings of an IRP are merely advisory and non-binding, and the Ombudsman has investigatory powers but no authority to make or change policy, administrative or Board decisions. The RR is thus the only means available for requesting that the Board intervene against arbitrary staff action that materially injures the ICANN community.
One of the ideas that have been floated for the evaluation of enhanced accountability measures recommended by the final Accountability Process is subjecting them to a hypothetical “stress test” to determine their likely efficacy. The manner in which ICANN’s Board handles this RR will constitute a real world stress test of the RR’s effectiveness as an accountability mechanism, and will inform the subsequent debate about necessary enhancements.
The RR contains multiple allegations of an extremely serious nature that add up to a searing critique of staff actions. Here is a sampling of the key charges, quoting directly from the RR:
The business sector and civil society have been coalescing around core Principles for the IANA transition and accompanying enhancements of ICANN accountability. The U.S. Congress will be returning from recess next week and will undoubtedly be hearing from Internet-related businesses and public interest organizations in regard to the staff-imposed Accountability Process, which seems designed the type of sweeping reforms contained in those Principles. This may result in sharp questioning of the NTIA – which must sign off on any proposed transition plan, and has publicly stated that it must be accompanied by acceptable accountability measures – about why ICANN has violated its own multistakeholder process and commitment to transparency. Additional Congressional reaction is also possible. As ICANN’s own Governmental Advisory Committee signed the joint letter we expect that many other governments have and will continue to receive similar input.
Meanwhile, ICANN’s CEO and Board Chairman sent an August 28th response to the signers of the August 26th letter. While the tone of their letter is civil it does not commit to any reopening of or revisions to the staff-imposed Process. Indeed, it appears to reiterate that the disgruntled parties should engage with the process as is:
We look forward to receiving your list of clarifying questions and concerns and we will respond in kind. As we have since this process began last spring, we appreciate all of the community comments received to date and encourage broad participation in the Cross Community Group – the key forum for generating the substantive issues this accountability process will address.
The process as outlined and complemented with the information in the FAQs enables the substantive dialogues to begin soon, to remain interrelated with the IANA Functions Stewardship Transition process well underway. (Emphasis added)
ICANN has also indicated its dedication to “full speed ahead” adoption and implementation of the staff-imposed Process through the August 28th publication of a “Call for Candidates: Seeking Advisors to the ICANN Accountability & Governance Coordination Group”. The notice sets a very near-term deadline of September 10th for the submission of nominations so that the Public Experts Group (PEG) – of which NTIA head Larry Strickling is one of four members – can complete the final selection of ”advisors” before the final 2014 ICANN meeting scheduled for October 12th-16th in Los Angeles. As noted above, one of the allegations in the RR is that “the community has no say in the appointment of the Public Experts Group (“PEG”) or the seven outside “expert” advisors to be appointed by the PEG. Yet, the seven advisors could steer consensus and outcome”.
Further questions arise regarding the staff decree that the Advisors are supposed to “bring an external, independent voice to this process to assure that best practices are brought in from outside of the ICANN community”. An accompanying FAQ sheds no light on what it means to be from “outside” the ICANN community, but makes clear that the “Coordination Group should make recommendations based on consensus taking into account advice of the advisors” and that the “advisors are not limited to engaging with the Coordination Group”. So it appears that these Advisors are supposed to have considerable impact on the final report and recommendations, and will have wide latitude to engage with parties outside the Coordination group – including governments and the media – but are to have little or no actual real world experience with ICANN. Many would rightfully ask why individuals who are part of the ICANN community, understand its operations and internal dynamics, and have expertise in relevant areas should be automatically deemed ineligible to act in this advisory capacity? This staff decision seems designed to ensure that the selected Advisors operate in the world of theory rather than actual ICANN practice.
The final sign that ICANN leadership may be circling the wagons and doubling down on the staff plan is its August 29th announcement of a September 2nd “Enhancing ICANN Accountability and Governance Town Hall Meeting” taking place at the IGF meeting in Istanbul. It explains, “The Town Hall Meeting will provide an opportunity for an open dialogue to address and clarify any remaining questions about the Enhancing ICANN Accountability and Governance Process.” (Emphasis added)
It is worth recalling that ICANN’s rationale for separating the IANA transition from the enhanced accountability processes was that the first involved the global stakeholder community while the second was an internal ICANN matter and therefore should be discussed and determined solely within the ICANN community. That rationale was questionable given that ICANN is wide open to participation by anyone. Some suspected that it was adopted in anticipation of trying to push the transition through before any significant accountability improvements were decided, much less implemented. But it is the official rationale put out there by ICANN.
Now that every group within the ICANN community has signed a joint letter expressing concerns about the substance of the fait accompli Accountability Process promulgated by staff as a on August 14th — with that community letter promising additional detailed questions within seven days – that action has become the focus of intense disagreement between ICANN the corporation and its community. This dispute should be resolved internally.
While an ICANN session discussing and taking questions about the proposed Process during the IGF meeting seems unobjectionable, the notion that “all remaining questions” can be answered in a 90-minute session in Istanbul is preposterous. They cannot. There are too many questions to be answered in an environment that may be as much PR event as substantive dialogue. And this is a session at which many members of the ICANN community will not be present, while many in the audience will have little or no understanding of ICANN’s procedures and Bylaws and the events leading up to this impasse.
There can be little doubt that the attempt of ICANN staff to impose an Accountability Process over the objections of and without sufficient input from the ICANN community has introduced tremendous unnecessary stress into the entire relationship between the corporation and its community. How the Board handles this RR will determine whether that stress is relieved in a constructive manner or is further exacerbated. It will also be highly instructive on the questions of whether the present RR process provides any real accountability – and, if not, what should be developed to replace it.
The text of the RR follows:
Reconsideration Request Form
1. Requester Information
Name: Steve DelBianco, Business Constituency vice chair for policy coordination, on behalf of:
The Business Constituency;
The Registries Stakeholder Group; and
The Non-Commercial Stakeholders Group (NCSG)
Address: 1920 Virginia Ave, McLean, VA 22101 USA
Phone Number (optional): +1.703.615.6206
2. Request for Reconsideration of (check one only):
X Staff action/inaction
3. Description of specific action you are seeking to have reconsidered.
We ask the Board Governance Committee (BGC) to reconsider the ICANN staff’s imposition of its
“Accountability Plan”, the final version of which was posted to ICANN’s website on 22-Aug- 2014,
which is also the date that the staff Rationale for the plan was initially posted to the public.
Among others, the community groups represented here had called for a community-developed
Accountability Plan, and yet were not allowed to participate in the drafting of staff’s plan. At the
London ICANN #50 meeting in June, staff promised the community that the plan would be
community-developed, transparent, open, and bottom-up in its formulation. The plan imposed on 22-
Au-2014 had none of those promised attributes.
ICANN staff also failed to take into account the statement of the 4 GNSO Stakeholder Groups at the
London #50 meeting noting ICANN’s conflict of interest and calling for an independent accountability
mechanism to be developed. Indeed staff has not responded in any way to the statement of the 4
GNSO Stakeholders Groups in the London Public Forum in June. In summary:
1. The BCG should reconsider the staff decision to impose a plan of this significance without
allowing a public comment period on the staff-developed plan.
2. The BCG should reconsider the staff decision to impose a plan that failed to address widely
shared community concerns as expressed in numerous public comments, discussions at
ICANN #50, and stated community reactions to the infographic.
4. Date of action/inaction:
The final version of staff’s Accountability Plan was posted to ICANN’s website on 22-Aug-2014,
which is also the date that the staff rationale for the plan was initially posted to the public.
ICANN provided an “Infographic” foretelling certain aspects of its plan to select members of the
community on 14-Aug-2014. Community leaders told ICANN staff at that time that their groups were
not aligned with staff’s plan, and staff responded and stated it was “fixing” its plan. The community
waited for the so-called “fixed” plan, which was posted as Final on 22-Aug-2014, and which did not
address the stated community concerns in any meaningful way. The rationale for this plan was not
provided by staff until the plan was final on 22-August, at which point its implementation was already
Staff did not allow a public comment period for any community discussion, shaping, or even support
to occur for its Accountability Plan prior to its adoption and implementation. Staff did not address the
many concerns that had been expressed about ICANN’s conflict of interest in controlling the process
to hold itself “accountable”. Staff did not clarify the roles in its accountability plan to ensure that
stakeholders are the decision makers in matters they are subject to.
5. On what date did you became aware of the action or that action would not be taken?
On 22-Aug-2014, when staff finally posted the plan and its rationale to its website, and it did not
address community concerns as promised, and its implementation had begun, we became aware that
the plan staff intended to implement would not meet the community’s needs and redress measures
would be required.
6. Describe how you believe you are materially affected by the action or inaction:
We have been materially and negatively affected by the staff’s decision to proceed with their proposed
plan finalized in the 22-Aug-2014 ICANN announcement on Enhancing Accountability: Process and
The staff-proposed plan did not properly take into account community concerns and did not provide a
public comment period whereby the community could provide reaction to the staff plan. By taking this
action, we have been materially harmed, as our questions, concerns, and ideas have not been
adequately considered in the required multi-stakeholder process.
Further, the community has no say in the appointment of the Public Experts Group (“PEG”) or the
seven outside “expert” advisors to be appointed by the PEG. Yet, the seven advisors could steer
consensus and outcome that will have a direct impact on the community, since the Coordination Group
is directed to make recommendations based upon consensus, taking into account the advice of the
advisors. Worse still, the staff-imposed plan would allow the ICANN Board to reject or selectively
accept recommendations of the Coordination Group, again bypassing the multi-stakeholder process.
The staff-imposed plan is a top-down approach that calls into question the fairness of enhancing
accountability process and the legitimacy of its decisions. It also creates a disturbing precedent that
could embolden future actions by staff or the ICANN Board to circumvent and ignore the bottom-up,
7. Describe how others may be adversely affected by the action or inaction, if you believe that
this is a concern.
In addition to an adverse effect upon us, the staff-imposed plan has an adverse effect upon other
constituencies and upon other members of the community. This plan, imposed on the community
without transparency and without the opportunity for public comment, creates inconsistency,
disregards proper ICANN procedure, injects unfairness into the process, and defeats the purpose of the
entire accountability examination. All members of the ICANN community and users of the Internet
have a stake in the outcome of the enhancing accountability process and may be harmed if the process
does not take into account their views and is the result of a staff-imposed plan rather than a
8. Detail of Staff Action – Required Information
The staff development and imposition of its accountability plan as described above failed to uphold
ICANN’s stated core values, mission, and promises that the accountability plan would be communitydriven
and based on the public interest as expressed through a bottom-up process.
Specifically, the staff action is in violation of several core values in ICANN’s bylaws, whereby
ICANN promises it will behave in an open, transparent, and bottom-up fashion in the formulation of
the organization’s policies and operations.
In Article I, Section 2 of its Bylaws, ICANN promises to engage with the community in the
development of policy in a bottom-up and open manner at all levels. And in the Section 3 of its
Bylaws, ICANN promises to operate in a transparent and fair manner. Through this staff action,
ICANN has failed in its commitment to the Internet community that it will operate in an open,
transparent, fair, and bottom-up fashion in the formulation of crucial policy.
ICANN Bylaws – Article I, Section 2 – Core Values:
4. Seeking and supporting broad, informed participation reflecting the functional,
geographic, and cultural diversity of the Internet at all levels of policy development
ICANN neither sought nor supported participation in the development of this plan, and specifically
excluded the community from the drafting and decision-making opportunities behind the staff plan.
7. Employing open and transparent policy development mechanisms that (i) promote
well-informed decisions based on expert advice, and (ii) ensure that those entities
most affected can assist in the policy development process.
The formulation of staff’s plan went on behind closed doors and excluded the opportunity for the
community to influence the plan. The community was not provided with the rationale for the staff plan
until after the plan had been posted as final and its implementation had begun. At several GNSO
Council meetings since June and also during several “community leaders” calls, staff were asked to
engage with the community on the development of the plan and those requests were ignored.
8. Making decisions by applying documented policies neutrally and objectively, with
integrity and fairness.
The decision to impose this plan, to which so many in the community were openly objecting, showed a
lack of neutrality, integrity, objectivity, and fairness on the part of staff. Staff failed to follow any
documented policy and created its own plan without addressing the concerns about its conflict of
interest in the matter.
9. Acting with a speed that is responsive to the needs of the Internet while, as part of the
decision-making process, obtaining informed input from those entities most affected.
Staff failed to include the input of those who are most affected by staff’s accountability plan: the
community members who participate at ICANN in hopes of getting a fair opportunity to influence
policy in a democratic, open, transparent process. Staff kept all decision-making on the development
of the accountability plan behind closed doors and entirely within their control, beginning after the
initial comment period ended in June until the plan was imposed on the community in August.
10. Remaining accountable to the Internet community through mechanisms that
enhance ICANN ‘s effectiveness.
Staff failed to integrate the input obtained from the initial public comment period in the formulation of
its plan. Then staff did not provide any opportunity for public comment on its plan once it was finally
published. ICANN has failed to be accountable to the Internet community through mechanisms such
as the public comment period by failing to consider those comments initially and by failing to permit a
comment period on the plan it developed internally. Providing an advance “infographic” to a small
handful of insiders and asking for their alignment does not meet an acceptable standard for public
ICANN Bylaws – Article III, Section 1 – Transparency
ICANN and its constituent bodies shall operate to the maximum extent feasible in an
open and transparent manner and consistent with procedures designed to ensure
Staff failed to operate in an open, transparent or fair manner. Decisions and drafting were all done
internally by staff with no opportunity for the public to shape the staff plan in any meaningful way.
Staff’s rational was not provided until 22 August, after the plan was already considered final by staff
and its implementation was underway.
9. What are you asking ICANN to do now?
ICANN should confer with the community as soon as possible to address these concerns and amend its
plan in such a way that the community input is taken into account as the plan goes forward.
Specifically, ICANN should make modifications and clarifications to its plan to reflect the widely
shared concerns of the community that can reasonably be implemented.
10. Please state specifically the grounds under which you have the standing and the right to
assert this Request for Reconsideration, and the grounds or justifications that support your
The views, concerns, needs, and ideas of the community ICANN was established to serve were not
adequately considered in the formulation of the staff plan. Nor were ICANN’s Bylaws and promises
to operate in an open, transparent, and bottom-up manner followed in this process. The communities
represented here participate in the process with the expectation that the process will be fair, open,
transparent, and bottom-up in its operation. Many of our members spent significant time drafting and
submitting comments that were not considered by staff and the needs and objectives of our entire
stakeholder communities are not reflected in the plan developed by staff.
We legitimately represent the bottom-up process with our members devoting significant energy to
ICANN, and that gives us standing to assert this request for reconsideration.
11. Are you bringing this Reconsideration Request on behalf of multiple persons or entities?
X Yes: Business Constituency, Registries Stakeholder Group, and Non-Commercial Stakeholders
11a. If yes, Is the causal connection between the circumstances of the Reconsideration
Request and the harm the same for all of the complaining parties? Explain.
Yes, our members are participants in the GNSO at ICANN and each of our groups signed on to the
London #50 Statement (below) of the GNSO regarding the ICANN accountability crisis.
Do you have any documents you want to provide to ICANN?
The ICANN #50 Statement of the GNSO 4 Stakeholder Groups on ICANN Accountability (26 June
Letter from ICANN communities on ICANN Accountability Plan:
(28 August 2014)
Terms and Conditions for Submission of Reconsideration Requests
The Board Governance Committee has the ability to consolidate the consideration of Reconsideration
Requests if the issues stated within are sufficiently similar.
The Board Governance Committee may dismiss Reconsideration Requests that are querulous or
Hearings are not required in the Reconsideration Process, however Requestors may request a hearing.
The BGC retains the absolute discretion to determine whether a hearing is appropriate, and to call
people before it for a hearing.
The BGC may take a decision on reconsideration of requests relating to staff action/inaction without
reference to the full ICANN Board. Whether recommendations will issue to the ICANN Board is
within the discretion of the BGC.
The ICANN Board of Director’s decision on the BGC’s reconsideration recommendation is final and
not subject to a reconsideration request.
In another unpredicted development the entire community of ICANN stakeholders has sent a joint letter to CEO Fadi Chehade and the ICANN Board that strongly questions the “Enhancing ICANN Accountability and Governance – Process and Next Steps” document published by ICANN staff on August 14th over widespread community objections. Signatories to the August 26th letter (text below) include the GNSO Council and all of the GNSO’s stakeholder groups and constituencies, the Country Code Name Supporting Organization, the At-Large Advisory Committee, the Security and Stability Advisory Committee – and, most surprisingly, the Governmental Advisory Committee.
The letter states that “substantial questions and concerns remain unanswered, including around the process to date and the plan as constructed” and promises to deliver a “list of clarifying questions and comments within seven days” so that the signatories “not only understand the proposed approach, but are able to endorse it”. In other words, the current Accountability Process lacks the endorsement of any stakeholder group within ICANN.
In addition to this letter and the detailed questions to be delivered to ICANN next week, a number of ICANN stakeholder groups are preparing to file a formal Reconsideration Request to ICANN’s Board by the required 14-day (August 28) deadline in which the Board will be asked to review and reverse or modify the staff plan on the grounds that both its substance and the process by which it was created have materially harmed their interests. In an ironic twist those stakeholders are requesting that the Board hold the staff accountable for the alleged violations arising from publication and adoption of this non-endorsed Accountability Process.
Comments filed with ICANN as well as other community input indicated a strong preference for the establishment of a standard Cross-Community Working Group (CCWG) to develop the vital enhanced accountability measures that are supposed to accompany any proposal for facilitating the IANA functions transition away from US control, with experts available to facilitate the work of that CCWG at its request. Instead, ICANN’s staff are trying to unilaterally impose an overly complicated tripartite construct that resembles a Rube Goldberg machine.
The staff proposal would segregate community discussion into an Accountability & Governance Cross Community Group that would have a restricted ability to appoint participants to the Accountability & Governance Coordination Group in which the real decisions would be made, and which would issue a final report and recommendations. Meanwhile, a separate Accountability & Governance Public Experts Group (PEG) would appoint up to seven “experts” to the decision-making group. Many within the ICANN community view the proposed structure as designed to dilute the strength of any final recommendations for new enhanced accountability measures; especially the establishment of an independent appeals mechanism with the power to reverse decisions that violate ICANN Bylaws, and to discipline Board members and staff. It is highly doubtful that anything as robust as the “KEY PRINCIPLES FOR COORDINATION OF INTERNET UNIQUE IDENTIFIERS” that are attracting increasing support among Internet companies, trade associations, and civil society could ever emerge from such a process.
In addition, the staff-imposed Process contains this key language:
Following public comment, the Coordination Group will submit its final report to the ICANN Board. The ICANN Board will immediately and publicly post the final report, consider whether to adopt all or parts of it, and direct the CEO to implement those parts it has accepted once that decision is made. ICANN staff should be involved in assessing feasibility and flagging implementation concerns as early as possible in the recommendation development process to allow for alternatives to be identified. To be clear, ICANN’s goal is to have this work develop recommendations that are capable of implementation, and not solely to go through the exercise of a review. Any decision by the Board to not implement a recommendation (or a portion of a recommendation) will be accompanied by a detailed rationale.
As described, ICANN staff will have free rein to assess “feasibility” and to flag “implementation concerns” throughout the process, and the Board will be able to cherry-pick the final recommendations and reject anything it cares to, with no standard for rejection and subject only to the requirement that it provide some rationale for its decision. It is almost impossible to envision anything that imposes enhanced accountability and binding disciple on the Board and staff resulting from such a Process.
On August 19th, five days after imposing this Process as a fait accompli without any opportunity for public comment, ICANN announced the members of the PEG. They are:
It is particularly disquieting to see Secretary Strickling on this list as it may be viewed by some parties as implying US government endorsement and support for an ICANN staff-originated Process that was imposed over the objections and concerns of ICANN community leaders and that has subsequently elicited widespread pushback from the entire community. This is not how the much vaunted multistakeholder model is supposed to operate.
Just two months ago all of the GNSO constituencies issued a joint statement at ICANN’s London meeting in which they called for “the Board to support community creation of an independent accountability mechanism that provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community” and asked “the ICANN Board and Staff to fulfill their obligations and support this community driven, multi-stakeholder initiative”.
Instead of supporting the community’s desire for an Accountability CCWG, the staff has indicated its apparent mistrust of the community through this attempt to impose its own Accountability Process that many believe will dilute any final recommendations — and even then allow the Board to reject any of them for any reason whatsoever. That staff attempt has resulted in this new and broader message to ICANN that extends well beyond the boundaries of the GNSO, including the GAC. It appears that ICANN’s staff is driving unprecedented unity within the ICANN community – unfortunately, that unity is based on unanimous and extremely serious concerns about staff actions on a matter of overarching importance.
The road ahead on Accountability will either follow the flawed path developed by staff – with active community participation in substantial doubt – or, even if significant modifications are achieved through united community resistance, the forthcoming Process may well be marred by lingering mistrust as a result of this high-handed staff action. All of this is very unfortunate and was totally avoidable if ICANN had simply allowed for bottom-up development and made adequate solicitation of public comment before adopting a final Accountability Process.
The text of the letter follows:
August 26, 2014
Fadi Chehadé, CEO, ICANN
Dr. Stephen Crocker, Chair, ICANN Board of Directors
Dear Fadi, Steve and ICANN Directors,
Regarding ICANN’s announcement on August 14, 2014, Enhancing Accountability: Process and Next Steps, the Supporting Organisation, Advisory Committee, Stakeholder Group and Constituency chairs formally request additional time and opportunity to review and discuss the proposal contained in the announcement and in the subsequent FAQ’s published on August 22, so that next steps can be confirmed with increased support from the ICANN community.
Recognizing that the ICANN plan is a brand new construct that was announced without a corresponding public comment period, substantial questions and concerns remain unanswered, including around the process to date and the plan as constructed.
The undersigned Supporting Organisation, Advisory Committee, Stakeholder Group and Constituency leaders are currently engaging our respective groups’ bottom-up, consensus processes at this time to develop and finalize a list of questions that will require clarification or correction. As a result, additional opportunity is needed to ensure understanding of the proposal and the ways in which it is responsive to the interests and working methods of the ICANN stakeholder groups. We commit to submitting to ICANN staff our list of clarifying questions and comments within seven days of this letter.
Since the Enhancing Accountability process will affect ICANN’s future, as well as the range of stakeholders impacted by its decisions, we trust that this request will be received positively and lead to further engagement on this important matter to ensure that the SOs, ACs and SGs and Cs not only understand the proposed approach, but are able to endorse it.
Elisa Cooper, Commercial Business Users, Commercial Stakeholder Group
Olivier Crépin-LeBlond, At-Large Advisory Committee
Rafik Dammak, Non-Commercial Stakeholder Group
William Drake, Non-Commercial Users
Keith Drazek, Registry Stakeholder Group
Heather Dryden, Governmental Advisory Committee
Patrik Fältström, Security and Stability Advisory Committee
Byron Holland, Country Code Names Supporting Organization
Tony Holmes, Internet Service Providers, Commercial Stakeholder Group
Michele Neylon, Registrar Stakeholder Group
Jonathan Robinson, Generic Names Supporting Organization Council
Kristina Rosette, Intellectual Property, Commercial Stakeholder Group
It is now being broadly acknowledged that, as expressed unanimously by all GNSO constituencies at the recent ICANN London meeting, “as part of the IANA transition, the multi-stakeholder community has the opportunity and responsibility to propose meaningful accountability structures that go beyond just the IANA-specific accountability issues”.
In a July 22nd Keynote Address at the American Enterprise Institute, NTIA head Lawrence Strickling — whose agency must approve any IANA transition plan developed by Internet stakeholders – made this linkage an explicit element of U.S. government policy:
“Also this spring, in response to community discussions at its Singapore meeting, ICANN announced a separate process to address ways to improve its overall accountability. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. This important accountability issue will and should be addressed before any transition takes place.” (Emphasis added)
While ICANN and its multistakeholder community work to launch the accountability coordination group, a group of companies, associations and individuals have been laboring in Washington to articulate the principles for an enhanced ICANN accountability framework. On July 26th the middle-of-the road Information Technology and Innovation Foundation (ITIF) published “KEY PRINCIPLES FOR COORDINATION OF INTERNET UNIQUE IDENTIFIERS”. As explained in a blog post accompanying their publication:
“As the Information Technology and Innovation Foundation (ITIF) told Congress in testimony earlier this year, the transition away from U.S. oversight creates unique risks and challenges for Internet governance, many of which we may not be able to anticipate today. Without the current oversight provided by the United States, ICANN will not be accountable to anyone and will only be motivated by the interests of those individuals who control the organization. This makes it incumbent on the NTIA, the ICANN leadership, and global Internet stakeholders to insist that a comprehensive set of principles for the responsible management of Internet resources be firmly embedded within ICANN before the transition is allowed to be completed.
In pursuit of that goal, a number of stakeholders—companies, associations, and individuals (including ITIF)—have worked to develop an initial draft of these key principles. As outlined in the proposal, these principles should include a clear separation of the policy making, dispute resolution, and implementation functions; protection from government capture; complete transparency in ICANN’s processes; broad consensus for policy decisions; and significant budget and revenue limitations. Above all else, the global community of ICANN stakeholders should remain the ultimate overseer of the DNS.”
The Principles (reproduced at the end of this article) reaffirm the community of ICANN stakeholders as the ultimate overseer of the DNS. They call for clear separation of ICANN’s policy making, dispute resolution, and implementation functions. Policy would continue to be centered in ICANN’s supporting organizations (SO) and advisory committees (AC) – which would also confirm the CEO selection and approve members of an Independent Dispute Resolution Panel (IDRP). That IDRP would have substantial disciplinary authority, including the power to remove Board and staff members in egregious circumstances.
ICANN’s executive functions would be limited to implementing DNS policies and to recommending policy changes to the SOs and ACs; and to overseeing DNS technical functions outsourced to expert third parties. While remaining a California non-profit corporation, it would establish two separate Boards – one for policy implementation and the other for corporate management issues.
While coordination with governments would be encouraged, capture by multilateral forces would be safeguarded further by prohibiting the CEO or any Board member from being a member of any government or government-controlled organization. Transparency would be enhanced by an annual independent accounting firm audit, and by replacing the opacity of current Board proceedings with the required release of transcripts and detailed minutes of all meetings.
All rights, responsibilities and authorities that were not explicitly granted to ICANN would remain vested in its stakeholder community. ICANN’s budget would be constrained, with changes subject to stakeholder approval. Registry and registrar payments to ICANN would be nondiscriminatory, and their own fees to customers would not be subject to ICANN regulation.
Finally, and most importantly, adoption and effective implementation of such guiding principles would need to be completed prior to the completion of the IANA functions transition, with the principles themselves being embedded within ICANN’s Articles of Incorporation and Bylaws so that they are fully enforceable by the IDRP.
Some of these Principles – such as the call for ICANN to establish two separate Boards – may generate considerable controversy. Others, such as the call for ICANN non-regulation of registry and registrar fees, already reflect generally established practice (although the current .Com price cap is a result of a U.S. government-imposed restriction and is beyond ICANN’s own jurisdiction).
But there can be little doubt that these Principles are a good starting point for what the elements of enhanced ICANN accountability actually entail. They also illustrate that once the basic principles are debated and agreed upon there will remain substantial detail work to flesh out the practical points of their implementation. All this illustrates that this is a tremendously complex task that may well extend beyond September 2015, the end of the first phase of the current IANA contract between ICANN and the U.S. government.
These Principles received a significant endorsement on August 4th, when the highly respected and influential Center for Democracy and Technology (CDT) published a blog post welcoming them. As noted in that posting, “CDT has welcomed the US government’s decision to end the last vestiges of control over the IANA functions.” Nonetheless, ICANN’s actions since the NTIA announcement have convened it of the need for a strong accountability process producing robust recommendations:
“On May 6, 2014, ICANN initiated a consultation intended to develop a plan for how it can remain accountable in the absence of its historical contractual relationship to the US government. The key question has become whether, after the US cuts the umbilical cord, ICANN will be subject to too little accountability, or even worse, whether it will become “accountable” to other governments or special interests that will exercise more intrusive control than the US ever did. The prospect of an unaccountable ICANN, or one subject to control by governments or special interests, has enormous implications for the open, innovative, global Internet.
CDT has become increasingly concerned with the slow pace of the accountability process and the apparent desire of ICANN to end its relationship with the US government and to take over the IANA function itself before a new accountability structure is in place. In our view, it is essential that the accountability process move in step with the IANA transition process and that the accountability question be answered before ICANN assumes control of the IANA. To complete a transition that sees ICANN implementing the IANA functions without appropriately strengthened accountability mechanisms would be irresponsible.
In this context, we welcome one very positive development. Until recently, the discussion on strengthening ICANN’s accountability had been plagued by a lack of clear guiding principles and concrete recommendations for improvements. However, last week a diverse group of stakeholders took a major step forward with the publication of “Key Principles for Coordination of Internet Unique Identifiers.” The document offers a sound foundation upon which further discussions on ICANN accountability can be based. ” (Emphasis added)
CDT’s concerns about the pace of the accountability process and ICANN’s priorities seem well-founded. On the same day this blog post was published ICANN unveiled a proposal for the accountability process that would corral ICANN’s stakeholders within a Community Assembly that would largely be a powerless discussion forum – while the real accountability decisions, and issuance of the final report and recommendations, would take place in a separate Community Coordination Group dominated by seven advisors selected by ICANN’s Board Governance Committee. These ICANN-appointed advisors would further engage with other “experts” at their own prerogative; and ICANN would control the Secretariat responsible for logistical and other support of both bodies. This proposed bifurcated structure is unnecessarily complicated and appears designed to sublimate the views of ICANN’s community to those of Board-selected advisors. It would also lead to unnecessary delay that would almost surely leave the accountability process lagging far behind that for the IANA functions transition – leading to a potential separation scenario of the very type that CDT deems “irresponsible”. There is considerable irony in the fact that ICANN’s original justification for separating the IANA transition and ICANN accountability processes was the former should have the input of global Internet constituencies while the latter was a matter to be decided by ICANN stakeholders – yet now ICANN has proposed an approach to the accountability issue that would dilute the ability of its stakeholders to recommend sweeping changes.
It remains to be seen whether the ICANN community will accept this proposed secondary role and or push back hard against it. It is difficult to imagine anything as strong or sweeping as the reforms advocated in the ITIF-published Principles emerging from the structure and resulting process that ICANN has just proposed.
The Principles unveiled by ITIF will not be the sole contributors to the coming discussion. The conservative Heritage Foundation has articulated its own “Required Reforms and Standards for ICANN Transition”. While its recommendations overlap with many of the ITIF Principles, there are also significant departures – such as a call for “a new external, private oversight board for ICANN notionally called the Internet Freedom Panel, that is representative of users and possesses veto power over ICANN policy decisions that threaten the freedom, security, stability, and resilience of the Internet”. Another provision advocates that “ICANN’s bylaws should be amended to specifically commit the organization to oppose efforts to constrain free speech, online discourse, or assembly”, a concept that could well be seconded by global Internet freedom civil society groups. Another daring proposal, based on “a recent white paper by Milton Mueller and Brenden Kuerbis for the Internet Governance Project”, would separate the IANA and related technical functions into a “new IANA consortium [that] should be a private nonprofit company financed and managed by the TLD registries”. Other provisions would replace the current method of Board selection with a more transparent and direct process, and replace ICANN’s exception-riddled Documentary Disclosure Information Policy (DDIP) with a new policy based on the U.S. Freedom of Information Act (FOIA) to assure greater transparency. These are but a selective sample of the intriguing ideas put on the discussion table by Heritage.
ICANN’s stakeholders are of course global, and the U.S. contingent has no monopoly on good ideas or commitment to enhanced accountability. What they do have, however, is the ability to bring their concerns and ideas directly to Congress and the NTIA. There is a possibility that when Congress returns in September either the ITIF or Heritage principles, or both, may be introduced as Congressional Resolutions. Congress has a long history of bipartisan backing for the multistakeholder model of Internet governance. As debate shifts away from whether the IANA transition should occur and onto the accountability principles that must accompany it, there is a good possibility that further consideration will be less divisive and more bipartisan.
It seems clear that a diverse group of stakeholders are ready and willing to do the hard work of proposing, debating, and perfecting enhanced accountability measures that will help ensure that a post-IANA transition ICANN remains an organization institutionally bound to operate through a bottom-up multistakeholder policy development process led by the private sector. What remains unclear is whether ICANN’s current Board and senior staff will trust its community of stakeholders enough to let them proceed on their own – or will push to implement the IANA transition before an accountability plan is completed, while simultaneously working to control the accountability process and dilute its final output.
These are the Principles published by the ITIF:
KEY PRINCIPLES FOR COORDINATION OF INTERNET UNIQUE IDENTIFIERS
On March 14, 2014, the U.S. National Telecommunications and Information Administration (NTIA) announced its intention to transition key IANA functions to the global multistakeholder community. NTIA laid out four conditions for this transfer:
Support and enhance the multistakeholder model;
Maintain the security, stability, and resiliency of the Internet DNS;
Meet the needs and expectations of the global customers and partners of the IANA services; and,
Maintain the openness of the Internet.
NTIA also advised that it will not accept a proposal that replaces the NTIA role with a government-led or inter-governmental organization solution. To ensure appropriate coordination of Internet unique identifiers, it is essential that ICANN be structured in a way that meets each of these essential conditions before the transition. These key principles and mechanisms should be embedded into the structure of ICANN through the multistakeholder accountability process:
1. Community of Stakeholders as Ultimate Authority: The community of ICANN stakeholders should be the ultimate overseer of the DNS, responsible for: promoting a single, decentralized, open, and interoperable Internet; preserving the integrity, transparency and accountability of IP numbers and their assignments; managing domain names, and protocol number assignments; maintaining the security, stability and resiliency of the DNS; and meeting the needs and expectations of global customers and partners of the DNS.
2. Separation of Functions: To ensure the form of oversight and accountability that is appropriate for distinct activities, there should be a strong and clear separation of these three functions: policy making, dispute resolution and implementation.
3. Policy Making Function: ICANN’s existing structure of Supporting Organizations (SOs) and Advisory Committees (ACs), which provide technical and policy guidance and which comprise its bottom-up, consensus multi-stakeholder model, should continue to be responsible for policy making. Their membership should be representative of the community of ICANN stakeholders and of the different regions of the world, including developing and developed countries. They should also confirm nominees for ICANN CEO and approve members of an independent dispute resolution panel.
4. Dispute Resolution Function: ICANN’s Independent Review Panel should be expanded to ensure a balanced structure with multi-stakeholder participation, and strengthened into a new independent dispute resolution panel responsible for resolving disputes involving ICANN and endowed with the final authority to impose discipline and sanctions, and to remove Board and staff members in defined egregious circumstances. This remedy process should be transparent, accessible and timely. This is critical to ensure that the ICANN Board of Directors and ICANN’s leadership are accountable to the community of ICANN stakeholders and not responsible for adjudicating challenges to their own decisions.
5. Implementation Function: ICANN’s limited executive function should be confined to implementing policies pertaining to the coordination of Internet unique identifiers and to recommending policy changes for consideration and ultimate decision-making by the SOs and ACs. ICANN should oversee the technical functions of the DNS but should outsource technical operations to organizations with a proven track record. ICANN should remain a non-profit corporation operating under California law, but governed by two boards of directors separately focused on policy implementation and corporate management issues. Policy implementation should be done in close coordination with SOs and ACs who have the ultimate responsibility to ensure that policies they develop are implemented as intended.
6. Protection from Government Capture: Government is one of the core stakeholders within the multi-stakeholder model, and government involvement is appropriately conducted through the Governmental Advisory Committee, in coordination with the SO/AC policy development process. In particular, neither the CEO nor the members of either Board of Directors should be a member of a government or government-controlled organization. ICANN should prudently engage with government officials, focusing primarily on issues pertaining to the coordination of Internet unique identifiers, whether directly or indirectly through a third party and such engagements and the topics covered should be made public in a timely fashion.
7. Transparency: ICANN should be audited annually by an independent accounting firm, and transcripts and detailed minutes of all meetings, including those of ICANN’s Board of Directors, as well as complete documents and records should be made readily available.
8. Specific Rights and Responsibilities Appropriate for Each Function: Each function should only encompass those explicitly assigned rights, responsibilities and authorities that have been formulated through the multistakeholder accountability process. The accountability process will identify all significant functions and responsibilities, and designate them appropriately and explicitly. The accountability process should be thorough, and map specific rights, responsibilities and authorities to the appropriate function. All other rights, responsibilities and authorities should be reserved to the community of ICANN stakeholders.
9. Consensus: A significant supermajority should be required for final action on all policy decisions to demonstrate broad support by the community of ICANN stakeholders.
10. Budget and Revenue Limitations: ICANN’s budget and the revenue to support it should be limited to meeting ICANN’s specific responsibilities and should not change without SO and AC approval and the agreement of the registries and registrars who pay ICANN fees.
11. Equitable Agreements: All registries and registrars should operate under equitable agreements with ICANN that set nondiscriminatory fees to be paid to ICANN in support of its budget. ICANN may not set or regulate fees charged by registries or registrars to their customers.
12. Prior Adoption: These principles and their assured implementation should be adopted and made effective prior to the transfer of the IANA contract to ICANN, or to any other party that replaces the U.S. as contract counterparty; should be embedded in ICANN’s Articles of Incorporation & By-Laws so that they are fully enforceable by the new independent dispute resolution panel; and should form the basis for the replacement of NTIA’s current DNS agreements.
An initial review of ICANN’s response to litigation seeking it to turn over control of the ccTLDs of Iran, Syria and North Korea led to the conclusion that it had opened a “legal can of worms”. A few more just wriggled out, and they threaten the basic assumption that underlies the U.S. statute governing cybersquatting and the practices engaged in by Federal officials seizing domain names engaged in intellectual property infringement.
In a blog post, “Are Internet domain names “property”?”, placed at the influential Volokh Conspiracy legal discussion website, Temple University Law Professor David Post further explores the implications of ICANN’s response. His comments carry considerable weight, as he is also a Fellow at the Center for Democracy and Technology, an Adjunct Scholar at the Cato Institute, and a member of the Board of Trustees of the Nexa Center for Internet and Society.
Professor Post starts out by declaring his distaste for “resolving through private litigation matters that are more properly viewed as substantial international disputes between nation-states”. That aversion is heightened when it “embroils ICANN in either (a) complicated questions of international politics or (b) the resolution of private disputes”. And he gets to the heart of the potential international political dangers of this litigation with his observation that, “the notion that the decisions of US courts can interfere in ICANN’s management of the domain name system in a way that courts elsewhere cannot… will not go over very well in an international community that already thinks the US government exercises too much control over ICANN, and over Internet infrastructure in general.
While agreeing with ICANN’s argument that a ccTLD is not property, he goes on to observe that this contention is actually at sharp odds with existing U.S. law and enforcement practices involving the protection of trademarks and copyrights:
It’s a very sensible argument, and I’ve made it myself many times. The problem, though, is that US law already – very unfortunately, in my view, but there you are – treats domain names as if they were “property”. The Anti-Cybersquatting Protection Act permits aggrieved trademark owners to institute in rem actions against domain names whose owners are located abroad (and not subject to the jurisdiction of the US courts) – to seize the domain names and then to adjudicate the rights associated with them, on the fiction that the names are indeed property located in the judicial district where the particular domain name registry is located. On very much the same theory – that domain names are seizeable “property” – the Dept. of Homeland Security has issued several thousand seizure orders over the past few years against domain names allegedly involved in large-scale copyright infringement.
Professor Post, after noting that, “I would expect the plaintiffs here to press this argument in opposition to ICANN’s motions to quash”, concludes his post with the hope that “ICANN’s other arguments are strong enough that the judge can (and hopefully will) grant its motion without having to delve into this rather tricky nomenclatural minefield about what is, and what isn’t, property”.
But what if the case doesn’t play out that way? What if the plaintiffs raise the “are domains property?” issue with sufficient force to get the DC Court of Appeals to rule on it? What if the politically fraught nature of this case propels it on to the Supreme Court, which may have to resolve conflicting Appeals Court decisions that have split on whether second level domains are property or just a form of licensure?
Any holding that domains are not property could well be the basis for a challenge to the in rem provision of the ACPA, and to ICE’s domain seizure practices.
There is of course an argument to be made that ccTLDs assigned to nation-states and whose relationship with ICANN is strictly voluntary are fundamentally different in legal character than gTLDs that are based upon a registry agreement contract between the operator and ICANN. But that argument is most unlikely to be raised in this case as it only involves ccTLDs.
Lots of parties not involved in this litigation have a considerable stake in it. New gTLD applicants that have expended large investments in their registries would like certainty over the U.S. legal status of them, since all registry contracts are governed by US law. While there is no consensus within the domain investment community as to whether it would be desirable to have interests in second level domains classified as a property right, it seems axiomatic that if a gTLD is found to not constitute property than a second level subunit of it will likewise lack that status. And trademark and copyright owners may not be pleased with any judicial decision that undermines the basis of their current online protections.
This is but the latest potential fallout of this most unusual case. More consequences may be in the offing. Stay tuned.