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.
Two recent ICANN announcements caught our eye because of their relevance to domain investors.
The first was ICANN’s placement of a notice that it was seeking to hire its first ever Registrant Services Director-Consumer Advocate. The Job Description states that the position “involves participation in a number of cross-organizational projects in areas such as registrant rights, contract interpretations and compliance, operations, legal policy definitions and implementation with a strong focus on multi-stakeholder collaboration” and that, among other tasks, the selected individual will “become the Registrant Community advocate within ICANN and represent their needs to other teams across the organization.” The Director will report to the President of the Global Domains Division, the separate business unit established within ICANN last year. Consistent with CEO Fadi Chehade’s statement during the London meeting that future staff growth would occur in locations outside ICANN’s Los Angeles headquarters, this position is to be based in Istanbul, Turkey – although applicants must be willing to travel 40% of the time. Curiously, despite the job’s focus on registrant rights, contractual interpretations, and legal policy, the educational experience sought is “BA or BS degree, MS or MBA preferred. Advanced degree in engineering or systems is highly desirable” – and not a law degree.
The creation of this position finally puts some meat on the bones of CEO Chehade’s June 2013 declaration that domain registrants are ICANN’s primary customer. As a trade organization representing the interests of registrants who are professional domain investors and developers we have been critical of ICANN’s failure to “walk the walk” on that verbal commitment in the past. ICA now looks forward to working with this new ICANN staffer on issues of importance to registrants, while recognizing that in certain situations involving registrant grievances against ICANN there will be constraints against biting the hand that pays him, or her.
Separately, ICANN’s GNSO is soliciting volunteers for the just-launched GNSO New gTLDs Subsequent Rounds Discussion Group. This Group will review the first round of new gTLDs and report findings to the GNSO Council “that may lead to changes or adjustments for subsequent new gTLD application procedures”. With Initial Evaluation just having been completed on all applications submitted in the first round of the new gTLD program, ICANN is putting in place the first step in meeting its commitment to review it thoroughly before a second round commences.
From what we have heard, when it does launch down the road the second “round” may not be a round at all, in terms of having a set time window in which applications must be submitted. Rather, once any adjustments in the program are made based upon first round experiences the application window may simply stay open indefinitely, with applicants free to submit a bid for any string at any time.
The new gTLD program of course included the new rights protection mechanisms (RPMs) of Uniform Rapid Suspension (URS) and the Trademark Clearinghouse (TMCH), and we expect both to be the subject of discussion and possible suggestions for modification within the new Discussion Group. That’s one major reason why ICA shall be participating. Perhaps once the Registrant Services Director is hired he or she will participate as well — to help assure that registrant rights receive adequate due process as the new gTLD program evolves.
In an unprecedented development, all stakeholder groups and constituencies comprising ICANN”s Generic Names Supporting Organization (GNSO) unanimously endorsed a joint statement in support of the 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”. The statement was read aloud during a June 26th session on the IANA transition process held on the last day of the ICANN 50 public meeting in London.
The creation of this new accountability structure is meant to accompany the transition of the IANA functions away from US control and is intended to encompass accountability issues beyond those that are IANA-specific. Business, intellectual property, and civil society members of the GNSO will likely be delivering the message to Congress and the NTIA that creation of this new accountability mechanism must be assured before any final action is taken on an IANA transition plan developed within ICANN’s multistakeholder community.
During an earlier session on ICANN accountability, ICA Counsel Philip Corwin delivered remarks emphasizing that there was a preexisting need for improved ICANN accountability and transparency independent of the IANA transition, but that the contemplated termination of US counterparty status in regard to the IANA contract presented the opportunity and increased the need for establishment of an independent review and redress mechanism to address ICANN actions. He noted that ICANN’s fairly unique combination of public policy functions and substantial self-funding capabilities created an enhanced need for measures that could address the substantial potential for self-dealing behavior by the organization.
Here is the full text of the unanimous GNSO statement:
The entire GNSO join together today calling 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. This deserves the Board’s serious consideration – not only does it reflect an unprecedented level of consensus across the entire ICANN community, it is a necessary and integral element of the IANA transition.
True accountability does not mean ICANN is only accountable to itself, or to some vague definition of “the world,” nor does it mean that governments should have the ultimate say over community policy subject to the rule of law. Rather, the Board’s decisions must be open to challenge and the Board cannot be in a position of reviewing and certifying its own decisions. We need an independent accountability structure that holds the ICANN Board, Staff, and various stakeholder groups accountable under ICANN’s governing documents, serves as an ultimate review of Board/Staff decisions, and through the creation of precedent, creates prospective guidance for the board, the staff, and the entire community.
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. We are committed to coming together and developing recommendations for creation of these mechanisms. We ask the ICANN Board and Staff to fulfill their obligations and support this community driven, multi-stakeholder initiative.
“The temperature in the room is warm and I suspect it will get a whole lot warmer before we are through.” So stated ICANN Board Chairman Steve Crocker at the beginning of the Board’s interaction with the GNSO Council on the afternoon of Sunday, June 22nd. Yet that dialogue never got beyond lukewarm. Both Crocker and CEO Fadi Chehade made clear that the recently published report of the Expert Working Group on gTLD Directory Services, a complex proposal to replace the current WHOIS registrant data service, was just the beginning of a dialogue with the community — and that it was premature to begin a Policy Development Process (PDP) based upon it. The main dust-up regarding the EWG report was the omission of a dissent regarding insufficient privacy protections filed by one of the participating experts.
Another point emphasized by both Crocker and Board member Bruce Tonkin was that ICANN policy was to be made by the GNSO and the other ICANN supporting organizations, with the Board’s role confined to overseeing the implementation of policy. As Tonkin summarized, the Board is a corporate one and “not a parliament”.
The temperature had been a bit substantially warmer earlier in the session as ICANN staff described the status of the IANA functions transition process and the parallel effort to develop an enhanced ICANN accountability structure. Many participants wanted a clear commitment that the transition plan would not go forward until an acceptable accountability framework had been formalized and accepted, but staff was unwilling to go beyond stating that they were “interdependent” and would inform one another. Staff was also pressed to explain why ICANN’s recent revision of the transition process plan, while making concessions on coordinating group composition and community-based selection of its members, had not broadened the scoping document despite numerous comments that it was far too narrow and sought to predetermine an outcome in which ICANN alone would be recipient of the IANA functions. But, while confirming that the scoping document remained unchanged, staff provided no clear rationale for that intransigence.
Following that impasse, CEO Fadi Chehade engaged in dialogue with the Council. Conceding that the workload burden on the community had reached unprecedented levels, he announced that senior staff would hold a weekend long meeting with the heads of ICANN’s supporting organizations and advisory committees to discuss ways in which that might be addressed.
Chehade also raised the “original sin” of continuing mistrust between ICANN and its community, but the ensuing dialogue reached no consensus on how to narrow the trust gap. Chehade’s closing words, in which he asked, “What is driving people who want to slow down the IANA transition? What interests do they represent?” indicated that the mistrust extends to ICANN’s executive staff as well. Our perception is that the overwhelming majority of the community accepts that the IANA transition will occur, but believe that finalizing it prior to the development and acceptance of enhanced accountability measures would surrender the only real leverage for improving ICANN’s adherence to community input in the future.
At Monday morning’s Welcome Ceremony, Chehade conceded that ICANN accountability must be improved. He also referred to the IANA transition as a removal of ICANN’s “training wheels”, and announced that ICANN staff levels would reach 300 by the end of 2014 as its globalization efforts continued – with no new staff additions planned for its Los Angeles headquarters office. Turning to Internet governance (IG), he pronounced the recent NETmundial meeting in Sao Paulo a success in laying the groundwork for the development of a distributed Internet cooperation ecosystem. He also indicated that, while ICANN would not be playing a lead role in future IG developments, it would soon announce a number of new alliances and coalitions related to it in the coming months. We’ll be standing by to see what those entail.
The real work of the ICANN 50 meeting in London is about to commence. We shall be actively participating and will report on important developments
The Senate Appropriations Committee just reported out on June 5th its version of the Commerce-Justice-State Departments Appropriations bill for FY 15. In the course of its deliberations it added a consensus amendment on the IANA transition offered by Sen. Mike Johanns (R-NE). The amendment reads:
1. Amendment proposed by Senator Johanns
On page 24 of the report, in the paragraph beginning with “Internet”, strike the sentence beginning with “While” and replace with:
“While NTIA has stated that it will not accept a proposal that includes government-led or intergovernmental control over ICANN the Committee directs NTIA to conduct a thorough review and analysis of any proposed transition of the IANA contract. This review shall ensure that ICANN has in place a NTIA approved multi-stakeholder oversight plan that is insulated from foreign government and inter-governmental control. Further, the Committee directs NTIA to report quarterly to the Committee on all aspects of the privatization process and further directs NTIA to inform the Committee, as well as the Committee on Commerce, Science, and Transportation, not less than 7 days in advance of any decision with respect to a successor contract.”
In addition to that statutory language, the Committee report on the bill, which creates its “legislative history”, contains this relevant passage:
Internet Corporation for Assigned Names and Numbers [ICANN].-The Committee remains concerned that the Department of Commerce, through NTIA, has not been a strong advocate for American companies and consumers and urges greater participation and advocacy within the Governmental Advisory Committee [GAC] and any other mechanisms within ICANN in which NTIA is a participant. The Committee strongly encourages NTIA to be an active supporter for the interests of the Nation within ICANN and to ensure that the principles of accountability, transparency, security, and stability of the Internet are maintained for consumers, business, and the Government. The Committee awaits the past due report on NTIA’s plans for greater involvement in the GAC and the efforts it is undertaking to protect U.S. consumers, companies, and intellectual property.
Parsing the amendment’s language, the requirement that NTIA conduct a thorough review and analysis of any proposed IANA transition plan amounts to telling it to do its job properly; implicit in this requirement is that the analysis be shared with Congress. The requirement that the review ensures a multi-stakeholder oversight plan links the IANA transition to the enhanced ICANN accountability that many groups have already said must accompany and be implemented simultaneously with any IANA transition plan. The requirement for quarterly NTIA reports to Congress on all aspects of the “privatization process” reinforces that it must assure continued private sector leadership, and that Congress does not want to be kept guessing as to where things stand. As for the requirement that Congress receive at least seven days’ advance notice of any NTIA decision on a successor IANA contract, that seems too brief an interval for meaningful Congressional review – but this amendment will not likely be the final form of any language sent by Congress to the President.
As for the accompanying Report language, the fact that the Committee is dissatisfied with NTIA’s advocacy for US interests within the GAC raises the implicit question of whether the IANA transition itself is in the national interest. And the inclusion of a note of displeasure regarding “the past due report on NTIA’s plans” indicates impatience with NTIA’s responsiveness to Congressional directives.
The House-passed counterpart to this CSJ Appropriations bill contains the Duffy Amendment that would deprive NTIA of any funds to carry out the IANA transition. While that flat prohibition has close to zero chance of being accepted by the Senate, the inclusion of this IANA-related language significantly enhances the chances for compromise language being worked out during future negotiations to reconcile the bills. The middle ground could well be a modified version of the Shimkus Amendment (incorporating the full DOTCOM Act) that was attached to the Defense Authorization Act in the House, as it is now clear that both sides of Capitol Hill want some degree of assurance that they will receive updated reports on the progress of IANA transition deliberations as well as some opportunity to review a succession plan prior to its implementation. There also remains a strong possibility that the Senate Commerce Committee will hold an IANA oversight hearing prior to full Senate consideration of this CSJ bill, and if that happens it could provide new fodder for related floor amendments.
In a related development, also on June 5th a group of six House Republicans, including the Chairman and Vice-Chair of the Energy and Commerce Committee, sent a letter to the Governmental Accountability Office “requesting an examination of the Obama administration’s recent proposal to transition Internet oversight to the global multi-stakeholder community”. The letter asks GAO to address such issues as potential national security implications and other possible risks of the IANA transition, how to assure against a future multilateral ICANN takeover, future enforcement and enhancement of the Affirmation of Commitments (AOC), and useful evaluation criteria beyond those set by the NTIA. This request implements the study portion of the Shimkus Amendment but lays aside its one year delay. By taking this action the way may be better cleared for a House-Senate compromise agreement that assures a meaningful Congressional oversight and review role on the transition.
Meanwhile, on June 3rd a group of seven civil society organizations sent a letter to Senate Majority Leader Harry Reid as well as the leaders of key Senate Committees expressing their opposition to the Shimkus Amendment, which would delay adoption of any IANA transition plan forwarded by ICANN for up to one year while the GAO analyzed it.
The organizations base their opposition in a belief that:
[T]he DOTCOM Act will give additional ammunition to foreign governments and stakeholders who oppose Internet freedom, bolstering their argument for an overhaul of the current Internet governance system to facilitate greater control by non-democratic governments or international organizations… Passage of the DOTCOM Act would unnecessarily interfere with the announced transition process, which is still in development through an open consultation convened by ICANN. Further, it would damage the reputation of the United States as a champion of multi-stakeholder Internet governance and contradict previous bipartisan statements of Congressional support for the multi-stakeholder governance model.
The letter’s final operative paragraph reads:
It is critical that the IANA transition proposal development process be fair and transparent, and we welcome Congressional interest and participation as an equal stakeholder in the process. However, efforts to interfere with or delay this transition process, or require the Congressional approval beyond the criteria suggested by NTIA, will neither achieve the goals of the bill nor reflect Congress’s previously stated position on Internet governance. We therefore strongly urge the Senate to oppose the Shimkus Amendment #6 to the FY15 NDAA and other efforts to block this transfer and to show support for an Internet that is free, open, and guided by global, multi-stakeholder governance principles.
While these views are sincere and all the signatory groups do good work on behalf of Internet freedom and privacy, we doubt that Russia, China, Iran and other nations which already restrict their own citizens’ Internet freedom need any new incentives or arguments to push for multilateral control of the DNS.
And there is a bit of a mixed message in welcoming Congress as an “equal stakeholder” in the transition process while essentially asking it to trust in and defer to NTIA’s determinations on a decision that, once made, cannot be redone.
It’s doubtful that the Senate will accept the Shimkus Amendment/DOTCOM Act in the form sent over from the House. But this new Senate Appropriations bill and House GAO study request are the latest indicators of evolving bipartisan and bicameral interest in the IANA transition — and that could well lead to the negotiation of compromise language adopted on a bill funding three of the most important Executive Branch agencies that assures a truly equal role for Congress.
The House of Representatives has passed another measure related to the proposed IANA functions transition, and has again attached it to “must pass” legislation. This move ups the ante and may well be the final straw that compels the Senate Commerce Committee to hold its own oversight hearing on the IANA transition proposal.
On May 30th the House adopted the Duffy Amendment to the Appropriations bill funding the Commerce, Justice, and State Departments in FY 2015. The final vote on the amendment was 229 in favor and 178 opposed – it was fairly partisan outcome, with only ten Democrats voting aye while just one Republican voted nay. The amendment not only prohibits the Commerce Department from surrendering the US counterparty role on the IANA contract but also slashes the NTIA’s budget by nearly $15 million. The underlying bill passed later that evening.
In speaking for his amendment, Rep. Duffy (R-WI) stated:
Thank you, Mr. Chairman. I think most Americans are aware that the President has recently stated that he intends to transfer the core functions of the internet to an international or foreign body.
What my amendment does today will prohibit the President from using any of these funds to relinquish control of those core functions to the internet. I think this is an incredibly important amendment because America in our zest for freedom of speech has made sure that the internet an open forum for dialogue, an open forum for ideas. By relinquishing these rights, our core functions to a foreign body, I don’t think we will retain the current system of the internet and the current rights or freedom of speech that internet currently enjoys. if you look at stakeholders who have a say in how the internet is run, I think when we use the term stakeholders what we are referring to are foreign governments and corporations, I think we have to ask the question, do we think that China, that Russia, that Iran who have a say in the core functions of the internet have the same concern for freedom of speech that we Americans do? I think it’s important that this institution use its control of the purse strings to limit the president’s authority to transfer those core functions to this foreign body. With that I retain the balance of my time.
Adoption of the Duffy Amendment follows by one week House passage of the Shimkus Amendment to the Defense authorization bill. That amendment would mandate up to a one-year delay in carrying out the transition while the GAO studied and reported to Congress regarding the implications of any IANA transition plan forwarded by ICANN for NTIA review. Rep. Shimkus (R-IL) said via his press office that he also voted for the Duffy measure “to send a message that Congress is prepared to put a stop to the IANA transition altogether if the Administration continues to disregard the potential risks and dismiss his reasonable call for GAO review.” He reiterated his view that “Congressional oversight [is the] best path forward” and said he is “hopeful the Senate will adopt that approach as well.”
However, Commerce Committee member Rep. Mike Doyle (D-PA) responded to the amendment’s passage by declaring, “I am again disappointed by the irresponsible actions taken by House Republicans to delay NTIA’s transition of the IANA functions…Stakeholders from around the Internet including ISPs, edge providers, industry associations, technology experts, and public interest groups, all support NTIA’s transition plan. I will work with my colleagues in the House and Senate to ensure that these provisions are removed as this bill moves forward.”
Two balls are now in the Senate’s court, and a negotiated version of the Shimkus GAO study Amendment would certainly appear a more palatable course for the Administration than the flat IANA transition prohibition and NTIA budget slashing of the Duffy Amendment. Neither bill will be on the Senate floor in the immediate future, which gives the Senate Commerce Committee more than enough time to hold its own IANA functions transition and ICANN accountability oversight hearing.
A Senate Commerce hearing could give NTIA a platform to demonstrate that it is effectively overseeing the process and will not just rubber stamp any proposal served up by ICANN. It could also inquire into whether the IANA transition and enhanced accountability processes proposed by ICANN adequately comport with NTIA’s request that it convene stakeholders for the purpose of creating acceptable plans — without trying to control that process or its outcome. ICANN received broad resistance to its original transition plan process blueprint and has yet to announce whether it will respond with course corrections.