Two more speed bumps for the ICANN Reforms

The revision of ICANN’s bylaws to reflect the new accountability measures is proceeding on schedule. Public comments close May 21 and it is clear that only a few revisions will be needed to fully align the draft bylaws with the proposals of the IANA transition and enhanced accountability working groups.

Yet conservative nationalists in the U.S. are making a last-ditch effort to block the IANA transition. Having lost all rational argumentation about this matter, they are resorting to two devious stratagems. On one front, Texas Congressman Culberson is preparing another rider on the budget that would prevent the NTIA from spending any money on the process. On the second front, Senator Marco Rubio has sent a letter to the NTIA asking it to extend American control of ICANN for another two years so that the new governance arrangements can be “tested” before the US relinquishes control.

The Rubio letter echoes ideas developed by a Heritage Foundation paper issued a few months back. The letter commends the multi-stakeholder community’s development of a transition proposal, but claims that

…the Internet is too important to allow the transition to occur without certainty that the proposed accountability measures are adequate and that ICANN’s new governance structure works properly. Therefore, we respectfully request that you consider an extension of the NTIA contract with ICANN to ensure that the many changes in the transition proposal are implemented, operate as envisioned, and do not contain unforeseen problems, oversights, or complications that could undermine the multi-stakeholder model or threaten the openness, security, stability, or resiliency of the Internet.

The idea of a “test drive” is probably well-intentioned, but in fact it is an impractical idea that would completely disrupt the legitimate process. The new bylaws will be passed by the ICANN board sometime in late May. If the NTIA deems that the proposal the Internet community spent two years developing meets its criteria, it has repeatedly promised to implement the transition and end its contractual control of ICANN. Backing away from that commitment because of last-minute pressure from a few U.S. politicians would be a complete betrayal of the hundreds of people who worked hard developing the reforms and the millions of people worldwide who support them. The credibility of the U.S. government and the transition process would be shot. Such a move would also empower the cynics in Moscow, China and Europe who have always intimated that the US would never let go.

The other problem is that with the change in Presidential administration we have no idea who will be in charge of NTIA after January 2017, and it usually takes a new administration at least one year, sometimes more, to get its footing. So the rules and criteria for the transition could change completely depending on who is elected and who is appointed to replace Assistant Secretary Strickling. It is destabilizing to subject the transition to this kind of uncertainty.

Quite apart from the breaking of a vital commitment, the idea of a “test drive” of new institutional arrangements doesn’t make sense. Either ICANN is ultimately accountable to the U.S. government or it is accountable to the global multistakeholder community. There is really no middle ground here. If the US government has the authority to pull the plug on the reforms or alter them unilaterally, then everyone will know that it is the real authority and the new accountability arrangements cannot really be used or tested. The actors in this space will appeal to the NTIA when they don’t get what they want, and continue to reinforce the community’s dependence on the US government. You can’t really do laboratory experiments or “test drives” when making changes in governance institutions.

Imagine, for example, that near the end of the American Revolution an 18th century Heritage Foundation had said, “all these new democratic government models are new and untested. We don’t really know how well they will work. Why doesn’t the United States retain its status as a British colony under the King for a few years, and let him decide if the experiment has worked?”

The absurdity of this proposal should be evident. Either you have a new governance structure which duly transfers responsibility for self-governance to the community, or you don’t.