ICANN is lobbying hard to bring an end to its “Joint Project Agreement” (JPA) with the US Commerce Department. (The JPA is one of two tethers that ties ICANN to the US government.) Key ICANN management personnel are in Washington today and meetings are being held with industry stakeholder groups. Feelers are being sent out to other stakeholders.
ICANN’s Board Chairman, Peter Dengate Thrush, laid down a bold and clear position in his early filing of comments before the NTIA: “The JPA is no longer necessary. Concluding it is the next step in transition of the coordination of the Domain Name System (DNS) to the private sector. This step will provide continuing confidence that the original vision laid out in the White Paper is being delivered.”
Although there is more to global Internet governance than ICANN, this issue deserves more attention than it seems to be getting. I’m writing this blog on my own behalf: IGP as a group is developing its own position on the JPA, and will file comments in the NTIA proceeding by the February 15 deadline. IGP is on record as favoring “de-nationalization” of the technical management functions performed by ICANN but has also been highly critical of ICANN’s lack of political and legal accountability. The following comments provide some guidance as to the basic issues that must be dealt with in coming to a position on this issue. Your comments are welcome.
One argument against ending the JPA is that it seems to imply that ICANN has met every item on the agreement’s checklist, including such fundamental values as sufficient accountability to the public. If NTIA ended the JPA, ICANN’s management would no doubt claim that the organization in its current manifestation has been endorsed as sufficiently transparent and accountable. There is danger that such a claim could become a barrier to further reforms and improvements. In fact, ICANN’s external accountability mechanisms are weak. Justified or not, some people view the JPA as one of the few checks we have. We recognize that there have been major improvements in ICANN’s operational efficiency and transparency in the past two years; there is also a significant and praiseworthy effort to improve the representational structure of the GNSO, although it has not been executed yet. But additional reforms in ICANN’s governance structure are needed, and many people still feel uncomfortable about “setting it free” before that happens (although there are also debates about how much “freedom” an end to the JPA would actually give it). Many people have a sense that ICANN’s management wants to float above the world’s legal systems and any other political checks and balances and continue to collect tens of millions of dollars from domain name registrants while cutting deals with powerful stakeholders.
On the other hand, we must also consider what not ending the JPA means. Can anyone contend that the JPA instrument has led to improvements in ICANN in the past? Can we realistically expect it to be so used in the future? Can we trust the US Commerce Dept. to insist on the kind of accountability demanded by global civil society? Historically, the US Commerce Dept. responds to very specific stakeholders: the IPR lobby in Washington, foremost among them; governments collectively through the GAC; “national security” claimants in the domestic polity; big telcos and Internet businesses. Not ending the JPA means that ICANN must continue to afford the policy preferences of the US Commerce Department a privileged status in its strategies and calculations. Not ending the JPA means that ICANN must continue to look over its shoulder at the Commerce Department for signs of approval or disapproval; it must continue to engage in regular and intensive negotiations and discussions with one of the world’s governments around very specific policy issues, such as Whois, new TLDs or contracts with root server operators. The JPA continues to act as a kind of provocative politicization of the Internet coordination functions.
There are also important questions about how a more independent ICANN would relate to national governments seeking more control over the internet. The WSIS-inspired debate over who makes “public policy” decisions for the internet raises both legitimate questions about how we should get globally applicable laws and policies that can be applied to the internet, as well as providing a vehicle for authoritarian or nationalist states to undermine the globalism of the internet.
These are the kinds of issues the broader community should be debating at this time.
