IGF Workshop Report: “The Future of ICANN: After the JPA, What?”

ICANN, which coordinates and sets policy for the global domain name system (DNS) and IP addressing, is linked to the US Government through a Joint Project Agreement (JPA) that expires in September 2009. The JPA and its renewal process provides what, during WSIS, became known as “political oversight” over ICANN. The US government says that it is committed to “completing the transition” to private sector coordination of the DNS, which implies an expiration of the JPA. During the 2008 mid-term review, ICANN made it clear that it also strongly supports an end to the JPA. ICANN's call was supported by some stakeholders. Other parties, however, expressed concerns about its accountability without some kind of governmental oversight.

This workshop, held on Wednesday December 4, 2008 at the Internet Governance Forum in Hyderabad, India, was designed to provide a careful and balanced exploration of whether ICANN is ready to be free of US government oversight, and if so what kind of external oversight – if any – should replace it. Specifically, it asked whether we should allow the JPA to expire as part of the “transition” to a more internationalized ICANN or whether the U.S. should continue to hold this form of oversight. (The JPA is not the same as the IANA contract, through which the U.S. delegates control of the DNS root to ICANN.)

The workshop was sponsored by the Internet Governance Project, The Godaddy Group, Pharos Global, and the civil society Internet Governance Caucus. The workshop was moderated by Lee McKnight of the IGP. Panelists included Milton Mueller, an academic researcher in the IGP, Stefano Trumpy, the GAC representative of Italy, Len St-Aubin of Industry Canada, Michael Palage, a private sector consultant to registrars and registries, and Jean-Jacques Subrenat, a Board member of ICANN. Unfortunately, Tim Ruiz and planned speakers from Russia and Egypt could not attend. Ruiz however submitted a paper which outlines his concerns.

Milton Mueller outlined the original rationale for making ICANN a private sector nonprofit. The purpose was to internationalize the administration of DNS without using a treaty or intergovernmental organization. Private, contractual governance allowed global coordination to take place without top-down governmental control. He noted that this transition to a privatized DNS had been stalled as the U.S. never relinquished control. He outlined the main political obstacles in the U.S. to ending the JPA and then asserted that full privatization was still a worthy goal. He asserted that post-JPA, the IGF could provide “soft oversight” of ICANN. But ICANN also needs harder forms of accountability, such as a democratically elected Board, a better appeals function, and perhaps some form of recall or “vote of no confidence” procedure.

Michael Palage said he thought the JPA was not a very important issue. Before it could be concluded, ICANN and the USG must find a suitable legal construct for those key internet resources currently under the USG’s oversight, such as the gTLDs .GOV, .MIL, and .EDU; the ccTLD (.US) and the three root servers (E, G & H). Palage asserted in his paper prepared for the workshop that “it is hard to convince other national governments and ccTLD operators that may have valid national sovereignty concerns to enter into a formal agreement with ICANN, when the USG itself has not yet done the same.” Palage also called upon ICANN to “formally recognize that its policies and contracts cannot supersede national laws,” giving examples of when this has been a problem. Finally, he called upon ICANN to withdraw from any and all operational roles in connection with critical Internet resources and instead focus on their coordination (e.g., running .arpa, root signing).

Len St-Aubin emphasized the need for the global Internet community to build on the established features of ICANN rather than to pursue a new model. Canada is especially concerned about preventing “capture” of ICANN by any stakeholder group. St-Aubin asked for “further information on the significance of ICANN having international not-for-profit status.” Canada thinks the GAC should remain advisory and be limited to three functions 1) serving as an information conduit between governments and ICANN; 2) providing advice on issues that raise broad public policy concerns and 3) enabling GAC members to share information and opinions. GAC should not be viewed as a decision-making body, nor should it be expected to routinely provide a consensus view on issues. ICANN needs to address its outstanding governance issues if it is to achieve legitimacy post-JPA. He concluded by saying, “People and organizations do not operate in Internet time. It is more important to get this right than to do it fast.”

Stefano Trumpy agreed with Canada on working within the ICANN model. Italy favors “a controlled step by step evolution of the status quo.” He said that governments should not be more influential than they are today. GAC should remain advisory. “Coherently with the expressions contained in the Tunis agenda, the community should be in favor of the termination of JPA as a first important step in the direction of internationalization of the management of critical resources.” Governments need to clearly express their opinion on the JPA. Trumpy called upon those interested in ICANN to “be pragmatic,” and to avoid elaborating too much on the role of governments. Instead of supervision, Trumpy said, ICANN should be confronted with regular reporting to the enlarged community, through for example the IGF, where ICANN could receive non-binding recommendations.

Jean-Jacques Subrenat, ICANN Board member and member of the PSC (ICANN President’s Strategy Committee) began by pointing out that previous speakers had used the term “privatization” as a description of ICANN's model. In Europe and elsewhere, “privatization” tends to connote for-profit industry and business in general, whereas in the USA it designates broadly what is not led by public authority. He preferred to call it the ICANN “multi-stakeholder model”, with various components, including of course business and governments, on an equal footing. Subrenat went on to present briefly the ongoing work in the PSC, and its significance in the context of the JPA, especially on such items as accountability (not only in the case of a non-confidence vote, but at various levels), and internationalization (including, but not limited to, establishing an additional legal entity outside the USA). Subrenat offered the view that “the termination of the JPA offers a unique opportunity to move toward a fully multi-stakeholder ICANN. But following on the US presidential election, there is for the time being some uncertainly as to the position the incoming US administration will adopt.

Tim Ruiz’s written paper said that GoDaddy has “serious concerns regarding …the implementation plan for new gTLDs, the…expansion of ICANN's once narrow mission and its growing regulatory behavior, as well as the evolving roles of the GAC and ALAC within ICANN policy processes.” He outlined concerns that need to be addressed before a post-JPA ICANN will achieve full legitimacy and trust of its stakeholders: access to documentation of how and why decisions are made by staff and board; improvements to existing accountability mechanisms; and additional accountability mechanisms.

During the lively discussion period, the panel took up issues such as:

  • Whether ICANN is truly multistakeholder – one audience member pointed out that the U.S. government officials described it not as multistakeholder but as “private sector-led.”
  • Use of the IGF as a “soft oversight” mechanism to replace the JPA and how that might be implemented.
  • The importance of IANA functions. An ICANN Board member in the audience noted that ICANN has created an IANA committee, and that policy making activity for addresses has shifted to the Regional Registries, so the JPA may not really matter.
  • The problem of “ambitious governments” who might want to exert control over ICANN was noted by one audience member.
  • The absence of panelists from developing countries was noted. Professor Mueller, speaking on behalf of the organizers, agreed that this was a problem but noted that the cancellation of the two speakers from Russia and Egypt made it unavoidable.

Professor McKnight concluded the workshop with a straw poll. Proposition 1 was that “expiration of the JPA in September 2009 would be good first step toward internationalization of ICANN.” The other proposition was that “more time is needed before the JPA should be allowed to expire.” In an informal vote, approximately 35 voted for Proposition 1 and 10 in favor of Proposition 2.

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