Dissenting opinion: ICANN and the JPA as “shadow of hierarchy”

[Editors note: One factor which distinguishes the Internet Governance Project from the din of voices in the Internet governance policy world is the vigorous theoretically informed debate that occurs within our Scientific Committee. The fact is, we don't always agree as IGP forms consensus opinion, represented by our submitted comments. Below is one committee member's take on the JPA and its relationship to ICANN.]

The future of the JPA has been subject to a lot of debate. Some people argue that the JPA should end in September, others think it should be extended once again. It is striking that the disagreement on the future of the JPA cuts across stakeholders and nationalities. This also true for civil society groups who have come down on both sides of the issue. They associate the JPA with the unilateral control over critical Internet resources, which they would like to see terminated rather now than any time in the future. Yet they understand the JPA also as “the shadow of hierarchy” looming over ICANN and thereby keeping it in check.

IGP has argued in its statement to the NTIA that the JPA should end now, among other things because it impedes proper forms of accountability incorporating due process. The IGP statement also recommends that the U.S. government immediately initiate an international agreement that formalizes and completes the transition of ICANN. While I support almost every aspect of the statement, I don't support an expiration of the JPA now. Why?

In my opinion, regulatory authority needs to be subject to external accountability provisions, regardless of whether regulatory task are carried out by a private or a public body. As many commentators on the future of the JPA have rightly pointed out, ICANN's accountability procedures are not sufficient. Particularly, there is no independent appeals or review process in place that would meet the standards of due process. As Robert Keohane remarked a few years back, “everyone seeks to hold others accountable, but few of us really want to be held accountable ourselves. The reason is that accountability is a power relationship. To be held accountable is to have one’s autonomy and one’s power over others, constrained.” I think it would be harder if not impossible to establish a credible external accountability framework around ICANN after the JPA has expired. Accountability provisions, including an improved appeals process and binding arbitration have to be established as a condition for the expiration of the JPA.

6 comments

  1. Anonymous

    If ICANN were compared to a street gang, the JPA is like the negligent parents hiding in their houses.
    ICANN (and Verisign) love to have their JPA “parents” to run to for protection. The ICANN
    street gang of course loves to run free to do as they please, ON EVERYONE's NICKEL!!!
    Some would argue to lock those doors and bring
    the ICANN street gang under the bright lights.
    Others prefer to tell the JPA parents to stand at
    the door, instructing the ICANN street gang to,
    “play nice”.
    There is of course a third option which is to get
    rid of the ICANN street gang. It could be absorbed
    back into the houses, or dispersed.
    Others would claim a fourth option is better. Leave
    the IPv4 Ghetto and avoid the JPA Parents and
    the ICANN street gang.
    A small fifth group seems to think they can reform
    the ICANN street gang and make it a functional
    part of society. Good luck!!

  2. Anonymous

    How will the ICANN trademark lawyers handle this ?
    Facebook is further embracing the real name culture it touts as one of its founding principles by allowing its members to register their own user names, making it easier for others to find their profile pages.
    Currently profile pages have a web address in the URL bar appear with a randomly assigned number, such as http://www.facebook.com/profile.php?id=563920841#=profile.
    Now, the user names will be handed out on a first-come, first served basis starting at 12.01am Eastern Standard Time (that's 5am in the UK) on Saturday June 13.
    So I could apply for a “vanity URL” http://www.facebook.com/mikeharvey if I wanted to. Not sure I can be bothered but since for me here in California it will be the more civilised time of 9pm, I might be tempted.
    With 200 million Facebook members, there is expected to be a mad scramble for user names (there are a lot of Mike Harveys out there, I know) but only existing Facebook members who had signed up before the announcement will be eligible on Saturday to register.