Yesterday the Chair of ICANN's noncommercial users constituency, Robin Gross of IPJustice, sent an important letter to the ICANN Board and its new CEO, Rod Beckstrom. The letter, which had the unanimous support of 145 members of the GNSO constituency, makes three specific requests of the Board. The Board's willingness to grant these demands is being carefully watched by civil society groups, and is considered a test of ICANN's willingness to accommodate – or exclude — the participation of public interest groups.
First, NCUC asks for a direct meeting between the full Board and NCUC representatives at the Seoul ICANN meeting in October. Second, the letter asks the Board to completely review the transitional NCSG charter by July 30, 2010, and to acknowledge that the charter originally proposed by the NCUC and overwhelmingly supported by the noncommercial community will be considered in the review. 3) Third, it asks the Board not to approve any new Constituencies under the SIC and ICANN staff-imposed transitional NCSG charter until the ongoing debates over the status of Constituencies and their role in the NCSG is resolved next year. The full text of the letter can be found at the NCUC's web site.
Rod Beckstrom really has his work cut out for him. ICANN’s policy staff, which is supposed to merely facilitate an open, bottom-up process of policy making by you, me and other stakeholders, has once again taken advantage of the organization’s lack of real accountability to put itself in charge of deciding who can and cannot participate in making critical policy decisions.
This time the topic is “Internationalized Domain Names” (IDNs) or domain names in non-Western scripts like Chinese, Japanese, Arabic, etc. A “working group” is being formed to make some important policy decisions, but the group is neither open nor appointed by elected GNSO representatives; instead, the policy staff decides who gets to participate and who doesn't – and once again, many involved people with a direct interest in the issue are being excluded.
On August 4 the U.S. House Committee that oversees the Commerce Department published their opinion about ICANN and the impending expiration of its Joint Project Agreement (JPA) with the Commerce Department. The gist of the letter was that the Congressional committee, headed by powerful Democrat Henry Waxman of California, wants something like the JPA to become a permanent part of the global Internet.
The letter proposes that a new, “permanent instrument” between the U.S. Commerce Department and ICANN be created. The list of things the instrument should do was strong and sweeping. It not only allows Commerce to periodically review ICANN's performance but also asks it to “create a mechanism for ICANN's implementation of any new gTLDs and internationalized domain names that ensures appropriate consultation with stakeholders.” It would ensure that ICANN will not change its current policy toward indiscriminate access to Whois information.
In other words, this is a rather explicit call for the basic parameters of DNS policy to be made (or rather, re-made) in Washington.
Why? What reason was put forward to justify this rather stark departure from the basic model of ICANN, which was supposed to be an independent, multistakeholder global governance agency, accountable to all the world's Internet users and not just those located in the U.S.? One has to answer the “why” question in two separate paragraphs. There are the real reasons, which can be read between the lines, and there are the rhetorical reasons explicitly stated in the letter.
On July 30 a majority of the ICANN Board took a fateful step away from open public participation in domain name policy making. In a decision that seriously impairs ICANN’s claim to be a multi-stakeholder, bottom up institution, the Board voted 10-4 to impose upon civil society groups a charter that they did not support and which is designed to weaken and fragment their participation.
The Board-approved charter for a Non Commercial Stakeholders Group (NCSG) was drafted directly by ICANN’s staff, without any consultations with the affected noncommercial organizations. When it was put up for public comment the reaction was overwhelmingly negative. And yet the majority of the Board (with several strong dissents, see the “silver lining” below) didn’t care, and passively complied with the direction fed to it by its Vice Chair and staff. The staff did not make a single modification reflecting the views of the overwhelming majority of the affected community.
The importance of this issue goes well beyond the NCSG; it relates to the whole problem of public participation in ICANN. Is ICANN a structure to facilitate policy making by any interested and affected stakeholder, or is ICANN nothing more than a self-perpetuating corporation that sees the public as a potential threat and public participation as something to be carefully managed and controlled?
“In characteristically rigorous fashion, Mueller’s outstanding book punctures the alarmist myth of Internet fragmentation and helps us to understand what is really at stake as nations and other groups vie for power over the Internet.”
Jack Goldsmith, Harvard Law School