A blueprint for the future oversight of ICANN

The reaction to last weeks announcement from the leaders of the “I* organizations” (ICANN, the RIRs, IETF, IAB, W3C and ISOC) on the future of Internet governance has been overwhelming.  Judging from the 90,000+ visits to the IGP blog’s brief analysis of the situation, there is a global groundswell of interest in its implications.

We suggested last week that the USG has lost its chance to lead the transition away from its unilateral oversight of ICANN.  The I* orgs, in alliance with at least one like-minded government (Brazil), have shrewdly positioned themselves to do so. However, the details about how such a transition would occur are absent. What would a newly independent ICANN look like? How would it be held accountable to its stakeholders? How will we get there? It is these details which should be on the agenda of the highly anticipated meeting in Rio this coming spring.

We respectfully suggest that the Rio meeting must not be organized as a parade of “leaders” on a podium purporting to speak for the public. Let the meeting be open to anyone and everyone with a serious stake in the accountability of ICANN and its relationship to the U.S. and other governments. Let it have an open process for submitting, deliberating upon and expressing support for or opposition to specific proposals. Let us also not forget that ICANN and its oversight are the main topic of the meeting, which suggests that ICANN’s staff should not be playing a major role in setting the agenda for the meeting; ICANN has a bit of a conflict of interest in that regard. We must not allow ICANN to use its escape from the USG to escape all accountability. Ideas should be solicited widely, not from an assemblage of leaders hand-picked by the institution being governed. Let any dialogue on transition emerge openly from civil society, industry and governments and let them determine their own representation in the Rio event.  That is the essence of “bottom up, multistakeholder” governance.

In this spirit, we would put forward as part of this dialogue the IGP’s own comments filed in 2009 in the Department of Commerce proceeding on the future of the IANA contract. We were already advocating the “globalization of the IANA function” back then, and developed a set of specific and executable steps that can be taken. Our comments argued that the strategy of achieving global governance and coordination through private contractual approaches could still work, provided that the proper legal and institutional framework is in place.  To achieve that framework, an international agreement is needed that accepts and recognizes ICANN’s status as a public institution that provides global governance.  This instrument can provide lawful constraints on its mission and adequate checks on the abuse of its authority.  But the instrument should be seen not only as a way of checking or limiting abuses by ICANN itself, but also as a way of limiting interference in ICANN by governments (both the U.S. and others).  Governments should be involved not as “oversight” authorities or “public policy makers” but as backers of a set of impersonal rules that ensure certainty and accountability, and give the global community of Internet users a legal basis for settling important disputes.

An international agreement along these lines should have the following elements:

  • The nongovernmental status of ICANN should be affirmed and formalized, as a protection against takeover by governments.
  • The sovereignty of national governments over ccTLDs should be formally recognized, and authority over their delegation ceded from ICANN to national governments using a formal, secure and verifiable process. However, the instrument should also recognize the right of Internet users to access and register under global TLDs so as to avoid monopoly.
  • There should be a prohibition on using ICANN for content regulation or other violations of the right to freedom of expression; the instrument should also create a right of private parties to initiate legal challenges to ICANN actions on these grounds.
  • The agreement should ensure the consistency of economic regulation of DNS and IP addressing with antitrust and nondiscriminatory trade principles (consistent with its current mandate to increase competition); here again, there should be a right of private parties to initiate legal challenges on these grounds.
  • Selection of an appropriate body of national law under which ICANN should operate. If California Nonprofit Public Benefit corporation is deemed the best option, then its membership provisions need to be rethought and reapplied to ICANN in a way that does not permit it to evade accountability and substitute open ended “participation” for binding rights and obligations vis-à-vis its members.
  • The GAC should be dissolved and ICANN’s Supporting Organizations opened to participation by individuals from governments and their agencies.
  • Providing a legal foundation for ICANN as described above would allow for the dissolution of the existing IANA contract when appropriate.

We invite serious comment on the feasibility of this framework. We would encourage civil society actors in particular to converge on a common approach to the transition.


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