Don’t give up on membership!

Most of the ICANN community is headed to ICANN 54, the critical meeting in Dublin where some kind of an agreement on accountability reforms needs to be reached if the historic IANA transition is to take place.

Only a few months ago, an open, multi-stakeholder process proposed to enhance ICANN’s accountability by creating a very limited form of membership. It did not allow any individual in the world to become a member. It did not even allow any individual or organization with a domain name to become a member (as it should have). Instead, it created a membership composed only of ICANN’s existing Supporting Organizations and Advisory Committees (SO/s and ACs). Yet the prospect of endowing even this attenuated set of groups with membership powers has sparked an epic struggle between the board and the community it claims to act on behalf of. Nothing less than the future of this 18 year old experiment with multistakeholder governance is on the line.

Will the Dublin meeting be a confrontation? Or a discussion that addresses the potential problems with the CCWG’s plan but moves us forward, through incremental improvements in it, toward a final consensus? Unfortunately, the ICANN board has already made it into a confrontation. It completely pre-empted the public comment period by rejecting the CCWG proposals outright and coming up with a half-baked counterproposal. So as of this writing, the CCWG has not even produced a written summary and analysis of what the general public thinks of the plan. It has been too busy analyzing ICANN’s counter-proposal and fending off lazy and often irrational arguments about the effects of membership. All of the board objections were already considered by the CCWG in its deliberations. This is truly an attempted hijacking of the process, and one can only wonder whether the U.S. NTIA is complicit in this, or is standing on the sidelines.

The impact and implications of the board’s intervention into the process were succinctly summarized by Jordan Carter, a director of the ccTLD registry for New Zealand:

A careful multi-stakeholder process over almost a year has analyzed the community’s requirements and come up with a model that can do it – based around membership. The Board has abused its role as a decision-maker in this process. In effect, it has sought to replace the open, public, deliberative proposal development process with its own definition of what the community requires, and its own solution that can deliver its evaluation of those requirements. In doing so, it has profoundly challenged the legitimacy of the multi-stakeholder model of decision-making that ICANN and its Board claim to uphold.

It is no exaggeration to say that if the board’s intervention succeeds in driving membership off the table and replacing it with even more diluted and indirect forms of accountability that ICANN’s legitimacy as a global governance organization will be destroyed forever. No one will take it, or the multistakeholder process it claims to use, seriously any more.

And yet, some participants in the process are trying to appease the board by abandoning a membership-based accountability model. One notable defector, Steve DelBianco, now proposes to defer any real accountability reform and instead create a “Governance Review” process that can, at some indefinite point in the future, “recommend a new governance model that might even include moving to Membership.” This is a complete sellout, because once the IANA transition is over the community would have no leverage to impose real reforms on a recalcitrant ICANN board.

Worse, DelBianco seems to have swallowed, hook line and sinker, some board propaganda about how current representative structures in ICANN are “not ready” for membership powers because they are insufficiently “representative of global internet users.” Yes, you heard it right: ICANN’s board is arguing that the entire community active within ICANN is incapable of self-governance and this justifies insulating the board from accountability to them. This is a ludicrous argument because it is precisely these ACs and SOs who currently appoint the ICANN board and develop policy.

Let’s face facts. ICANN accountability represents a significant power shift. Authority over DNS policy would no longer be solely in the hands of an omnipotent board with no members, no shareholders, no effective appeals mechanism, and no U.S. government oversight. ICANN’s lawyers, and its staff, and many (but not all) of its existing board members are against this power shift, naturally enough. Being accountable to someone is unpleasant and demanding. Anyone who expected them not to oppose real reforms does not have a realistic notion of politics and governance. Power shifts never happen without a struggle.

The legal advice given to the cross community working group has made it clear, time and time again, that without legal status as members, none of the accountability mechanisms and community powers could be enforced. As Greg Shatan, one lawyer participating in the process put it, “without membership, the Board will be able to invoke fiduciary duty as a reason not to follow the decision of the community.”

By resisting membership, ICANN is resisting accountability. It’s that simple. ​

People involved in the Dublin meeting, therefore, need to understand a simple fact: they cannot back away from membership, certainly not as a first-order bargaining position. The membership model can be tweaked, improved, nibbled at around the edges, but ICANN must be required to accept the fact that it needs to have members to be accountable. Until and unless ICANN has a membership it does not have accountability, and unless ICANN has real accountability to its community, it becomes a dangerous and practically lawless global governance institution after the NTIA lets go — perhaps not as rich as FIFA, but far more important to information age public policy. The community must not back away from membership in Dublin. To give up the membership model is to give up everything the enhanced accountability process is about.