ICANN Accountability – Present, Future and Past

We are in Buenos Aires at ICANN meeting 53. The IANA transition and ICANN accountability reforms are, of course, the main topic of discussion here. Both processes are at critical turning points. The IANA Stewardship cross community working group is showing off its newly-developed plan to create a separate “Post-Transition IANA” that will be a separate but controlled corporate affiliate. The CCWG on Accountability has proposed major reforms in ICANN’s mission statement and independent review process, and is converging on a plan to provide membership powers to ICANN’s Supporting Organizations and Advisory Committees.

The plans and proposals are now specific enough for us to get a glimpse of the future in store for us. We can see the light at the end of the tunnel. People are getting excited.

This was the environment when Assistant Secretary of Commerce Lawrence Strickling took to the stage in a packed room on Sunday evening (June 21). Strickling was the opening speaker on a panel discussion of “IANA Stewardship Transition & Evolution of ICANN Accountability” put together by ICANN’s staff.

And in so many ways, this panel was a complete downer. Despite repeated protestations from both the U.S. Commerce Department and ICANN’s staff that the whole thing is in the hands of “the community,” both the Commerce Department and ICANN are still trying to subtly steer the enhanced accountability process –  in the wrong direction.

Let’s start with Strickling’s speech. Coming on the heels of a widely read blog post posing some pointed “questions” (actually, indirect advice), Strickling seemed to be intent on undermining key reforms proposed by the accountability process. The most shocking of these comments concerned the Independent Review Process (IRP). Nearly everyone involved in ICANN recognizes that ICANN needs an “independent judiciary” – a neutral and binding dispute resolution process that can tell ICANN that it has broken its own rules or strayed too far from its narrow mission. Yet here was the U.S. Asst Secretary of Commerce warning us about the alleged dangers of independent review; how can we allow a panel of 5 judges to overturn a “multistakeholder consensus,” he asked? Strickling also repeatedly referred to ICANN’s “elected” board and asked why the community did not trust them once they got on the board. Strickling did not seem to realize that most of the board is not elected but selected by a small multistakeholder Committee which operates in secret. Strickling seemed to be implying that the community does not need to be empowered to impose any binding limts on the board through membership or other means.

Whether intended or not, the underlying message seemed to be “don’t rock the boat,” and “trust ICANN.” It’s almost as if Strickling was turning the clock back to 2009 or thereabouts, as if the revolution in accountability expectations that has gained momentum since then had never taken place.

That was bad enough. But the rest of the panel was worse, worse in a most peculiar way. Instead of allowing the people in the community who are working on the reforms to engage with Strickling on the questions he was asking, the panel contained the three co-chairs of the 2002 “Committee on Evolution and Reform” (CER). A more disturbing historical reference could not have been made.

The CER “reform” process, initiated in November 2001 at the nadir of ICANN’s existence, was an accountability disaster. Many of the accountability and structural problems we have today are a direct consequence of its work. It was the CER which led to the adoption of new bylaws that allowed the Board to ignore the consensus of its supporting organizations and make domain name policies by a vote of the Board. The new bylaws, three academic critics wrote, “represent an intentional departure from the consensus decision-making model, and a move towards centralized, top-down policy-making.” The CER “reform” process also abolished democratic elections of board members and put in its place the absurdly expensive, entirely ICANN-controlled At Large Advisory Committee. ALAC was supposed to provide a vehicle for representing all the world’s individual Internet users yet has never managed to grow beyond the size of a single stakeholder group in the GNSO. It was the CER that replaced board elections with board selections by a Nomcom. It was the CER which created the bylaw change that endowed GAC advice with the magical power to override the GNSO policy development process, inadvertently creating a parallel, competing policy development process. Finally, the CER was initiated and run by ICANN itself, not in a bottom up fashion by the community. Another academic wrote that “ICANN 2.0 looks like a deal between (some) industries and (some) governments which sidelines the global Internet users.”

At the same time as official ICANN declares the process as “on the verge of accomplishing something truly remarkable”  its clear that the accountability reforms are beginning to make the ICANN staff/board uncomfortable. Unlike the 2002 CER, they are not in control of the process. More puzzling, however, is the obvious tendency of the NTIA to side with ICANN in its attempt to short-circuit reforms to avoid real accountability. The tendency of regulators to identify with and become solicitous of the industy they regulate is well known. We greatly appreciate Assistant Secretary Strickling’s leadership in promoting multi-stakeholder governance, but we think that after more than fifteen years of routinely interacting with each other, ICANN and NTIA may have become a little too close. It’s time for Strickling to stop kibitzing and start acting like the neutral arbiter the U.S. government claims to be.