The Risky End-Game of the ICANN Enhanced Accountability Process

The ICANN board has interfered with the accountability process once again, and this time, just like the last time, its intervention is likely to delay the transition by another two or three months. It may even succeed in eviscerating key accountability reforms. Board comments circulated yesterday identify 3 areas where the board is unwilling to accept what the CCWG has proposed, and 2 other areas where the board threatens to use its ability to declare a reform “not in the public interest.” All three show just how stoutly the ICANN board – egged on by its lawyers – is resisting true accountability.

On December 1 the CCWG published its 3rd draft proposal for enhancing ICANN’s accountability. The 3rd draft was hastily negotiated during and after the Dublin ICANN meeting in late October. A wholesale revision of the accountability plan was required because on September 4th the ICANN board suddenly announced that accountability reforms based on membership – a model that had been carefully developed by the CCWG over a period of 8 months – was unacceptable to it. The CCWG duly abandoned the membership model in favor of a “sole designator” model. Three months were lost.

Now the Board is objecting to 3 things in the new plan. One of them is transparency, the right of the Sole Designator to inspect corporate records. The other is the Mission Statement and the all-important limitations on ICANN powers contained therein. And the third is the very tame language on respect for human rights proposed by working party 4.

Inspection

Regarding inspection rights, the bad old ICANN is reappearing. This is the ICANN that, back in 2002, refused to allow one of its own elected board members to inspect its records – a refusal that was in clear violation of California law. ICANN was taken to court over this, and of course, it lost. What ICANN seems to fear now is that the inspection rights of Directors would also be given to the Sole Designator. But giving the Sole Designator inspection rights was an important and deliberate part of the CCWG’s reform plan. The CCWG agreed to give up membership rights and rely on the removal of board members as an enforcement mechanism, but as a quid pro quo demanded stronger transparency via inspection rights. How can you act to remove directors if you don’t know what they are doing? Inspection does not alter the powers of the designator, it merely provides it with the information it might need to exercise appropriate judgments. What is the board trying to hide?

The board’s proposed alternative to the CCWG proposal are designed to make the exercise of inspection rights so slow and difficult as to be useless. If the board has its way someone would have to go through a 3-step process culminating in the consensus support of 4 out of 5 Supporting Organizations and Advisory Committees to exercise inspection rights. Why so difficult? Again, what has the board got to hide?

Mission Mashup

The board comments also propose to modify the carefully negotiated new Mission Statement. The reform of ICANN’s mission statement was an attempt to limit ICANN’s powers to a few carefully defined areas and to keep it from becoming a general regulator of the Internet. This was the source of many intense debates in the CCWG.

The CCWG Mission Statement had two fundamental constraints on ICANN’s powers: an explicit prohibition on regulating internet content and services not directly related to domain name registration, and a requirement that policies imposed by ICANN on DNS participants be developed through a consensus-based multi-stakeholder process.

“The Board’s comments appear to do away with both of these constraints,” legal scholar David Post noted. He went on to say:

“…the Board would substitute a simplified Mission Statement – “to ensure the stable and secure operation of the global, interoperable Internet’s unique identifier systems” – a statement that ICANN will act only as “reasonably appropriate” to achieve that Mission, and two additional Principles:

(1) that “ICANN’s entering into and enforcement of Registry and Registrar contracts is an important component of ICANN’s work in coordination and allocation of names in the Root Zone of the DNS”; and

(2) that “ICANN is not a regulator, and does not regulate content through these contracts.”

The consensus requirement has disappeared entirely.  As I read it, anything that the ICANN Board decides is “reasonably appropriate” for the “stable and secure operation of the [DNS]” is within its power to impose on third parties – whether or not it has been subject of consensus decision-making.”

Worse, the attempt to keep ICANN out of content regulation is weakened, if not eliminated altogether, by principle (1) regarding ICANN’s contracting powers. The mission statement proposed by the CCWG already acknowledges that “ICANN shall have the ability to negotiate, enter into, and enforce agreements with contracted parties in service of its Mission.”  The qualification “in service of its Mission” was intended to make clear that ICANN’s powers to impose conditions on 3rd parties through its contracts are limited. The Board’s proposal eliminates that qualification, which implies that ICANN’s power to contract with others (including Registries and Registrars) is  unlimited; it would allow ICANN to condition access to the DNS on whatever conditions it sees fit to impose. Thus, the board’s proposed modifications to the mission statement are unacceptable.

Human rights

The ICANN board also took issue with the recommendation asking it to respect internationally recognized human rights. The comments claim that “the language could…be used to greatly expand ICANN’s human rights obligations” and that the “language suggests that because [registries and registrars] have a relationship with ICANN, there are human rights concerns that they could be obligated to address.” But these claims look nonsensical when one reads the actual wording of the human rights recommendation. Here it is:

“Within its mission and in its operations, ICANN will respect internationally recognized human rights. This commitment does not in any way create an obligation for ICANN, or any entity having a relationship with ICANN, to protect or enforce human rights beyond what may be required by applicable law. In particular, this does not create any additional obligation for ICANN to respond to or consider any complaint, request or demand seeking the enforcement of human rights by ICANN.”

The recommendation clearly does not create any additional obligations on ICANN or its contractors. The board arguments are completely bogus.

What happens next?

We are now in the middle of a truncated “public comment” period about what was supposed to be the third and final draft of the proposal. We use the term public comment in scare quotes because it never was a true public comment period. The CCWG co-chairs, in a panicky attempt to meet an artificial deadline (due to the fear that a new Presidential administration in Washington will suspend or end the IANA transition if we don’t get it all done by mid-January), were trying to get the CCWG Chartering Organizations to approve the plan by December 21, so that the reforms could be finalized and sent off to the NTIA by mid-January, 2016. Consequently, the chairs and various participants in the CCWG stopped caring about what the general public, or even individual stakeholder groups within ICANN, think or say about this proposal; all they cared about was whether the chartering organizations (the Supporting Organizations, ALAC and GAC) will approve it or not. That strategy was questionable, and controversial, but at least it was well-intentioned.

The board intervention, however, blows these scheduling plans out of the water. It is clear that the board is asking for things that they cannot and should not be given. If the CCWG stands up to those demands, as it should, the board can either back down and accept the proposed reforms, or it can hold a formal vote that specific reforms are “not in the public interest.” If a 2/3 majority of the board arrives at the conclusion that the contested reforms are not in the public interest, we are looking at negotiations between the board and the CCWG to arrive at a resolution of the differences. That would take several months at least. Then, and only then, can the proposal be ratified by the chartering organizations, approved by the IANA CWG as meeting its criteria for the transition, and sent to the NTIA.

In short, we are playing a game of chicken in which anyone who fears delay the most automatically loses. If the CCWG truly believes in its reform plans, it will have to risk prolonging the process. If on  the other hand it believes that prolonging negotiations threatens the viability of the transition, and it is willing to opt for a transition at any cost, it will simply cave in to the board’s demands and not worry about whether the accountability reforms are adequate. Put simply, if the CCWG wants effective and meaningful reforms it must be willing to risk further delays and negotiations in the conclusion of the process.