[Editors note: One factor which distinguishes the Internet Governance Project from the din of voices in the Internet governance policy world is the vigorous theoretically informed debate that occurs within our Scientific Committee. The fact is, we don't always agree as IGP forms consensus opinion, represented by our submitted comments. Below is one committee member's take on the JPA and its relationship to ICANN.]
The future of the JPA has been subject to a lot of debate. Some people argue that the JPA should end in September, others think it should be extended once again. It is striking that the disagreement on the future of the JPA cuts across stakeholders and nationalities. This also true for civil society groups who have come down on both sides of the issue. They associate the JPA with the unilateral control over critical Internet resources, which they would like to see terminated rather now than any time in the future. Yet they understand the JPA also as “the shadow of hierarchy” looming over ICANN and thereby keeping it in check.
IGP has argued in its statement to the NTIA that the JPA should end now, among other things because it impedes proper forms of accountability incorporating due process. The IGP statement also recommends that the U.S. government immediately initiate an international agreement that formalizes and completes the transition of ICANN. While I support almost every aspect of the statement, I don't support an expiration of the JPA now. Why?
In my opinion, regulatory authority needs to be subject to external accountability provisions, regardless of whether regulatory task are carried out by a private or a public body. As many commentators on the future of the JPA have rightly pointed out, ICANN's accountability procedures are not sufficient. Particularly, there is no independent appeals or review process in place that would meet the standards of due process. As Robert Keohane remarked a few years back, “everyone seeks to hold others accountable, but few of us really want to be held accountable ourselves. The reason is that accountability is a power relationship. To be held accountable is to have one’s autonomy and one’s power over others, constrained.” I think it would be harder if not impossible to establish a credible external accountability framework around ICANN after the JPA has expired. Accountability provisions, including an improved appeals process and binding arbitration have to be established as a condition for the expiration of the JPA.