ICANN is now running two processes dealing with the accountability of its global Internet governance regime: 1) the IANA transition and 2) The “enhancing ICANN accountability and Governance process.”
Unfortunately, the community is getting so deeply involved in the details of both of these processes that they are losing sight of the fundamental issue at stake. The big issue here is not the particular structures of these entities or who is represented on them. The fundamental issue isn’t even ICANN accountability per se. The big issue is this: how can we have an effective regime for global governance of Internet identifiers that maintains the decentralized and distributed, open, free and innovative nature of the Internet? In other words, there is something at stake here more important than accountability, and that is the scope of ICANN’s mission, and Internet freedom itself. Accountability is relevant only insofar as it serves the bigger goal of keeping the internet open and free.
Various types of accountability mechanisms have been proposed, ranging from creation of a new contracting authority, the creation of a new body with the right to second guess any of ICANN’s decisions, and the creation of a membership that can elect and unseat the Board. But these proposals sidestep the more important question: how much power should ICANN have?
Are the DNS root and ICANN going to become a centralized point for broad-based governance of Internet content and conduct, or will we minimize ICANN’s power and try to keep it focused on a relatively narrow mission focused on global interoperability and operational policies directly related to domain names?
If ICANN is willing to accept constitutional limitations on its power then the organizational changes needed to keep ICANN accountable will be much less sweeping and easier to implement.
On the other hand, if ICANN is not willing to accept binding constitutional limitations on its authority, then the accountability safeguards and requirements of both the IANA transition and the ICANN enhanced accountability process have to be beefed up, and the changes will have to be more complex, risky and difficult.
These are the meta-questions that both ICANN the organization and its antagonists and protagonists must answer before they can determine appropriate solutions in the two accountability processes.
A contract that limits the scope of ICANN’s binding policies might be easier to achieve than complicated organizational changes, and could be used to fend off pressures from the GAC and others to turn ICANN into a general purpose Internet Governance body. If such constitutional limitations were in place, the urgency of addressing other structural changes would be reduced.
The terms of such a contract might look something like this (and here I draw heavily on thinking done by David Johnson):
1. ICANN will not establish any binding policy, mandatory contract terms, or other rules governing actions or inactions by domain name Registries, Registrars or Registrants,
(a) in the absence of demonstrated consensus support by affected parties;
(b) relating to any issues other than those the uniform global resolution of which is necessary to assure sound technical operation of the domain name system and associated registration processes; or
(c) regulating online content or online behaviors other than use of a domain name registration itself to commit fraud or engage in extortion, vandalism or system abuse.
2. Any domain name Registry, Registrar or Registrant harmed by ICANN’s violation of the preceding provisions should be able to bring a case before a standing Independent Review Panel with the authority to make binding decisions enforcing those provisions.
3. In consideration of ICANN’s agreement to these terms, the undersigned [Registries] agree to support the proposed IANA transition plan
To conclude, the ongoing debate about ICANN’s accountability cannot be detached from broader concepts of ICANN’s mission and its role in the overall system of Internet governance. More than anything else, accountability mechanisms should be designed with the preservation and enhancement of Internet freedom and openness in mind. Accountability mechanisms should not be designed to legitimate or facilitate the assertion of centralized power over the global Internet.