Laws, Sausages and the IANA transition (Part 2): the Kelly Bill

The latest entry in the IANA transition/ICANN reform process is a bill introduced in the U.S. Congress by Representative Kelly (R., Pa.). It is called the “Defending Internet Freedom Act of 2014.” Before it can effectuate the IANA transition, the law requires NTIA to certify to the appropriate Congressional committees that certain reforms have been made in ICANN.

The list of reforms and commitments is long. Some of them are sensible and desirable, others are far-fetched or overly micromanaged. It’s unfortunate that Rep. Kelly didn’t reduce the commitments and reforms to the minimum number required to protect internet freedom, because that would have made the proposed law much harder to dismiss or criticize.

Let’s begin with the good ones. The bill would require:

1. That control over DNS not be exercised by a governmental or intergovernmental body
2. That no Director or officer of ICANN will be selected by or will represent a governmental or intergovernmental body
3. That GAC advice must be based on consensus rather than a mere majority
4. That ICANN must uphold freedom of expression and freedom of association, applying a standard that is at least as strong as that of the U.S. First Amendment.
5. That ICANN be barred from imposing on registrars or registries contractual agreements unrelated to ICANN’s core mission of coordinating the global interoperability and uniqueness of domain names, such as, e.g. content regulation.

These broad protections are all worthy of support, in our opinion. The first three are merely attempts to guarantee that certain desirable features of the status quo do not change. Element #4, which requires ICANN to uphold basic freedom of expression rights, and #5, which prevents ICANN from using its contractual regulation of registries to stray into content regulation, are absolute necessities.

While some may criticize this as an example of the U.S. imposing its values on the rest of the world, there is a very clear answer to this. First, the human right to free expression is universal and global, and is already enshrined in United Nations and European instruments. Second, preventing ICANN from using its global coordinating and policy making position to regulate expression is consistent with ICANN’s stated mission, and does not prevent any state from imposing stricter controls on expression within their own jurisdiction. All it does it prevent a globalized institution from doing so. And third, if the U.S. did not do something to safeguard freedom of expression at first amendment levels, it would be violating its own constitutional principles, which it is not allowed to do. So if the US is to withdraw from its stewardship of the DNS it makes sense for it to try to embed in the institution the basic values it is sworn to uphold, especially when freedom of expression has a demonstrated record of facilitating human rights and enjoys widespread global support.

We wish the law had stopped there. It didn’t. It went on to propose a complete rewrite of ICANN’s governance structure. Here again, some of the specific reforms proposed are sensible, others are problematic. But with such a long and detailed list, the bill comes across as an attempt to pre-empt both the IANA transition process and the ICANN enhanced accountability process. In the global arena in which ICANN has to operate with legitimacy, many actors will find it unacceptable to have the U.S. congress dictating the terms of the transition beyond those basic safeguards noted above. If we believe in a governance structure led by non-state actors, the so-called multistakeholder model, now is the time to let the global stakeholders develop their own solution.

Let’s look at all the other specific requirements of the law:

6. That IANA be structurally separated from ICANN in a manner suggested by the IGP paper.
7. That ICANN board requires a 4/5 majority to make bylaw changes or change its fees
8. That ICANN change its method of selecting directors
9. That ICANN has an independent review process
10. That ICANN increase its transparency, e.g. by providing public access to its board meetings
11. That ICANN adopt some variant of the U.S. Freedom of Information Act
12. That the Directors, President, CFO and Secretary of ICANN can be removed through a vote of no confidence
13. That ICANN establish an “Internet Freedom Panel” with the authority to review and veto any policies if the panel thinks they threaten not just freedom of expression but also “the openness, stability, resiliency or security of the Internet, responsiveness to the user community or other commitments…in the Affirmation of Commitments.”
14. That ICANN remain subject to U.S. law
15. That the USG be granted ownership of the .mil and .gov domains and the A & B root servers continue to be maintained in the U.S.
16. That ICANN conduct an audit of its operations in the past 5 years
17. That ICANN subject itself to an annual audit going forward
18. That ICANN establish a joint office of Inspector General with full access to financial and other documents, who can make reports that cannot be approved or edited by ICANN

Again, many of these are good ideas. Granting the US government stable and permanent control of two TLDs it is already using is unobjectionable and fully within the legitimate authority of Congress to require. We support structural separation of the IANA, and many civil society advocates would welcome the idea of a FOIA for ICANN. But the ICANN reform process, where all stakeholders and not just Americans are involved, is the place to win acceptance for these ideas.

The real stinker in this list is the so-called ‘Internet Freedom Panel.’ This is misnamed; it should be called “ICANN’s second board of directors for second-guessing,” because its remit is so broad. Indeed, it is worse than the current board, because its decisions would not be subject to appeal. Its authority is essentially arbitrary: it is empowered to intervene not just on behalf of Internet freedom but also on behalf of “the openness, stability, resiliency or security of the Internet,” concerns that are so all-encompassing that they would give the second board of directors the power to veto virtually anything ICANN does. Policies that would advance Internet freedom (e.g. privacy protections) might be vetoed on the grounds of security, and so on. There is no specification of how people would get onto this panel and what would keep them accountable. The Internet freedom panel is just a bad idea, and could be used to discredit the entire bill. Safeguards for Internet freedom should be enforced through an appeals process that could be invoked by anyone, applying clear rules based on existing precedents regarding what is and is not a violation of free expression rights – there is no need for a privileged panel to make that decision for us.

Aside from the panel, the community involved in ICANN’s reform should look to the Kelly bill for ideas, some of them worth considering, about how to reform accountability. The bill should also serve as a notice to the community of the kind of questions or concerns that NTIA is likely to face when it brings a completed IANA transition proposal to hearings next autumn.

If there is a role for Congress in the transition process, it is to set out some very basic, critical guidelines that the NTIA must ensure are met. Targeting Internet freedom as one of these criteria is welcome. Overreaching into the micromanagement of ICANN’s governance detracts from that worthy goal.