Guest blog by David R. Johnson

The Cross Community Working Group on ICANN Accountability (CCWG) spent part of its second meeting discussing a proposal to convert ICANN into an organization with “members,” potentially including the heads of Supporting Organizations and Advisory Committees (including GAC!??) who might be given the power to overrule ICANN Board Decisions. Many of the other changes on the list for discussion include proposals that would require amendment of ICANN’s Bylaws. One surreal aspect of this discussion is that it is not clear whether the ICANN Board, which must approve any amendment of the bylaws, would ever agree to such changes.

It is time for those with effective veto power over any resolution of the accountability issues, and the IANA transition, to show their hands.

ICANN appears to want the CCWG to show its hand first, and then react to whatever is proposed. That is a mistake, because it may lead the group to propose things the Board won’t want to accept, or devise oversight mechanisms that can be repealed by later ICANN Boards. And it may lead to proposals for untested structural changes that create new accountability issues of their own. CCWG can and should ask ICANN to indicate, right now, whether it will or will not agree to specific  contractual provisions. The answers, whatever they are, would help immensely to guide the CCWG deliberations.

Bylaws are a way that a corporation (including a non-profit) governs itself. Contracts, in contrast, are what allows it to govern others, and others to govern it. It would be much simpler to talk about ICANN’s accountability in terms of contractual provisions — enforceable promises ICANN is willing to make to other parties, now, regarding what it will and will not do. The other side of the contract could be registries and registrars, but there could be a third party beneficiary provision that allows anyone adversely affected by the breach of such promises to bring an arbitration before a panel that can issue binding decrees.

If this were viewed as a simple contract negotiation, between ICANN stakeholders (at least the registries, registrars and registrants who are regulated by ICANN contracts) and the ICANN corporation (Board), then the accountability issues would look very different depending on whether ICANN agrees to contract terms that limit its ability to impose rules on others. For example, ICANN might find it relatively easy to agree not to impose rules that bind registries, registrars and registrants (1) in the absence of consensus, (2) on topics unrelated to sound operation of the DNS, or (3) regarding content or online behavior that doesn’t itself threaten the operation of the DNS. In contrast, if ICANN decided to reserve the right to use its monopoly over entry into the root zone to impose contracts that regulate online behavior, the nature of the “accountability” issues would change dramatically. A global consumer protection regulatory authority, with the power to take down domain names in order to protect the “global public interest”, would have to be constructed with accountability mechanisms very different from those of an organization that makes only technical operational rules subject to consensus support.

The original deal to create ICANN was, at its core, an agreement by a registry to abide by future (unknown!) “consensus policies” that fit within a very limited range of topics. That limited range of topics, known as the “picket fence,” involved issues the global resolution of which were needed to assure sound operation of the DNS. The requirement for consensus support meant that these new rules would be more like operational standards than regulations or laws — because they would have to compete for general approval among those affected. But because ICANN, in possession of the IANA contract, had the power to impose contracts of adhesion on new gTLDs as a condition of entry into the root, it has since decided to use that power to serve its view of the “global public interest.” Now the CCWG seems at times to assume that ICANN should have the power to define and impose rules in relation to some view of the “global public interest” — but it wants to create a new entity, drawn from ICANN’s internal structures, that can second-guess Board decisions by being treated as “members” who can select an independent review panel, approve a budget, dismiss Board members, and even overturn Board decisions.

Membership for all netizens in the internet community sounds like a great idea. But what will keep a new entity composed of a limited number of privileged members from itself developing an unrestrained view of its ability to impose rules on others in pursuit of some view of the “global public interest” — and to discipline a board that doesn’t share its views? In contrast, a clear contractual requirement for demonstrated consensus among affected parties before ICANN can make rules that bind others would more clearly achieve the limitation on unchecked power that any accountability regime must be designed to achieve. To make these checks and balances effective, all we need is a judicial branch (an independent arbitration panel) that can enforce the contract terms. And ICANN could, right now, take fears of abuse by a global “public interest” regulator off the table by making clear that it will agree to such contract terms.

In short, ICANN would be well advised to tell the CCWG at the outset of the process what it will contractually agree to, as a constraint on its power to tell other people what to do. It is one thing for a do-gooder non-profit deploying its own staff and resources to have some feedback from those it might affect. It is quite another thing for the IANA monopoly over entry  into the root zone file to be used to impose “mandatory public interest commitments” and registrar accreditation requirements that exploit the power to revoke domain names (and registrar accreditation) to police online conduct and content — all without any clear provision for due process or the normal limitations on jurisdiction. If ICANN took the “public interest regulator” option off the table, the “accountability” discussion could be greatly simplified.

Unless CCWG knows at the outset what the ICANN board will agree to by contract, the process of discussing “accountability” is likely to create a proposal to establish another, even less accountable entity (the privileged “members”), who might be even more inclined than the current board to abuse the power inherent in the IANA monopoly. Should we have such a coup — or just negotiate a contract that puts back inside the original box ICANN’s powers to impose rules on others?

3 thoughts on “ICANN Accountability – a Coup or a Contract?

  1. Thank you for this excellent analysis, and for putting clearly on the table what I think is the key issue: ICANN is, at present, a monopoly. Monopolies tend to abuse their dominant position, unless they are regulated. You propose that, instead of government regulation, ICANN agree voluntarily to be regulated by contracts.

    That might work, but (1) contracts have to be agreed by both parties and (2) they can be cancelled by either party. Although you don’t mention it explicitly, I presume that one could evisage some draconian penalties for unilateral cancellation by ICANN, including significant liquidated damages. But would the ICANN Board agree to such contracts? And would doing so be consistent with their fiduciary duty to ICANN as an organization?

    Absent government control, or a suitable contractual framework, the other remedy would appear to be more basic: introduce competition. Perhaps what ICANN does is a natural monopoly, so no competition is possible. But perhaps not for the names part: perhaps competing roots could be viable. And they would not necessarily “fragment” the Internet: users could specify which root they want to use for a particular DNS query and thus users would be able to resolve all URLs, including those that are not part of the “ICANN root”.

  2. Richard —

    Contracts can be written so as not to allow either party to terminate. Indeed, they can specify a remedy in the form of “specific performance” — with enforcement of compliance with the promise that has been made.

    Whether ICANN (the Board) would agree to such a contract is indeed the question. I think it would be consistent with their fiduciary duty (and consistent with the public interest they seek to serve). As Steve Crocker has said on many occasions, they are committed to serve the internet community, not to maximizing the fortunes or power of the ICANN corporation. The best way to do that, in my view, is to enable ICANN to respond to pressures to become a global consumer protection regulator by saying that they are contractually prevented from going in that direction.

    I agree there might be some benefit from competition — perhaps every gTLD registry ought to be able to choose whether to be subject to ICANN or subject to the governance of a particular country (an option to convert to a ccTLD). I don’t think the solution is alternative roots, however. DNS is used for many processes other than looking up web sites and users would not be able to select the root used by the service providers through whom they connect.

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