The Obama administration NTIA is to be commended for making changes that attempt to address longstanding issues regarding unilateral U.S. oversight of ICANN. They also get an A for effort, as they consulted broadly with other governments and big business (though not so much with civil society). Whatever its flaws may be (see below), the AoC is better than its predecessor. The prior instrument, an ICANN-Commerce Department MoU, failed to make ICANN more accountable, subjected its policy making process to parochial U.S. lobbying, and was insufficiently internationalized to be anything but a provocation to the Internet community outside the U.S.
While acknowledging this effort to move forward, we believe that there are serious design flaws in the approach taken. More fundamentally, we are surprised by the approach to accountability that seems to underlie the AoC. What ICANN needs, and has always needed, is to adhere to basic liberal-democratic norms about rule by law, not rule by men. As we have stated time and again, ICANN’s accountability problems derive not from a lack of “oversight” by specific people or stakeholders, but from a lack of membership and globally applicable rules that define the parameters within which ICANN must operate – and from the lack of procedural mechanisms to enforce such constraints. Any oversight panel must have specific, well-defined laws, rules or principles to use as a standard against which to judge ICANN’s performance. Those rules must be known to all participants and relied upon by all as the basic rules of the game. If those rules don’t exist (and they still don’t), a “review panel” can become just another layer of politics and second-guessing superimposed upon an already messy and diffuse process.
With that preamble in mind, let’s review the substance of the Affirmation. The AoC establishes three-year review cycles in four areas of concern: 1) accountability-transparency-public interest; 2) security-stability-resiliency; 3) competition-consumer trust-consumer choice; and 4) Whois (which is grouped under the consumer trust heading but has its own review process). These reviews are conducted by panels appointed by agreement of the Chair of ICANN’s Governmental Advisory Committee (GAC) and the ICANN Board Chair or President. The review teams develop nonbinding recommendations, and the Board must act on these recommendations within 6 months. Each review panel must include the Chair of the Governmental Advisory Committee, the ICANN Board chair or President, and representatives of ICANN’s Supporting Organizations and Advisory Committees. They can also include a sprinkling of independent experts.
Note well: the concept of “freedom of expression” is not included as a relevant concern in any of these Commitments. Sadly, the Commerce Department has maintained its longstanding indifference to basic civil liberties concerns, and we fault the new AoC on this basis.
At any rate, these review panels are selected by two people at the top of the decision making chain in ICANN. The appointment of these panels is (thank God) subject to a public comment process. But aside from that the panels are selected by the very people who are responsible for what ICANN does; moreover, the people selected as reviewers will be representative of ICANN’s existing policy making organs. In other words, the people who are being reviewed select the reviewers, from among the ICANN subunits already responsible for making policies. And because of that, any review panel is likely to reproduce the politics of ICANN at any given moment. It might have been better to work within the UN Internet Governance Forum to conduct this kind of a soft review, as we suggested last year.
If the selection process was neutral and impartial, and if the review process was confined to issues of Accountability, Transparency and the Public Interest, this would not be so bad. The ICANN bylaws and basic norms of good governance provide applicable criteria to be applied in the review. Indeed, it is good to see the AoC charge the Accountability review panel with “an ongoing evaluation of Board performance, the Board selection process, the extent to which Board composition meets ICANN's present and future needs, and the consideration of an appeal mechanism for Board decisions.” We like the idea of “assessing the role and effectiveness of the GAC,” and, given the ICANN staff’s propensity to become partisans in policy debates and to ignore public comment it does not like, it is nice that the Accountability review panel is charged to ensure that ICANN provides “adequate explanation of decisions taken and the rationale thereof.”
But the other three areas constitute policy domains. That is, they pertain to ICANN’s outputs rather than its process. It is not clear what function these “reviews” of policy outputs serve. Are they intended to allow review panels to second-guess the policies made by ICANN? Or are they intended to make judgments about the process followed in the making of its policies? Or are they intended to assess the degree to which ICANN’s policies serve the specified objectives? Whatever the intent, we see a real danger that these top-down review panels could become substitutes or short-circuits for the bottom-up policy making process that is supposed to be conducted by the Supporting Organizations. And since the reviews are all conducted by ICANN insiders, it is not clear what new perspectives will be added or what real checks and balances will be put into place by such a process.
Another problem here is that the AoC attempts to hardwire into ICANN’s future a narrow policy favored by the U.S. government and a few special interest groups. The fourth area of review, Whois, simply doesn’t belong in this document. Its presence constitutes an embarrassingly obvious concession to trademark lobbyists. Most people can agree that security, stability and resiliency constitute important objectives that policies should uphold. Likewise for competition, consumer trust and consumer choice. But Whois is, at best, a means to either of those ends; it is a specific policy approach to handling identification and user directories which may or may not be the best way to achieve those basic policy objectives and which may or may not be compatible with other objectives such as privacy and free expression. The idea that one of ICANN’s basic governing documents instructs it to “include[e] registrant, technical, billing, and administrative contact information” is a disappointing reminder of the lobbying game that underpins U.S. involvement. Which leads to the interesting question of how the Affirmation itself might be amended or changed...
However, to look on the optimistic side, the Affirmation can be considered a set of guidelines that leaves practical implementation to the community of participants in ICANN. During the implementation process, it should be possible for some of the concerns we have expressed above to be addressed, and perhaps improved. We look forward to further discussion of this at the upcoming Seoul meeting.
