EC Policy Documents Call for Greater Government Influence in ICANN Decisions

The documents promote an “online power grab,” wrote .Nxt CEO Kieran McCarthy, formerly ICANN general manager of public participation. The documents raise some good ideas, most of which have already been discussed, he said. But their “strident tone,” and apparent refusal to consider other views or to recognize work in progress “give cause for alarm,” he said.

The EC “has a long history of oscillating irregularly between an attempt to revert back to state-centered Internet governance institutions and a realization that the Internet demands something new,” said Internet Governance Project member Milton Mueller, a professor at Syracuse University. Digital Agenda Commissioner Neelie Kroes’s leadership in the Internet governance arena has been “regressive and unimaginative,” and focuses primarily on seeking “greater importance and hierarchical power for herself,” he said.

Governments are facing increasing complexity in many areas of ICANN policymaking as the DNS market grows more dynamic, the paper on the GAC said. If that committee is to continue to fulfill its role in the multistakeholder policymaking model, it must be more organized and productive, it said. But GAC members must first be convinced that their significant investment in time and money is justified and that ICANN is taking their advice seriously, it said. ICANN’s bylaws should ensure that consensus GAC advice “is accepted as reflecting the global public interest,” it said. ICANN should be allowed to ignore it only if it conflicts with its legal obligations or creates problems for DNS stability or security, it said. At the same time, the GAC’s current working methods “must be urgently reviewed” to ensure it can act quickly when advice is solicited, it said.

While much GAC advice on new gTLDs was accepted, several concerns were left hanging when the board finalized the program in June, the EC paper on new gTLD processes said. Public authorities must now be notified about applications and allowed to indicate which might raise policy concerns, it said. In parallel, a draft statement of work published by the U.S. government in relation to the upcoming renewal of the IANA contract suggests that the IANA contractor must show that a proposed domain string has consensus support from relevant stakeholders and is “supported by the global public interest,” the EC said.

Together, those provisions represent a potentially complex series of steps governments must face and present GAC members with the “unwelcome possibility” of having to determine the merits of “very politically sensitive or divisive issues” related to national identity, free speech, human rights and ethnic diversity, the EC said. But the GAC shouldn’t have to gauge the merits of any application that doesn’t already have a minimum level of support from the community the relevant TLD intends to serve, the EC said. In addition, government officials should be able to request the blocking of domain names at the second level, it said.

The treatment of country-code TLDs “has always been a sensitive political issue,” a third EC paper said. ICANN has been slow to deal with ccTLD delegation or redelegation requests and with registry requests for updates of information held in the authoritative root zone file, it said. Current rules concerning ccTLDs must be modified to ensure that IANA’s role is restricted to technical concerns about DNS stability and security, it said.

The EC seeks major changes to ICANN corporate governance and finances. It cited conflict of interest issues arising from the fact that ICANN directors can be employed by organizations with contracts with ICANN and which stand to gain financially from particular decisions. Possible conflicts of interest also apply to staff members whose salaries in recent years appear to be directly related to increases in ICANN revenue, “suggesting a de facto incentive for staff to favour policy options that maximise revenue growth, even when these may conflict with the broader public interest,” it said. ICANN needs clear rules about what constitutes a potential or actual conflict of interest that includes independent control mechanisms and penalties in cases of breach, it said.

The EC also pinged ICANN for the “exceptional rate” of its revenue growth at a time when its tasks largely stayed the same except for the work surrounding new gTLDs. It voiced concern that “there seems to be no effective governance mechanism in place to keep finances checked.” It recommended that ICANN follow the example of .eu registry EURid which, although an independent organization, has its finances reviewed by the EC.

The sixth paper, on applicable law, criticized ICANN for failing to respect its obligations under its articles of incorporation by ignoring advice from EU and U.S. antitrust authorities on cross-ownership of registries and registrars.

If the EC gets any degree of control over ICANN it might make alternate roots a viable option, said Avri Doria, who chairs the ICANN Non-Commercial Stakeholder Group’s executive committee. It’s time to “take the notion of government controlling the Internet off the table” and having multiple roots is one way of doing that, she said. The “silly ’there can only be one’ religion” prevalent in ICANN creates one of the last single points of control officials can get their hands on, and they are not going to stop until it’s no longer the only one, she said.