New Internet Governance Principles Highlight Concerns over ICANN Accountability
Twelve principles (http://bit.ly/1l7SD1P) for the governance of “Internet unique identifiers” in response to NTIA’s plan to transition Internet Assigned Numbers Authority (IANA) to ICANN and its global multistakeholder body received strong support from Internet governance stakeholders worried about maintaining ICANN’s accountability in the absence of NTIA, said stakeholders in interviews Monday. But Milton Mueller, Syracuse University information studies professor, criticized the document’s attempt to separate policy and technical functions within ICANN. The importance of the principles, released Monday by the Information Technology and Innovation Foundation, for the Internet governance debate prompted ITIF to publicize (http://bit.ly/1rwP60P) the document, but the organizations involved in drafting the document haven’t yet decided to go public, said an ITIF spokesman. ITIF wasn’t involved in the drafting process, he said.
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The IANA transition has led to a “constitutional moment for the Internet,” as stakeholders seek to ensure the success of “global institutions” serving the interests of innumerable groups and governments, said Daniel Castro, ITIF senior analyst. Many of the principles already have broad consensus among ICANN stakeholders, but the document aims to achieve agreement on how those principles are implemented within ICANN’s legal framework, he said.
"Most of the principles are sensible on the surface,” said Mueller, one of three ICANN Generic Names Supporting Organization (GNSO) members on the IANA-related Coordination Group (CD July 23 p11; July 8 p6; June 27 p7; June 24 p7). The third principle, which calls for a “clear separation of policy, implementation and dispute resolution, is key,” he said. That the document calls for a “purely functional separation rather than structural separation” is a “problem,” he said. “The principles as stated fail to square the circle of how to keep policy and implementation properly separated and accountable while keeping them all inside ICANN,” he said. So the fifth principle is “incoherent,” said Mueller. “It calls for two distinct boards of ICANN -- this sounds like structural separation, not functional separation!” Then “it asks the technical implementation side of the house to make policy recommendations, which seems to subvert the separation principle,” he said. “Other than the confusion on that core issue, the principles are all pretty good.”
The document won’t be “adopted word for word by anyone,” but “these are principles, they're not bylaws,” said Castro. The “next step” is determining how the principles “can be worked into ICANN’s charter,” he said: Such “fine tuning is really necessary.” There needs to be a “legal body” that establishes “limits” to hold ICANN accountable to its charter and bylaws, he said. The 10th principle limiting ICANN’s budget and revenue to its “specific responsibilities,” provided ICANN’s supporting organizations, advisory committee, and registrars and registries that pay fees to ICANN don’t see a need to change its budgetary constraints, is “critical,” said Castro. The 10th principle “really gets to the heart of whether ICANN is going to be a narrowly focused organization” or if it expands into a “global institution” that “possibly” extracts money from businesses “without a lot of accountability,” he said.
The fifth principle, that ICANN should remain a nonprofit operating under California law, would keep ICANN beholden to the U.S. Constitution, said Executive Director Katie McAuliffe of the Americans Tax Reform (ATR) Digital Liberty project: Letting ICANN operate outside U.S. law is something “a lot of people are worried about.” The sixth principle, which bars ICANN’s CEO or a member of its board from being an official of government or a “government-controlled organization” and relegates ICANN’s dealings with governments primarily to unique identifiers, “brings the focus to [ICANN’s] being the white pages of the Internet and not something else,” she said. McAuliffe wasn’t sure whether the principles limiting ICANN’s budget and fee avenues would necessarily keep it from being an “extortionist” body, a claim ATR has previously argued (CD May 8 p13).
"The Principles embraced by the ITIF” are “consistent with the unanimous call of all GNSO constituencies” at the June ICANN 50 conference in London for the “creation of an independent and meaningful accountability mechanism and structure as part of the IANA functions transition,” (CD June 30 p10) emailed Phil Corwin, founding principal of e-commerce and intellectual property law consultancy Virtualaw. “These principles build on that call by advocating separation of ICANN’s dispute resolution, policy making, and implementation functions.” The principles are “also consistent with the conditions laid out by the NTIA [http://1.usa.gov/1d33FkM], and in particular with the support and enhancement of the multistakeholder model of internet governance,” said Corwin. The principles stand for “enhanced transparency and enhanced accountability,” said Paul Rosenzweig, Heritage Foundation visiting fellow. “That’s the hallmark of what will make a successful transition.”