[discuss] ICANN accountability and Internet Governance Principles

Mon Mar 24 22:53:00 UTC 2014

David - 

I’m afraid this requires some pushback.

The major underlying point of your proposal is that we continue using the global IANA function as a hostage to a variety of other policy objectives in the IG space.  For reasons recited previously on this list, that is a bad idea.  IANA is doing a good and necessary job, despite the contract for its services in favor of the USG, not because of the contract.  It deserves to be left alone to do that job. 

I agree with your point about domain name users looking to national consumer protection authorities for relief, but that doesn’t entirely deal with business practices between and among registries and registrars, which are governed by contracts with ICANN.  Milton, if I read him correctly, views that as primarily a matter of maintaining a level playing field for competition in the delivery of such services.  Since there are all kinds of civil and criminal remedies, in multiple legal jurisdictions,  for unlawful behavior by the parties to those contracts, there is a question as to the magnitude of IG based “accountability” protections to be loaded on top of what already exists.  Some on this list have essentially taken the position that current law is simply an instrument of American economic imperialism.  That is an interesting point of view, but irrelevant to what we are about.  Future arrangements for MS will be governed, or not, by the law as it stands today.  Arguments over ICANN are not going to be the straw that breaks the back of imperialism.

You would be the first to acknowledge that “standards” don’t mean much without some enforcement mechanism.  Even mechanisms that invoke “routing around.”   In the current dialog about broadening MS to enhance ICANN accountability, there isn’t going to be any binding legal basis, because there isn’t any global MS law holding organizations accountable, except what might be invented in the way of a UN treaty, which no one seems to want. (I’m not mentioning trading corporate legal jurisdiction in California for some other locale, since that just starts the related arguments all over again.)

QED, any of the range of feasible solutions emerging from the current “consultation” will be voluntary agreements which may not even have the force of contract law due to the complexity (and acceptability) of jurisdictional issues. 

There are multiple ironies in the fact that as we go forward, the landscape for accountable policy making within the boundaries of the ICANN DNS mission, from the point of view of lawyers,  doesn’t look much better than it does currently.   At least now, you can go to court in California and sue the Board for not following its own policies, which the dot-xxx folks did successfully a while back. Or whine and complain to NTIA, which isn’t popular either.

- Mike

On Mar 24, 2014, at 1:42 PM, DAVID JOHNSON <davidr.johnson at verizon.net> wrote:

> The ICANN community could have a disproportionate and positive impact on NetMundial if it could come together around three principles that relate both to ICANN accountability and to the means by which what Bertrand would call "governance on the net" (governance of online behaviors) should proceed. To wit:
> 
> 1. Mandatory adhesion flow down contacts, imposing global rules on registrants and end users, must be subject to and supported by a consensus among all affected parties. (The imposition of rules by ICANN staff on new gTLD registries, in the absence of consensus, should be recognized as an abuse of the IANA function -- using the power over the root zone to impose top down rules.)
> 
> 2. Global rules must be applied globally. (After the US relinquishes its role, the Multi-Stakeholder model, as applied to domain names by ICANN, would be incoherent unless all registries (including ccTLDs) agree to be bound by the global policies that ICANN makes.)
> 
> 3. Revocation of domain names should not be used to enforce global rules that regulate content or prohibit behaviors that do not threaten the operation of the DNS itself. (ICANN may need to consider the global public interest, but it is not itself a consumer protection agency, a police force, an anti-trust enforcer, or a general purpose internet governance body.)
> 
> These principles relate to ICANN accountability because they should be part of the standards to which ICANN should be held accountable. They relate to Internet Governance, writ large, because they would clearly tell the broader world what ICANN, as an institution, can and cannot do to solve the problems they are trying to solve.
> 
> See: http://www.europeaninstitute.org/EA-March-2014/perspectives-us-plans-to-divest-control-over-internets-icann-dilemma-for-some-european-registries.html
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