[discuss] ICANN accountability and Internet Governance Principles

Jeanette Hofmann jeanette at wzb.eu
Tue Apr 1 14:13:05 UTC 2014

Hi all,

I would like to get get back to this thread and raise a few questions.

1. From what I understand the USG regards its role regarding IANA as 
merely clerical but acknowledges that "sitting in the middle" has had as 
well a symbolic function since it provides a sense of confidence. What 
does this mean with regard to the actual tasks to be transferred and the 
related accountability provisions? In other words, do both the clerical 
and the symbolic role need a new institutional home?

2. Does Milton and Brenden's proposal take both the clerical and the 
symbolic dimension into account by creating a new body for the clerical 
function and and enormous oversight body consisting of all TLD 
registries and root server operators to accommodate the symbolic function?

3. David Johnson suggests that the new DNSA could condition its clerical 
role on ICANN's assertion that it won't use its policy authority to 
regulate content. However, if the DNSA has the right to resist 
performing IANA functions because it suspects mission creep or that 
ICANN abuses its policy authority or goes rogue or whatever, is it still 
adequate to describe its role as purely clerical? My impression is that 
the suggested separation between the policy process and the IANA 
function is not well described as policy versus clerical. What Milton, 
Brenden and David seem to have in mind is more than a clerical entity; 
something that could rather be compared to a constitutional court (too 
grand a term, I know!) authorized to check if a proposed policy is 
within the scope of ICANN's mission.

4. I ask myself if we are dealing with more than one accountability 
issue: 1. the clerical check to ensure that all conditions are met for 
modifying the root zone file, 2. the supervisory check to ensure that 
ICANN doesn't abuse its policy authority, 3. the review of ICANN's 
internal governance processes and structures. If there are indeed 
various accountability issues, should they perhaps be discussed separately?


Am 25.03.2014 01:12, schrieb David Johnson:
> Mike --
> I am not sure I fully understand your point.
> I quite agree that the functional/clerical part of iana seems to be working fine.
> But the ability of icann to condition entry into the root zone on a contract that it writes, without any consensus support, that flows down on registries and registrars and registrants an obligation not to violate "any applicable law", on potential pain of domain name suspension, is definitely broken.
> I have in mind specifically specification 11 of the new gTLD contracts.
> This did not come from iana, I'm sure.  Probably from icann counsel under pressure from gac and others.
> Bottom line: take the contracts seriously and use them to turn away forces that would ultimately destroy icann by trying to make it do more than it was designed to do.
> Icann has to "tie itself to the mast" to avoid the siren call of internet governance.
> That would allow iana to be left alone to continue doing a good job.
> I think we actually agree on the goal.
> Drj
> Sent from my iPad
>> On Mar 24, 2014, at 6:53 PM, Mike Roberts <mmr at darwin.ptvy.ca.us> wrote:
>> 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 o
ver 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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