[discuss] ICANN accountability and Internet Governance Principles

Shatan, Gregory S. GShatan at ReedSmith.com
Tue Apr 1 17:07:23 UTC 2014

I think the symbolic function is not so symbolic.  It's not as concrete as NTIA's role as "approver" in the IANA workflow, but it is real nonetheless.  Whether you call it the "stewardship" role, indirect oversight over ICANN-other-than-IANA, or something else, it is the sense that the NTIA had the power to do something (through both the IANA Contract and the AoC) if things went dangerously awry at ICANN.  This was clearly demonstrated when the NTIA gave only a short-term extension to the IANA Contract not so long ago.

My gut instinct is that this "stewardship" role should be replaced in the IANA transition, not merely NTIA's role as "approver."  I don't believe that some new body needs to be created and then imbued with great power.  That is both unnecessary and dangerous.  Rather, we need to feel assured that the new oversight process/mechanism will provide a similar level of accountability and "checks and balances" that the NTIA relationship brings now.

I don't think Milton and Brendan's proposal really does any of these things.  First, it is "out of scope" in my opinion, because it transitions the IANA function out of IANA-within-ICANN, into the hands of the DNSA.  I think it's fair to say that the NTIA envisioned keeping IANA within ICANN.  Second, the DNSA would not provide any kind of oversight over ICANN (nor should it, since it's basically the Registry Stakeholder Group, the ccNSO, and those who could (but haven't) joined those groups).  Third, it is not multistakeholder (it's really single-stakeholder, since it's only registries, and their differences pale beside their commonalities vs. the non-registry world).  Fourth, it doesn't provide for effective oversight over the DNSA, including the IANA function (the "problem" we are actually trying to "solve").

There are ironies here.  First, the IANA function is probably one of the best functioning aspects of Internet governance/administration.  Second, most people don't fully grasp what the IANA functions are (I'm getting there), and to whom IANA-within-ICANN is already accountable to by dint of performing those functions (e.g., accountability to the RIRs, to give one example).  Third, most people don't really know what the NTIA actually _does_ when it oversees the IANA function.  Fourth, most people (myself included) are actually thinking much more about replacing the symbol/steward/indirect role than the direct role (in part because of the second and third points above, and in part because the direct oversight over the IANA function just doesn't seem that complicated or critical (which may be accurate or may be a result of failure to grasp the job)).

Greg Shatan

-----Original Message-----
From: discuss-bounces at 1net.org [mailto:discuss-bounces at 1net.org] On Behalf Of "Kleinwächter, Wolfgang"
Sent: Tuesday, April 01, 2014 11:45 AM
To: Jeanette Hofmann; Mike Roberts; discuss at 1net.org
Subject: Re: [discuss] ICANN accountability and Internet Governance Principles

Is there a need to substitute a symbolic funtion? Just delete it and you avoid "symbolic" battles and arm-twisting.



Von: discuss-bounces at 1net.org im Auftrag von Jeanette Hofmann
Gesendet: Di 01.04.2014 17:39
An: Mike Roberts; discuss at 1net.org
Betreff: Re: [discuss] ICANN accountability and Internet Governance Principles


don't you think that the existing ICANN structure will have lost an important element when the transition is completed and the NTIA as contracting partner is gone? Larry Strickling seems to have mentioned two roles, the clerical and the symbolic one. I wonder about the substitute of the latter.


Am 01.04.2014 17:26, schrieb Mike Roberts:
> Thank you, Jeannette, for your insightful note.
> It is disingenuous to suggest, even if Larry Strickling said it, that
> NTIA has only a "clerical" role in IANA affairs.  A contract is a
> contract, and IANA/ICANN works for NTIA on this matter.
> The more important issue is whether an IANA contract, with anyone, is
> needed go ensure faithful performance of its assigned duties.
> I, and a number of others, say no.  Accountability concerns are more
> than adequately dealt with by the existing ICANN structure and the
> long standing network of trust relationships that have developed over
> the years around the global functioning of the root servers.
> It was proposed some weeks ago on the list that proponents of a
> "better" solution needed to demonstrate something superior to what we
> have.
> We are still waiting.
> - Mike
> On Apr 1, 2014, at 7:13 AM, Jeanette Hofmann <jeanette at wzb.eu>
> wrote:
>> 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?
>> Jeanette
>> 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-pla
>>>>> ns-to-divest-control-over-internets-icann-dilemma-for-some-europea
>>>>> n-registries.html
>>>>> discuss mailing list discuss at 1net.org
>>>>> http://1net-mail.1net.org/mailman/listinfo/discuss
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