[discuss] ICANN accountability and Internet Governance Principles

Wed Apr 2 09:01:58 UTC 2014

I would suggest the notion of checks and balances instead of
constitutional court.  (Gregory has also had reference to that term in
his note.)  Instead of a court or symbolism, I would say if we're not
thinking in terms of checks and balances and rights in a way that will
be real, we should be.  The notion of the symbolic role seems to me to
be about the question of how to coalesce into something that actually
works, moreso than the symbolic function that an agency (NTIA) rooted
in a "culture of free expression" (to use Jimmy Wales' current meme)
will represent while it awaits something to hand IANA over to.

We're looking at a transition from a system that kind of worked -- not
actually because there was enforcement of policy, or the possibility
of NTIA action if things fell apart, but because there was a need to
make diversity work together, technically, and we had a "culture of
free expression" (to use Jimmy Wales' current meme) to do that within,
without governmental or inter-governmental intrusion (what the NTIA
stipulates) -- to a system for which we seem to be reaching for a way
to have things function effectively internationally in the context of
some sort of new framework that's presently being called "governance"
or "enhanced cooperation."

In the press of future developments, in a context where you've "broken
the sovereign link" as Jordan puts it, where for instance efforts to
establish and apply policy will arise, I believe the realistic picture
looks at not only the core IANA functions and the basic integrity of
the overall network of networks more generally, but also the standing of
rights in the international arena. So a politically realistic system
that provides for those things to serve to keep things in shape.  I
don't think this is how the discussion is proceeding though I applaud
Jeanette,
Gregory and Jordan for considerations that step a bit toward this
question.

Seth

On Tue, Apr 1, 2014 at 11:39 AM, Jeanette Hofmann <jeanette at wzb.eu> wrote:
> Mike,
>
> 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.
>
> jeanette
>
> 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-plans-to-divest-control-over-internets-icann-dilemma-for-some-european-registries.html
>>>>>>
>>>>>>
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