[discuss] ICANN accountability and Internet Governance Principles

Jeanette Hofmann jeanette at wzb.eu
Thu Apr 3 07:24:56 UTC 2014

Now, this scenario I find surprising. At front stage we perform
multistakeholder while at back stage we keep oversight in the form of G 
something or as unilateral authority?


Am 03.04.14 04:58, schrieb Mike Roberts:
> Milton - you are absolutely correct.  But an important related
> question is whether that really changes with expiration of the IANA
> contract.
> Big power is still big power.  And big power makes the rules as it
> goes along.   The US/EU 199x promises to Ukraine didn’t make much
> difference when push came to shove.
> One not-very-encouraging principle for the new IANA arrangements
> might be: “Operate sufficiently under the radar of the G7 (8?) that
> you don’t attract the kind of attention that screws things up.”
> - Mike
> On Apr 3, 2014, at 10:44 AM, Milton L Mueller <mueller at syr.edu>
> wrote:
>> -----Original Message-----
>>> Is there a need to substitute a symbolic funtion? Just delete it
>>> and you avoid "symbolic" battles and arm-twisting.
>>> Wolfgang
>> The function is not symbolic. Those who have real power constrain
>> and shape action without having to do anything most of the time.
>> The mere fact that the NTIA could take the contract away (and it
>> has threatened to do so visibly at least once in the past 3 years,
>> and threatened to not enter an ICANN-authorized TLD into the root
>> once in 2005) is enough to constrain actors.
>> The "confidence" allegedly instilled by the USG role means that if
>> things go badly awry - from the standpoint of the American polity
>> and a few other closely allied polities - the US can yank control
>> of the DNS root back. That power is not symbolic. That is real.
>> --MM ________________________________
>> 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
>> 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-pla
>>>>>>> n-registries.html
>> _______________________________________________
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