Three key issues for ICANN's Accountability Working Group

In a separate post I’ve set out an update of what is at stake in the debate about the IANA stewardship transition and the ICANN accountability discussion. 

This post looks at three key topics that come up in the accountability debate, and our stance on them. I've participated in this working group since it was formed in December last year, so I do feel some attachment to its work. It's meeting face to face at the end of this week.

 

How strong do the accountability mechanisms need to be?

With today’s reality of a regularly-reviewed contract between the United States and ICANN for the provision of the IANA functions, there’s a strong (legally enforceable) accountability link between ICANN and “the rest of the world”. That contract is going away. The Accountability group’s proposal (.pdf) in May set out a range of powers, and a model for making them enforceable. Feedback from the ICANN community teased out a range of concerns with the model, which was duly ditched at the June meeting of the ICANN community. Work is going on now on a range of models that deliver varying levels of strength to the tools the community will get.

Some participants in the debate have a firm preference for powers that can, in the end and if required, be enforced in a court of law. They see the formal sharing of authority beyond the ICANN Board and into the various components of the Internet community as essential. Some participants, in contrast, believe that such an approach risks constant litigation, a sort of Judge Judy time race to court every time someone doesn’t get their way – and in turn threatens to undermine the consensus-based, bottom up model of governance that ICANN at its best embodies.

Our preference is more on the enforceable end of the spectrum. Our own experience in managing the .nz TLD through a web of contracts and agreements, and the stewardship body (InternetNZ Inc) being very firmly accountable to its members in reality and in law, works well. Clear rules and clear lines of accountability don’t encourage disputes – muddle or “hoping for the best” does. Our experience also shows that such an accountability system is perfectly compatible with multistakeholder policy and decision-making. 

Exactly how this works out is yet to be seen. The Accountability group’s initial proposal delivered it; we’ll be doing our best to help make sure the second proposal does too, insofar as a consensus can be reached about this.

 

What is the right role for governments?

Governments as a group participate in the ICANN system through the “GAC” – the Governmental Advisory Committee. It’s a forum where states come to consensus on public policy advise they want to give to ICANN on the topics ICANN deals with.

That advisory role is powerful, and the ICANN Board is obliged by its bylaws to pay due deference to the advice of governments. It doesn’t have to agree with or follow the advice, but if it decides not to it has to discuss the topic involved with the GAC and try to come to a mutually agreeable solution.

In its May proposal to enhance ICANN accountability, the working group set out a number of proposed powers for the community (e.g. the ability to stop ICANN changing its bylaws without community agreement, or the right to force a proposed strategic or business plan back for further consideration). That proposal also contemplated governments through the GAC having a direct say so on whether such powers should be exercised.

Recent discussions have highlighted very diverse views about whether governments joining in the operation of those powers is a good idea. Since GAC operates by consensus, how could it decide to distribute votes on using or not using the powers? And would moving beyond its current advisory role strengthen or weaken the GAC?

These questions are discussed in a fascinating array of input from governments that are GAC members available here (.pdf).

Our view is that the current advisory role works well, but that GAC itself needs to have this discussion. We don’t see a need for any additional roles or powers for governments in the DNS or in ICANN as an institution – the advisory role is a powerful one and feels about right. The discussions of GAC members and the wider community on this point over the next few months will be interesting for sure.

 

What is essential to get done in improving ICANN’s accountability before the IANA stewardship transition?

When it set up its work, the accountability working group pushed a lot of accountability improvements off into the future. Jurisdiction, reform of Board selection, process improvements for Budget planning, enhancements to the Ombudsman's role....

It sensibly restricted its current work to those issues that had to be dealt with before the IANA stewardship transition could happen.

What issues were those? Well, there are some accountability improvements that are directly related to the mechanics of the transition. The Names community proposal for how to do the transition has some dependencies the accountability group has to deliver to.

More broadly, with the end of the IANA functions contract, there is a need to build a robust accountability settlement that suits the post-contract environment, and that reliably embeds accountability into ICANN’s DNA. So there are some measures and powers that are seen as foundational or almost constitutional, in making sure that accountability tracks better post-transition, rather than something else happening.

A final point about issue selection - a huge array of stress-tests on the accoutability situation in ICANN were conducted as part of the group's work. The package of measures was designed in part to head off the problems those stress tests identified.

All the items that we proposed to the community back in May fit into this category. It was the minimum plausible set of changes to deliver to the objectives I've set out above.

The package overall received strong endorsement in the public comments received and in community discussion in Buenos Aires last month. The reason for that seems clear to me: it’s a workable, internally coherent package of changes that can give the community confidence that accountability is on a firm foundation now and for the future.

Yet in recent weeks, at and following the ICANN meeting in June, there have been some murmurings by various parts of the community. Questions about whether the package is too complex. People wondering whether it might be better to shelve some of the reforms since they are too hard, or there will be trouble implementing them.

I haven’t yet seen any arguments that suggest deferral of any parts of the package of reforms is necessary or wise. From when the package is signed off – hopefully in October – there is ample time to prepare the necessary changes to ICANN’s bylaws, whether it’s for part or all of the package we proposed in May and will seek public comment on a new and improved version of in August. Nothing would speed up with stripping out important elements of the package.

More importantly, I go back to coherence. The accountability proposal focuses on improved independent review and redress mechanisms, new powers for the community to hold ICANN to account for its actions or inactions, a sharing of authority for some key decisions more broadly than the ICANN Board, and the incorporation of important accountability and transparency reviews into the bylaws.

Picking off any part of the package weakens the whole of it, and could have unintended consequences. The keystones of this settlement are now well-considered, and the second public comment report the group published in a few weeks will show how the thoughtful and extensive comments from the ICANN community responding to the first version have improved and updated the proposal.

InternetNZ’s view is simple: a coherent, workable package of accountability measures is vital to enabling the IANA stewardship transition to proceed. Like everyone else, we want them to be as simple, as clean and as efficient as possible. We also share the view that the implementation of this package of changes should – and can – be done in a manner that doesn’t change the nature of ICANN’s multistakeholder process.

The accountability group is meeting at the end of this week. These issues along with others will be on the table. It’s a significant meeting, as I set out in my other post It’s a chance to make ICANN fit for the future.

I hope the group seizes that chance with both hands.

I’ll write with a what-happened update at the start of next week.

Jordan