Below is a point-by-point response by ICANN Chair Steve Crocker to “Internet governance in transition: What’s the destination?” published in The Hill. The opinion piece was authored TPI President Thomas Lenard and Larry White, Professor of Economics at NYU’s Stern School of Business.[Original text is in italics. Crocker’s responses are in black and prefixed with “SDC:”.]
In the 16 years of its existence, ICANN has taken seriously its responsibilities. The Internet has flourished and ICANN has made no major missteps. However, the loss of external accountability that is implied by the proposed transition represents a major crossroads. It cannot be assumed that the system will work as well once the U.S. gives up its role.
SDC: I appreciate the acknowledgement that we’ve done a good job over 16 years, but why is it your premise that the system will not work as well once the U.S. gives up its role? Why is it not equally valid to assume it will? Actually, neither of these affords the right level of discussion. What role has the Department of Commerce actually played in the IANA process? What will be different when it steps away from the process? The key fact in all of this is that the Department of Commerce is stepping away precisely because we are a solid, stable organization and they are not adding any value to the overall process.
Moreover, the diminished U.S. role will create a void that other governments are anxious to fill. After all, international pressure – exacerbated by the Snowden NSA revelations, even though they have nothing to do with ICANN – is a major reason that the U.S. is giving up its role. Although the Department of Commerce has stated that it will not accept a transition plan that replaces the department’s role with “a government led or intergovernmental solution,” once the cord is cut, U.S. influence will be limited.
With the decision to transition away from U.S. control, addressing ICANN’s longstanding accountability and “legitimacy” issues becomes even more pressing.
SDC: You’re making an assertion that ICANN has had long-standing accountability and legitimacy issues. Is this because various people insist on saying so, or is there a more solid foundation for this assertion?
If ICANN is not accountable to the U.S. government or to other governments, to whom will it be accountable? Although ICANN has established a number of accountability procedures, they largely reflect internal policies, which can be changed internally. The Internet Corporation for Assigned Names and Numbers places a great deal of emphasis on obtaining input from the Internet “community,” but in the end, it is ICANN’s board that makes the decisions. That board has no external entities to which it is accountable.
SDC: There’s been an enormous amount of work put into the construction and operation of ICANN, precisely to provide a workable basis for transparency and accountability without the encumbrances of government or U.N. control. Policies are made by the Supporting Organizations. The Board oversees the processes and ensures that management and staff are carrying out their duties. The Board has fiduciary responsibility and duty of care, but it is not the Board’s job to make the key decisions. This is a vital point and often a point of confusion. At least part of the confusion comes from the observation that the Board includes quite a few subject matter experts. Nonetheless, we stay out of the subject matter decisions.
Meaningful accountability requires meaningful external checks, and virtually all major organizations are structured so as to be externally accountable. For example, corporations are accountable to their customers, who can go elsewhere, as well as to their shareholders who elect boards of directors, who in turn can replace management if the company is not performing. Nonprofits are accountable to their members and donors and, when applicable, customers. The Internet Corporation for Assigned Names and Numbers has no shareholders, members, or donors. Its customers cannot go elsewhere, because ICANN has a monopoly on generic Top Level Domains (gTLDs), which provides it with an assured and rapidly growing source of revenue.
SDC: We have 16 voting members of the Board, the CEO and fifteen others. The fifteen are chosen by two different mechanisms. A “Nominations Committee” (NomCom) which I put in quotes because it’s really a selection committee, not just a nominations committee, chooses 8 of the 15. The other 7 are chosen by the three Supporting Organizations, i.e. the GNSO, the ccNSO and the ASO, and by the At-Large Advisory Committee (ALAC). Voting Board members serve three-year terms, and those terms can be renewed for a maximum of three terms. The NomCom is assembled afresh each year with representatives from the full range of stakeholders. All of this seems to me to be a good approximation of precisely what you’re suggesting (as if it didn’t already exist), specifically that Board members be appointed by the stakeholders. However, and this is a very big however, it is vital that Board not be controlled by the relatively narrow set of businesses that are beholden to ICANN for their operation. We serve the entire Internet community, not just the registries, registrars and regional address registries. If we did, we would merely be a trade association, and we would be focused on how to increase the revenues of our members, which quite possibly might occur at the expense of preserving the security and stability of the portion of the Internet infrastructure we oversee.
With respect to the last point about an assured and rapidly growing source of revenue, our revenues have indeed grown over the past few years because we launched the New gTLD Program, but the future forecasts are relatively level and we worry about possible fluctuations in revenue just like any other organization does.
The most direct way for ICANN to be externally accountable is to modify its governance structure so that board members, or at least a significant number of them, are accountable to external groups.
Our research shows that many organizations with coordination functions that are similar to ICANN’s are governed by their direct users, who have a strong interest in the organization doing its job effectively. The direct users of ICANN include:
• “Registries,” which are companies that coordinate gTLDs, such as .com, .edu and .org;
• “Registrars,” which register the second-level domain names that we all use, such as aol.com; and
• Regional Internet Registries (RIRs), which are responsible for distributing numeric Internet Protocol (IP) addresses that are needed for the Internet to work.
As a starting point to enhancing external accountability, there should be increased representation of these groups on the ICANN board. These groups have a strong incentive and the ability to see that the DNS works smoothly and apolitically and that ICANN focuses on the technical functions that are involved in administering the DNS, avoids mission creep, and addresses problems affecting the DNS (such as trademark issues) as they arise. This benefits all users.
SDC: Actually, the first and foremost goal of most registries and registrars is to make money, and they do that by selling domain names. The proper functioning the DNS is important, but they sometimes do not have the same level of concern for either the individual users or the overall health of the system that is central to ICANN’s mission and operation.
A modified board structure might also allow for representation by other constituencies. However, given the longstanding goal that Internet governance should be private, we do not envision formal ties between governments and ICANN; seats on ICANN’s board should not be allotted to representatives of governments. Although U.S. oversight of ICANN has been quite light-handed, we fear that formal governmental representation on ICANN’s board could lead to an unfortunate politicization of ICANN’s actions – to the detriment of the openness and flexibility of the Internet.
SDC: Excluding governments would be an over-correction, taking us too far in the other direction. Governments have a legitimate interest in the Internet infrastructure. It’s important for them to be involved. Involved but not in total control. In other words they should have a voice, but they shouldn’t be the only voice.
The Internet Corporation for Assigned Names and Numbers has functioned reasonably well, but we cannot assume that an organization that is essentially accountable to itself, with no meaningful external controls, will continue to do so indefinitely. Indeed, the vacuum of no meaningful external accountability is likely to be seen as an invitation – perhaps even a mandate – for governments to assert that role, with the negative consequences to follow.
SDC: The assertion that we’re accountable only to ourselves with no meaningful external controls is unfounded and simply wrong.
In sum, as part of this transition, the issue of ICANN external accountability urgently needs to be addressed. We believe that our suggested system of accountability to ICANN’s direct users would be the best way to move to the next phase of Internet governance.
SDC: We agree accountability is fundamental. We examine accountability continuously, and this is certainly an appropriate time to look closely at how we’re structured and how we work. I don’t doubt there can be improvements, but they can only come with a solid understanding of how we are structured, why we’re structured as we are, and what incremental improvements in structure would make meaningful improvements in accountability, transparency, effectiveness and efficiency.
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