Dyn comments on CCWG-Accountability proposal

[Adam Coughlin <acoughlin@xxxxxxx>]

Hello,

Please find below an official comment from Dyn on the CCWG-Accountability
proposal.

Any questions, please do not hesitate to contact me.

Thank you for this opportunity.

Adam

Dyn appreciates the opportunity to comment on the Internet Corporation for
Assigned Names and Numbers (ICANN) Cross-Community Working Group on
Enhancing ICANN Accountability (CCWG-Accountability, henceforth “CCWG”)
second Draft Report (henceforth, “the report”).  Dyn thanks the CCWG and
its participants for its enormous work to date, and for its important
contribution to the issue of ICANN accountability.

Dyn appreciates that this round of effort is to have been, to a large
extent, driven by the needs of the possible transition of the Internet
Assigned Numbers Authority (IANA) stewardship transition away from the
United States Government (under the terms of an agreement with the National
Telecommunications and Information Administration, or NTIA).  Dyn is, in
general, supportive of that transition, and believes it should happen.  Dyn
also understands that the draft is supposed to contain the minimum
accountability changes necessary to achieve the goals of that transition.
That is why the IANA Transition Coordination Group’s transition proposal is
dependent on the report.  Because of that dependency, Dyn has some
reservations about the report, and believes it could use significant
enhancement.  Therefore, Dyn provides the following answers to the
questions asked by the CCWG:

Do you agree that the CCWG-Accountability proposal enhances ICANN's
accountability?  No, Dyn does not.  Details below.

Are there elements of this proposal that would prevent you from approving
it transmission to Chartering Organizations?  Yes, there are.  Details
below.

Does this proposal meet the requirements set forward by the CWG-Stewardship?
 It appears to, but in doing so it destabilizes the system that has been
operating for about 15 years.  Details below.

It is not possible to construct an accountability and enforcement system
that cannot be attacked or (worse) taken over by sufficiently interested
parties.  The remedy for that risk has ever been, and remains, sufficient
participation by a broad base of interested parties such that taking over
the system is too hard to do discreetly, and too brazen to do in public.
That remedy is what the multi-stakeholder approach to governance is all
about.  Dyn is sorry to conclude that the report’s recommendations are not,
in Dyn’s opinion, adequately supportive of that multi-stakeholder
approach.  In theory, the report is supportive exactly as one would like.
In practice, however, it narrows the base of participation in unacceptable
ways.

The biggest problem, in Dyn’s assessment, is the Community Mechanism as
Sole Member Model (henceforth, “the sole-member model”).  There is much to
be admired in this proposal.  The sole-member model nicely evades the
problem of incorporating all the various stakeholder groups of the ICANN
community under California (or any other national or state) law.  At the
same time, it delivers the many benefits of membership-type public benefit
corporations under California law.  The benefit of this approach is not
something Dyn criticises lightly.

Yet, the approach does not solve the underlying problem.  Organizations and
groups that could not see their way to becoming legal persons under
California law cannot realistically, either, be unincorporated associations
subject to the same law.  The problem is not merely the mechanism of
recognition; it is instead the very legitimacy of some state or national
law to regulate the terms of participation in these decision-making
procedures.  The upshot of this is effectively recognized in the report,
where the likely participants in the sole-member mechanism are outlined:
many of those most urgently needed to ensure global legitimacy of the
approach are not listed as likely participants.  Important groups of
stakeholders, including national governments and large swathes of the
technical community, appear to be unwilling to join this model.  The report
disposes of this issue by noting that existing constituencies in ICANN
could signal their participation later.  But if the point of the change in
governance model is supposed to be that accountability is improved prior to
the IANA transition, it is very hard to see a way it is achieved by
narrowing participation in that governance at the outset.

Worse, while the report claims it can support changes to the power
arrangements by creation of new SOs or ACs, such changes would be subject
to veto by the existing SOs and ACs.  SOs and ACs have an institutional
incentive to oppose such additions, so given the new accountability
proposals it is hard to see how such a new SO or AC would ever get created
in the case of a divided community.  In the case of a community that is
already functioning, it is hard to see how the new mechanism offers any
improvement from the existing ICANN Board arrangement.  So, the report
either recommends something that does not actually solve a problem anyone
has, or else it creates more opportunity for ICANN’s corporate interest to
drift away from the interests of the Internet as a whole.  Neither result
seems to provide advantage.

Worse yet, the report admits that, while its mechanism for improved
accountability depends entirely on ACs and SOs (some of which are declining
to participate), it has not studied the accountability mechanisms within
those ACs and SOs.  The sole-member model is designed to replace an
accountability mechanism that exists but that is admittedly flawed.  All of
the ICANN Board can be replaced in time, but only on the order of years;
otherwise, the Board has to defend itself in public but can decline to
change its mind even in the face of strong community opposition.  But the
new model provides less accountability: the Board can be replaced at any
time, but by a small group of interested constituencies whose own
accountability mechanisms are not understood.

The report’s answer to that ununderstood accountability is to study it
later, after the IANA transition.  But this brings us to the worst part of
all the sole-member model: the first implementation has to be perfect,
because it will be impossible to change once it is implemented.  Any change
that could be needed would need to be expressed in new ICANN bylaws.  But
the sole member will be, after it is put in place, the one agent that could
foil any such bylaw change.  Replacing the flawed but working ICANN,
including its entire corporate structure and its governance, with a new
model that has not been tried but whose details all must be perfect on the
first try is simply too risky.

There are other, more peripheral concerns with the report that Dyn could
accept, with or in some cases without minor modifications.  It seems the
CCWG wants to wander into some issues where the relevance to ICANN is at
least obscure.  The mission statements that are to be enshrined as
Fundamental Bylaws seem over-broad and look to be an effort to make ICANN
more central to the Internet than it ever should be.  ICANN has only two
jobs: to make policy for the DNS root zone and to perform the IANA
functions (perhaps by an affiliate).  It is odd to see ICANN’s powers being
strictly enumerated in its Mission while yet having Core Values that extend
to the entire Internet.  It is jarring that the document seems to want to
make ICANN into a sort of mini-government, complete with legislative,
executive, and judicial branches.  Finally, it is really hard to see why
the various appeal and reconsideration functions cannot be streamlined into
a single mechanism that ordinary humans could understand.  Dyn understands,
however, that the perfect should not be the enemy of the good, and that
consensus often means that nobody thinks the answer is just right, so we
might otherwise be willing to live with these flaws.

But the sole member model as currently proposed is a danger to the
Internet.  It moves accountability from a Board (and Board selection
mechanism) that is far from perfect in design into a much narrower portion
of the Internet community; and a portion whose accountability measures are
little understood.  The report’s proposal, if implemented as outlined, will
be impossible to change if there are any problems with it, because the new
mechanism is precisely designed to foil bylaw changes that would be needed
to fix it.  It would be no improvement in accountability at all to create
an unaccountable organization that cannot be removed.

It would be much better to find ways that would allow the effective
exercise of community power over the ICANN Board, and leave the existing
ICANN structure intact.  If there were shorter Board appointments, or if
the community could recall Board members at any time with some sufficient
threshold, the effective power to make the Board act in line with community
will would be achieved, even if the community did not get the legal powers
of enforcement the report seeks.  Dyn urges the CCWG to consider such
smaller reforms as could be undertaken to provide that effective power
without throwing away the existing organization structure or needing a
mechanism that must be perfect at creation.


-- 
Adam Coughlin
Director, Corporate Communications
Dyn
(C): +1 603-714-5798
(T): @adamcoughlin


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