Comments from KMC and Ping Registry Provider, Inc.

["Dawn Grove (5086)" <dawng@xxxxxxxxxxx>]

Karsten Manufacturing Corporation (KMC) and Ping Registry Provider, Inc. (Ping) 
welcome the opportunity to provide input to the Second Draft Report of the 
Cross Community Working Group on Enhancing ICANN Accountability (CCWG 
ACCOUNTABILITY).  Ping is the registry operator of the .ping top level domain 
name, a closed, branded domain name.  Ping reserves the right to revise or 
supplement this comment.  We welcome outreach by the CCWG ACCOUNTABILITY should 
they wish to discuss any of the issues raised below.

The United States Should Not Give Up IANA Oversight

First and foremost, KMC and Ping do not believe that the transition of 
oversight from the U.S. Government should proceed. The fact that the community 
is engaged in this accountability enhancement process, indicates that many 
stakeholders believe that ICANN has not held itself suitably accountable for 
its actions, even with the NTIA looking over its shoulder. It is difficult to 
imagine what will happen when ICANN is no longer beholden to the U.S. 
Government to renew the IANA contract and to lend ICANN its legitimacy for 
policy functions. Instead, KMC and Ping believe that Congress should enhance 
its oversight of ICANN to ensure that a free and open Internet exists, without 
interference from foreign powers whose records on human rights and freedom of 
commerce leave much to be desired.

Imperative Changes to Fundamental Bylaws Prior to Any Transition

In the event this ill-conceived transition proceeds, KMC and Ping believe that 
ICANN must, at an absolute minimum, adopt the following changes to its 
“Fundamental” Bylaws to ensure a modicum of accountability:


·         ICANN must have at least one “member” to ensure that it is subject to 
litigation in the event that staff or Board violate the Bylaws or the 
Affirmation of Commitments (AOCs), which AOCs must be incorporated into the 
Fundamental Bylaws. Access by aggrieved parties to the litigation mechanism of 
the member or members must be a low threshold, such that competitors of the 
aggrieved party are not able to block access to meaningful redress of harms 
caused by ICANN.


·         Both ICANN and post-transition IANA should be prohibited from seeking 
or acting on “international organization” status or any other status that would 
preclude it from being held accountable in the U.S. federal courts, whether 
such status may be granted by the United States government or any other 
sovereign.


·         Both ICANN and post-transition IANA should be subject exclusively to 
the law and jurisdiction of the federal courts located in a U.S. State.


·         Both ICANN and post-transition IANA should be prohibited from taking 
any other action to change its composition and nature as to eliminate the 
possibility of liability under U.S. law. This restriction would prohibit both 
ICANN and post-transition IANA from changing the nature of their corporate 
status to avoid liability and thus accountability.


·         The Fundamental Bylaws should require ICANN’s Board and staff to act 
in the best interests of the Internet users community and not in the best 
interests of the ICANN and IANA corporations or any of their internal 
stakeholders (individual Board members, staff, vendors, etc.), in such times 
where there is a conflict between the two sets of interests.


Third Draft Report Necessary

Given the numerous open issues and the ICANN Board’s recently proposed 
alternative to the accountability process, the CCWG ACCOUNTABILITY should issue 
a third draft report for public comment before submitting its final report.

Dawn Grove
Corporate Counsel
Office: (602) 687-5086
Fax: (602) 687-5028
dawng@xxxxxxxxxxx<mailto:dawng@xxxxxxxxxxx>

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