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ICANN's accountability deficit

  • To: "comments-enhancing-accountability-06may14@xxxxxxxxx" <comments-enhancing-accountability-06may14@xxxxxxxxx>
  • Subject: ICANN's accountability deficit
  • From: Milton L Mueller <mueller@xxxxxxx>
  • Date: Sat, 7 Jun 2014 17:14:15 +0000

Comments of Dr. Milton Mueller

I am on the Executive Committee of the Noncommercial Stakeholders Group, an 
elected Advisory Council member of ARIN, and one of the founders of the 
Noncommercial Users Constituency. 
These comments are from me individually. I attach as a contribution to this 
proceeding a IGP paper that was published in the Korean Journal of Policy 
Studies regarding ICANN accountability. This provides a basic analysis of some 
of the accountability issues facing ICANN and should be in the record of this 

I begin by noting that accountability is not separate from the IANA transition 
process - the tie to the US government via the IANA functions contract was 
really the only true form of external accountability and its absence 
substantially changes the game. New accountability mechanisms must be in place 
to facilitate the IANA transition. A preponderance of commenting parties in the 
IANA transition process have also noted this linkage between the IANA 
transition and this accountability proceeding. We question why ICANN insists on 
keeping these proceedings separate.

1.      What issues are core to strengthening ICANN's overall accountability in 
the absence of the USG's IANA functions contract? 

In the near term, the only feasible way to strengthen accountability is to 
structurally separate the IANA functions from ICANN's policy development 
process. Other accountability reforms will take longer to implement. Separation 
on the other hand can be tied to the IANA transition and implemented in the 
shorter term (e.g., by September 15 2015) so that an important safeguard will 
be in place. 
Functional separation was already required by the Commerce Department contract. 
There was, and is, a widespread recognition that policy implementation must be 
separated from policy development, and those in charge of implementing policy 
must not be directly involved in making it. It is important to identify 
explicitly why that separation is important. If those responsible for the 
technical implementation of root zone changes also can make policy or are too 
close to the policy development process, there is a huge risk that the 
'executive branch' can bypass the deliberative or 'legislative' process and 
simply implement without a proper policy process. In other words, combining 
policy making with implementation represents a concentration of power that 
would allow the community policy and consensus development process to be 
short-circuited or bypassed by a small group at the top. 

The other core issue for strengthening ICANN accountability is a better appeals 
process. Obviously we do not want an appeals process to undermine or 
second-guess ICANN's policy development process, but current mechanisms, such 
as the reconsideration request, are nothing more than the board reviewing 
itself. We need meaningful forms of review for those exceptional circumstances 
when the board or the staff make serious mistakes that call into question the 
fairness of its process or the level of community support for a declared 

2.      Do the Affirmation of Commitments and the values expressed therein need 
to evolve to support global acceptance of ICANN's accountability? 

The AoC is not really an accountability mechanism at all; it is an internal 
review process. It does not and cannot supply true external accountability to 
ICANN because the whole process is under the control of ICANN's staff and the 
GAC, and implementation of AoC recommendations is purely voluntary. Therefore, 
it would be a terrible mistake to view evolving the AoC as the basis for 
serious improvements in ICANN's accountability. Insofar as ICANN puts the AoC 
front and center in its enhancing accountability process, it is indicating that 
it either does not understand what accountability means, or is engaged in a 
diversionary tactic. Whatever the value of the AoC internal review process, in 
the intermediate term improvements in accountability will come from structural 
reforms and not from tinkering with the AoC.

Attachment: ICANNInc.pdf
Description: ICANNInc.pdf

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