ICANN's accountability deficit
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 proceeding. 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 consensus. 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.