Submission to the IIC consultation

[Vittorio Bertola <vb@xxxxxxxxxx>]

Hello,

please find below my submission to this consultation, organized by issue 
and expressed in personal capacity.
Regards,
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1. The consultation process

I am concerned, though not surprised, by the very small amount of 
comments that have been received (I am submitting this on the very last 
day of the public comment period and up to now the messages received 
amount to 7, of which 3 by actual commenters, 3 by ICANN staff and 1 
spam). It might be that people already exposed their views in Paris, but 
one would expect that a fundamental discussion like this one - which 
hits issues that were heatedly debated in the last few years and that 
are a key to the openness, uniqueness and stability of the Internet - 
would see intense participation, including by stakeholders who are not 
usually active in ICANN.
I suspect that such a low participation is due both to the modalities 
through which ICANN is addressing this issue - a small closed working 
group which appears to discuss mostly in private - and to the 
overwhelming quantity of documents that have been put out for comment, 
somewhat cluttering the visibility of the basic issues. In any case, any 
evolution must be effected through careful change management, ensuring 
that all parts of the community are reasonably aware and confident in 
the changes before they happen; without such broad participation, the 
community's buy-in of its results will be limited and the risk is that 
these results will not close the discussion - instead, people who did 
not buy into this process will restart the discussions somewhere else.
As an addition to these considerations, I was struck by the comment 
posted on July 30th by the U.S. Department of Commerce, which clearly 
states that the U.S. Government does not have any intention of changing 
its role and of renouncing to any of its unique prerogatives relating to 
amendments in the root zone file. This directly contradicts point 5.2 of 
the proposed Action Plan, putting at risk the very meaning of this 
consultation. No one is really dissatisfied with the (lack of) practical 
use made by the U.S. Government of its prerogatives, and the reason for 
further developments in ICANN's structure and nature would only be to 
fix the formal asymmetry of roles between the U.S. Government and all 
other governments, to prevent the risk that it ever became substantial. 
If the U.S. Government is not willing to accept fixing such asymmetry, 
then continuing this IIC process might be a waste of everyone's time, 
unless it is refocused mostly on internal reorganization and 
accountability mechanisms.
Perhaps ICANN should adjust the mission and purpose of this process 
under the light of the recent U.S. Government's statement.

2. Which community?

Sections 1 and 2 of the document and action plan are focused on 
preventing capture by specific subsets of, and ensuring accountability 
to, "the multi-stakeholder community". However, it is never explained 
what this community is, and who is or is not a part of it.
I think that ICANN should take a clear stance and define its community 
of reference as the entire set of those who use the Internet 
(individuals, NGOs, businesses, governments and anyone else) - perhaps 
even, to include those who still are to be connected but that of course 
have an interest in preserving the Internet for the future, the entire 
mankind. This should be explicitly recognized in ICANN's founding values 
and charter.
In any case, it should be clear that the community to whom ICANN is to 
be accountable is not made only by its founders, nor only by its current 
participants and constituencies. The risk is otherwise that the current 
ICANN community itself captures the DNS, preventing or hampering access 
to policy-making by those future stakeholders which will undoubtedly 
appear, together with new cultures and new business models, in the near 
and far future.

3. Upholding human rights and the public interest

The documents seem to address the issue of "institutional confidence" as 
if ICANN were just the average for-profit corporation: that is, mostly 
in terms of legal and organizational issues. While this is welcome, 
ICANN also is an international organization of a new kind, which manages 
some essential elements of what is now commonly recognized as an 
enormously important piece of public good - the Internet. The additional 
sphere of responsibilities and duties deriving to ICANN from its public 
policy relevance must be recognized and taken into account more adequately.
Specifically, the documents give no consideration to two questions that 
are basic for any international organization:
- How do we ensure that our decisions and policies uphold, or at least 
respect, internationally recognized human rights?
- How do we ensure that our decisions and policies are designed to 
maximize the positive effects for the general public, and go in the 
direction of the global public interest?
Several practical proposals could be made to this effect, ranging from a 
staff function that compulsorily assesses the human rights impact of 
pending policy proposals before they are considered by the Board, to a 
specific advisory committee made of people committed to the long-term 
public interest of the Internet. However, first of all it is important 
for ICANN to recognize the importance of these questions as a part of 
this process.
This should not be taken as an attempt to undermine the "private sector 
led" mantra which is obsessively repeated in the documents. At the same 
time, "private sector led" cannot mean that business can bend policies 
to their own private interests without any restraint, or that in the 
long term ICANN makes the Internet evolve in the direction that 
maximizes the revenues of a few private companies, rather than the 
positive outcomes for the world. ICANN should be a private-sector-led 
effort to make the Internet better for everyone: all parts of this 
concept need to be embraced in a balanced manner.
See also section 8 below.


4. Accountability to individual users

As a part of ensuring that ICANN's decisions meet the public interest, 
accountability to individual users of the Internet is a key issue: 
individuals at large have no direct monetary interest arising from ICANN 
policies (other than, partly, as consumers) and are much more likely 
than any other constituency to represent the wide variety of cultures 
and countries that shape the global public interest.
They are also the part of the community towards which the mechanisms for 
accountability are weak to non-existing; moreover, strong ways of 
accountability towards individual users would make it hard for smaller 
groups to capture ICANN, much harder than with any of the specific 
organizational proposals that have been presented in this document. In 
fact, many of the proposals in section 2 of the current documents even 
seem counterproductive, in that they strengthen the opportunities for 
control of the Board by the small, poorly populated and partial 
constituencies that it presently recognizes, thus reducing the relevance 
for the Board of being responsible towards the broader public and anyone 
else.
It must be noted that the currently existing mechanisms - public comment 
periods, the At Large Advisory Committee etc - do not offer actual 
accountability; they are designed to provide advice, so that the ICANN 
Board and staff have a way to hear opinions from the general public, but 
they do not provide any mechanism in the opposite direction, to ensure 
that Board and staff can be held accountable by the public. So they 
cannot be used to pretend that such accountability exists.
Again, different mechanisms have been proposed in the past to ensure 
such accountability. For the moment, ICANN should at least recognize 
that accountability to the general public is insufficient and that work 
should be done to find ways for it to be increased, and set this as an 
objective for the next few years.

5. Accountability to countries

The hottest issue about ICANN in the last years, in international 
discussions, was related to its special relationship with the U.S. 
Government. Section 3 of the documents apparently aims to address that 
issue.
However, nowhere I could find a convincing explanation (or even a 
non-convincing one) of how establishing subsidiaries in a few other 
countries would enhance ICANN's accountability or fundamentally alter 
its relationship of dependence from the U.S. Government. Without such 
explanation, the establishment of subsidiaries in other countries could 
in fact appear just as "window dressing" with no practical relevance.
The basic issue here is whether ICANN can be ordered (as it is today) by 
a sentence of a Californian or federal U.S. judge, or by a law passed by 
the State of California or by the United States, to do or not to do 
something affecting the policies for managing the global level of the 
Domain Name System, or their implementation. I doubt that establishing 
subsidiaries would allow other countries' governments and judiciary 
systems to gain similar powers, but, even if it did, this would not be a 
step forward - actually it would introduce further opportunities for 
ICANN being used as an instrument in international diplomatic 
controversies or for the root zone being exploited to suit the 
objectives of a single government.
In an ideal world, a global transnational and multi-stakeholder public 
good organization such as ICANN would not be legally based in any 
country, or, if it were, it would have a specific agreement with that 
country so to exempt it from local laws for what regards its mission. 
Such agreements are in place, for example, for United Nations agencies, 
in whatever country they are located. Such an instrument is the standard 
way for setting up an international organization and would seem fit for 
ICANN's case as well.
Unfortunately, it looks like this solution is made impossible by the 
U.S. Government's refusal to renounce to its present role in any way, or 
to accept any kind of diplomatic immunity for ICANN's actions.
Under these premises, there is not much else that can be done to address 
the concerns of other countries and international stakeholders. It would 
be better if ICANN ceased to make up reasons here and there in the 
document for not changing this historical fact (such as, "we can't 
change jurisdiction because we'd need to update the contracts") and just 
recognize it as an historical fact that can't be changed. However, in 
this scenario the idea of establishing a legal presence in other 
countries (as opposed to offices in other countries, which are indeed a 
very positive development) really looks like a waste of money.

6. Internationalizing ICANN in practice

Section 3 would better be focused onto practical actions that can 
actually facilitate the increase in diversity of participation to its 
activities. So please let me suggest a few:
- Commit to maintaining the system of regional rotation of meeting venues;
- Commit to offering effective systems of remote participation in meetings;
- Commit to providing translations and allowing participation in at 
least three U.N. official languages, in place of a vague "enhance 
efforts" recommendation;
- Commit to monitoring and releasing yearly reports on the status of 
international participation in ICANN, including break-downs by country, 
region, stakeholder type and language of the numbers of participants to 
meetings and to each individual constituency.

7. Who pays?

In section 4, the documents talk at length about a supposed financial 
dependence on registries and registrars.
While this is technically true in terms of revenue collection and cash 
flow management, it is entirely incorrect in economical terms: at least 
for gTLDs (which support the biggest share), ICANN depends on its "ICANN 
fee", which is directly paid by each registrant when buying a domain 
name. The real dependence for ICANN is on the fact that millions of 
people continue to buy domain names - if they stopped, then ICANN would 
be in trouble. On the other hand, registries and registrars don't have a 
choice: if they want to be in business, they have to pay ICANN. It's not 
like "if ICANN services fail, registries and registrars will bring their 
money somewhere else".
By the way, this is one more reason for ICANN to be more accountable to 
individual users.

8. Giving ICANN the authority it needs

More and more often, as a member of the ICANN community, I've observed 
situations where a policy that ICANN established in the best interest of 
all stakeholders is being attacked by private companies that feel 
negatively affected by it, by threatening a lawsuit (even in cases where 
it would clearly be unfounded, just to burden ICANN with the related 
legal costs). In the end, even when such threats are rejected, they 
often end up influencing future policy decisions; in the end, there is a 
significant risk that ICANN (as well as other private-led policy-making 
venues) will not do the right thing, and will allow publicly detrimental 
things to happen, just to avoid the risk of lengthy and costly legal 
process.
This poses a huge risk to the principle of "self-governance" or 
"private-sector-led governance": in fact, if rules cannot be effected 
because when ICANN tries to enforce them they cause a significant legal 
risk, then it's like having no rules and no governance at all.
There must be a way to shield ICANN from legal action that only has the 
purpose of making it unable to perform its regulatory functions. There 
can be several ways of doing this, going from hard law - i.e. national 
laws that recognize ICANN's policies, if properly adopted, as binding 
for the operators residing in the country - to contracts and industry 
codes of conduct that foresee penalties for companies bullying ICANN.
Accountability - also through legal means - is important, but it should 
not be allowed to become an instrument through which private parties 
with deep pockets get what they want, to the damage of the public: this 
would actually question the credibility of the "private sector led" 
model, leading many to lean towards more traditional, hard-law-based 
governance models.
Again, this problem should be acknowledged and put on the agenda for 
future work by the PSC and the Board, possibly in cooperation with the GAC.

9. Summary and further work

To summarize the above comments, my short answers to the three final 
questions posed in the consultation are:
>> A. Have the key elements required for an un-capturable, accountable, 
internationalized, stable and secure ICANN post-JPA been accurately and 
sufficiently identified?
No; the following ones are missing:
- Defining the "community" that ICANN has to be accountable to;
- Defining ways to uphold human rights in ICANN's policies;
- Committing to the global public interest;
- Ensuring accountability to the general public of individual users;
- Ensuring that ICANN is shielded from undue legal threats.

>> B. Are the initiatives described sufficient to meet the objectives?

No, in the fields of protection from capture (section 1), accountability 
(section 2) and internationalization (section 3).
>> C. Is the timeline set out sufficient to allow sufficient community 
consultation, and bylaw changes and other implementation steps to occur?
It's not really about how much time, it's about what you use it for. 
There is the need to raise participation in these discussions globally, 
both inside and outside the ICANN community. Timelines are a function of 
that.
--
vb.                   Vittorio Bertola - vb [a] bertola.eu   <--------
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