NetChoice concerns over capture and accountability

[Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>]

NetChoice comments on the Feb-2009 DRAFT Implementation Plan for Improving
Institutional Confidence
 
I want to acknowledge the considerable work of the President¹s Strategy
Committee (PSC) in developing this report.  While I hesitate to ask
volunteers to take-on more work, I hope that PSC members can take their work
to the next level ­ and soon. There is a growing urgency regarding
institutional confidence, since ICANN¹s transition agreement (JPA) with the
U.S. Government expires at the end of September.   Moreover, the draft Plan
does not include adequate proposals or sufficient implementation details in
at least two critical areas, Accountability and Capture.
 
Before describing where the IIC Plan needs more work, I should first address
what transition means in the context of ICANN and the work of the PSC.   In
April of 2008, ICANN¹s chairman tasked the PSC ?to outline a plan for
developing this transition framework.¹   This was a same-day response to a
statement by the U.S. Commerce Department, pointing out that ?more work
remains to increase institutional confidence¹.  It seems to me that ICANN
has perfected the method to respond to challenges of this type: develop a
study; solicit public comments; then declare that the challenge has been
met.
 
I¹ve heard ICANN leaders tell Washington audiences that ICANN¹s transition
is a fait accompli, since the JPA will simply expire on schedule. ICANN
leaders have admonished me (and others) who ask whether the JPA¹s terms have
really been met.  If you accept ICANN¹s view, there¹s nothing left but the
countdown to September 30, 2009.
 
But hold the countdown for just a moment and think about what transition
really means.  The JPA is the latest agreement in a commitment the U.S.
Government made 10 years ago to transition its original role of DNS
management to a private sector organization created specifically for this
purpose -- ICANN.  For 10 years, ICANN has worked to become the kind of
organization that could handle management of the DNS according to the
principles articulated by the US and embraced by the world.
 
I still believe that ICANN will fulfill the role it was created for.  But I
don¹t believe that ICANN today has the mechanisms to ensure that it remains
accountable to those principles and is led by the private sector instead of
governments.  And absent those mechanisms, I don¹t believe it¹s in the
interest of anyone to effect a full transition of DNS management roles.
 
Only one recommendation in the draft IIC plan (2.9) would subject ICANN¹s
board to external review, but that measure (?Establish an extraordinary
mechanism for the community to remove and replace the Board¹) would be too
difficult to invoke and would create unacceptable and uncontrollable risks
if it were ever actually used.
 
The draft Plan for IIC should be expanded to include additional mechanisms
that hold ICANN accountable for its decisions in the development and
execution of DNS policies.   The PSC has more work to do in this area to
explore alternative plans, including the possibility of an ad-hoc or
standing ?judiciary¹ that could hear appeals, perhaps through arbitration or
something akin to what ICANN proposed for hearing objections to new gTLD
applications. Additionally, the PSC could explore the principles and
foundational documents that would form the basis to evaluate appeals of
ICANN decisions.

Finally, the IIC Plan does not adequately address the growing risk that
ICANN¹s role could be captured by governments and multi-governmental
organizations.  The fact that over a billion people have access to the
Internet is due to private sector innovation and over a trillion dollars in
private sector investment.  It¹s going to take yet more private sector
investment to reach the next billion people, so ICANN needs to maintain the
confidence of the private sector.
 
NetChoice has been raising concerns about the risks of government capture at
ICANN and IGF meetings and in comments filed over the last two years. For
example:
 
1. At the 2003 Internet Governance Forum, the Russian Government asked the
United Nations to take control of critical Internet resources, raising the
risk of government capture.
http://blog.netchoice.org/2007/11/dont-blame-it-o.html
 
2. In our Jan-2008 comments at the mid-term of the JPA, we raised the issue
of government capture and suggested that U.S. oversight was providing some
protection from capture.
http://www.ntia.doc.gov/ntiahome/domainname/jpacomments2007/jpacomment_001.p
df 
 
3. In July 2008, we warned that ICANN¹s fast-track program would give
governments initial control of Internationalized Domain Names (IDNs) with
non-Latin alphabets.
http://forum.icann.org/lists/iic-consultation/msg00024.html
 
4. After ICANN dismissed our concerns about government capture of IDNs, we
reiterated the risks in our Oct-2008 comments on IIC.
http://comment.icann.org/?14@@.ee7bbd2/1
 
5. Last week, we criticized yet another plan for government capture of
ICANN, the ?G-12 for the internet¹.
http://www.netchoice.org/press/eu-plan-to-increase-government-control-is-not
-the-answer-for-icann.html
 
Over the last year we have seen increasing ways and means of governments
capturing the private sector¹s leadership role at ICANN.   At the same time,
government-controlled country-code domains have maintained their
independence from ICANN policies and financial support, while insisting on
having initial and exclusive control over new top-level Internationalized
Domain Names.
 
We appreciate the chance to comment on ICANN reports and draft plans, but it
can be very discouraging when our concerns are dismissed ­ even more so when
events show that these concerns are justified.   While NetChoice will
continue to participate in ICANN, there is a real risk that broader
participation could wane if others¹ concerns are similarly dismissed.

Diminished public participation could have the unfortunate effect of letting
ICANN leadership conclude that the Internet community broadly supports ICANN
plans.  That kind of false confidence could be the beginning of the end for
institutional confidence in ICANN.
 
Steve DelBianco 
Executive Director 
NetChoice Coalition
1401 K St NW, Suite 502
Washington, DC 20005
www.netchoice.org <http://www.netchoice.org>