[npoc-voice] Observations on the two governance issues facing ICANN

[Sam Lanfranco <Lanfran@xxxxxxxx>]

Observations on the two governance issues facing ICANN
- Sam Lanfranco (January 2013)

Preface:
These comments were first written in discussion with Marie-laure
Lemineur and Alain Berranger.

Marie-Laure and Alain have commented on some points and suggested that
the comments be posted to npoc-voice for wider discussion.

Marie-Laure will post her comments after I have posted these. The
discussion serves as a background to a paper I am writing on the
meaning and challenges of a multi-stakeholder governance model.

-------------- Two Governance Issues facing ICANN ------------

I am first sending this to you privately because I want some feedback.
I am always aware of the limitations of being a new person in a group
dealing with important issues, and always aware of the challenge of
understanding things in context, and scope for misunderstanding
certain elements and aspects of what is going on. Hence, I would like
some feedback on the following comments.

As I dig deeper into the issues and challenges facing ICANN and the
global governance of the Internet I see two intertwined issues. I
will just sketch out the bare bones here in the interests of not
burdening you with details.

 One issue is the heart of the struggle over the governance of the
Internet, and that issue is control over governance as between ICANN
and ITU. The drivers for that struggle come from several sources, the
most obvious being the interests and wishes of ITU member states to
have more formal control over the Internet. The issues of freedom of
speech, access to information and human rights are often cited here,
although many have observed that member states routinely exercise
that control in any event. Observe how China closed down online
discussion on the recent terrible rape/murder case in India, because
commentators were using the episode to talk about the lack of
openness in the discussion of Chinese issues. Since nation states
exercise this power now, and are relatively immune to external
criticism, a case might be made for arguing that the primary
interests of many nation states have more to do with matters of trade
and intellectual property than they do human rights and freedom of
expression, matters that require international agreement rather than
just sanctioned national behaviour.

Much of the global interest still exists as a “global commons” with
elements to be beneficially controlled by interested stakeholders
that rely on state power, in particular, governments themselves, and
commercial interests. Civil society stakeholders frequently have a
mixed and complication relationship with both government and
business. As a result, national Internet control struggles are likely
to persist and, as a consequence, they raise the stakes on who should
govern what as between ICANN and the ITU. It is easy to see why
nation states can have a preferential option for ITU. It is made up
of member states, member states heavily influences by commercial
interests. This gives the two of them an upper hand. Lastly, I would
not dismiss the extent to which the ITU has had to re-invent itself
as cellular phone technology displace regulated telephone companies
and their negotiated global tariff structures.

 There is a second dimension to the governance issue, one over which
civil society organizations hold some sway. The other issue of
governance has to do with the internal models of governance within
ICANN and the ITU themselves. At the simplest level, ICANN is a U.S.
based not-for-profit organization with a multi-stakeholder governance
model, and with shortcomings with respect to the extent and equity of
stakeholder participation. The ITU has a international member state
governance model, with virtual exclusion of other Internet
stakeholder constituencies except through their influence on the
positions of member states. ITU has tried to open up a bit to civil
society. The IGF is an example, as well as is the attempt to
facilitate the participation by civil society in the WCIT. But many
think these are more “cosmetic” that substantial.

I see several challenges here, and several possible scenarios, with
risky outcomes. As far as ICANN is concerned it can strengthen its
multi-stakeholder governance model with increased and better more
representative participation of civil society (NPO/NGO) members and
from regions of the world (e.g. Africa). It also has to worry about
“better more representative participation” by other stakeholder
constituencies. But, and this is a big “but”, at the global level it
is still just a U.S. based not-for-proft organization. It does not
exist as a result of international agreements and as a result remains
vulnerable.

The way forward here is not at all clear. It would appear that a
desirable multi-stakeholder model of ICANN governance cannot, in and
of itself, address the  fundamental problem of the absence of a
structure of  national agreements within which nation states sanction
the work of ICANN.

The above issue of ICANN and the nation state is further complicated
by two considerations. The first is if ICANN moved toward a
multi-party nation state component as part of an expanded
multi-stakeholder model, what is to prevent the current divisions and
struggles between countries within the ITU from simply migrating to
ICANN.

The second is less obvious. The current structure of the ITU has been
seen at not conducive to meaningful participation by civil society
organizations. In response those self-same civil society
organizations are pressing ITU to move closer to a multi-stakeholder
participatory model, even if still a long way from a
multi-stakeholder governance model. This is a rational response on
the part of civil society organizations. First, ITU has national
government membership. That offers a venue in which civil society can
to some extent dialogue with nation states. It also hedges civil
society bets with regard to what will constitute the respective
policy domains of ICANN and the ITU.

Here is another concern. Is there likelihood that as ITU makes
incremental concessions to open up a more multi-stakeholder
participatory model, this will be used against ICANN? Is there the
risk of an argument that says the ITU, as an international agency
with country membership and a growing multi-stakeholder participatory
model, is making ICANN and its multi-stakeholder governance model
increasingly redundant? Could this be used to challenge the
justification for preserving ICANN’s mandate? Is there a risk that
the ITU country membership base will offer a more promising avenue
for civil society to press its interests?

It is my view that wherever things are headed, there are two important
items on the “hot button” agenda. One is the scope for serious
continuous, possibly very open and transparent, talks between ICANN
and the ITU about areas of mutual interest and areas of
complementarity. The other, and more important, is a deeper
understanding of, and a refined strategy for, what ICANN embraces as
a strengthened multi-stakeholder model.

In a real sense, just as the global virtual spaces of the Internet
move society into uncharted territory, building a robust and
sustainable global multi-stakeholder model moves ICANN into exciting,
if equally uncharted, global territory.

Do I have misplaced worries here? I would appreciate your views and
insights? Are there other areas where I should more profitably worry?
I already have on my plate looking at approaches to broader and deeper
constituency presence in an ICANN multi-stakeholder governance model.

Sam Lanfranco