ICANN transition plan needs new ideas to ensure accountability

December 17, 2014
The Hill

The U.S. government announced earlier this year that it would give up its historic oversight of the Internet Corporation for Assigned Names and Numbers (ICANN), the principal organization responsible for managing the Internet's domain name system (DNS). Since then, ICANN has launched a series of parallel processes to develop a proposal for the transition and establish accountability mechanisms to protect the organization from corruption and malfeasance. Although the National Telecommunications and Information Administration (NTIA) originally planned to transition control to ICANN by September 2015, this deadline looks increasingly unlikely as stakeholders struggle to find a workable proposal.

One particularly thorny issue in this process has been the question of how to replace the unique role the U.S. government has played in protecting ICANN from both internal and external threats, such as capture by government, capture by private sector interests, improper management and internal self-dealing. Since ultimate authority for the organization rests with the ICANN board, stakeholders can provide input, but there is little to actually provide a check on its power. As Wall Street Journal columnist Gordon Crovitz wrote recently, "Ultimate authority by the ICANN board means the stakeholders can neither control nor protect the board, whose members would be subject to pressure from authoritarian regimes. The current system works because the U.S. could give the contract to operate the root zone to another group if ICANN ever gave in to demands for censorship or otherwise closed off the Internet. If Washington gives up the contract, there is no backup plan."

A potential solution to this problem was laid out back in 2010 by Shawn Gunnarson, an attorney at the law firm Kirton McConkie, specializing in Internet governance issues. Gunnarson notes California state law applies since ICANN is a registered nonprofit corporation in the state. As such, California law allows nonprofit organizations to have statutory members. Gunnarson suggests that one way to provide an effective check on the ICANN board's power is to create statutory members of ICANN with extensive authority over the board. This authority could include removing board members, overturning board decisions, etc. The statutory members would likely include the chairs of the various ICANN "supporting organizations" and "advisory committees," such as the Address Supporting Organization (ASO) responsible for IP address policy and the Country Code Name Supporting Organization (ccNSO) responsible for managing the country code top-level domains. To ensure that the statutory members do not hold too much sway, their actions could be limited to situations where there is a supermajority (i.e., consensus). Gunnarson, along with a colleague at the University of Zurich, outlined this proposal in more detail in a 2012 paper.

ICANN is a monopoly, and the problem with all monopolies, even nonprofit ones, is that they tend to put the needs of the organization ahead of those of the public. Although ICANN says it is accountable to the global community of stakeholders, there is little in place to actually back up this commitment. This is the critical role that the U.S. government has provided — it has been the referee to ensure that all players abide by the community's own rules. Without the U.S. government involved, the Internet community needs to find another check on the ICANN board to ensure its long-term accountability and legitimacy. The Gunnarson proposal is worth revisiting as a possible solution as it brings stakeholders into the governing process. It also meets many of the goals of the "Key Principles for the ICANN Transition" endorsed by a number of organizations this summer, but it could benefit from some additional scrutiny. Regardless of whether this proposal or another moves forward, it is important that meaningful rules be set up now, before the transition occurs, so that when disagreements arise, there is a process in place that protects stakeholders and prevents the board from overturning the consensus of the community.

Attorneys

Practice Areas