COMMENTS OF THE CENTER FOR DEMOCRACY & TECHNOLOGY TO THE COMMITTEE ON ICANN EVOLUTION AND REFORM

May 3, 2002

The next few months are of critical importance to ICANN. Resolving deeply-rooted controversies regarding the ICANN mission, structure, and process is essential to the future success - and existence - of ICANN.

The Center for Democracy & Technology has been a long-time advocate not only for the public's voice within ICANN, but for helping ICANN realize its potential as a forum for global, non-governmental coordination of key Internet resources. As members of the NGO and Academic ICANN Study, we urged ICANN to improve participation, representation, transparency, and accountability in its activities. These comments focus on what we believe to be the central problem facing ICANN: a lack of clarity about the extent and limits of its responsibilities.

ICANN needs a well-defined statement of its mission and authorities in order to develop an appropriate and legitimate structure, and to explain to the world both what it does and what it does not do. We strongly believe that a lightweight, thin ICANN is more likely to succeed than a heavy, thick ICANN that has broad policy authority and probably cannot achieve requisite legitimacy.

We call on ICANN to establish substantive limits on its activities, with suggestions regarding the form and substance of those limits. We also urge ICANN to bolster its mission limitations with procedural safeguards.

Finally, we restate the importance of accountability mechanisms to ICANN, and urge the Board not to allow important safeguards such as the Independent Review Panel to fall by the wayside.

We look forward to continued work with the Committee and the Board on this important topic.

1. There are shortcomings in the current ICANN process.

The paper issued by ICANN President Stuart Lynn in late February identified some of the problems facing ICANN. Over the course of three years, ICANN has had some notable successes, but in general its processes have increasingly failed to meet the community's need for a credible policy forum. The current proliferation of reform plans for ICANN, put forward from nearly all of ICANN's stakeholder groups, speaks to the community's frustration. Critical problems include:

• ICANN continues to lack strong ties of accountability to the Internet community. The actions of the ICANN Board at present cannot be appealed to any authority, save (through the reconsideration policy) the Board itself, an example of an accountability deficit that extends throughout ICANN. If it is not rectified, such a deficit is likely to lead to suspicion, not support, of ICANN by many in the broader global Internet community.
• Important interests continue to be under-represented throughout the ICANN process. ICANN's present structures severely under-represent consumers, advocates for users, and other members of the Internet user community. While ICANN explicitly provides representation for an array of commercial interests, it fails to properly represent the millions of individuals with an interest in ICANN's decisions. The critical nature of this shortcoming is emphasized by the Board's recent decision not to actively support the existence of nine At-Large Directorships on the ICANN Board.
• ICANN has used opaque policy processes for publicly-important decisions. From its selection of new gTLDs to its dealings with the community in the redelegation of ccTLDs, ICANN has consistently exhibited a need for enhanced transparency. Important actions by the ICANN Board and staff have frequently lacked adequate supportive justification, and as a result ICANN's reputation as a closed organization is growing, at the cost of its credibility and effectiveness.
• As a result of these and other shortcomings, the degree of participation in the ICANN process has begun to erode. There has been a persistent and troubling drop-off in the number and categories of dedicated participants in the ICANN process. Fewer and fewer groups have marshaled the resources necessary to maintain an active presence in the ICANN space - the result of a perceived diminishment in the returns that participation in the ICANN process brings. Moreover, ICANN continues to lack any robust participation mechanism for end-users. As the diversity of participants diminishes, ICANN's decisions are likely to become less and less reflective of the community's needs, with potentially grave consequences for the Internet's future.

These shortcomings are traceable to ICANN's most pressing problem: a lack of common understanding about the organization's mission. This lack has complicated interactions at ICANN, frustrated participants, and ultimately has proved a major obstacle to needed procedural reform.

2. ICANN is suffering from a lack of clarity about the extent and limits of its responsibilities.

Some of ICANN's most high-profile decisions have generated concern that the ICANN community diverges significantly in its ideas about ICANN's mission and appropriate slate of activities. Undertakings such as the 2000 selection of seven new gTLDs have been clouded by questions about whether the Board's conduct (in applying obviously non-technical criteria such as the way a name string sounds) raised serious questions. Many ICANN participants - including CDT - believe ICANN's appropriate mission is basically ministerial in nature. ICANN actions such as the gTLD decision belie a different, more regulatory conception.

Closing the divide over ICANN's authority has proved difficult. In so diverse a community, it is unsurprising that significant variation exists in people's understanding of the ICANN mission. These notions run the gamut from relatively thin conceptions, in which ICANN's mission is constrained and technical, to thick ones in which ICANN authority is expansive and broadly wielded.

There is not yet broad agreement about the degree to which ICANN's functions can be legitimately understood as either ministerial or regulatory, thick or thin, in nature. This uncertainty must be resolved.

3. The need for a clear, coherent statement of mission is related to structural reform, and both are critically important to ICANN's future.

Divergence on ICANN's mission has worsened the organization's procedural weaknesses and impaired efforts to resolve them. Discussions of structural reform will be most effective when the impact of mission on structure - function on form - is recognized.

The converse is also true: some proposals for the ICANN mission would require policy structures so expansive that they are outside the realm of possibility. For example: an ICANN with an extremely broad, quasi-governmental mission would need such elaborate, rigorous structures of public participation in order to retain credibility that it would be prohibitively costly and complex, if it were achievable at all. An ICANN with a more limited mission could get by with less input and would have more flexibility in its policy processes.

Without a clear mission statement to guide it, ICANN is unlikely ever to develop sustainable policy structures or to achieve necessary credibility in the Internet community. Establishing a concrete mission is one of ICANN's most urgent needs.

4. A highly constrained mission, underwritten by principles of restraint, is preferable to a broad, unconstrained mission for ICANN.

A lightweight, low-overhead ICANN, with responsibility only for a few, mostly technical activities, is far more likely to achieve credibility in the near term than thicker models such as the one implied by Dr. Lynn's proposal.

First, a thin ICANN will have an easier time focusing on a few well-defined activities than a more expansive ICANN would spreading its resources across a wide range of policy and technical activities. Such increased efficiency is likely to increase the organization's effectiveness while decreasing costs, relieving some of the financial pressure under which ICANN currently operates.

Second, accountability mechanisms that need apply only to an enumerated set of actual activities will be easier and quicker to develop than broader mechanisms that must apply not only to expected policy activities, but also to a whole range of future ICANN activities that cannot presently be anticipated.

Third, innovation and competition in the Internet space will be enhanced by keeping ICANN to a set of known, limited activities. ICANN can best assist Internet growth by limiting its responsibilities to baseline technical stability and the availability of critical services, not by picking technology or industry winners or exercising heavy-handed policy authority.

Finally, the public interest is best served by an ICANN for which the risk of mission creep - the well-known tendency for organizations over time to accrete authority, and to stretch their influence to its natural limits - is minimized. ICANN was not intended to subvert the authority of national governments, nor to provide a tool by which governments can impose their specific policy agendas on the global network without appropriate accountability.

5. ICANN's mission should be defined through substantive limits on its activities, with appropriate procedural safeguards.

Substantive limits on ICANN's authority will clarify the nature and mission of the organization and permit the community to determine the best structure to achieve necessary effectiveness, accountability, and openness.

Limits on the ICANN mission will also secure ICANN's credibility before the global community as manager of publicly-important resources. By committing itself to as narrowly technical a mission as possible, ICANN can shield itself from corrosive public policy debates that strain its legitimacy, frustrate users, and heighten the risk of heavy-handed government intervention.

We suggest that these limits include:

• Enumeration of powers in the ICANN charter and bylaws. The ICANN charter and bylaws should explicitly enumerate the types of issues and powers the Board may exercise. ICANN should then be limited, absent amendment, to those activities.

  In addition, the Board should commit itself to act only in cases where centralized coordination is necessary to provide core Internet functions, or in cases where there is verifiable consensus supporting such an action. The Board should not act in cases where top-down action, however desirable, is neither necessary to provide core Internet functions, nor supported by consensus.

  Such core Internet functions could be limited to:

  • Stable interoperability of the domain name system;
  • Safety and integrity of registration data;
  • Availability of accurate Whois data; and
  • Resolution of disputes regarding the registration (as opposed to use) of domain names by particular parties.
• Explicit prohibition of certain activities. As an affirmative check on overreaching actions by the Board, a formal declaration of activities affecting ICANN stakeholders and Internet users in which ICANN may not engage should be provided. These reserved powers and rights should generally guarantee individuals and organizations around the world the protection of their individual liberties, their property, and their expectation to be treated fairly and with due process.
• Directive of limited action. There is a continuing risk that ICANN might engage, even with good intentions and within the limits of its established mission, in some premature or privately motivated policy-making, with troubling consequences. Such actions could be extremely harmful to the Internet and to ICANN's credibility. Therefore, ICANN should commit itself in its charter to a policy of limited action - that is, action only when necessary, with the supposition that inaction is in most cases preferable to premature or misguided action.

Substantive limitations on the ICANN mission require procedural safeguards to be effective; at the same time a more concrete definition of the ICANN mission provides a matrix in which farther-reaching structural and procedural reforms can be developed.

Procedural safeguards should include:

• Limits on amendment power. Codified limitations and rights provide an incomplete guarantee without restrictions on their future amendment. In order to protect the rights of the public in the face of majoritarian impulses by the Board, ICANN should adopt a much heightened amendment process for those charter and bylaws provisions governing the scope of its authority and the rights of users.
• Enforcement of limitations and rights. Finally, limitations and rights can provide only limited legitimacy without some enforcement mechanism for ensuring that the Board acts in accordance. Currently, and particularly since the expiration of the effort to establish an Independent Review Panel, the only institution responsible for overseeing the Board's activities is the Board itself. ICANN should institute a system of checks and balances through some appeals process.

6. Any ICANN reforms must provide a greater degree of accountability.

The notion of accountability is viewed by many as an essential component of legitimacy for ICANN. The discussions of representation and participation which have occupied so much of the community's attention for the past year are directly linked to providing forms of direct and indirect accountability by the entire ICANN organization to the communities affected by its activities.

In brief, ICANN must be made more responsive to the global Internet community. It should employ a series of mechanisms in furtherance of this goal.

• Board and staff codes of conduct. At present there is no adopted standard for measuring the performance of the Board and staff or providing a baseline of acceptable behavior. ICANN should develop a code of conduct for all ICANN Board members, encompassing minimum standards for completion of responsibilities, obligations to the organization, rules regarding issues such as conflicts, and basic standards which must be met or risk censure or replacement.
• Fair administrative procedure and reporting. ICANN should adopt a set of procedures for guaranteeing the openness and fairness of its activities. All decisions and meetings should be failry noticed, input should be openly taken, documents should be made widely available, and stakeholders should be provided with detailed reasoning behind decisions made by the Board and staff.
• Capacity for independent review of Board decisions. At the Accra meeting, CDT was disappointed to witness the Board end its efforts to constitute an Independent Review Panel. We urge ICANN once more not to abandon this effort. The value of a body, meaningfully independent from the ICANN Board, peopled with globally respected figures, and empowered to make important judgments regarding Board compliance with the charter and bylaws, would be substantial. By further enhancing the effect of substantive limitations on ICANN's authority, and more generally by enhancing ICANN's responsiveness to community needs, a robust IRP would bolster ICANN's credibility and authority for the long term.

7. Conclusion.

CDT still believes that the ICANN model of private, bottom-up management can provide effective, credible administration of key global resources for the Internet. Strong, effective limits to ICANN's authority, with procedural safeguards backing them up, are the necessary prerequisite to the long-term success of the ICANN experiment.