CDT Urges New Provisions in Key ICANN Agreement

August 19, 2002
 

Nancy J. Victory
Assistant Secretary for Communications and Information
United States Department of Commerce
1401 Constitution Ave. NW
Washington, DC 20230
 

Robin Layton
Associate Administrator, Office of International Affairs
National Telecommunications and Information Administration
1401 Constitution Ave. NW
Washington, DC 20230
 

Dear Ms. Victory and Ms. Layton:

We write to express our continuing concern with the present restructuring of the Internet Corporation for Assigned Names and Numbers (ICANN). We urge you to insert a limited set of new requirements into any renewal of ICANN's Memorandum of Understanding with the Department of Commerce calling for increased accountability and meaningful checks on ICANN's powers.

Through its Evolution and Reform Committee, ICANN has begun work to address questions about the scope of its mission and the need for broader participation and greater accountability. Although the reform package approved in Bucharest improves on previous drafts, it lacks adequate provisions to protect the public's interest in ICANN's activities and establish meaningful constraints on the ICANN Board's future authority. With the Department's MOU with ICANN set to expire on September 30, the present opportunity for leadership should not be missed.

The new MOU should continue the objectives present in the White Paper. The promotion of competition and stability are key tasks for ICANN, but they are equal in importance to providing representation and securing a functional, private, bottom-up decision process - obligations that ICANN has yet to fulfill. Reasonable amendments to the MOU will provide ICANN with incentive to undertake real and necessary change. Such reform will promote greater faith and involvement in ICANN by the Internet community, and will ultimately fulfill the institutional vision of the White Paper. In particular, changes to the MOU should require ICANN to:

• Implement accountability mechanisms that acknowledge the public impact of ICANN's activities. In particular, ICANN should not abandon the notion of an Independent Review Panel, capable of scrutinizing Board and staff actions for compliance with critical documents such as the ICANN Bylaws. Adoption of fair administrative procedures and reporting would expand on ICANN's progress in promoting transparency. And the commitment of Board and staff to codes of conduct would provide extra insurance against inappropriate actions by ICANN at some time in the future. Such actions would greatly enhance the public's faith in ICANN and encourage their productive participation.
• Establish concrete limits on ICANN's authority. This should include an explicit enumeration of ICANN's powers and a strong prohibition of any activities that would deny individuals and organizations basic due process. It should be bolstered by an effective system of checks and balances that will ensure the effectiveness of the limits over time, including an understanding that powers not granted are prohibited unless demonstrably supported by the Internet community. Such limits would re-emphasize ICANN's endorsement of bottom-up policy-setting and further enable public participation.
• Effectively represent the public voice - particularly the interests of users and consumers - at ICANN's board level and throughout the ICANN structure. ICANN's current reform plan makes some progress on this issue, but difficult questions about the specifics of public representation - particularly regarding the inclusion of end-users in the ICANN policy process - need answering before the White Paper requirement of representation can be satisfied. The first MOU with ICANN included language to this effect; that language's reinsertion and potential expansion would establish the importance of this task.
• Regular reporting of progress. ICANN should be required to publicly offer biannual reports on its activities and its progress on these critical new requirements. Such reports could be addressed to both the Department and the Government Advisory Council.

The incorporation of these responsibilities into the MOU will provide a much-needed measure of oversight to ICANN and will permit ICANN to focus its energies on those questions most crucial both to its own long-term legitimacy and the future of the global Internet community. Finally, in order to ensure that the Department has a full flexibility in its oversight, we urge that the MOU be renewed for a term of no longer than one year.

CDT continues to believe in the promise of the White Paper to establish private-sector management of these critical global resources. We look forward to continued work with you to make that promise a reality.

Sincerely,
 

Alan Davidson
Associate Director
 

Rob Courtney
Policy Analyst