A BRIEFING ON PUBLIC POLICY ISSUES AFFECTING CIVIL LIBERTIES ONLINE
from
THE CENTER FOR DEMOCRACY AND TECHNOLOGY
CONTENTS:
(1) Some Positives in New ICANN Agreement, But Key Features Are Missing
(2) Shorter Term, Greater Oversight Put ICANN Under Scrutiny
(3) ICANN Must Address Mission Limits, Representation
(4) Public Meeting in Shanghai, October 27 - November 1
On September 20, the U.S. Department of Commerce renewed its Memorandum of Understanding (MOU) with ICANN (the Internet Corporation for Assigned Names and Numbers), the controversial organization that oversees the Internet's core numbering and addressing functions. The MOU authorizes ICANN to continue its activities for another year while laying out a "checklist" of reforms and activities for the next year.
Although there are several positive developments in the MOU, it misses the mark on others and is generally a missed opportunity. Most positively, the new agreement extends ICANN's mandate for just one year and requires regular status reports -- a signal that there may be increased and much-needed oversight of ICANN by the U.S. government this year. The MOU also presses ICANN to make progress on issues of accountability, transparency, and the security of the systems it administers.
Tough talk from Commerce about the MOU was not matched with tough action, despite the government's "frank disappointment" with ICANN's slow progress. The new MOU does not impose any real constraints on the scope of ICANN's powers and authority, leaving the door open to unaccountable and potentially harmful regulation of the Internet by ICANN. It also permits ICANN to continue skirting the issue of giving the Internet public a meaningful voice in its governance.
While a step forward, the MOUÕs renewal is a missed opportunity to effect substantive reform at ICANN, deferring yet again the changes needed to stabilize ICANN and make it accountable for its actions.
The new MOU is available at http://www.ntia.doc.gov/ntiahome/domainname/agreements/amend5_09192002.htm
The Department of Commerce's public statement is available at http://www.ntia.doc.gov/ntiahome/domainname/agreements/docstatement_09192002.htm
ICANN's authority over critical Internet functions means that accountability, transparency, and representation are of the highest importance for it. ICANN's power ultimately derives from its MOU with Commerce; if ICANN is not conducting itself appropriately, the MOU is a powerful lever for change.
Unlike previous versions, the new MOU places several new requirements on ICANN and tightens Commerce's oversight, incorporating several items recommended by CDT and other observers.
The MOU obliges ICANN to improve the transparency of its policymaking and requires it to advance long-delayed accountability provisions that would establish outside review of contentious decisions. Commerce stated that it expects "significant advancement" in these and other areas within a year.
The MOU also requires quarterly reports, publicly posted, which will clarify ICANN's priorities and press it to show results.
Commerce also assumed several new responsibilities for itself, including outreach to other governments to clarify their relationship with ICANN.
As a group, these provisions set the stage for closer monitoring of ICANN by the Department of Commerce, pressuring ICANN to make needed reforms expeditiously. CDT welcomes this additional oversight and will be watching its implementation closely.
CDT's Letter to the Department of Commerce is available at http://www.cdt.org/dns/icann/020819comments.shtml
ICANN remains a highly controversial organization, but the new MOU does not include some key reforms ICANN must undertake if it is to ever achieve legitimacy in the eyes of Internet operators. In particular, it is critically important that ICANN clarify its mission and establish limits to its authority, and that a mechanism for representation of user and public interest voices be established.
ICANN's management of key Internet systems gives it potentially far-reaching authority to set global policies, even in areas it was not designed for, like content control. Until there are clear limits on ICANN's ability to engage in appropriate economic or social regulation, key elements of the Internet community will not trust ICANN as a credible authority, corroding ICANN's effectiveness and long-term survival. The MOU does not explicitly press ICANN to adopt such limits to its powers, making it a missed opportunity.
The new MOU also misses a chance to put ICANN back on track regarding the representation of the user voice. While CDT acknowledges that direct elections are not favored by many, ICANN has effectively abandoned all plans to provide users and public interest groups with a real role in selecting members of the ICANN Board of Directors. By remaining silent, the MOU can be read as tacit approval of ICANN's rejection of user representation, casting serious doubt on ICANN's long-term prospects for global legitimacy.
CDT still believes in private sector management of key Internet coordination functions. Adoption of clear, effective mission limits, and establishment of representation for the user voice, must be undertaken seriously if ICANN is to become a legitimate, trusted manager for Internet users worldwide.
ICANN's agenda for the next year, including the fulfillment of its MOU obligations, will be largely set at its upcoming quarterly meeting in Shanghai, China, at the end of October. The agenda is expected to include the Board's final approval of its "Blueprint for Reform." CDT and others have noted serious flaws in the Blueprint, including the lack of mission clarity and representation noted above. CDT Associate Director Alan Davidson will attend the Shanghai meeting to monitor and comment on ICANN's activities.
ICANN may also take some transitional action with regard to the nine Board members whose terms are set to expire at the Shanghai meeting. Five of the Directors scheduled to leave the Board are the "At-Large" Directors elected in 2000; unless changes are made, their departure will mark the end of direct user representation at ICANN. Moreover, if no new Directors are selected, ICANN will be left with a Board of just nine Directors to oversee large-scale organizational reform, raising serious accountability questions.
Detailed information about online civil liberties issues may be found at http://www.cdt.org/.
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Policy Post 8.21 Copyright 2002 Center for Democracy and Technology
