If you were Alice and the Internet was Wonderland, then the title of the Queen of Hearts would be reserved for the Internet Corporation for Assigned Names and Numbers (ICANN), a California based not-for-profit corporation that serves as the custodian of domain names and IP addresses, and discharges the all-important IANA functions, which ensure that computers on the internet connect to correct addresses. What stops ICANN from proverbially declaring “off with their heads!” and monopolising the internet is the ICANN Board of Directors’ accountability to the internet community – an essential requirement embedded in the core values of the corporation’s bylaws. In addition to its accountability to the community, ICANN is also answerable to the US Government. The IANA functions are discharged by ICANN under a contract with the National Telecommunications and Information Agency, an arm of the US Department of Commerce. This, however, will soon change.
Owed in no small part to the Snowden disclosures and the increasing global internet user base, the US has decided to cede control over the IANA functions to a multistakeholder group. While lauding this decision, the internet community demanded that ICANN too should be made answerable to the stakeholders of the internet. This has led to the creation of two parallel processes, one to ensure a smooth IANA transition and the other to enhance ICANN’s accountability.
ICANN broadly consists of the Board of Directors, the President and the ICANN Community (community). The community, made up of three Supporting Organisations (SO) and four Advisory Committees (AC), represents the key stakeholders of the internet, i.e., users, businesses, governments and internet registries, among others. SOs help formulate ICANN’s policies and ACs, which don’t participate in policy making, advice ICANN on these policies. Earlier, the community’s relationship with the ICANN Board was limited to making policies. If the Board chose to disregard the community’s advice, it would have no easy recourse for ensuring compliance.
Since late 2014, a Cross Community Working Group on Enhancing ICANN Accountability (CCWG) has been working toward creating a more accountable ICANN to prepare the corporation as the IANA transition mechanism is adopted and put into practice. The second draft of the CCWG proposal, which was released on August 3 this year, recommends many changes to the governance structure of ICANN. These changes empower the community and make the board answerable to it. Through considered interventions, the community could prevent the Board from making unilateral decisions that are profitable to the board but not beneficial to the internet community at large. Naturally, this draft has met with considerable opposition from the ICANN Board.
Efforts towards increasing the Board’s accountability could result in the community reviewing key Board decisions and ensuring its compliance with ICANN’s bylaws. After much deliberation, the CCWG has arrived at a “Sole Member model” for representing the Community’s interests. The proposal envisages the creation of an unincorporated association that would comprise the various SOs and ACs. This member would represent to the Board the views of the community and take democratic decisions against the Board in case the community definitively expresses dissatisfaction with the Board’s actions.
The sole member would be unincorporated but would have legal personality. This ensures that the community can sue and be sued in court in case of noncompliance with ICANN’s bylaws. The CCWG’s proposal grants the community definitive powers to reconsider/reject ICANN’s budget, approve/reject changes to ICANN’s bylaws, review Board’s decisions regarding the IANA functions, remove individual ICANN directors and, in some exigent circumstances, even recall the entire ICANN Board.
However, in the most predictable reaction to any re-balance of power, the Board remains sceptical of the proposal. It is the Board’s contention that the proposal, which is yet untested, renders ICANN vulnerable to paralysis. While paying lip service to a multistakeholder process, the Board ignores that the CCWG’s proposal has wide community approval and is exactly the kind of input that a multistakeholder consultative process is intended to produce.
For its part, the Board has offered an “alternative” proposal to CCWG’s, basically suggesting that compliance can be ensured through an arbitration process, rather than creating a new legal entity. However, the Board’s proposal too is untested and considerably more ambiguous about the legal rights available to the community. It is not unreasonable to suggest the Board’s opposition to the Sole Member model is a delaying tactic to ensure the IANA transition is complete, after which incorporating accountability measures would become more difficult.
Earlier this week, when the CCWG met in Los Angeles, the Board abandoned all pretence and came out in clear opposition of the Sole Member model. The Board’s Chairman went so far as to state that a model like the one that has been in operation for over a decade and has not had “disastrous” consequences is the kind of threshold that the group is willing to find acceptable. Its alternative, therefore, is no alternative at all; instead, it is indicative of a furtive desire to maintain the status quo with little to no accountability.
In fact, the Board’s strong opposition has created serious doubts about the its motives and commitment to multistakeholderism. Speaking at the LA Meeting, Larry Strickling, the US Assistant Secretary for Commerce, called it an internal conflict within the Board between “those who genuinely want to keep their power because they wield it” and those who “can’t help but see in the vague proposals what looks like a power grab without responsibility.”
Whatever the internal issues within ICANN may be, the time for arriving at a mutually acceptable accountability model is running out. The deadline for the IANA transition is September 2016. Once the IANA functions have been handed over to a multistakeholder entity, it will become nearly impossible to test a new accountability model. The IANA transition is a rare opportunity, one that has forced the US government’s hand in acknowledging that ICANN’s corporate governance leaves much to be desired. Countries like India are fast becoming actors to reckon with in the internet governance landscape. It is these countries that need to decide key questions like which accountability model affords them the highest representation and whether it is prudent to delay the IANA transition for an ensured accountability model that can be implemented immediately.
Bedavyasa Mohanty is a lawyer with an interest in privacy and technology. He works at the Observer Research Foundation’s Cyber Initiative.