IANA Transition Stewardship & ICANN Accountability (II)

The discussions and the processes established for transition plan have moved rapidly, though not fast enough—given the complicated legal and technical undertaking it is. ICG will be considering the submitted proposals and moving forward on consultations and recommendations for pending proposals. ICANN53 saw a lot of discussion on the implementation of the proposals from the numbers and protocols community, while the CWG addressed the questions related to the 2^nd draft of the names community proposal. The Protocol Parameters (IANA PLAN Working Group) submitted to ICG on 6 January 2015, while the Numbering Resources (CRISP Team) submitted on 15 January 2015. The Domain Names (CWG-Stewardship) submitted its second draft to ICG on 25 June 2015. The ICG had a face-to-face meeting in Buenos Aires and their proposal to transition the stewardship of the IANA functions is expected to be out for public comment July 31 to September 8, 2015. Parallelly, the CCWG on Enhancing ICANN Accountability offered its first set of proposals for public comment in June 2015 and organised two working sessions at ICANN'53. More recently, the CCWG met in Paris focusing on the proposed community empowerment mechanisms, emerging concerns and progress on issues so far.

Number and Protocols Proposals

The numbering and the protocol communities have developed and approved their plans for the transition. Both communities are proposing a direct contractual relationship with ICANN, in which they have the ability to end the contract on their terms. The termination clause has seen push back from ICANN and teams involved in the negotiations have revealed that ICANN has verbally represented that they will reject any proposed agreement in which ICANN is not deemed the sole source prime contractor for IANA functions in perpetuity.[1] The emerging contentious negotiations on the issue of separability i.e., the ability to change to a different IANA functions operator, is an important issue.[2] As Milton Mueller points out, ICANN seems to be using these contract negotiations to undo the HYPERLINK "http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functions-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/#comment-40045"community process and that ICANN’s staff members are viewing themselves, rather than the formal IANA transition process shepherded by the ICG, as the final authority on the transition.[3] The attempts of ICANN Staff to influence or veto ideas regarding what solutions will be acceptable to NTIA and the Congress goes beyond its mandate to facilitate the transition dialogue. The ARIN meeting[4] and the process of updating MoU with IETF which mandates supplementary SLAs[5] are examples of ICANN leveraging its status as the incumbent IANA functions operator, with which all three operational communities must negotiate, to ensure that the outcome of the IANA transition process does not threaten its control.

Names Proposal

Recently, the CWG working on recommendations for the names related functions provided an improved 2nd draft of their earlier complex proposal which attempts to resolve the internal-external debate with a middle ground, with the creation of Post-Transition IANA (PTI). PTI a subsidiary/affiliate of the current contract-holder, ICANN, will be created and handed the IANA contract and its related technology and staff. Therefore, ICANN takes on the role of the contracting authority and PTI as the contracted party will perform the names-related IANA functions. Importantly, under the new proposal CWG has done away altogether with the requirement of “authorisation” to root zone changes and the reasons for this decision have not been provided. The proposal also calls for creation of a Customer Standing Committee (CSC) to continuously monitor the performance of IANA and creation a periodic review process, rooted in the community, with the ability to recommend ICANN relinquishing its role in names-related IANA functions, if necessary. A key concern area is the external oversight mechanism Multistakeholder Review Team– has been done away with. This is a significant departure from the version placed for public comment in December 2014. It is expected that clarification will be sought from the CWG on how it has factored in inputs from the first round of public comments.

Consensus around the CWG 2nd Draft

There is a growing consensus around the model proposed—the numbers community has commented on the proposal that it does "not foresee any incompatibility between the CWG's proposal”.[6] On the IANA PLAN list, members of the protocols community have also expressed willingness to accept the new arrangement to keep all the IANA functions together in PTI during the transition and view this as merely a reorganization.[7] However, acceptance of the proposal is pending till clarification related to how the PTI will be set up and its legal standing and scope are provided.

Structure of PTI

Presently, two corporate forms are being considered for the PTI, a nonprofit public benefit corporation (PBC) or a limited liability corporation (LLC), with a single member, ICANN, at its outset. Milton Mueller has advocated for the incorporation of PTI as a PBC rather than as a LLC, with its board composed of a mix of insiders and outsiders.[8] He is of the view that LLC form makes the implementation of PTI much more complex and risky as the CWG would need to debate mechanisms of control for the PTI as part of the transition process. The choice of structure is important as it will define the limitations and responsibilities that will be placed on the PTI Board—an important and necessary accountability mechanism.

Broadly, the division of views is around selection of the Board Members that is if they should be chosen either by IANA's customers or representative groups within ICANN or solely by the Board. The degree of autonomy which the PTI has given the existing ICANN structure is also a key developing question. Debate on autonomy of PTI are broadly centered around two distinct views of PTI being incorporated in a different country, to prevent ICANN from slowly subsuming the organization. The other view endorsed by ICANN states that a high degree of autonomy risks creates additional bureaucracy and process for no discernible improvement in actual services.

Functional Separability

Under the CWG-Stewardship draft proposal, ICANN would assume the role currently fulfilled by NTIA (overseeing the IANA function), while PTI would assume the role currently played by ICANN (the IANA functions operator). A divisive area here is that the goal of “functional separation” is defeated with PTI being structured as an “affiliate” wholly owned subsidiary, as it will be subject to management and policies of ICANN. From this view, while ICANN as the contracting party has the right of selecting future IANA functions operators, the legal and policy justification for this has not been provided. It is expected that ICANN'53 will see discussions around the PTI will focus on its composition, legal standing and applicability of the California law.

Richard Hill is of the view that the details of how PTI would be set up is critical for understanding whether or not there is "real" separation between ICANN and PTI leading to the conclusion of a meaningful contract in the sense of an agreement between two separate entities.[9] This functional separation and autonomy is granted by the combination of a legally binding contract, CSC oversight, periodic review and the possibility of non-renewal of the contract.[10]

Technical and policy roles - ICANN and PTI

The creation of PTI splits the technical and policy functions between ICANN and PTI. The ICANN Board comments on CWG HYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"PrHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"oHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf"posal also confirm PTI having no policy role, nor it being intended to in the future, and that while it will have control of the budget amounts ceded to it by ICANN the funding of the PTI will be provided by ICANN as part of the ICANN budgeting process.[11] The comments from the Indian government on the proposal states this as an issue of concern, as it negates ICANN's present role as a merely technical coordination body. The concerns stem from placing ICANN in the role of the perpetual contracting authority for the IANA function makes ICANN the sole venue for decisions relating to naming policy as well as the entity with sole control over the PTI under the present wholly subsidiary entity.[12]

Key areas of work related to the distinction between the PTI and ICANN policy and technical functions include addressing how the new PFI Board would be structured, what its role would be, and what the legal construction between it and ICANN. The ICANN Board too has sought some important clarifications on its relationship as a parent body including areas where the PTI is separate from ICANN and areas where CWG sees shared services as being allowable (shared office space, HR, accounting, legal, payroll). It also sought clarification on the line of reporting, duties of the PTI Directors and alignment of PTI corporate governance with that of ICANN.

The Swedish government has commented that the next steps in this process would be clarification of the process for designing the PTI-IANA contract, a process to establish community consent before entering the contract, explicit mention of whom the contracting parties are and what their legal responsibilities would be in relation to it.[13]

Internal vs External Accountability

The ICANN Board, pushing for an internal model of full control of IANA Functions is of the view that a more independent PTI could somehow be "captured" and used to thwart the policies developed by ICANN. However, others have pointed out that under proposed structure PTI has strong ties to ICANN community that implements the policies developed by ICANN.[14] With no funding and no authority other than as a contractor of ICANN, if PTI is acting in a manner contrary to its contract it would be held in breach and could be replaced under the proposal.

Even so, as the Indian government has pointHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf"edHYPERLINK "http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf" out from the point of view of institutional architecture and accountability, this model is materially worse off than the status quo.[15]

The proposed PTI and ICANN relationship places complete reliance on internal accountability mechanisms within ICANN, which is not a prudent institutional design. The Indian government anticipates a situation where, in the event there is customer/ stakeholder dissatisfaction with ICANN’s role in naming policy development, there would be no mechanism to change the entity which fulfils this role. They feel that the earlier proposal for the creation of a Contract Co, a lightweight entity with the sole purpose of being the repository of contracting authority, and award contracts including the IANA Functions Contract provided a much more effective mechanism for external accountability. While the numbers and protocol communities have proposed a severable contractual relationship with ICANN for the performance of its SLAs no such mechanism exists with respect to ICANN's role in policy development for names.

Checks and Balances

Under the current proposal the Customer Standing Committee (CSC) has the role, of constantly reviewing the technical aspects of the naming function as performed by PTI. This, combined with the proposed periodic IANA Function Review (IFR), would act as a check on the PTI. The current draft proposal does not specify what will be the consequence of an unfavourable IANA Functions Review.

Some other areas of focus going forward relate to the IFR team inclusion in ICANN bylaws along the lines of the AOC established in 2009.[16] Also, ensuring the IFR team clarifies the scope of separability. The circumstances and procedures in place for pulling the IANA contract away if it has been established that ICANN is not fulfilling it contractual agreements. This will be a key accountability mechanism and deterrent for ICANN controlling the exercise of its influence.

CCWG Accountability

Work Stream (WS1): Responsible for drafting a mechanism for enhancing ICANN accountability, which must be in place before the IANA stewardship transition.

Work Stream (WS2): Addressing long term accountability topics which may extend beyond the IANA Stewardship Transition.

The IANA transition was recognized to be dependent on ICANN’s wider accountability, and this has exposed the trust issues between community and leadership and the proposal must be viewed in this context. The CCWG Draft Proposal attempts 4 significant new undertakings:

A. Restating ICANN’s Mission, Commitments, and Core Values, and placing those into the ICANN Bylaws. The CCWG has recommended that some segments of the Affirmation of Commitments (AOC)– a contract on operating principles agreed upon between ICANN and the United States government – be absorbed into the Corporation’s bylaws.

B. Establishing certain bylaws as “Fundamental Bylaws” that cannot be altered by the ICANN Board acting unilaterally, but over which stakeholders have prior approval rights;

C. Creating a formal “membership” structure for ICANN, along with “community empowerment mechanisms”. Some of the community empowerment mechanisms including (a) remove individual Board members, (b) recall the entire Board, (c) veto or approve changes to the ICANN Bylaws, Mission Statement, Commitments, and Core Values; and (d) to veto Board decisions on ICANN’s Strategic Plan and its budget;

D. Enhancing and strengthening ICANN's Independent Review Process (IRP) by creating a standing IRP Panel empowered to review actions taken by the corporation for compliance both with stated procedures and with the Bylaws, and to issue decisions that are binding upon the ICANN Board.

The key questions likely to be raised at ICANN 53 on several of these proposals will likely concern how these empowerment mechanisms affect the “legal nature” of the community.

Membership and Accountability

At the heart of the distrust between the ICANN Board and the community is the question of membership. ICANN as a corporation is a private sector body that is largely unregulated, with no natural competitors, cash-rich and directly or indirectly supports many of its participants and other Internet governance processes. Without effective accountability and transparency mechanisms, the opportunities for distortion, even corruption, are manifold. In such an environment, placing limitations on the Board’s power is critical to invoke trust. Three keys areas of accountability related to the Board include: no mechanisms for recall of individual board directors; the board’s ability to amend the company’s constitution (its bylaws), and the track record of board reconsideration requests.[17]

With no membership, ICANN’s directors represent the end of the line in terms of accountability. While there is a formal mechanism to review board decisions, the review is conducted by a subset of the same people. The CCWG’s proposal to create SOs/ACs as unincorporated “members” with Articles of Association has met with a lot of discussion, especially in the Governmental Advisory Council (GAC).[18] The GAC has posed several critical questions on this set up, some of which are listed here:

1. Can a legal person created and acting on behalf of the GAC become a member of ICANN, even though the GAC does not appoint Board members?
2. If GAC does not wish to become a member, how could it still be associated to the exercise of the 6 (community empowerment mechanisms) powers?
3. It is still unclear what the liability of members of future “community empowered structures” would be.
4. What are the legal implications on rights, obligations and liabilities of an informal group like the GAC creating an unincorporated association (UA) and taking decisions as such UA, from substantial (like exercising the community powers) to clerical (appointing its board, deciding on its financing) and whether there are implications when the members of such an UA are Governments?

Any proposal to strengthen accountability of ICANN needs to provide for membership so that there is ability to remove directors, creates financial accountability by receiving financial accounts and appointing editors and can check the ICANN’s board power to change bylaws without recourse to a higher authority.

Constitutional Undertaking

David Post and Danielle Kehl have pointed out that the CCWG correctly identifies the task it is undertaking – to ensure that ICANN’s power is adequately and appropriately constrained – as a “constitutional” one.[19] Their interpretation is based on the view that even if ICANN is not a true “sovereign,” it can usefully be viewed as one for the purpose of evaluating the sufficiency of checks on its power. Subsequently, the CCWG Draft Proposal, and ICANN’s accountability post-transition, can be understood and analyzed as a constitutional exercise, and that the transition proposal should meet constitutional criteria. Further, from this view the CCWG draft reflects the reformulation of ICANN around the broadly agreed upon constitutional criteria that should be addressed. These include:

1. A clear enumeration of the powers that the corporation can exercise, and a clear demarcation of those that it cannot exercise.
2. A division of the institution’s powers, to avoid concentrating all powers in one set of hands, and as a means of providing internal checks on its exercise.
3. Mechanism(s) to enforce the constraints of (1) and (2) in the form of meaningful remedies for violations.

Their comments reflect that they support CCWG in their approach and progress made in designing a durable accountability structure for a post-transition ICANN. However, they have stressed that a number of important omissions and/or clarifications need to be addressed before they can be confident that these mechanisms will, in practice, accomplish their mission. One such suggestion relates to ICANN’s policy role and PTI technical role separability. Given ICANN’s position in the DNS hierarchy gives it the power to impose its policies, via the web of contracts with and among registries, registrars, and registrants, on all users of the DNS, a constitutional balance for the DNS must preserve and strengthen the separation between DNS policy-making and policy-implementation. Importantly, they have clarified that even if ICANN has the power to choose what policies are in the best interest of the community it is not free to impose them on the community. ICANN's role is a critical though narrow one: to organize and coordinate the activities of that stakeholder community – which it does through its various Supporting Organizations, Advisory Committees, and Constituencies – and to implement the consensus policies that emerge from that process. Their comments on the CCWG draft call for stating this clarification explicitly and institutionalizing separability to be guided by this critical safeguard against ICANN’s abuse of its power over the DNS.

An effective implementation of this limitation will help clarify the role mechanisms being proposed such as the PTI and is critical for creating sustainable mechanisms, post-transition. More importantly, clarifying ICANN’s mission would ensure that in the post-transition communities could challenge its decisions on the basis that it is not pertaining to the role outlined or based on strengthening the stability and security of the DNS. Presently, it is very unclear where ICANN can interfere in terms of policymaking and implementation.

Other Issues

Other issues expected to be raised in the context of ICANN's overall accountabiltiy will likey concern the following:

Strengthening financial transparency and oversight

Given the rapid growth of the global domain name industry, one would imagine that ICANN is held up to the same standard of accountability as laid down in the right to information mechanisms countries such as India. CIS has been raising this issue for a while and has managed to received the list of ICANN’s current domain name revenues.[20]

By sharing this information, ICANN has shown itself responsive to repeated requests for transparency however, the shared revenue data is only for the fiscal year ending June 2014, and historical revenue data is still not publicly available. Neither is a detailed list (current and historical) of ICANN’s expenditures publicly available. Accountability mechanisms and discussions must seek that ICANN provide the necessary information during its regular Quarterly Stakeholder Reports, as well as on its website.

Strengthening transparency

A key area of concern is ICANN's unchecked influence and growing role as an institution in the IG space. Seen in the light of the impending transition, the transparency concerns gain significance and given ICANN's vocal interests in maintaining the status quo of its role in DNS Management. While financial statements (current and historic) are public and community discussions are generally open, the complexity of the contractual arrangements in place tracking the financial reserves available to ICANN through these processes are not sufficient.

Further, ICANN as a monopoly is presently constrained only by the NTIA review and few internal mechanisms like the Documentary Information Disclosure Policy (DIDP)[21], Ombudsman[22], Reconsideration and Independent Review[23] and the Accountability and Transparency Review (ATRT)[24]. These mechanisms are facing teething issues and some do not conform to the principles of natural justice. For example, a Reconsideration Request can be filed if one is aggrieved by an action of ICANN’s Board or staff. Under ICANN’s By-laws, it is the Board Governance Committee, comprising ICANN Board members, that adjudicates Reconsideration Requests.[25]

Responses to the DIDP requests filed by CIS reveal that the mechanism in its current form, is not sufficient to provide the transparency necessary for ICANN’s functioning. For instance, in the response to DIDP pertaining to the Ombudsman Requests[26], ICANN cites confidentiality as a reason to decline providing information as making Ombudsman Requests public would violate ICANN Bylaws, toppling the independence and integrity of the Ombudsman. Over December ’14 and January ’15, CIS sent 10 DIDP requests to ICANN with an aim was to test and encourage discussions on transparency from ICANN. We have received responses for 9 of our requests, and in 7 of those responses ICANN provides very little new information and moving forward we would stress the improvements of existing mechanisms along with introduction of new oversight and reporting parameters towards facilitating the transition process.[27]

[1]John Sweeting and others, 'CRISP Process Overview' (ARIN 35, 2015) https://regmedia.co.uk/2015/04/30/crisp_panel.pdf

[2]Andrew Sullivan, [Ianaplan] Update On IANA Transition & Negotiations With ICANN (2015), Email http://www.ietf.org/mail-archive/web/ianaplan/current/msg01680.html

[3]Milton Mueller, ‘ICANN WANTS AN IANA FUNCTIONS MONOPOLY – WILL IT WRECK THE TRANSITION PROCESS TO GET IT?’ (Internet Governance Project, 28 April 2015) http://www.internetgovernance.org/2015/04/28/icann-wants-an-iana-functions-monopoly-and-its-willing-to-wreck-the-transition-process-to-get-it/#comment-40045

[4]Tony Smith, 'Event Wrap: ICANN 52' (APNIC Blog, 20 February 2015) http://blog.apnic.net/2015/02/20/event-wrap-icann-52/

[5]Internet Engineering Task Force, 'IPROC – IETF Protocol Registries Oversight Committee' (2015) https://www.ietf.org/iana/iproc.html

[6]Axel Pawlik, Numbers Community Proposal Contact Points With CWG’S Draft IANA Stewardship Transition Proposal (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00003.html

[7]Jari Arkko, Re: [Ianaplan] CWG Draft And Its Impact On The IETF (2015), Email http://www.ietf.org/mail-archive/web/ianaplan/current/msg01843.html

[8]Milton Mueller, Comments Of The Internet Governance Project (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00021.html

[9]Richard Hill, Initial Comments On CWG-Stewardship Draft Proposal (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00000.html

[10]Brenden Kuerbis, 'Why The Post-Transition IANA Should Be A Nonprofit Public Benefit Corporation' (Internet Governance Project, 18 May 2015) http://www.internetgovernance.org/2015/05/18/why-the-post-transition-iana-should-be-a-nonp

[11]ICANN Board Comments On 2Nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions (20 May 2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfrIUO5F9nY4.pdf

[12]Comments Of Government Of India On The ‘2nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions’ (2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf

[13]Anders Hektor, Sweden Comments To CWG-Stewardship (2015), Email http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/msg00016.html

[14]Brenden Kuerbis, 'Why The Post-Transition IANA Should Be A Nonprofit Public Benefit Corporation |' (Internet Governance Project, 18 May 2015) http://www.internetgovernance.org/2015/05/18/why-the-post-transition-iana-should-be-a-nonprofit-public-benefit-corporation/

[15]Comments Of Government Of India On The ‘2nd Draft Proposal Of The Cross Community Working Group To Develop An IANA Stewardship Transition Proposal On Naming Related Functions’ (2015) http://forum.icann.org/lists/comments-cwg-stewardship-draft-proposal-22apr15/pdfJGK6yVohdU.pdf

[16]Kieren McCarthy, 'Internet Kingmakers Drop Ego, Devise Future Of DNS, IP Addys Etc' (The Register, 24 April 2015) http://www.theregister.co.uk/2015/04/24/internet_kingmakers_drop_ego_devise_future_of_the_internet/

[17]Emily Taylor, ICANN: Bridging The Trust Gap (Paper Series No. 9, Global Commission on Internet Governance March 2015) https://regmedia.co.uk/2015/04/02/gcig_paper_no9-iana.pdf

[18]Milton Mueller, 'Power Shift: The CCWG’S ICANN Membership Proposal' (Internet Governance Project, 4 June 2015) http://www.internetgovernance.org/2015/06/04/power-shift-the-ccwgs-icann-membership-proposal/

[19]David Post, Submission Of Comments On CCWG Draft Initial Proposal (2015), Email http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/msg00050.html

[20] Hariharan, 'ICANN reveals hitherto undisclosed details of domain names revenues', 8 December, 2014 See: http://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014

[21] ICANN, Documentary Information Disclosure Policy See: https://www.icann.org/resources/pages/didp-2012-02-25-en

[22] ICANN Accountability, Role of the Ombudsman https://www.icann.org/resources/pages/accountability/ombudsman-en

[23] ICANN Reconsideration and independent review, ICANN Bylaws, Article IV, Accountability and Review https://www.icann.org/resources/pages/reconsideration-and-independent-review-icann-bylaws-article-iv-accountability-and-review

[24] ICANN Accountability and Transparency Review Final Recommendations https://www.icann.org/en/system/files/files/final-recommendations-31dec13-en.pdf

[25] ICANN Bylaws Article iv, Section 2 https://www.icann.org/resources/pages/governance/bylaws-en#IV

[26] ICANN Response to DIDP Ombudsman https://www.icann.org/resources/pages/20141228-1-ombudsman-2015-01-28-en

[27] Table of CIS DIDP Requests See: http://cis-india.org/internet-governance/blog/table-of-cis-didp-requests/at_download/file