The Centre for Internet and Society
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Net Freedom Campaign Loses its Way
https://cis-india.org/internet-governance/blog/the-hindu-business-line-may-10-2014-sunil-abraham-net-freedom-campaign-loses-its-way
<b>A recent global meet was a victory for governments and the private sector over civil society interests.</b>
<hr />
<p style="text-align: justify; ">The article was <a class="external-link" href="http://www.thehindubusinessline.com/todays-paper/tp-opinion/net-freedom-campaign-loses-its-way/article5994906.ece">published in the Hindu Businessline</a> on May 10, 2014.</p>
<hr />
<p style="text-align: justify; ">One word to describe NetMundial: Disappointing! Why? Because despite the promise, human rights on the Internet are still insufficiently protected. Snowden’s revelations starting last June threw the global Internet governance processes into crisis.</p>
<p style="text-align: justify; ">Things came to a head in October, when Brazil’s President Dilma Rousseff, horrified to learn that she was under NSA surveillance for economic reasons, called for the organisation of a global conference called NetMundial to accelerate Internet governance reform.</p>
<p style="text-align: justify; ">The NetMundial was held in São Paulo on April 23-24 this year. The result was a statement described as “the non-binding outcome of a bottom-up, open, and participatory process involving … governments, private sector, civil society, technical community, and academia from around the world.” In other words — it is international soft law with no enforcement mechanisms.</p>
<p style="text-align: justify; ">The statement emerges from “broad consensus”, meaning governments such as India, Cuba and Russia and civil society representatives expressed deep dissatisfaction at the closing plenary. Unlike an international binding law, only time will tell whether each member of the different stakeholder groups will regulate itself.</p>
<p style="text-align: justify; ">Again, not easy, because the outcome document does not specifically prescribe what each stakeholder can or cannot do — it only says what internet governance (IG) should or should not be. And finally, there’s no global consensus yet on the scope of IG. The substantive consensus was disappointing in four important ways:</p>
<p style="text-align: justify; "><b>Mass surveillance</b> : Civil society was hoping that the statement would make mass surveillance illegal. After all, global violation of the right to privacy by the US was the <i>raison d'être</i> of the conference.</p>
<p style="text-align: justify; ">Instead, the statement legitimised “mass surveillance, interception and collection” as long as it was done in compliance with international human rights law. This was clearly the most disastrous outcome.</p>
<p style="text-align: justify; "><b>Access to knowledge:</b> The conference was not supposed to expand intellectual property rights (IPR) or enforcement of these rights. After all, a multilateral forum, WIPO, was meant to address these concerns. But in the days before the conference the rights-holders lobby went into overdrive and civil society was caught unprepared.</p>
<p style="text-align: justify; ">The end result — “freedom of information and access to information” or right to information in India was qualified “with rights of authors and creators”. The right to information laws across the world, including in India, contains almost a dozen exemptions, including IPR. The only thing to be grateful for is that this limitation did not find its way into the language for freedom of expression.</p>
<p style="text-align: justify; "><b>Intermediary liability:</b> The language that limits liability for intermediaries basically provides for a private censorship regime without judicial oversight, and without explicit language protecting the rights to freedom of expression and privacy. Even though the private sector chants Hillary Clinton's Internet freedom mantra — they only care for their own bottomlines.</p>
<p style="text-align: justify; "><b>Net neutrality:</b> Even though there was little global consensus, some optimistic sections of civil society were hoping that domestic best practice on network neutrality in Brazil’s Internet Bill of Right — also known as Marco Civil, that was signed into law during the inaugural ceremony of NetMundial — would make it to the statement. Unfortunately, this did not happen.</p>
<p style="text-align: justify; ">For almost a decade since the debate between the multi-stakeholder and multilateral model started, the multi-stakeholder model had produced absolutely nothing outside ICANN (Internet Corporation for Assigned Names and Numbers, a non-profit body), its technical fraternity and the standard-setting bodies.</p>
<p style="text-align: justify; ">The multi-stakeholder model is governance with the participation (and consent — depending on who you ask) of those stakeholders who are governed. In contrast, in the multilateral system, participation is limited to nation-states.</p>
<p style="text-align: justify; "><b>Civil society divisions</b></p>
<p style="text-align: justify; ">The inability of multi-stakeholderism to deliver also resulted in the fragmentation of global civil society regulars at Internet Governance Forums.</p>
<p style="text-align: justify; ">But in the run-up to NetMundial more divisions began to appear. If we ignore nuances — we could divide them into three groups. One, the ‘outsiders’ who are best exemplified by Jérémie Zimmermann of the La Quadrature du Net. Jérémie ran an online campaign, organised a protest during the conference and did everything he could to prevent NetMundial from being sanctified by civil society consensus.</p>
<p style="text-align: justify; ">Two, the ‘process geeks’ — for these individuals and organisations process was more important than principles. Most of them were as deeply invested in the multi-stakeholder model as ICANN and the US government and some who have been riding the ICANN gravy train for years.</p>
<p style="text-align: justify; ">Even worse, some were suspected of being astroturfers bootstrapped by the private sector and the technical community. None of them were willing to rock the boat. For the ‘process geeks’, seeing politicians and bureaucrats queue up like civil society to speak at the mike was the crowning achievement.</p>
<p style="text-align: justify; ">Three, the ‘principles geeks’ perhaps best exemplified by the Just Net Coalition who privileged principles over process. Divisions were also beginning to sharpen within the private sector. For example, Neville Roy Singham, CEO of Thoughtworks, agreed more with civil society than he did with other members of the private sector in his interventions.</p>
<p style="text-align: justify; ">In short, the ‘outsiders’ couldn't care less about the outcome and will do everything to discredit it, the ‘process geeks’ stood in ovation when the outcome document was read at the closing plenary and the ‘principles geeks’ returned devastated.</p>
<p style="text-align: justify; ">For the multi-stakeholder model to survive it must advance democratic values, not undermine them.</p>
<p style="text-align: justify; ">This will only happen if there is greater transparency and accountability. Individuals, organisations and consortia that participate in Internet governance processes need to disclose lists of donors including those that sponsor travel to these meetings.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/the-hindu-business-line-may-10-2014-sunil-abraham-net-freedom-campaign-loses-its-way'>https://cis-india.org/internet-governance/blog/the-hindu-business-line-may-10-2014-sunil-abraham-net-freedom-campaign-loses-its-way</a>
</p>
No publishersunilICANNInternet GovernanceNETmundial2014-05-27T11:07:04ZBlog EntryNavigating the 'Reconsideration' Quagmire (A Personal Journey of Acute Confusion)
https://cis-india.org/internet-governance/blog/navigating-reconsideration-quagmire-a-personal-journey-of-acute-confusion
<b>An earlier analysis of ICANN’s Documentary Information Disclosure Policy already brought to light our concerns about the lack of transparency in ICANN’s internal mechanisms. Carrying my research forward, I sought to arrive at an understanding of the mechanisms used to appeal a denial of DIDP requests. In this post, I aim to provide a brief account of my experiences with the Reconsideration Request process that ICANN provides for as a tool for appeal.</b>
<h3 style="text-align: justify; "><span>Backdrop: What is the Reconsideration Request Process?</span></h3>
<p style="text-align: justify; ">The Reconsideration Request process has been laid down in Article IV, Section 2 of the</p>
<p style="text-align: justify; ">ICANN Bylaws. Some of the key aspects of this provision have been outlined below<a href="#_ftn1" name="_ftnref1"><sup><sup>[1]</sup></sup></a>,</p>
<ul style="text-align: justify; ">
</ul>
<ul style="text-align: justify; ">
<li>ICANN is obligated to institute a process by which a person <i>materially affected </i>by ICANN action/inaction can request review or reconsideration.</li>
</ul>
<ul style="text-align: justify; ">
<li>To file this request, one must have been adversely affected by actions of the staff or the board that contradict ICANN’s policies, or actions of the Board taken up without the Board considering material information, or actions of the Board taken up by relying on false information.</li>
<li>A separate Board Governance Committee was created with the specific mandate of reviewing Reconsideration requests, and conducting all the tasks related to the same.</li>
<li>The Reconsideration Request must be made within 15 days of:
<ul>
<li>FOR CHALLENGES TO BOARD ACTION: the date on which information about the challenged Board action is first published in a resolution, unless the posting of the resolution is not accompanied by a rationale, in which case the request must be submitted within 15 days from the initial posting of the rationale;</li>
<li>FOR CHALLENGES TO STAFF ACTION: the date on which the party submitting the request became aware of, or reasonably should have become aware of, the challenged staff action, and</li>
<li>FOR CHALLENGES TO BOARD OR STAFF INACTION: the date on which the affected person reasonably concluded, or reasonably should have concluded, that action would not be taken in a timely manner</li>
</ul>
</li>
</ul>
<ul style="text-align: justify; ">
<li>.The Board Governance Committee is given the power to summarily dismiss a reconsideration request if:
<ul>
<li>the requestor fails to meet the requirements for bringing a Reconsideration Request;</li>
<li>it is frivolous, querulous or vexatious; or </li>
<li>the requestor had notice and opportunity to, but did not, participate in the public comment period relating to the contested action, if applicable</li>
</ul>
</li>
</ul>
<ul style="text-align: justify; ">
<li>If not summarily dismissed, the Board Governance Committee proceeds to review and reconsider.</li>
<li>A requester may ask for an opportunity to be heard, and the decision of the Board Governance Committee in this regard is final.</li>
</ul>
<ul style="text-align: justify; ">
<li>The basis of the Board Governance Committee’s action is public written record information submitted by the requester, by third parties, and so on.</li>
<li>The Board Governance Committee is to take a decision on the matter and make a final determination or recommendation to the Board within 30 days of the receipt of the Reconsideration request, unless it is impractical to do so, and it is accountable to the Board to make an explanation of the circumstances that caused the delay.</li>
<li>The determination is to be made public and posted on the ICANN website.</li>
</ul>
<p style="text-align: justify; ">ICANN has provided a neat infographic to explain this process in a simple fashion, and I am reproducing it here:</p>
<p style="text-align: justify; "><img src="https://cis-india.org/home-images/Reconsideration.jpg" alt="Reconsideration" class="image-inline" title="Reconsideration" /></p>
<p style="text-align: justify; ">(Image taken from <span></span><span>https://www.icann.org/resources/pages/accountability/reconsiderationen</span>)</p>
<h3 style="text-align: justify; "><span>Our Tryst with the Reconsideration Process</span></h3>
<p style="text-align: justify; "><b>The Grievance</b><br />Our engagement with the Reconsideration process began with the rejection of two of our requests (made on September 1, 2015) under ICANN’s Documentary Information Disclosure Policy. The requests sought information about the registry and registrar compliance audit process that ICANN maintains, and asked for various documents pertaining to the same<a href="#_ftn2" name="_ftnref2"><sup><sup>[2]</sup></sup></a>:</p>
<ul style="text-align: justify; ">
<li>Copies of the registry/registrar contractual compliance audit reports for all the audits carried out as well as external audit reports from the last year (20142015).</li>
<li>A generic template of the notice served by ICANN before conducting such an audit.</li>
<li>A list of the registrars/registries to whom such notices were served in the last year.</li>
<li>An account of the expenditure incurred by ICANN in carrying out the audit process.</li>
<li>A list of the registrars/registries that did not respond to the notice within a reasonable period of time.</li>
<li>Reports of the site visits conducted by ICANN to ascertain compliance.</li>
<li>Documents which identify the registries/registrars who had committed material discrepancies in the terms of the contract.</li>
<li>Documents pertaining to the actions taken in the event that there was found to be some form of contractual noncompliance.</li>
<li>A copy of the registrar selfassessment form which is to be submitted to ICANN.</li>
</ul>
<p style="text-align: justify; ">ICANN integrated both the requests and addressed them via one response on 1 October, 2015 (which can be found <span></span><span>here</span>). In their response, ICANN inundated us with already available links on their website explaining the compliance audit process, and the processes ancillary to it, as well as the broad goals of the programme none of which was sought for by us in our request. ICANN then went on to provide us with information on their ThreeYear Audit programme, and gave us access to some of the documents that we had sought, such as the preaudit notification template, list of registries/registrars that received an audit notification, the expenditure incurred to some extent, and so on .</p>
<p style="text-align: justify; ">Individual contracted party reports were denied to us on the basis of their grounds for nondisclosure. Further, and more disturbingly, ICANN refused to provide us with the names of the contracted parties who had been found under the audit process to have committed discrepancies. Therefore, a large part of our understanding of the way in which the compliance audit process works remains unfinished.</p>
<h3 style="text-align: justify; ">What we did</h3>
<p style="text-align: justify; ">Dissatisfied with this response, I went on to file a Reconsideration request (number 1522) as per their standard format on November 2, 2015. (The request filed can be accessed <span></span><span>here</span>).As grounds for reconsideration, I stated that “<i>As a part of my research I was tracking the ICANN compliance audit process, and therefore required access to audit reports in cases where discrepancies where formally found in their actions. This is in the public interest and therefore requires to be disclosed...While providing us with an array of detailed links explaining the compliance audit process, the ICANN staff has not been able to satisfy our actual requests with respect to gaining an understanding of how the compliance audits help in regulating actions of the registrars, and how they are effective in preventing breaches and discrepancies.</i>” Therefore, I requested them to make the records in question publicly available “<i>We request ICANN to make the records in question, namely the audit reports for individual contracted parties that reflect discrepancies in contractual compliance, which have been formally recognised as a part of your enforcement process. We further request access to all documents that relate to the expenditure incurred by ICANN in the process, as we believe financial transparency is absolutely integral to the values that ICANN stands by.</i>”</p>
<p style="text-align: justify; "><b>The Board Governance Committee’s response</b><sup>3</sup></p>
<p style="text-align: justify; ">The determination of the Board Governance Committee was that our claims did not merit reconsideration, as I was unable to identify any “<i>misapplication of policy or procedure by the ICANN Staff</i>”, and my only issue was with the substance of the DIDP Response itself, and <i>substantial disagreements with a DIDP response are not proper bases for reconsideration </i></p>
<p style="text-align: justify; ">(emphasis supplied).</p>
<p style="text-align: justify; ">The response of the Board Governance Committee was educative of the ways in which they determine Reconsideration Requests. Analysing the DIDP process, it held that ICANN was well within its powers to deny information under its defined Conditions for NonDisclosure, and denial of substantive information did not amount to a procedural violation. Therefore, since the staff adhered to established procedure under the DIDP, there was no basis for our grievance, and our request was dismissed..</p>
<p style="text-align: justify; ">Furthermore, as a postscript, it is interesting to note that the Board Governance Committee delayed its response time by over a month, by its own admission “<i>In terms of the timing of the BGC’s recommendation, it notes that Section 2.16 of Article IV of the Bylaws provides that the BGC shall make a final determination or recommendation with respect to a reconsideration request within thirty days, unless impractical. To satisfy the thirtyday deadline, the BGC would have to have acted by 2 December 2015. However, due to the timing of the BGC’s meetings in November and December, the first practical opportunity for the BGC to consider Request 1522 was 13 January 2016.</i>”<sup>4</sup></p>
<h3 style="text-align: justify; "><span>Whither do I wander now?</span><b> </b></h3>
<p style="text-align: justify; ">To me, this entire process reflected the absurdity of the Reconsideration request structure as an appeal mechanism under the Documentary Information Disclosure Policy. As our experience indicated, there does not seem to be any way out if there is an issue with the substance of ICANN’s response. ICANN, commendably, is particular about following procedure with respect to the DIDP. However, what is the way forward for a party aggrieved by the flaws in the existing policy? As I had <span></span><span>analysed</span> <span>earlier</span>, the grounds for ICANN to not disclose information are vast, and used to deny a large chunk of the information requests that they receive. How is the hapless requester to file a meaningful appeal against the outcome of a bad policy, if the only ground for appeal is noncompliance with the procedure of said bad policy? This is a serious challenge to transparency as there is no other way for a requester to acquire information that ICANN may choose to withold under one of its myriad clauses. It cannot be denied that a good information disclosure law ought to balance the free disclosure of information with the holding back of information that truly needs to be kept private.<a href="#_ftn3" name="_ftnref3"><sup><sup>[3]</sup></sup></a><a href="#_ftn4" name="_ftnref4"><sup><sup>[4]</sup></sup></a> However, it is this writer’s firm opinion that even instances where information is witheld, there has to be a stronger explanation for the same, and moreover, an appeals process that does not take into account substantive issues which might adversely affect the appellant falls short of the desirable levels of transparency. Global standards dictate that grounds for appeal need to be broad, so that all failures to apply the information disclosure law/policy may be remedied.<sup>6</sup> Various laws across the world relating to information disclosure often have the following as grounds for appeal: an inability to lodge a request, failure to respond to a request within the set time frame, a refusal to disclose information, in whole or in part, excessive fees and not providing information in the form sought, as well as a catchall clause for other failures.<sup>7</sup></p>
<p style="text-align: justify; ">Furthermore, independent oversight is the heart of a proper appeal mechanism in such situations<a href="#_ftn5" name="_ftnref5"><sup><sup>[5]</sup></sup></a>; the power to decide the appeal must not rest with those who also have the discretion to disclose the information, as is clearly the case with ICANN, where the Board Governance Committee is constituted and appointed by the ICANN Board itself [one of the bodies against whom a grievance may be raised].</p>
<h3 style="text-align: justify; "><span>Suggestions</span><b> </b></h3>
<p style="text-align: justify; ">We believe ICANN, in keeping with its global, multistakeholder, accountable spirit, should adopt these standards as well, especially now that the transition looms around the corner. Only then will the standards of open, transparent and accountable governance of the Internet upheld by ICANN itself as the ideal be truly, meaningfully realised. Accordingly, the following standards ought to be met with:</p>
<ol style="text-align: justify; ">
<li>Establishment of an independent appeals authority for information disclosure cases</li>
<li>Broader grounds for appeal of DIDP requests</li>
<li>Inclusion of disagreement with the substantive content of a DIDP response as a ground for appeal.</li>
<li>Provision of proper reasoning for any justification of the witholding of information that is necessary in the public interest.</li>
</ol>
<hr style="text-align: justify; " />
<ol style="text-align: justify; "> </ol>
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1">[1]</a> Article IV, Section 2, ICANN Bylaws, 2014 <i>available at </i>https://www.icann.org/resources/pages/governance/bylawsen/#IV</p>
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2">[2]</a> Copies of the request can be found <span></span><span>here</span> and <span></span><span>here</span>.</p>
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3">[3]</a> Katherine Chekouras, <i>Balancing National Security with a Community's RighttoKnow: Maintaining </i></p>
<p style="text-align: justify; "><i>Public Access to Environmental Information Through EPCRA 's NonPreemption Clause</i>, 34 B.C. Envtl. Aff. L. Rev 107, (2007).</p>
<p style="text-align: justify; "><a href="#_ftnref4" name="_ftn4">[4]</a> Toby Mendel, <i>Freedom of Information: A Comparative Legal Study</i> 151 (2nd edn, 2008).</p>
<p style="text-align: justify; "><i>Id</i>, at 152</p>
<p style="text-align: justify; "><sup>3</sup>4 Available <span></span><span>here</span>. https://www.icann.org/en/system/files/files/reconsideration1522cisfinaldetermination13jan16en.pdf</p>
<p style="text-align: justify; "><a href="#_ftnref5" name="_ftn5">[5]</a> Mendel, <i>supra </i>note 6.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/navigating-reconsideration-quagmire-a-personal-journey-of-acute-confusion'>https://cis-india.org/internet-governance/blog/navigating-reconsideration-quagmire-a-personal-journey-of-acute-confusion</a>
</p>
No publisherPadmini Baruah and Geetha HariharanICANNInternet Governance2016-11-30T13:48:41ZBlog EntryMulti-stakeholder Models of Internet Governance within States: Why, Who & How?
https://cis-india.org/internet-governance/blog/multi-stakeholder-models-of-internet-governance-within-states-why-who-how
<b>Internet governance, for long a global exercise, has found new awareness within national frameworks in recent times. Especially relevant for developing countries, effective national IG mechanisms are important to raise awareness and ensure multi-stakeholder participation at technical, infrastructural and public policy levels.</b>
<p style="text-align: justify; ">This post is a surface-level overview of national IG bodies, and is intended to inform introductory thoughts on national IG mechanisms.</p>
<p style="text-align: justify; "><strong> </strong></p>
<p style="text-align: justify; "><strong> </strong></p>
<h3 style="text-align: justify; "><strong>A Short Introduction</strong><i> </i></h3>
<p style="text-align: justify; ">The previous decade has seen a <a href="http://www.intgovforum.org/cms/igf-initiatives">proliferation</a> of regional, sub-regional and national initiatives for Internet governance (IG). Built primarily on the multi-stakeholder model, these initiatives aim at creating dialogue on issues of regional, local or municipal importance. In Asia, Bangladesh has instituted a national IGF, the Bangladesh IGF, with the <a href="http://www.intgovforum.org/cms/2011/NationalregionalIGFreports/BANGLADESHIGF.2011.pdf">stated objective</a> of creating a national multi-stakeholder forum that is specialized in Internet governance issues, and to facilitate informed dialogue on IG policy issues among stakeholders. India, too, is currently in the process of instituting such a forum. At this juncture, it is useful to consider the rationale and modalities of national IG bodies.</p>
<p style="text-align: justify; ">The Internet has long been considered a sphere of non-governmental, multi-stakeholder, decentralized, bottom-up governance space. The Declaration of Independence of Cyberspace, John Perry Barlow’s defiant articulation of the <a href="https://projects.eff.org/~barlow/Declaration-Final.html">Internet’s freedom from governmental control</a>, is a classic instance of this. The Internet is a “<i>vast ocean</i>”, we claimed; “<i>no one owns it</i>”.<a href="#_ftn1">[1]</a> Even today, members of the technical community insist that everyone ought to “<i>let techies do their job</i>”: a plea, if you will, of the complexity of cyber-walls and –borders (or of their lack).</p>
<p style="text-align: justify; ">But as Prof. Milton Mueller argues in <i>Ruling the Root</i>, the Internet has always been a contentious resource: battles over its governance (or specifically, the governance of the DNS root, both the <a href="http://www.iana.org/domains/root/files">root-zone file</a> and the <a href="http://root-servers.org/">root servers</a>) have leapt from the naïveté of the Declaration of Independence to a private-sector-led, contract-based exploitation of Internet resources. The creation of ICANN was a crucial step in this direction, following arbitrary policy choices by Verizon and entities managing the naming and numbering resources of the Internet.</p>
<p style="text-align: justify; ">The mushrooming of parallel tracks of Internet governance is further evidence of the malleability of the space. As of today, various institutions – inter-governmental and multi-stakeholder – extend their claims of governance. ICANN, the World Summit of Information Society, the World Conference on International Telecommunications, the Internet Governance Forum and the Working Group on Enhanced Cooperation under the ECOSOC Committee for Science, Technology and Development are a few prominent tracks. As of today, the WSIS process has absorbed various UN special bodies (the ITU, UNESCO, UNCTAD, UNDP are but a few), with the UNESCO instituting a <a href="http://www.unesco.org/new/internetstudy">separate study</a> on Internet-related issues. A proposal for a multilateral Committee on Internet-Related Policies remains <a href="http://www.internetgovernance.org/2011/10/29/a-united-nations-committee-for-internet-related-policies-a-fair-assessment/">stillborn</a>.</p>
<p style="text-align: justify; ">Amongst these, the Internet Governance Forum (IGF) remains a strong contender for a truly multi-stakeholder process facilitating dialogue on IG. The IGF was set up following the recommendation of the Working Group of Internet Governance (WGIG), constituted after the Geneva phase of the WSIS.</p>
<h3 style="text-align: justify; "><strong>Rationale: Why Have National IG bodies?</strong></h3>
<p style="text-align: justify; ">The issue of national multi-stakeholder cooperation/collaboration in IG is not new; it has been alive since the early 2000s. The <a href="http://www.itu.int/wsis/docs2/tunis/off/6rev1.html">Tunis Agenda</a>, in paragraph 80, encourages the “<i>development of multi-stakeholder processes at the <span>national, regional and international levels</span> to discuss and collaborate on the expansion and diffusion of the Internet as a means to support development efforts to achieve internationally agreed development goals and objectives, including the Millennium Development Goals</i>” (emphasis supplied).</p>
<p style="text-align: justify; "><span>In its </span><a href="http://www.wgig.org/docs/WGIGREPORT.pdf">June 2005 Report</a><span>, the Working Group on Internet Governance (WGIG) emphasizes that “</span><i>global Internet governance can only be effective if there is <span>coherence</span> with <span>regional, subregional and national-level</span> policies</i><span>”. Towards this end it recommends that “</span><i>coordination be established <span>among all stakeholders at the national level</span> and <span>a multi-stakeholder national Internet governance steering committee or similar body</span> be set up</i><span>” (emphasis supplied). The IGF, whose creation the WGIG recommended, has since been commended for its impact on the proliferation of national IGFs.</span></p>
<p style="text-align: justify; "><span>The rationale, then, was that multi-stakeholder steering committees at the national level would help to create a cohesive body to coordinate positions on Internet governance. In </span><i>Reforming Internet Governance</i><span>, WGIG member Waudo Siganga writes of the Internet Steering Committee of Brazil as a model, highlighting lessons that states (especially developing countries) may learn from CGI.br.</span></p>
<p style="text-align: justify; "><span>The Brazilian Internet Steering Committee (CGI.br) was set up in 1995 and is responsible, </span><i>inter alia</i><span>, for the management of the .br domain, distribution of Internet addresses and administration of metropolitan Internet exchange points. CERT.br ensures network security and extends support to network administrators. Siganga </span><a href="http://www.wgig.org/docs/book/Waudo-Siganga.html">writes</a><span> that CGI.br is a “</span><i>well-structured multistakeholder entity, having representation from government and democratically chosen representatives of the business sector, scientific and technological community and an Internet expert</i><span>”.</span></p>
<p style="text-align: justify; "><span>Why is CGI.br a model for other states? </span><i>First</i><span>, CGI.br exemplifies how countries can structure in an effective manner, a body that is involved in creating awareness about IG issues at the national level. Moreover, the multi-stakeholder nature of CGI.br shows how participation can be harnessed effectively to build capacity across domestic players. This also reflects the multi-stakeholder aspects of Internet governance at the global level, clarifying and implementing the WSIS standards (for instance). Especially in developing countries, where awareness and coordination for Internet governance is lacking at the national level, national IG committees can bridge the gap between awareness and participation. Such awareness can translate into local solutions for local issues, as well as contributing to an informed, cohesive stance at the global level.</span></p>
<h3 style="text-align: justify; ">Stakeholders: Populating a national IG body</h3>
<p style="text-align: justify; ">A national IG body – be in steering committee, IGF or other forum – should ideally involve all relevant stakeholders. As noted before, since inception, the Internet has not been subject to exclusive governmental regulation. The World Summit on Information Society recognized this, but negotiations amongst stakeholders resulted in the delegation of roles and responsibilities: the controversial and much-debated paragraph 35 of the <a href="http://www.itu.int/wsis/docs2/tunis/off/6rev1.html">Tunis Agenda</a> reads:</p>
<ol style="text-align: justify; ">
<li><i>Policy authority for Internet-related public policy issues is the sovereign right of States. They have rights and responsibilities for international Internet-related public policy issues.</i></li>
<li><i>The private sector has had, and should continue to have, an important role in the development of the Internet, both in the technical and economic fields.</i></li>
<li><i>Civil society has also played an important role on Internet matters, especially at community level, and should continue to play such a role.</i></li>
<li><i>Intergovernmental organizations have had, and should continue to have, a facilitating role in the coordination of Internet-related public policy issues.</i></li>
<li><i>International organizations have also had and should continue to have an important role in the development of Internet-related technical standards and relevant policies.</i></li>
</ol>
<p style="text-align: justify; ">This position remains endorsed by the WSIS process; the recent WSIS+10 High Level Event <a href="http://www.itu.int/wsis/implementation/2014/forum/inc/doc/outcome/362828V2E.pdf">endorsed by acclamation</a> the <i>WSIS+10 Vision for WSIS Beyond 2015</i>, which “<i>respect mandates given by Tunis Agenda and respect for the multi-stakeholder principles</i>”. In addition to government, the private sector and civil society, the technical community is identified as a distinct stakeholder group. Academia has also found a voice, as demonstrated by stakeholder-representation at NETmundial 2014.</p>
<p style="text-align: justify; ">A <a href="http://www.internetsociety.org/sites/default/files/ISOC%20framework%20for%20IG%20assessments%20-%20D%20Souter%20-%20final_0.pdf">study of the Internet Society</a> (ISOC) on <i>Assessing National Internet Governance Arrangements</i>, authored by David Souter, maps IG stakeholders at the global, regional and national levels. At the global level, primary stakeholders include ICANN (not-for-profit, private sector corporation involved in governance and technical coordination of the DNS), the IETF, IAB and W3C (technical standards), governments and civil society organizations, all of which participate with different levels of involvements at the IGF, ICANN, ITU, etc.</p>
<p style="text-align: justify; ">At the national/municipal level, the list of stakeholders is as comprehensive. <strong>Governmental stakeholders</strong> include: (1) relevant Ministries (in India, these are the Ministry of Information and Broadcasting, and the Ministry of Communications and Information Technology – the Department of Electronics and Information Technology under the MCIT is particularly relevant), and (2) regulators, statutory and independent (the Telecom Regulatory Authority of India, for example). At the national level, these typically seek inputs from other stakeholders while making recommendations to governments, which then enact laws or make policy. In India, for instance, the <a href="http://www.trai.gov.in/content/CONSULTATION/0_CONSULTATIONS.aspx">TRAI conducts consultations</a> prior to making recommendations to the government.</p>
<p style="text-align: justify; ">Within the <strong>private sector</strong>, there may be companies (1) on the supply-side, such as infrastructure networks, telecommunications service companies, Internet Service Providers, search engines, social networks, cybercafés, etc., and (2) on the demand-side, online businesses, advertising/media, financial service providers, etc. who <i>use</i> the Internet. There may also be <strong>national registries</strong> managing ccTLDs, such as the Registro.br or the National Internet Exchange of India (NIXI). There may also the <strong>press and news corporations</strong> representing both corporate and public interest under specific circumstances (media ownership and freedom of expression, for distinct examples).</p>
<p style="text-align: justify; "><strong>Civil society organisations</strong>, including consumer organisations, think-tanks and grassroots organisations, participate at various levels of policy-making in the formal institutional structure, and are crucial in representing users and public interest. The complexity of stakeholders may be seen from <a href="http://www.internetsociety.org/sites/default/files/ISOC%20framework%20for%20IG%20assessments%20-%20D%20Souter%20-%20final_0.pdf">Souter’s report</a>, and this enumeration is but a superficial view of the national stakeholder-population.<span> </span></p>
<h3 style="text-align: justify; ">Processes: Creating effective national IG bodies</h3>
<p style="text-align: justify; ">National IG bodies – be they steering committees, IGFs, consultative/working groups or other forums – may be limited by formal institutional governmental settings. While limited by the responsibility-gradient in paragraph 35 of the Tunis Agenda, an effective national IG body requires robust multi-stakeholder participation, as Souter notes, in technical governance, infrastructure and public policy issues. Its effectiveness also lies in governmental acquiescence of its expertise and recommendations; in short, in the translation of the IG body’s decisions into policy.</p>
<p style="text-align: justify; ">How do these stakeholders interact at the national level? In addition to the Brazilian example (CGI.br), an <a href="http://www.internetsociety.org/sites/default/files/ISOC%20study%20of%20IG%20in%20Kenya%20-%20D%20Souter%20%26%20M%20Kerretts-Makau%20-%20final.pdf">ISOC study</a> by Souter and Monica Kerretts-Makau, <i>Internet Governance in Kenya: An Assessment</i>, provides a detailed answer. At the <strong>technical level</strong>, the registry KENIC manages the .ke domain, while the Kenya Computer Incident Response Team Coordination Centre coordinates national responses to incidents and collaborates internationally on cyber-security issues. A specific IPv6 Force to promote Kenya’s transition to IPv6 was also created.</p>
<p style="text-align: justify; ">At the <strong>infrastructural level</strong>, both the government and the private sector play important roles. Directly, ministries and government departments consult with infrastructure providers in creating policy. In India, for instance, the TRAI conducts multi-stakeholder consultations on issues such as telecom tariffs, colocation tariffs for submarine cable stations and mobile towers, etc. The government may also take a lead in creating infrastructure, such as the national optic fibre networks in <a href="http://www.bbnl.nic.in/content/page/national-optical-fibre-networknofn.php">India</a> and <a href="https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=11&ved=0CBsQFjAAOAo&url=http%3A%2F%2Fwww.kictanet.or.ke%2F%3Fp%3D1822&ei=avmeU_SaII6SuATi2ICoDA&usg=AFQjCNEgUIpb_kf2Fx-s7TJ2H-xl1rm9WA&sig2=HlpJp1UlVXRHTAOPh9W7Bg&bvm=bv.68911936,d.c2E&cad=rja">Kenya</a>, as also creating investment opportunities such as liberalizing FDI. At the <strong>public policy level</strong>, there may exist consultations initiated by government bodies (such as the TRAI or the Law Commission), in which other stakeholders participate.</p>
<p style="text-align: justify; ">As one can see, government-initiated consultations by ministries, regulators, law commissions or specially constituted committees. Several countries have also set up national IGFs, which typically involve all major stakeholders in voluntary participation, and form a discussion forum for existing and emerging IG issues. National IGFs <a href="http://www.internetgovernance.org/2009/08/28/another-mini-internet-governance-forum-in-the-u-s-a/">have been considered</a> particularly useful to create awareness within the country, and may best address IG issues at the domestic policy level. However, Prof. Mueller <a href="http://www.internetgovernance.org/2008/01/18/the-igf-and-networked-internet-governance/">writes</a> that what is necessary is a “<i>reliable mechanism reliable mechanisms for consistently feeding the preferences expressed in these forums to actual global policy-making institutions like ICANN, RIRs, WIPO, and WTO which impact distributional outcomes</i>”.</p>
<hr size="1" style="text-align: justify; " width="33%" />
<p style="text-align: justify; "><a href="#_ftnref1">[1]</a> M. Mueller, Ruling the Root: Internet Governance and the Taming of Cyberspace 57 (2002).</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/multi-stakeholder-models-of-internet-governance-within-states-why-who-how'>https://cis-india.org/internet-governance/blog/multi-stakeholder-models-of-internet-governance-within-states-why-who-how</a>
</p>
No publishergeethaInternet Governance ForumInternet GovernanceNational IGFsICANNITU2014-06-16T14:27:38ZBlog EntryJurisdiction: The Taboo Topic at ICANN
https://cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann
<b>The "IANA Transition" that is currently underway is a sham since it doesn't address the most important question: that of jurisdiction. This article explores why the issue of jurisdiction is the most important question, and why it remains unaddressed.</b>
<br />
<p>In March 2014, the <a href="https://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions">US government announced</a> that they were going to end the contract they have with ICANN to run the <a href="https://www.iana.org/">Internet Assigned Numbers Authority</a> (IANA), and hand over control to the “global multistakeholder community”. They insisted that the plan for transition had to come through a multistakeholder process and have stakeholders “across the global Internet community”.</p>
<h2 id="why-is-the-u.s.-government-removing-the-ntia-contract">Why is the U.S. government removing the NTIA contract?</h2>
<p>The main reason for the U.S. government's action is that it will get rid of a political thorn in the U.S. government's side: keeping the contract allows them to be called out as having a special role in Internet governance (with the Affirmation of Commitments between the U.S. Department of Commerce and ICANN, the IANA contract, and the cooperative agreement with Verisign), and engaging in unilateralism with regard to the operation of the root servers of the Internet naming system, while repeatedly declaring that they support a multistakeholder model of Internet governance.</p>
<p>This contradiction is what they are hoping to address. Doing away with the NTIA contract will also increase — ever so marginally — ICANN’s global legitimacy: this is something that world governments, civil society organizations, and some American academics have been asking for nearly since ICANN’s inception in 1998. For instance, here are some demands made <a href="https://www.itu.int/net/wsis/docs2/pc3/contributions/sca/hbf-29.doc">in a declaration by the Civil Society Internet Governance Caucus at WSIS, in 2005</a>:</p>
<blockquote>
<p>“ICANN will negotiate an appropriate host country agreement to replace its California Incorporation, being careful to retain those aspects of its California Incorporation that enhance its accountability to the global Internet user community. "ICANN's decisions, and any host country agreement, must be required to comply with public policy requirements negotiated through international treaties in regard to, inter alia, human rights treaties, privacy rights, gender agreements and trade rules. … "It is also expected that the multi-stakeholder community will observe and comment on the progress made in this process through the proposed [Internet Governance] Forum."</p>
</blockquote>
<p>In short: the objective of the transition is political, <a href="https://cis-india.org/internet-governance/blog/">not technical</a>. In an ideal world, we <em>should</em> aim at reducing U.S. state control over the core of the Internet's domain name system.<a href="#fn1" class="footnoteRef" id="fnref1"><sup>1</sup></a></p>
<p>It is our contention that <strong>U.S. state control over the core of the Internet's domain name system is <em>not</em> being removed</strong> by the transition that is currently underway.</p>
<h2 id="why-is-the-transition-happening-now">Why is the Transition Happening Now?</h2>
<p>Despite the U.S. government having given commitments in the past that were going to finish the IANA transition by "September 30, 2000", (the <a href="https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en">White Paper on Management of Internet Names and Addresses</a> states: "The U.S. Government would prefer that this transition be complete before the year 2000. To the extent that the new corporation is established and operationally stable, September 30, 2000 is intended to be, and remains, an 'outside' date.") and later by "fall of 2006",<a href="#fn2" class="footnoteRef" id="fnref2"><sup>2</sup></a> those turned out to be empty promises. However, this time, the transition seems to be going through, unless the U.S. Congress manages to halt it.</p>
<p>However, in order to answer the question of "why now?" fully, one has to look a bit at the past.</p>
<p>In 1998, through the <a href="https://www.icann.org/resources/unthemed-pages/white-paper-2012-02-25-en">White Paper on Management of Internet Names and Addresses</a> the U.S. government <a href="http://www.icannwatch.org/archive/mueller_icann_and_internet_governance.pdf">asserted it’s control over the root</a>, and asserted — some would say arrogated to itself — the power to put out contracts for both the IANA functions as well as the 'A' Root (i.e., the Root Zone Maintainer function that Network Solutions Inc. then performed, and continues to perform to date in its current avatar as Verisign). The IANA functions contract — a periodically renewable contract — was awarded to ICANN, a California-based non-profit corporation that was set up exclusively for this purpose, but which evolved around the existing IANA (to placate the Internet Society).</p>
<p>Meanwhile, of course, there were criticisms of ICANN from multiple foreign governments and civil society organizations. Further, despite it being a California-based non-profit on contract with the government, domestically within the U.S., there was pushback from constituencies that felt that more direct U.S. control of the DNS was important.</p>
<p>As Goldsmith and Wu summarize:</p>
<blockquote>
<p>"Milton Mueller and others have shown that ICANN’s spirit of “self-regulation” was an appealing label for a process that could be more accurately described as the U.S. government brokering a behind-the-scenes deal that best suited its policy preferences ... the United States wanted to ensure the stability of the Internet, to fend off the regulatory efforts of foreign governments and international organizations, and to maintain ultimate control. The easiest way to do that was to maintain formal control while turning over day-to-day control of the root to ICANN and the Internet Society, which had close ties to the regulation-shy American technology industry." [footnotes omitted]</p>
</blockquote>
<p>And that brings us to the first reason that the NTIA announced the transition in 2014, rather than earlier.</p>
<h3 id="icann-adjudged-mature-enough">ICANN Adjudged Mature Enough</h3>
<p>The NTIA now sees ICANN as being mature enough: the final transition was announced 16 years after ICANN's creation, and complaints about ICANN and its legitimacy had largely died down in the international arena in that while. Nowadays, governments across the world send their representatives to ICANN, thus legitimizing ICANN. States have largely been satisfied by participating in the Government Advisory Council, which, as its name suggests, only has advisory powers. Further, unlike in the early days, there is <a href="http://www.internetgovernance.org/2012/05/24/threat-analysis-of-itus-wcit-part-1-historical-context/">no serious push for states assuming control of ICANN</a>. Of course they grumble about the ICANN Board not following their advice, but no government, as far as I am aware, has walked out or refused to participate.</p>
<h3 id="laffaire-snowden">L'affaire Snowden</h3>
<p>Many within the United States, and some without, believe that the United States not only plays an exceptional role to play in the running of the Internet — by dint of historical development and dominance of American companies — but that <em>it ought to</em> have an exceptional role because it is the best country to exercise 'oversight' over 'the Internet' (often coming from <a href="http://www.wsj.com/articles/SB10001424052702303563304579447362610955656">clueless commentators</a>), and from dinosaurs of the Internet era, like <a href="http://www.circleid.com/posts/20140316_if_the_stakeholders_already_control_the_internet_netmundial_iana/">American IP lawyers</a> and <a href="http://www.lawfareblog.com/2014/03/who-controls-the-internet-address-book-icann-ntia-and-iana/">American 'homeland' security hawks</a>, Jones Day, who are ICANN's lawyers, and other <a href="http://homepages.wmich.edu/~cooneys/poems/cummings.nextto.html">jingoists</a> and those policymakers who are controlled by these narrow-minded interests.</p>
<p>The Snowden revelations were, in that way, a godsend for the NTIA, as it allowed them a fig-leaf of <a href="http://www.ft.com/cms/s/0/4529516c-c713-11e3-889e-00144feabdc0.html">international</a> <a href="https://www.rt.com/usa/nsa-fallout-relinquish-internet-oversight-002/">criticism</a> <a href="https://twitter.com/carolinegreer/status/454253411576598528">with which</a> to counter these domestic critics and carry on with a transition that they have been seeking to put into motion for a while. The Snowden revelations led Dilma Rousseff, President of Brazil, to state in September 2013, at the 68th U.N. General Assembly, that Brazil would "present proposals for the establishment of a <a href="https://gadebate.un.org/sites/default/files/gastatements/68/BR_en.pdf">civilian multilateral framework for the governance and use of the Internet</a>", and as <a href="https://icannwiki.com/Diego_Canabarro">Diego Canabarro</a> points out this catalysed the U.S. government and the technical community into taking action.</p>
<p>Given this context, a few months after the Snowden revelations, the so-called <a href="https://www.apnic.net/community/ecosystem/i*orgs">I* organizations</a> met — seemingly with the blessing of the U.S. government<a href="#fn3" class="footnoteRef" id="fnref3"><sup>3</sup></a> — in Montevideo, and put out a <a href="https://www.apnic.net/publications/news/2013/montevideo-statement-on-future-of-internet-cooperation">'Statement on the Future of Internet Governance'</a> that sought to link the Snowden revelations on pervasive surveillance with the need to urgently transition the IANA stewardship role away from the U.S. government. Of course, the signatories to that statement knew fully well, as did most of the readers of that statement, that there is no linkage between the Snowden revelations about pervasive surveillance and the operations of the DNS root, but still they, and others, linked them together. Specifically, the I* organizations called for "accelerating the globalization of ICANN and IANA functions, towards an environment in which all stakeholders, including all governments, participate on an equal footing."</p>
<p>One could posit the existence of two other contributing factors as well.</p>
<p>Given political realities in the United States, a transition of this sort is probably best done before an ultra-jingoistic President steps into office.</p>
<p>Lastly, the ten-yearly review of the World Summit on Information Society was currently underway. At the original WSIS (as seen from the civil society quoted above) the issue of US control over the root was a major issue of contention. At that point (and during where the 2006 date for globalization of ICANN was emphasized by the US government).</p>
<h2 id="why-jurisdiction-is-important">Why Jurisdiction is Important</h2>
<p>Jurisdiction has a great many aspects. <em>Inter alia</em>, these are:</p>
<ul>
<li>Legal sanctions applicable to changes in the root zone (for instance, what happens if a country under US sanctions requests a change to the root zone file?)</li>
<li>Law applicable to resolution of contractual disputes with registries, registrars, etc.</li>
<li>Law applicable to labour disputes.</li>
<li>Law applicable to competition / antitrust law that applies to ICANN policies and regulations.</li>
<li>Law applicable to disputes regarding ICANN decisions, such as allocation of gTLDs, or non-renewal of a contract.</li>
<li>Law applicable to consumer protection concerns.</li>
<li>Law applicable to financial transparency of the organization.</li>
<li>Law applicable to corporate condition of the organization, including membership rights.</li>
<li>Law applicable to data protection-related policies & regulations.</li>
<li>Law applicable to trademark and other speech-related policies & regulations.</li>
<li>Law applicable to legal sanctions imposed by a country against another.</li>
</ul>
<p>Some of these, but not all, depend on where bodies like ICANN [the policy-making body], the IANA functions operator [the proposed "Post-Transition IANA"], and the root zone maintainer are incorporated or maintain their primary office, while others depend on the location of the office [for instance, Turkish labour law applies for the ICANN office in Istanbul], while yet others depend on what's decided by ICANN in contracts (for instance, the resolution of contractual disputes with ICANN, filing of suits with regard to disputes over new generic TLDs, etc.).</p>
<p>However, an issue like sanctions, for instance, depends on where ICANN/PTI/RMZ are incorporated and maintain their primary office.</p>
<p>As <a href="http://content.netmundial.br/contribution/roadmap-for-globalizing-iana-four-principles-and-a-proposal-for-reform-a-submission-to-the-global-multistakeholder-meeting-on-the-future-of-internet-governance/96">Milton Mueller notes</a>, the current IANA contract "requires ICANN to be incorporated in, maintain a physical address in, and perform the IANA functions in the U.S. This makes IANA subject to U.S. law and provides America with greater political influence over ICANN."</p>
<p>He further notes that:</p>
<blockquote>
<p>While it is common to assert that the U.S. has never abused its authority and has always taken the role of a neutral steward, this is not quite true. During the controversy over the .xxx domain, the Bush administration caved in to domestic political pressure and threatened to block entry of the domain into the root if ICANN approved it (Declaration of the Independent Review Panel, 2010). It took five years, an independent review challenge and the threat of litigation from a businessman willing to spend millions to get the .xxx domain into the root.</p>
</blockquote>
<p>Thus it is clear that even if the NTIA's role in the IANA contract goes away, jurisdiction remains an important issue.</p>
<h2 id="u.s.-doublespeak-on-jurisdiction">U.S. Doublespeak on Jurisdiction</h2>
<p>In March 2014, when NTIA finally announced that they would hand over the reins to “the global multistakeholder community”. They’ve laid down two procedural condition: that it be developed by stakeholders across the global Internet community and have broad community consensus, and they have proposed 5 substantive conditions that any proposal must meet:</p>
<ul>
<li>Support and enhance the multistakeholder model;</li>
<li>Maintain the security, stability, and resiliency of the Internet DNS;</li>
<li>Meet the needs and expectation of the global customers and partners of the IANA services; and,</li>
<li>Maintain the openness of the Internet.</li>
<li>Must not replace the NTIA role with a solution that is government-led or an inter-governmental organization.</li>
</ul>
<p>In that announcement there is no explicit restriction on the jurisdiction of ICANN (whether it relate to its incorporation, the resolution of contractual disputes, resolution of labour disputes, antitrust/competition law, tort law, consumer protection law, privacy law, or speech law, and more, all of which impact ICANN and many, but not all, of which are predicated on the jurisdiction of ICANN’s incorporation), the jurisdiction(s) of the IANA Functions Operator(s) (i.e., which executive, court, or legislature’s orders would it need to obey), and the jurisdiction of the Root Zone Maintainer (i.e., which executive, court, or legislature’s orders would it need to obey).</p>
<p>However, Mr. Larry Strickling, the head of the NTIA, in his <a href="https://www.youtube.com/watch?v=8v-yWye5I0w&feature=youtu.be">testimony before the U.S. House Subcommittee on Communications and Technology</a>, made it clear that,</p>
<blockquote>
<p>“Frankly, if [shifting ICANN or IANA jurisdiction] were being proposed, I don't think that such a proposal would satisfy our criteria, specifically the one that requires that security and stability be maintained.”</p>
</blockquote>
<p>Possibly, that argument made sense in 1998, due to the significant concentration of DNS expertise in the United States. However, in 2015, that argument is hardly convincing, and is frankly laughable.<a href="#fn4" class="footnoteRef" id="fnref4"><sup>4</sup></a></p>
<p>Targetting that remark, in ICANN 54 at Dublin, we asked Mr. Strickling:</p>
<blockquote>
<p>"So as we understand it, the technical stability of the DNS doesn't necessarily depend on ICANN's jurisdiction being in the United States. So I wanted to ask would the US Congress support a multistakeholder and continuing in the event that it's shifting jurisdiction."</p>
</blockquote>
<p>Mr. Strickling's response was:</p>
<blockquote>
<p>"No. I think Congress has made it very clear and at every hearing they have extracted from Fadi a commitment that ICANN will remain incorporated in the United States. Now the jurisdictional question though, as I understand it having been raised from some other countries, is not so much jurisdiction in terms of where ICANN is located. It's much more jurisdiction over the resolution of disputes.</p>
<p>"And that I think is an open issue, and that's an appropriate one to be discussed. And it's one I think where ICANN has made some movement over time anyway.</p>
<p>"So I think you have to ... when people use the word jurisdiction, we need to be very precise about over what issues because where disputes are resolved and under what law they're resolved, those are separate questions from where the corporation may have a physical headquarters."</p>
</blockquote>
<p>As we have shown above, jurisdiction is not only about the jurisdiction of "resolution of disputes", but also, as Mueller reminds us, about the requirement that ICANN (and now, the PTI) be "incorporated in, maintain a physical address in, and perform the IANA functions in the U.S. This makes IANA subject to U.S. law and provides America with greater political influence over ICANN."</p>
<p>In essence, the U.S. government has essentially said that they would veto the transition if the jurisdiction of ICANN or PTI's incorporation were to move out of the U.S., and they can prevent that from happening <em>after</em> the transition, since as things stand ICANN and PTI will still come within the U.S. Congress's jurisdiction.</p>
<h2 id="why-has-the-icg-failed-to-consider-jurisdiction">Why Has the ICG Failed to Consider Jurisdiction?</h2>
<p>Will the ICG proposal or the proposed new ICANN by-laws reduce existing U.S. control? No, they won't. (In fact, as we will argue below, the proposed new ICANN by-laws make this problem even worse.) The proposal by the names community ("the CWG proposal") still has a requirement (in Annex S) that the Post-Transition IANA (PTI) be incorporated in the United States, and a similar suggestion hidden away as a footnote. Further, the proposed by-laws for ICANN include the requirement that PTI be a California corporation. There was no discussion specifically on this issue, nor any documented community agreement on the specific issue of jurisdiction of PTI's incorporation.</p>
<p>Why wasn't there greater discussion and consideration of this issue? Because of two reasons: First, there were many that argued that the transition would be vetoed by the U.S. government and the U.S. Congress if ICANN and PTI were not to remain in the U.S. Secondly, the ICANN-formed ICG saw the US government’s actions very narrowly, as though the government were acting in isolation, ignoring the rich dialogue and debate that’s gone on earlier about the transition since the incorporation of ICANN itself.</p>
<p>While it would be no one’s case that political considerations should be given greater weightage than technical considerations such as security, stability, and resilience of the domain name system, it is shocking that political considerations have been completely absent in the discussions in the number and protocol parameters communities, and have been extremely limited in the discussions in the names community. This is even more shocking considering that the main reason for this transition is, as has been argued above, political.</p>
<p>It can be also argued that the certain IANA functions such as Root Zone Management function have a considerable political implication. It is imperative that the political nature of the function is duly acknowledged and dealt with, in accordance with the wishes of the global community. In the current process the political aspects of the IANA function has been completely overlooked and sidelined. It is important to note that this transition has not been a necessitated by any technical considerations. It is primarily motivated by political and legal considerations. However, the questions that the ICG asked the customer communities to consider were solely technical. Indeed, the communities could have chosen to overlook that, but they did not choose to do so. For instance, while the IANA customer community proposals reflected on existing jurisdictional arrangements, they did not reflect on how the jurisdictional arrangements should be post-transition , while this is one of the questions at the heart of the entire transition. There were no discussions and decisions as to the jurisdiction of the Post-Transition IANA: the Accountability CCWG's lawyers, Sidley Austin, recommended that the PTI ought to be a California non-profit corporation, and this finds mention in a footnote without even having been debated by the "global multistakeholder community", and subsequently in the proposed new by-laws for ICANN.</p>
<h2 id="why-the-by-laws-make-things-worse-why-work-stream-2-cant-address-most-jurisdiction-issues">Why the By-Laws Make Things Worse & Why "Work Stream 2" Can't Address Most Jurisdiction Issues</h2>
<p>The by-laws could have chosen to simply stayed silent on the matter of what law PTI would be incorporated under, but instead the by-law make the requirement of PTI being a California non-profit public benefit corporation part of the <em>fundamental by-laws</em>, which are close to impossible to amend.</p>
<p>While "Work Stream 2" (the post-transition work related to improving ICANN's accountability) has jurisdiction as a topic of consideration, the scope of that must necessarily discount any consideration of shifting the jurisdiction of incorporation of ICANN, since all of the work done as part of CCWG Accountability's "Work Stream 1", which are now reflected in the proposed new by-laws, assume Californian jurisdiction (including the legal model of the "Empowered Community"). Is ICANN prepared to re-do all the work done in WS1 in WS2 as well? If the answer is yes, then the issue of jurisdiction can actually be addressed in WS2. If the answer is no — and realistically it is — then, the issue of jurisdiction can only be very partially addressed in WS2.</p>
<p>Keeping this in mind, we recommended specific changes in the by-laws, all of which were rejected by CCWG's lawyers.</p>
<h2 id="the-transition-plan-fails-the-netmundial-statement">The Transition Plan Fails the NETmundial Statement</h2>
<p>The <a href="http://netmundial.br/wp-content/uploads/2014/04/NETmundial-Multistakeholder-Document.pdf">NETmundial Multistakeholder Document</a>, which was an outcome of the NETmundial process, states:</p>
<blockquote>
<p>In the follow up to the recent and welcomed announcement of US Government with regard to its intent to transition the stewardship of IANA functions, the discussion about mechanisms for guaranteeing the transparency and accountability of those functions after the US Government role ends, has to take place through an open process with the participation of all stakeholders extending beyond the ICANN community</p>
<p>[...]</p>
<p>It is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that satisfy requirements from both internal stakeholders and the global community.</p>
<p>The active representation from all stakeholders in the ICANN structure from all regions is a key issue in the process of a successful globalization.</p>
</blockquote>
<p>As our past analysis has shown, the IANA transition process and the discussions on the mailing lists that shaped it <a href="https://cis-india.org/internet-governance/blog/cis-india.org/internet-governance/blog/global-multistakeholder-community-neither-global-nor-multistakeholder">were neither global nor multistakeholder</a>. The DNS industry represented in ICANN is largely US-based. 3 in 5 registrars are from the United States of America, whereas less than 1% of ICANN-registered registrars are from Africa. Two-thirds of the Business Constituency in ICANN is from the USA. While ICANN-the-corporation has sought to become more global, the ICANN community has remained insular, and this will not change until the commercial interests involved in ICANN can become more diverse, reflecting the diversity of users of the Internet, and a TLD like .COM can be owned by a non-American corporation and the PTI can be a non-American entity.</p>
<h2 id="what-we-need-jurisdictional-resilience">What We Need: Jurisdictional Resilience</h2>
<p>It is no one's case that the United States is less fit than any other country as a base for ICANN, PTI, or the Root Zone Maintainer, or even as the headquarters for 9 of the world's 12 root zone operators (Verisign runs both the A and J root servers). However, just as having multiplicity of root servers is important for ensuring technical resilience of the DNS system (and this is shown in the uptake of Anycast by root server operators), it is equally important to have immunity of core DNS functioning from political pressures of the country or countries where core DNS infrastructure is legally situated and to ensure that we have diversity in terms of legal jurisdiction.</p>
<p>Towards this end, we at CIS have pushed for the concept of "jurisdictional resilience", encompassing three crucial points:</p>
<ul>
<li>Legal immunity for core technical operators of Internet functions (as opposed to policymaking venues) from legal sanctions or orders from the state in which they are legally situated.</li>
<li>Division of core Internet operators among multiple jurisdictions</li>
<li>Jurisdictional division of policymaking functions from technical implementation functions</li>
</ul>
<p>Of these, the most important is the limited legal immunity (akin to a greatly limited form of the immunity that UN organizations get from the laws of their host countries). This kind of immunity could be provided through a variety of different means: a host-country agreement; a law passed by the legislature; a U.N. General Assembly Resolution; a U.N.-backed treaty; and other such options exist. We are currently investigating which of these options would be the best option.</p>
<p>And apart from limited legal immunity, distribution of jurisdictional control is also valuable. As we noted in our submission to the ICG in September 2015:</p>
<blockquote>
<p>Following the above precepts would, for instance, mean that the entity that performs the role of the Root Zone Maintainer should not be situated in the same legal jurisdiction as the entity that functions as the policymaking venue. This would in turn mean that either the Root Zone Maintainer function be taken up Netnod (Sweden-headquartered) or the WIDE Project (Japan-headquartered) [or RIPE-NCC, headquartered in the Netherlands], or that if the IANA Functions Operator(s) is to be merged with the RZM, then the IFO be relocated to a jurisdiction other than those of ISOC and ICANN. This, as has been stated earlier, has been a demand of the Civil Society Internet Governance Caucus. Further, it would also mean that root zone servers operators be spread across multiple jurisdictions (which the creation of mirror servers in multiple jurisdictions will not address).</p>
</blockquote>
<p>However, the issue of jurisdiction seems to be dead-on-arrival, having been killed by the United States government.</p>
<p>Unfortunately, despite the primary motivation for demands for the IANA transition being those of removing the power the U.S. government exercises over the core of the Internet's operations in the form of the DNS, what has ended up happening through the IANA transition is that these powers have not only not been removed, but in some ways they have been entrenched further! While earlier, the U.S. had to specify that the IANA functions operator had to be located in the U.S., now ICANN's by-laws themselves will state that the post-transition IANA will be a California corporation. Notably, while the Montevideo Declaration speaks of "globalization" of ICANN and of the IANA functions, as does the NETmundial statement, the NTIA announcement on their acceptance of the transition proposals speaks of "privatization" of ICANN, and not "globalization".</p>
<p>All in all, the "independence" that IANA is gaining from the U.S. is akin to the "independence" that Brazil gained from Portugal in 1822. Dom Pedro of Brazil was then ruling Brazil as the Prince Regent since his father Dom João VI, the King of United Kingdom of Portugal, Brazil and the Algarves had returned to Portugal. In 1822, Brazil declared independence from Portugal (which was formally recognized through a treaty in 1825). Even after this "independence", Dom Pedro continued to rule Portugal just as he had before indepedence, and Dom João VI was provided the title of "Emperor of Brazil", aside from being King of the United Kingdom of Portugal and the Algarves. The "indepedence" didn't make a whit of a difference to the self-sufficiency of Brazil: Portugal continued to be its largest trading partner. The "independence" didn't change anything for the nearly 1 million slaves in Brazil, or to the lot of the indigenous peoples of Brazil, none of whom were recognized as "free". It had very little consequence not just in terms of ground conditions of day-to-day living, but even in political terms.</p>
<p>Such is the case with the IANA Transition: U.S. power over the core functioning of the Domain Name System do not stand diminished after the transition, and they can even arguably be said to have become even more entrenched. Meet the new boss: same as the old boss.</p>
<div class="footnotes">
<hr />
<ol>
<li id="fn1"><p>It is an allied but logically distinct issue that U.S. businesses — registries and registrars — dominate the global DNS industry, and as a result hold the reins at ICANN.<a href="#fnref1">↩</a></p></li>
<li id="fn2"><p>As Goldsmith & Wu note in their book <em>Who Controls the Internet</em>: "Back in 1998 the U.S. Department of Commerce promised to relinquish root authority by the fall of 2006, but in June 2005, the United States reversed course. “The United States Government intends to preserve the security and stability of the Internet’s Domain Name and Addressing System (DNS),” announced Michael D. Gallagher, a Department of Commerce official. “The United States” he announced, will “maintain its historic role in authorizing changes or modifications to the authoritative root zone file.”<a href="#fnref2">↩</a></p></li>
<li id="fn3"><p>Mr. Fadi Chehadé revealed in an interaction with Indian participants at ICANN 54 that he had a meeting "at the White House" about the U.S. plans for transition of the IANA contract before he spoke about that when <a href="http://articles.economictimes.indiatimes.com/2013-10-22/news/43288531_1_icann-internet-corporation-us-centric-internet">he visited India in October 2013</a> making the timing of his White House visit around the time of the Montevideo Statement.<a href="#fnref3">↩</a></p></li>
<li id="fn4"><p>As an example, <a href="https://www.nlnetlabs.nl/projects/nsd/">NSD</a>, software that is used on multiple root servers, is funded by a Dutch foundation and a Dutch corporation, and written mostly by European coders.<a href="#fnref4">↩</a></p></li>
</ol>
</div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann'>https://cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann</a>
</p>
No publisherpraneshIANAInternet GovernanceFeaturedICANNIANA Transition2016-06-29T07:51:05ZBlog EntryInternet's Core Resources are a Global Public Good - They Cannot Remain Subject to One Country's Jurisdiction
https://cis-india.org/internet-governance/blog/internets-core-resources-are-a-global-public-good
<b>This statement was issued by 8 India civil society organizations, supported by 2 key global networks, involved with internet governance issues, to the meeting of ICANN in Hyderabad, India from 3 to 9 November 2016. The Centre for Internet & Society was one of the 8 organizations that drafted this statement.</b>
<p style="text-align: justify;">Recently, the US gave up its role of signing entries to the Internet's root zone file, which represents the addressing system for the global Internet. This is about the Internet addresses that end with .com, .net, and so on, and the numbers associated with each of them that help us navigate the Internet. We thank and congratulate the US government for taking this important step in the right direction. However, the organisation that manages this system, ICANN,<a href="#ftn1">[1]</a> a US non-profit, continues to be under US jurisdiction, and hence subject to its courts, legislature and executive agencies. Keeping such an important global public infrastructure under US jurisdiction is expected to become a very problematic means of extending US laws and policies across the world.</p>
<p style="text-align: justify;">We the undersigned therefore appeal that urgent steps be taken to transit ICANN from its current US jurisdiction. Only then can ICANN become a truly global organisation.<a href="#ftn2">[2]</a> We would like to make it clear that our objection is not directed particularly against the US; we are simply against an important global public infrastructure being subject to a single country's jurisdiction.</p>
<p style="text-align: justify;"><strong>Domain name system as a key lever of global control</strong><br />A few new top level domains like .xxx and .africa are already under litigation in the US, whereby there is every chance that its law could interfere with ICANN's (global) policy decisions. Businesses in different parts of the world seeking top level domain names like .Amazon, and, hypothetically, .Ghaniancompany, will have to be mindful of de facto extension of US jurisdiction over them. US agencies can nullify the allocation of such top level domain names, causing damage to a business similar to that of losing a trade name, plus losing all the 'connections', including email based ones, linked to that domain name. For instance, consider the risks that an Indian generic drugs company, say with a top level domain, .genericdrugs, will remain exposed to.</p>
<p style="text-align: justify;">Sector specific top level domain names like .insurance, health, .transport, and so on, are emerging, with clear rules for inclusion-exclusion. These can become de facto global regulatory rules for that sector. .Pharmacy has been allocated to a US pharmaceutical group which decides who gets domain names under it. Public advocacy groups have protested <a href="#ftn3">[3]</a> that these rules will be employed to impose drugs-related US intellectual property standards globally. Similar problematic possibilities can be imagined in other sectors; ICANN could set “safety standards”, as per US law, for obtaining .car.</p>
<p style="text-align: justify;">Country domain names like .br and .ph remain subject to US jurisdiction. Iran's .ir was recently sought to be seized by some US private parties because of alleged Iranian support to terrorism. Although the plea was turned down, another court in another case may decide otherwise. With the 'Internet of Things', almost everything, including critical infrastructure, in every country will be on the network. Other countries cannot feel comfortable to have at the core of the Internet’s addressing system an organisation that can be dictated by one government.</p>
<p style="text-align: justify;"><strong>ICANN must become a truly global body</strong><br />Eleven years ago, in 2005, the Civil Society Internet Governance Caucus at the World Summit on the Information Society demanded that ICANN should “negotiate an appropriate host country agreement to replace its California Incorporation”.</p>
<p style="text-align: justify;">A process is currently under-way within ICANN to consider the jurisdiction issue. It is important that this process provides recommendations that will enable ICANN to become a truly global body, for appropriate governance of very important global public goods.</p>
<p style="text-align: justify;">Below are some options, and there could be others, that are available for ICANN to transit from US jurisdiction.</p>
<ol style="text-align: justify;">
<li>ICANN can get incorporated under international law. Any such agreement should make ICANN an international (not intergovernmental) body, fully preserving current ICANN functions and processes. This does not mean instituting intergovernmental oversight over ICANN.</li>
<li>ICANN can move core internet operators among multiple jurisdictions, i.e. ICANN (policy body for Internet identifiers), PTI <a href="#ftn4">[4]</a> (the operational body) and the Root Zone Maintainer must be spread across multiple jurisdictions. With three different jurisdictions over these complementary functions, the possibility of any single one being fruitfully able to interfere in ICANN's global governance role will be minimized.</li>
<li>ICANN can institute a fundamental bylaw that its global governance processes will brook no interference from US jurisdiction. If any such interference is encountered, parameters of which can be clearly pre-defined, a process of shifting of ICANN to another jurisdiction will automatically set in. A full set-up – with registered HQ, root file maintenance system, etc – will be kept ready as a redundancy in another jurisdiction for this purpose. <a href="#ftn5">[5]</a> Chances are overwhelming that given the existence of this bylaw, and a fully workable exit option being kept ready at hand, no US state agency, including its courts, will consider it meaningful to try and enforce its writ. This arrangement could therefore act in perpetuity as a guarantee against jurisdictional interference without actually having ICANN to move out of the US.</li>
<li>The US government can give ICANN jurisdictional immunity under the United States International Organisations Immunities Act . There is precedent of US giving such immunity to non-profit organisations like ICANN. <a href="#ftn6">[6]</a> Such immunity must be designed in such a way that still ensures ICANN's accountability to the global community, protecting the community's enforcement power and mechanisms. Such immunity extends only to application of public law of the US on ICANN decisions and not private law as chosen by any contracting parties. US registries/registrars, with the assent of ICANN, can choose the jurisdiction of any state of the US for adjudicating their contracts with ICANN. Similarly, registries/registrars from other countries should be able to choose their respective jurisdictions for such contracts.</li></ol>
<p style="text-align: justify;">We do acknowledge that, over the years, there has been an appreciable progress in internationalising participation in ICANN's processes, including participation from governments in the Governmental Advisory Committee. However, positive as this is, it does not address the problem of a single country having overall jurisdiction over its decisions.</p>
<p style="text-align: justify;">Issued by the following India based organisation:</p>
<ul style="text-align: justify;">
<li>Centre for Internet and Society, Bangalore </li>
<li>IT for Change, Bangalore </li>
<li>Free Software Movement of India, Hyderabad </li>
<li>Society for Knowledge Commons, New Delhi</li>
<li>Digital Empowerment Foundation, New Delhi</li>
<li>Delhi Science Forum, New Delhi</li>
<li>Software Freedom Law Centre - India, New Delhi</li>
<li>Third World Network - India, New Delhi</li></ul>
<p style="text-align: justify;">Supported by the following global networks:</p>
<ul style="text-align: justify;">
<li>Association For Progressive Communications</li>
<li>Just Net Coalition</li></ul>
<p style="text-align: justify;"><br />For any clarification or inquiries you may may write to or call:</p>
<ul style="text-align: justify;">
<li>Parminder Jeet Singh: <a class="mail-link" href="mailto:parminder@itforchange.net">parminder@itforchange.net</a> +91 98459 49445, or </li>
<li>Vidushi Marda: <a class="mail-link" href="mailto:vidushi@cis-india.org">vidushi@cis-india.org</a> +91 99860 92252</li></ul>
<hr />
<p><a name="ftn1">[1]</a> Internet Corporation for Assigned Names and Numbers</p>
<p style="text-align: justify;"><a name="ftn2">[2]</a> The “NetMundial Multistakeholder Statement” , endorsed by a large number of governments and other stakeholders, including ICANN and US government, called for ICANN to become a “truly international and global organization”.</p>
<p style="text-align: justify;"><a name="ftn3">[3]</a> See, <a class="external-link" href="https://www.techdirt.com/articles/20130515/00145123090/big-pharma-firms-seeking-pharmacy-domain-to-crowd-out-legitimate-foreign-pharmacies.shtml">https://www.techdirt.com/articles/20130515/00145123090/big-pharma-firms-seeking-pharmacy-domain-to-crowd-out-legitimate-foreign-pharmacies.shtml </a></p>
<p><a name="ftn4">[4]</a> Public Technical Identifier, a newly incorporated body to carry out the operational aspects of managing Internet's identifiers.</p>
<p style="text-align: justify;"><a name="ftn5">[5]</a> This can be at one of the existing non US global offices of ICANN, or the location of one of the 3 non-US root servers. Section 24.1 of ICANN Bylaws say, “The principal office for the transaction of the business of shall be in the County of Los Angeles, State of California, United States of America. may also have an additional office or offices within or outside the United States of America as it may from time to time establish”.</p>
<p style="text-align: justify;"><a name="ftn6">[6]</a> E.g., International Fertilizer and Development Center was designated as a public, nonprofit, international organisation by US Presidential Decree, granting it immunities under United States International Organisations Immunities Act . See <a class="external-link" href="https://archive.icann.org/en/psc/corell-24aug06.html">https://archive.icann.org/en/psc/corell-24aug06.html</a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/internets-core-resources-are-a-global-public-good'>https://cis-india.org/internet-governance/blog/internets-core-resources-are-a-global-public-good</a>
</p>
No publishervidushiICANNHomepageInternet Governance2016-11-14T06:39:52ZBlog EntryInternet Democratisation: IANA Transition Leaves Much to be Desired
https://cis-india.org/internet-governance/blog/hindustan-times-october-6-2016-vidushi-marda-internet-democratisation
<b>At best, the IANA transition is symbolic of Washington’s oversight over ICANN coming to an end. It is also symbolic of the empowerment of the global multistakeholder community. In reality, it fails to do either meaningfully.</b>
<p> </p>
<p style="text-align: justify;">The article was published in the <a class="external-link" href="http://www.hindustantimes.com/analysis/internet-democratisation-iana-transition-leaves-much-to-be-desired/story-t94hojZjDXqS4LjNSepZlN.html">Hindustan Times</a> on October 6, 2016.</p>
<hr />
<img src="https://fortunedotcom.files.wordpress.com/2016/09/605664440.jpg" alt="PardonSnowden.org" />
<h6> Many suspect Washington’s 2014 announcement of handing over control of the IANA contract to be fuelled by the outcry following Edward Snowden’s revelations of the extent of US government surveillance. Source: AFP</h6>
<p style="text-align: justify;">September 30, 2016, marked the expiration of a contract between the US government and the Internet Corporation for Assigned Names and Numbers (ICANN) to carry out the Internet Assigned Numbers Authority (IANA) functions.</p>
<p style="text-align: justify;">In simpler, acronym-free terms, Washington’s formal oversight over the Internet’s address book has come to an end with the expiration of this contract, with control now being passed on to the “global multistakeholder community”.</p>
<p style="text-align: justify;">ICANN was incorporated in California in 1998 to manage the backbone of the Internet, which included the domain name system (DNS), allocation of IP addresses and root servers. After an agreement with the US National Telecommunications and Information Administration (NTIA), ICANN was tasked with operating the IANA functions, which includes maintenance of the root zone file of the DNS. Over the years Washington has rejected calls to hand over the control of IANA functions, but in March 2014 it announced its intentions to do so and laid down conditions for the handover. Many suspect the driving force behind this announcement to be the outcry following Edward Snowden’s revelations of the extent of US government surveillance.</p>
<p style="text-align: justify;">The conditions laid down by the NTIA were met, and the US government accepted the transition proposal, amidst much political pressure and opposition, most notably from Senator Ted Cruz.</p>
<p style="text-align: justify;">This transition is a step in the right direction, but in reality, it changes very little as it fails to address two critical issues: Of jurisdiction and accountability.</p>
<p style="text-align: justify;">Jurisdiction is important while considering the resolution of contractual disputes, application of labour and competition laws, disputes regarding ICANN’s decisions, consumer protection, financial transparency, etc. Many of these questions, although not all, will depend on where ICANN is located. ICANN’s new bylaws mention that it will continue to be incorporated in California, and subject to California law just as it was pre-transition. Having the DNS subject to the laws of a single country can only lend to its fragility. ICANN’s US jurisdiction also means that it is not free from the political pressures from the US Senate and in turn, the toxic effect of American party politics that were made visible in the events leading up to September 30.</p>
<p style="text-align: justify;">Another critical issue that the transition does not address is that of ICANN accountability. Post-transition, ICANN’s board will continue to be the ultimate decision-making authority, thus controlling the organisation’s functioning, and ICANN staff will be accountable to the board alone.</p>
<p style="text-align: justify;">To put things in perspective, look at the board’s track record in the recent past. In August, an Independent Review Panel (IRP) found that ICANN’s board had violated ICANN’s own bylaws and had failed to discharge its transparency obligations when it failed to look into staff misbehaviour. Following this, in September, ICANN decided to respond to such allegations of mismanagement, opacity and lack of accountability by launching a review. The review however, would not look into the issues, failures and false claims of the board, but instead focus on the process by which ICANN staff was able to engage in such misbehaviour. This ironically, will be in the form of an internal review that will pass through ICANN staff — the subjects of the investigation — before being taken up to the board.</p>
<p style="text-align: justify;">At best, the transition is symbolic of Washington’s oversight over ICANN coming to an end. It is also symbolic of the empowerment of the global multistakeholder community. In reality, it fails to do either meaningfully.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/hindustan-times-october-6-2016-vidushi-marda-internet-democratisation'>https://cis-india.org/internet-governance/blog/hindustan-times-october-6-2016-vidushi-marda-internet-democratisation</a>
</p>
No publishervidushiICANNIANAInternet Governance2016-11-03T07:52:37ZBlog EntryIndia's Contribution to Internet Governance Debates
https://cis-india.org/internet-governance/blog/nlud-student-law-journal-sunil-abraham-mukta-batra-geetha-hariharan-swaraj-barooah-and-akriti-bopanna-indias-contribution-to-internet-governance-debates
<b>India's Contribution to Internet Governance Debates", an article by Sunil Abraham, Mukta Batra, Geetha Hariharan, Swaraj Barooah and Akriti Bopanna, was recently published in the NLUD Student Law Journal, an annual peer-reviewed journal published by the National Law University, Delhi.</b>
<h2>Abstract</h2>
<p style="text-align: justify; ">India is the leader that championed ‘access to knowledge’ and ‘access to medicine’. However, India holds seemingly conflicting views on the future of the Internet, and how it will be governed. India’s stance is evolving and is distinct from that of authoritarian states who do not care for equal footing and multi-stakeholderism.</p>
<hr />
<h2 style="text-align: justify; ">Introduction</h2>
<p style="text-align: justify; ">Despite John Perry Barlow’s defiant and idealistic Declaration of Independence of Cyberspace1 in 1996, debates about governing the Internet have been alive since the late 1990s. The tug-of-war over its governance continues to bubble among states, businesses, techies, civil society and users. These stakeholders have wondered who should govern the Internet or parts of it: Should it be the Internet Corporation for Assigned Names and Numbers (ICANN)? The International Telecommunications Union (ITU)? The offspring of the World Summit on Information Society (WSIS) - the Internet Governance Forum (IGF) or Enhanced Cooperation (EC) under the UN? Underlying this debate has been the role and power of each stakeholder at the decision-making table.States in both the global North and South have taken various positions on this issue.</p>
<p style="text-align: justify; ">Whether all stakeholders ought to have an equal say in governing the unique structure of the Internet or do states have sovereign public policy authority? India has, in the past, subscribed to the latter view. For instance, at WSIS in 2003, through Arun Shourie, then India’s Minister for Information Technology, India supported the move ‘requesting the Secretary General to set up a Working Group to think through issues concerning Internet Governance,’ offering him ‘considerable experience in this regard... [and] contribute in whatever way the Secretary General deems appropriate’. The United States (US), United Kingdom (UK) and New Zealand have expressed their support for ‘equal footing multi-stakeholderism’ and Australia subscribes to the status quo.</p>
<p style="text-align: justify; ">India’s position has been much followed, discussed and criticised. In this article, we trace and summarise India’s participation in the IGF, UN General Assembly (‘UNGA’), ITU and the NETmundial conference (April 2014) as a representative sample of Internet governance fora. In these fora, India has been represented by one of three arms of its government: the Department of Electronics and Information Technology (DeitY), the Department of Telecommunications (DoT) and the Ministry of External Affairs (MEA). The DeitY was converted to a full-fledged ministry in 2016 known as the Ministry of Electronics and Information Technology (MeitY). DeitY and DoT were part of the Ministry of Communications and Information Technology (MCIT) until 2016 when it was bifurcated into the Ministry of Communications and MeitY.</p>
<p style="text-align: justify; ">DeitY used to be and DoT still is, within the Ministry of Communications and Information Technology (MCIT) in India. Though India has been acknowledged globally for championing ‘access to knowledge’ and ‘access to medicine’ at the World Intellectual Property Organization (WIPO) and World Trade Organization (WTO), global civil society and other stakeholders have criticised India’s behaviour in Internet governance for reasons such as lack of continuity and coherence and for holding policy positions overlapping with those of authoritarian states.</p>
<p style="text-align: justify; ">We argue that even though confusion about the Indian position arises from a multiplicity of views held within the Indian government, India’s position, in totality, is distinct from those of authoritarian states. Since criticism of the Indian government became more strident in 2011, after India introduced a proposal at the UNGA for a UN Committee on Internet-related Policies (CIRP) comprising states as members, we will begin to trace India's position chronologically from that point onwards.</p>
<hr />
<ul>
<li> Download the paper published in NLUD Student Law Journal <a class="external-link" href="http://cis-india.org/internet-governance/files/indias-contribution-to-internet-governance-debates/">here</a></li>
<li>For a timeline of the events described in the article <a class="external-link" href="http://cis-india.org/internet-governance/files/indias-position-on-multi-stakeholderism-vs-multilateralism">click here</a></li>
<li>Read the paper published by NLUD Student Law Journal <a class="external-link" href="https://nludslj.webs.com/archives">on their website</a></li>
</ul>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/nlud-student-law-journal-sunil-abraham-mukta-batra-geetha-hariharan-swaraj-barooah-and-akriti-bopanna-indias-contribution-to-internet-governance-debates'>https://cis-india.org/internet-governance/blog/nlud-student-law-journal-sunil-abraham-mukta-batra-geetha-hariharan-swaraj-barooah-and-akriti-bopanna-indias-contribution-to-internet-governance-debates</a>
</p>
No publisherSunil Abraham, Mukta Batra, Geetha Hariharan, Swaraj Barooah and Akriti BopannaFreedom of Speech and ExpressionICANNInternet GovernancePrivacy2018-08-16T15:38:02ZBlog EntryIf the DIDP Did Its Job
https://cis-india.org/internet-governance/blog/if-the-didp-did-its-job
<b></b>
<p dir="ltr"> </p>
<div dir="ltr"> </div>
<p dir="ltr">Over the course of two years, the Centre for Internet and Society sent 28 requests to ICANN under its Documentary Information Disclosure Policy (DIDP). A part of ICANN’s accountability initiatives, DIDP is “intended to ensure that information contained in documents concerning ICANN's operational activities, and within ICANN's possession, custody, or control, is made available to the public unless there is a compelling reason for confidentiality.”</p>
<div dir="ltr"> </div>
<p dir="ltr">Through the DIDP, any member of the public can request information contained in documents from ICANN. We’ve written about the process <a href="http://cis-india.org/internet-governance/blog/icann2019s-documentary-information-disclosure-policy-2013-i-didp-basics">here</a>, <a href="http://cis-india.org/internet-governance/blog/peering-behind-the-veil-of-icann2019s-didp">here</a> and <a href="http://cis-india.org/internet-governance/blog/peering-behind-the-veil-of-icanns-didp-ii">here</a>. As a civil society group that does research on internet governance related topics, CIS had a variety of questions for ICANN. The 28 DIDP requests we have sent cover a range of subjects: from revenue and financial information, to ICANN’s relationships with its contracted parties, its contractual compliance audits, harassment policies and the diversity of participants in its public forum. We have blogged about each DIDP request where we have summarized ICANN’s responses.</p>
<div dir="ltr"> </div>
<p dir="ltr">Here are the DIDP requests we sent in:</p>
<div dir="ltr">
<table><colgroup><col width="147"><col width="137"><col width="152"><col width="119"><col width="135"></colgroup>
<tbody>
<tr>
<td>
<p dir="ltr">Dec 2014</p>
</td>
<td>
<p dir="ltr">Jan/Feb 2015</p>
</td>
<td>
<p dir="ltr">Aug/Sept 2015</p>
</td>
<td>
<p dir="ltr">Nov 2015</p>
</td>
<td>
<p dir="ltr">Apr/May 2016</p>
</td>
</tr>
<tr>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-1-icanns-expenditures-on-travel-meetings">ICANN meeting expenditure</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-6-revenues-from-gtld-auctions">Revenue from gTLD auction</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-11-netmundial-principles">Implementation of NETmundial principles</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-19-icann2019s-role-in-the-postponement-of-the-iana-transition">IANA transition postponement</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-22-reconsideration-requests-from-parties-affected-by-icann-action">Board Governance Committee Reports</a></p>
</td>
</tr>
<tr>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-2">Granular revenue statements</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-7-globalisation-advisory-groups">Globalisation Advisory Groups</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-12-revenues">Raw data - Granular income data</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-20-is-presumptive-renewal-of-verisign2019s-contracts-a-good-thing">Presumptive renewal of registries</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-23-icann-does-not-know-how-diverse-its-comment-section-is">Diversity Analysis</a></p>
</td>
</tr>
<tr>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-3-cyber-attacks-on-icann">ICANN cyber attacks</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-8-organogram">Organogram</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-13-keeping-track-of-icann2019s-contracted-parties-registries">Compliance audits - registries</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-21-icann2019s-relationship-with-the-rirs">ICANN-RIR relationship</a></p>
</td>
<td>
<p dir="ltr">Compliance audits</p>
</td>
</tr>
<tr>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-4-icann-and-the-netmundial-principles">Implementation of NETmundial outcome document</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-9-exactly-how-involved-is-icann-in-the-netmundial-initiative">Involvement in NETmundial Initiative</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-14-keeping-track-of-icann2019s-contracted-parties-registrars">Compliance audits - registrars</a></p>
</td>
<td>
<div dir="ltr"> </div>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-25-curbing-sexual-harassment-at-icann">Harassment policy</a></p>
</td>
</tr>
<tr>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-5-the-ombudsman-and-icanns-misleading-response-to-our-request-1">Complaints to ICANN ombudsman</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-10-icann-does-not-know-how-much-each-rir-contributes-to-its-budget">RIR contract fees</a></p>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-16-icann-has-no-documentation-on-registrars2019-201cabuse-contacts201d">Registrar abuse contact</a></p>
</td>
<td>
<div dir="ltr"> </div>
</td>
<td>
<p dir="ltr">DIDP statistics *</p>
</td>
</tr>
<tr>
<td>
<div dir="ltr"> </div>
</td>
<td>
<div dir="ltr"> </div>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-15-what-is-going-on-between-verisign-and-icann">Verisign Contractual violations</a></p>
</td>
<td>
<div dir="ltr"> </div>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-27-on-icann2019s-support-to-new-gtld-applicants">gTLD applicant support program </a></p>
</td>
</tr>
<tr>
<td>
<div dir="ltr"> </div>
</td>
<td>
<div dir="ltr"> </div>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-17-how-icann-chooses-their-contractual-compliance-auditors">Contractual auditors</a></p>
</td>
<td>
<div dir="ltr"> </div>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-28-icann-renews-verisign2019s-rzm-contract">Root Zone Maintenance agreements</a></p>
</td>
</tr>
<tr>
<td>
<div dir="ltr"> </div>
</td>
<td>
<div dir="ltr"> </div>
</td>
<td>
<p dir="ltr"><a href="http://cis-india.org/internet-governance/blog/didp-request-18-icann2019s-internal-website-will-stay-internal">Internal website</a></p>
</td>
<td>
<div dir="ltr"> </div>
</td>
<td>
<div dir="ltr"> </div>
</td>
</tr>
</tbody>
</table>
</div>
<p dir="ltr">ICANN’s responses were analyzed and rated between 0-4 based on the amount of information disclosed. The reasons given for the lack of full disclosure were also studied.</p>
<div dir="ltr"> </div>
<div dir="ltr">
<table><colgroup><col width="73"><col width="568"></colgroup>
<tbody>
<tr>
<td colspan="2">
<p style="text-align: center;" dir="ltr">DIDP response rating</p>
</td>
</tr>
<tr>
<td>
<p style="text-align: center;" dir="ltr">0</p>
</td>
<td>
<p dir="ltr">No relevant information disclosed</p>
</td>
</tr>
<tr>
<td>
<p style="text-align: center;" dir="ltr">1</p>
</td>
<td>
<p dir="ltr">Very little information disclosed; DIDP preconditions and/or other reasons for nondisclosure used.</p>
</td>
</tr>
<tr>
<td>
<p style="text-align: center;" dir="ltr">2</p>
</td>
<td>
<p dir="ltr">Partial information disclosed; DIDP preconditions and/or other reasons for nondisclosure used.</p>
</td>
</tr>
<tr>
<td>
<p style="text-align: center;" dir="ltr">3</p>
</td>
<td>
<p dir="ltr">Adequate information disclosed; DIDP preconditions and/or other reasons for nondisclosure used.</p>
</td>
</tr>
<tr>
<td>
<p style="text-align: center;" dir="ltr">4</p>
</td>
<td>
<p dir="ltr">All information disclosed</p>
</td>
</tr>
</tbody>
</table>
</div>
<div dir="ltr"> </div>
<div dir="ltr"> </div>
<p dir="ltr">ICANN has defined a set of preconditions under which they are not obligated to answer a request. These preconditions are generously used by ICANN to justify their lack of a comprehensive answer. The wording of the policy also allows ICANN to dodge answering a request if it doesn’t have the relevant documents already in its possession. The responses were also classified by the number of times a particular DIDP condition for non-disclosure was invoked. We will see why these weaken ICANN’s accountability initiatives. </p>
<div dir="ltr"> </div>
<div dir="ltr"><br /><img src="https://lh4.googleusercontent.com/1o_D1vsv4byFYcXE1BfpcMtIe_ZxSAWwxZ-QMIQ0OlZ3y0UzANNyepK64ktsqNF-HmkIyw1rgnESLv_1PrHMuH3WKRQhnEaLhoghGCU3eWofqhBiBLjbu3Wz6nrmVdAw9GEH-2K2" alt="null" height="303" width="368" /></div>
<p dir="ltr">Of the 28 DIDP requests, only 14% were answered fully, without the use of the DIDP conditions of non-disclosure. Seven out of 28 or 40% of the DIDPs received a 0-rated answer which reflects extremely poorly on the DIDP mechanism itself. Of the 7 responses that received 0-rating, 4 were related to complaints and contractual compliance. We had asked for details on the complaints received by the ombudsman, details on contractual violations by Verisign and abuse contacts maintained by registrars for filing complaints. We received no relevant information.</p>
<div dir="ltr"> </div>
<p dir="ltr">We have earlier written about the extensive and broad nature of the 12 conditions of non-disclosure that ICANN uses. These conditions were used in 24 responses out of 28. ICANN was able to dodge from fully answering 85% of the DIDP requests that they got from CIS. This is alarming especially for an organization that claims to be fully transparent and accountable. The conditions for non-disclosure have been listed in <a href="https://drive.google.com/file/d/0B3sI8lQtXMDTMmJoLXoxazFOVlU/view?usp=sharing">this document</a> and can be referred to while reading the following graph.</p>
<div dir="ltr"> </div>
<p dir="ltr">On reading the conditions for non-disclosure, it seems like ICANN can refuse to answer any DIDP request if it so wished. These exclusions are numerous, vaguely worded and contain among them a broad range of information that should legitimately be in the public domain: Correspondence, internal information, information related to ICANN’s relationship with governments, information derived from deliberations among ICANN constituents, information provided to ICANN by private parties and the kicker - information that would be too burdensome for ICANN to collect and disseminate.</p>
<p dir="ltr"><img src="https://lh5.googleusercontent.com/CojQ-raMh1nblMO2TGtEJmrRE3MLKHSqltij-nrTdL4Cx2rzVtwzXZQBYBv0qpqxlZ_e0Ce1St7nnY6dN6dAn6G2VH-93iq2htQRQxmejjs-lXhUWNlGiPo9HpZlS69YbCFKEe7J" alt="null" height="425" width="624" /></p>
<p dir="ltr"> </p>
<p dir="ltr">As we can see from the graph, the most used condition under which ICANN can refuse to answer a DIDP request is F. Predictably, this is the most vaguely worded DIDP condition of the lot: “Confidential business information and/or internal policies and procedures.” It is up to ICANN to decide what information is confidential with no justification needed or provided for it. ICANN has used this condition 11 times in responding to our 28 requests.</p>
<div dir="ltr"> </div>
<p dir="ltr">It is also necessary to pay attention to condition L which allow ICANN to reject “Information requests: (i) which are not reasonable; (ii) which are excessive or overly burdensome; (iii) complying with which is not feasible; or (iv) are made with an abusive or vexatious purpose or by a vexatious or querulous individual.” This is perhaps the weakest point in the entire list due its subjective nature. Firstly, on whose standards must this information request be reasonable? If the point of a transparency mechanism is to make sure that information sought by the public is disseminated, should they be allowed to obfuscate information because it is too burdensome to collect? Even if this is fair given the time constraints of the DIDP mechanism, it must not be used as liberally as has been happening. The last sub point is perhaps the most subjective. If a staff member dislikes a particular requestor, this point would justify their refusal to answer a request regardless of its validity. This hardly seems fair or transparent. This condition has been used 9 times in our 28 requests.</p>
<div dir="ltr"> </div>
<p dir="ltr">Besides the DIDP non-disclosure conditions, ICANN also has an excuse built into the definition of DIDP. Since it is not obliged to create or summarize documents under the DIDP process, it can simply claim to not have the specific document we request and thus negate its responsibility to our request. This is what ICANN did with one of our requests for raw financial data. For our research, we required raw data from ICANN specifically with regard to its expenditure on staff and board members for their travel and attendance at meetings. As an organization that is answerable to multiple stakeholders including governments and the public, it is justified to expect that they have financial records of such items in a systematic manner. However, we were surprised to learn that ICANN does not in fact have these stored in a manner that they can send as attachments or publish. Instead they directed us to the audited financial reports which did little for our research. However, in response to our later request for granular data on revenue from domain names, ICANN explained that while they do not have such a document in their possession, they would create one. This distinction between the two requests seems arbitrary to us since we consider both to be important to public.</p>
<div dir="ltr"> </div>
<p dir="ltr">Nevertheless, there were some interesting outcomes from our experience filing DIDPs. We learnt that there has been no substantive work done to inculcate the NETmundial principles at ICANN, that ICANN has no idea which regional internet registry contributes the most to its budget, and that it does not store (or is not willing to reveal) any raw financial data. These outcomes do not contribute to a sense of confidence in the organization.</p>
<div dir="ltr"> </div>
<p dir="ltr">ICANN has an opportunity to reform this particular transparency mechanism at its Workstream 2 discussions. ICANN must make use of this opportunity to listen and work with people who have used the DIDP process in order to make it useful, effective and efficient. To that effect, we have some recommendations from our experience with the DIDP process.</p>
<div dir="ltr"> </div>
<p dir="ltr">That ICANN does not currently possess a particular document is not an excuse if it has the ability to create one. In its response to our questions on the IANA transition, ICANN indicated that it does not have the necessary documents as the multi stakeholder body that it set up is the one conducting the transition. This is somewhat justified. However, in response to our request for financial details, ICANN must not be able to give the excuse that it does not have a document in its possession. It and it alone has the ability to create the document and in response to a request from the public, it should.</p>
<div dir="ltr"> </div>
<p dir="ltr">ICANN must also revamp its conditions for non-disclosure and make it tighter. It must reduce the number of exclusions to its disclosure policy and make sure that the exclusion is not done arbitrarily. Specifically with respect to condition F, ICANN must clarify how information was classified as confidential and why that is different from everything else on the list of conditions.</p>
<div dir="ltr"> </div>
<p dir="ltr">Further, ICANN should not be able to use condition L to outright reject a DIDP request. Instead, there must be a way for the requester and ICANN to come to terms about the request. This could happen by an extension of the 1 month deadline, financial compensation by requester for any expenditure on ICANN’s part to answer the request or by a compromise between the requester and ICANN on the terms of the request. The sub point about requests made “by a vexatious or querulous individual” must be removed from condition L or at least be separated from the condition so that it is clear why the request for disclosure was denied.</p>
<div dir="ltr"> </div>
<p dir="ltr">ICANN should also set up a redressal mechanism specific to DIDP. While ICANN has the Reconsideration Requests process to rectify any wrongdoing on the part of staff or board members, this is not adequate to identify whether a DIDP was rejected on justifiable grounds. A separate mechanism that deals only with DIDP requests and wrongful use of the non-disclosure conditions would be helpful. According to the icann bylaws, in addition to Requests for Reconsideration, ICANN has also established an independent third party review of allegations against the board and/or staff members. A similar mechanism solely for reviewing whether ICANN’s refusal to answer a DIDP request is justified would be extremely useful.</p>
<div dir="ltr"> </div>
<p dir="ltr">A strong transparency mechanism must make sure that its objective are to provide answers, not to find ways to justify its lack of answers. With this in mind, we hope that the revamp of transparency mechanisms after workstream 2 discussions leads to a better DIDP process than we are used to.</p>
<p><span id="docs-internal-guid-b9e801b8-28c6-b8f5-d9ad-ac67daa46694"></span></p>
<div dir="ltr"> </div>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/if-the-didp-did-its-job'>https://cis-india.org/internet-governance/blog/if-the-didp-did-its-job</a>
</p>
No publisherasvathaIANATransparency and AccountabilityInternet GovernanceICANNIANA TransitionTransparency2016-11-07T12:57:18ZBlog EntryICANN’s Problems with Accountability and the .WEB Controversy
https://cis-india.org/internet-governance/blog/icann2019s-problems-with-accountability-and-the-web-controversy
<b>The Post-Transition IANA promised enhanced transparency and accountability to the global multistakeholder community. The series of events surrounding the .WEB auction earlier this year has stirred up issues relating to the lack of transparency and accountability of ICANN. This post examines the .WEB auction as a case study to better understand exact gaps in accountability.</b>
<h2>Chronological Background of the .WEB Auction</h2>
<p style="text-align: justify; "><span>In June 2012, ICANN launched a new phase for the creation and operation of Generic Top-Level Domains (gTLDs). After confirming the eligibility of seven applicants for the rights of the .WEB domain name, ICANN placed them in a string contention set (a group of applications with similar or identical applied for gTLDs).<a href="#_ftn1" name="_ftnref1"><sup><span>[1]</span></sup></a></span></p>
<p style="text-align: justify; "><span>[<i>Quick Note</i>: ICANN procedure encourages the resolving of this contention set by voluntary settlement amongst the contending applicants (also referred to as a private auction), wherein individual participation fees of US $185,000 go to ICANN and the auction proceeds are distributed among the bidders. If a private auction fails, the provision for a last resort auction conducted by ICANN is invoked - here the total auction proceeds go to ICANN along with the participation fees.<a href="#_ftn2" name="_ftnref2"><sup><span>[2]</span></sup></a>]</span></p>
<p style="text-align: justify; "><span>In June 2016, NuDotCo LLC, a bidder that had previously participated in nine private auctions without any objection, withdrew its consent to the voluntary settlement. Ruby Glen LLC, another bidder, contacted NDC to ask if it would reconsider its withdrawal, and was made aware of changes in NDC’s Board membership, financial position, management and a potential change in ownership, by NDC’s Chief Financial Officer.<a href="#_ftn3" name="_ftnref3"><sup><span>[3]</span></sup></a> Concerned about the transparency of the auction process, Ruby Glen requested ICANN to postpone the auction on June 22, in order to investigate the discrepancies between NDC’s official application and its representation to Ruby Glen.<a href="#_ftn4" name="_ftnref4"><sup><span>[4]</span></sup></a> The Vice President of ICANN’s gTLD Operations and the independent ICANN Ombudsman led separate investigations, both of which were limited to few e-mails seeking NDC’s confirmation of status quo. On the basis of NDC’s denial of any material changes, ICANN announced that the auction would proceed as planned, as no grounds had been found for its postponement.<a href="#_ftn5" name="_ftnref5"><sup><span>[5]</span></sup></a></span></p>
<p style="text-align: justify; "><span>On July 27, NDC’s winning bid – USD 135 million – beat the previous record by $90 million, <i>doubling ICANN’s total net proceeds</i> from the past fifteen auctions it had conducted.<a href="#_ftn6" name="_ftnref6"><sup><span>[6]</span></sup></a> Soon after NDC’s win, Verisign, Inc., the market giant that owns the .com and .net domain names, issued a public statement that it had used NDC as a front for the auction, and that it had been involved in its funding from the very beginning. Verisign agreed to transfer USD 130 million to NDC, allowing the latter to retain a $5 million stake in .WEB.<a href="#_ftn7" name="_ftnref7"><sup><span>[7]</span></sup></a></span></p>
<p style="text-align: justify; "><span>Ruby Glen LLC filed for an injunction against the transfer of .WEB rights to NDC, and sought expedited discovery<a href="#_ftn8" name="_ftnref8"><sup><span>[8]</span></sup></a> against ICANN and NDC in order to gather evidentiary support for the temporary restraining order.<a href="#_ftn9" name="_ftnref9"><sup><span>[9]</span></sup></a> Donuts Inc., the parent company of Ruby Glen, simultaneously filed for recovery of economic loss due to negligence, fraud and breach of bylaws among other grounds, and Affilias, the second highest bidder, demanded that the .WEB rights be handed over by ICANN.<a href="#_ftn10" name="_ftnref10"><sup><span>[10]</span></sup></a> Furthermore, at ICANN57, Affilias publicly brought up the issue in front of ICANN’s Board, and Verisign followed with a rebuttal. However, ICANN’s Board refused to comment on the issue at that point as the matter was still engaged in ongoing litigation.<a href="#_ftn11" name="_ftnref11"><sup><span>[11]</span></sup></a></span></p>
<h2>Issues Regarding ICANN’s Assurance of Accountability</h2>
<p style="text-align: justify; "><span>The Post-Transition IANA promised enhanced transparency and accountability to the global multistakeholder community. The series of events surrounding the .WEB auction has stirred up issues relating to the lack of transparency and accountability of ICANN. ICANN’s arbitrary enforcement of policies that should have been mandatory, with regard to internal accountability mechanisms, fiduciary responsibilities and the promotion of competition, has violated Bylaws that obligate it to operate ‘consistently, neutrally, objectively, and fairly, without singling out any particular party for discriminatory treatment’.<a href="#_ftn12" name="_ftnref12"><sup><span>[12]</span></sup></a> </span></p>
<p style="text-align: justify; "><span>Though the US court ruled in favour of ICANN, the discrepancies that were made visible with regard to ICANN’s differing emphasis on procedural and substantive compliance with its rules and regulations, have forced the community to acknowledge that corporate strategies, latent interests and financial advantages undermine ICANN’s commitment to accountability. The approval of NDC’s ridiculously high bid with minimal investigation or hesitation, even after Verisign’s takeover, signifies pressing concerns that stand in the way of a convincing commitment to accountability, such as:</span></p>
<ol style="text-align: justify; ">
<li style="text-align: justify; "><span>The Lack of Substantive Fairness and Accountability at ICANN (A Superficial Investigation)</span></li>
<li style="text-align: justify; "><span>ICANN’s Sketchy Tryst with Legal Conformity</span></li>
<li style="text-align: justify; "><span>The Financial Accountability of ICANN’s Auction Proceeds</span></li>
</ol> <ol style="text-align: justify; ">
<li style="text-align: justify; "><span><span>The Lack of Substantive Fairness and Accountability in its Screening Processes: </span></span></li>
</ol>
<p style="text-align: justify; "><span>Ruby Glen’s claim that ICANN conducted a cursory investigation of NDC’s misleading and unethical behaviour brought to light the ease and arbitrariness with which applications are deemed valid and eligible. </span></p>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Disclosure of Significant Details Unique to Applicant Profiles:</span></span></i> <span>In the initial stage, applications for the gTLD auctions require disclosure of background information such as proof of legal establishment, financial statements, primary and secondary contacts to represent the company, officers, directors, partners, major shareholders, etc. At this stage, TAS User Registration IDs, which require VAT/tax/business IDs, principal business address, phone, fax, etc. of the applicants, are created to build unique profiles for different parties in an auction.<a href="#_ftn13" name="_ftnref13"><sup><span>[13]</span></sup></a> Any important change in an applicant’s details would thus significantly alter the unique profile, leading to uncertainty regarding the parties involved and the validity of transactions undertaken. NDC’s application clearly didn’t meet the requirements here, as its financial statements, secondary contact, board members and ownership all changed at some point before the auction took place (either prior to or post submission of the application).<a href="#_ftn14" name="_ftnref14"><sup><span>[14]</span></sup></a></span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Mandatory Declaration of Third Party Funding:</span></span></i><span> Applications presupposing a future joint venture or any organisational unpredictability are not deemed eligible by ICANN, and if any third party is involved in the funding of the applicant, the latter is to provide evidence of such commitment to funding at the time of submission of its financial documents.<a href="#_ftn15" name="_ftnref15"><sup><span>[15]</span></sup></a> Verisign’s public announcement that it was involved in NDC’s funding from the very beginning (well before the auction) and its management later, proves that NDC’s failure to notify ICANN made its application ineligible, or irregular at the very least.<a href="#_ftn16" name="_ftnref16"><sup><span>[16]</span></sup></a></span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Vague Consequences of Failure to Notify ICANN of Changes:</span></span></i><span> If in any situation, certain material changes occur in the composition of the management, ownership or financial position of the applicant, ICANN is liable to be notified of the changes by the submission of updated documents. Here, however, the applicant may be subjected to re-evaluation if a <i>material change</i> is concerned, <i>at ICANN’s will</i> (there is no mention of what a material change might be). In the event of failure to notify ICANN of changes that would lead the previous information submitted to be false or misleading, ICANN <i>may</i> reject or deny the application concerned.<a href="#_ftn17" name="_ftnref17"><sup><span>[17]</span></sup></a> NDC’s absolute and repeated denial of any changes, during the extremely brief e-mail ‘investigation’ conducted by ICANN and the Ombudsman, show that at no point was NDC planning on revealing its intimacy with Verisign. No extended evaluation was conducted by ICANN at any point.<a href="#_ftn18" name="_ftnref18"><sup><span>[18]</span></sup></a> Note: The arbitrary power allowed here and the vague use of the term ‘material’ obstruct any real accountability on ICANN’s part to ensure that checks are carried out to discourage dishonest behaviour, at all stages.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Arbitrary Enforcement of Background Checks:</span></span></i><span> In order to confirm the eligibility of all applicants, ICANN conducts background screening during its initial evaluation process to verify the information disclosed, at the individual and entity levels.<a href="#_ftn19" name="_ftnref19"><sup><span>[19]</span></sup></a> The applicants may be asked to produce any and all documents/evidence to help ICANN complete this successfully, and any relevant information received from ‘any source’ may be taken into account here. However, this screening is conducted only with regard to two criteria: general business diligence and criminal history, and any record of cybersquatting behaviour.<a href="#_ftn20" name="_ftnref20"><sup><span>[20]</span></sup></a> In this case, ICANN’s background screening was clearly not thorough, in light of Verisign’s confirmed involvement since the beginning, and at no point was NDC asked to submit any extra documents (apart from the exchange of e-mails between NDC and ICANN and its Ombudsman) to enable ICANN’s inquiry into its business diligence.<a href="#_ftn21" name="_ftnref21"><sup><span>[21]</span></sup></a> Further, ICANN also said that it was not <i>required</i> to conduct background checks or a screening process, as the provisions only mention that ICANN is <i>allowed</i> to do so, when it feels the need.<a href="#_ftn22" name="_ftnref22"><sup><span>[22]</span></sup></a> This ludicrous loophole hinders transparency efforts by giving ICANN the authority to ignore any questionable details in applications it desires to deem eligible, based on its own strategic leanings, advantageous circumstances or any other beneficial interests.</span></li>
</ul>
<p style="text-align: justify; "><span>ICANN’s deliberate avoidance of discussing or investigating the ‘allegations’ against NDC (that were eventually proved true), as well as a visible compromise in fairness and equity of the application process point to the conclusion it desired. </span></p>
<h3><span><span>ICANN’s Sketchy Tryst with Legal Conformity:</span></span></h3>
<p style="text-align: justify; "><span>ICANN’s lack of <i>substantive compliance</i>, with California’s laws and its own rules and regulations, leave us with the realisation that efforts towards transparency, enforcement and compliance (even with emphasis on the IANA Stewardship and Accountability Process) barely meet the procedural minimum. </span></p>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Rejection of Request for Postponement of Auction:</span></span></i><span> ICANN’s intent to ‘initiate the Auction process once the composition of the set is stabilised’ implies that there must be no pending accountability mechanisms with regard to any applicant.<a href="#_ftn23" name="_ftnref23"><sup><span>[23]</span></sup></a> When ICANN itself determines the opening and closing of investigations or reviews concerning applicants, arbitrariness on ICANN’s part in deciding <i>on which date</i> the mechanisms are to be deemed as <i>pending</i>, may affect an applicant’s claim about procedural irregularity. In this case, ICANN had already scheduled the auction for July 27, 2016, before Ruby Glen sent in a request for postponement of the auction and inquiry into NDC’s eligibility on June 22, 2016.<a href="#_ftn24" name="_ftnref24"><sup><span>[24]</span></sup></a> Even though the ongoing accountability mechanisms had begun after initiation of the auction process, ICANN confirmed the continuance of the process without assurance about the stability of the contention set as required by procedure. Ruby Glen’s claim about this violation in auction rules was dismissed by ICANN on the basis that there must be no pending accountability mechanisms at the <i>time of scheduling</i> of the auction.<a href="#_ftn25" name="_ftnref25"><sup><span>[25]</span></sup></a> This means that if any objection is raised or any dispute resolution or accountability mechanism is initiated with regard to an applicant, at any point after fixing the date of the auction, the auction process continues even though the contention set may not be stabilised. This line of defence made by ICANN is not in conformity with the purpose behind the wording of its auction procedure as discussed above.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Lack of Adequate Participation in the Discovery Planning Process:</span></span></i><span> In order to gather evidentiary support and start the discovery process for the passing of the injunction, ICANN was required to engage with Ruby Glen in a conference, under Federal law. However, due to a disagreement as to the <i>extent</i> of participation required from both parties involved in the process, ICANN recorded only a single appearance at court, after which it refused to engage with Ruby Glen.<a href="#_ftn26" name="_ftnref26"><sup><span>[26]</span></sup></a> ICANN should have conducted a thorough investigation, based on both NDC’s and Verisign’s public statements, and engaged more cooperatively in the conference, to comply substantively with its internal procedure as well jurisdictional obligations. Under ICANN’s Bylaws, it is to ensure that an applicant <i>does not assign</i> its rights or obligations in connection with the application to another party, as NDC did, in order to promote a competitive market and ensure certainty in transactions.<a href="#_ftn27" name="_ftnref27"><sup><span>[27]</span></sup></a> However, due to its lack of substantive compliance with due procedure, such bylaws have been rendered weak.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Demand to Dismiss Ruby Glen’s Complaint:</span></span></i><span> ICANN demanded the dismissal of Ruby Glen’s complaint on the basis that the complaint was vague and unsubstantiated.<a href="#_ftn28" name="_ftnref28"><sup><span>[28]</span></sup></a> After the auction, Ruby Glen’s allegations and suspicions about NDC’s dishonest behaviour were confirmed publicly by Verisign, making the above demand for dismissal of the complaint ridiculous.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Inapplicability of ICANN’s Bylaws to its Contractual Relationships:</span></span></i><span> ICANN maintained that its bylaws are not part of application documents or contracts with applicants (as it is a not-for-profit public benefit corporation), and that ICANN’s liability, with respect to a breach of ICANN’s foundational documents, extends only to officers, directors, members, etc.<a href="#_ftn29" name="_ftnref29"><sup><span>[29]</span></sup></a> In addition, it said that Ruby Glen had not included any facts that suggested a duty of care arose from the contractual relationship with Ruby Glen and Donuts Inc.<a href="#_ftn30" name="_ftnref30"><sup><span>[30]</span></sup></a> Its dismissal of and considerable disregard for fiduciary obligations like duty of care and duty of inquiry in contractual relationships, prove the contravention of promised commitments and core values (integral to its entire accountability process), which are to ‘apply in the broadest possible range of circumstances’.<a href="#_ftn31" name="_ftnref31"><sup><span>[31]</span></sup></a></span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>ICANN’s Legal Waiver and Public Policy:</span></span></i><span> Ruby Glen had submitted that, under the California Civil Code 1668, a covenant not to sue was against policy, and that the legal waiver all applicants were made to sign in the application was unenforceable.<a href="#_ftn32" name="_ftnref32"><sup><span>[32]</span></sup></a> This waiver releases ICANN from ‘any claims arising out of, or related to, any action or failure to act’, and the complaint claimed that such an agreement ‘not to challenge ICANN in court, irrevocably waiving the right to sue on basis of any legal claim’ was unconscionable.<a href="#_ftn33" name="_ftnref33"><sup><span>[33]</span></sup></a> However, ICANN defended the enforceability of the legal waiver, saying that only a covenant not to sue that is <i>specifically designed</i> to avoid responsibility for own fraud or willful injury is invalidated under the provisions of the California Civil Code.<a href="#_ftn34" name="_ftnref34"><sup><span>[34]</span></sup></a> A waiver, incorporating the availability of accountability mechanisms ‘<i>within ICANN’s bylaws</i> to challenge any final decision of ICANN’s with respect to an application’, was argued as completely valid under California’s laws. It must be kept in mind that challenges to ICANN’s final decisions can make headway <i>only</i> through its own accountability mechanisms (including the Reconsideration Requests Process, the Independent Review Panel and the Ombudsman), which are mostly conducted by, accountable to and applicable at the discretion of the Board.<a href="#_ftn35" name="_ftnref35"><sup><span>[35]</span></sup></a> This means that the only recourse for dissatisfied applicants is through processes managed by ICANN, leaving no scope for independence and impartiality in the review or inquiry concerned, as the .WEB case has shown.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Note</span></span></i><span>: ICANN has also previously argued that its waivers are not restricted by S. 1668 because the parties involved are sophisticated - without an element of oppression, and that these transactions don’t involve public interest as ICANN doesn’t provide necessary services such as health, transportation, etc.<a href="#_ftn36" name="_ftnref36"><sup><span>[36]</span></sup></a> Such line of argument shows its continuous refusal to acknowledge responsibility for ensuring access to an essential good, in a diverse community, justifying concerns about ICANN’s commitment to accessibility and human rights.</span></li>
</ul>
<p style="text-align: justify; "><span>Required to remain accountable to the stakeholders of the community through <i>mechanisms listed in its Bylaws</i>, ICANN’s repeated difficulty in ensuring these mechanisms adhere to the purpose behind jurisdictional regulations confirm hindrances to impartiality, independence and effectiveness.</span></p>
<h3><span><span>The Financial Accountability of ICANN’s Auction Proceeds:</span></span></h3>
<p style="text-align: justify; "><span>The use and distribution of significant auction proceeds accruing to ICANN have been identified by the internet community as issues central to financial transparency, especially in a future of increasing instances of contention sets. </span></p>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Private Inurement Prohibition and Legal Requirements of Tax-Exempted Organisations:</span></span></i> <span>Subject to California’s state laws as well as federal laws, tax exemptions and tax-deductible charitable donations (available to not-for-profit public benefit corporations) are dependent on the fulfillment of jurisdictional obligations by ICANN, including avoiding contracts that may result in excessive economic benefit to a party involved, or lead to any deviation from purely charitable and scientific purposes.<a href="#_ftn37" name="_ftnref37"><sup><span>[37]</span></sup></a> ICANN’s Articles require that it ‘<i>shall</i> pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet’.<a href="#_ftn38" name="_ftnref38"><sup><span>[38]</span></sup></a> Due to this, ICANN’s accumulation of around USD 60 million (the total net proceeds from over 14 contention sets) since 2014 has been treated with unease, making it impossible to ignore the exponential increase in the same after the .WEB controversy.<a href="#_ftn39" name="_ftnref39"><sup><span>[39]</span></sup></a> With its dedication to a bottom-up, multi-stakeholder policy development process, the use of a single and ambiguous footnote, in ICANN’s Guidebook, to tackle the complications involving significant funds that accrue from last resort auctions (without even mentioning the arbiters of their ‘appropriate’ use) is grossly insufficient.<a href="#_ftn40" name="_ftnref40"><sup><span>[40]</span></sup></a> </span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>Need for Careful and Inclusive Deliberation Over the Use of Auction Proceeds:</span></span></i><span> At the end of the fiscal year 2016, ICANN’s balance sheet showed a total of USD 399.6 million. However, the .WEB sale amount was not included in this figure, as the auction happened after the last date (June 30, 2016).<a href="#_ftn41" name="_ftnref41"><sup><span>[41]</span></sup></a> Around seven times the average winning bid, a USD 135 million hike in ICANN’s accounts shows the need for greater scrutiny on ICANN’s process of allocation and distribution of these auction proceeds.<a href="#_ftn42" name="_ftnref42"><sup><span>[42]</span></sup></a> While finding an ‘appropriate purpose’ for these funds, it is important that ICANN’s legal nature under US jurisdiction as well as its vision, mission and commitments be adhered to, in order to help increase public confidence and financial transparency.</span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>The CCWG Charter on New gTLD Auction Proceeds:</span></span></i><span> ICANN has always maintained that it recognised the concern of ‘significant funds accruing as a result of several auctions’ at the outset.<a href="#_ftn43" name="_ftnref43"><sup><span>[43]</span></sup></a> In March 2015, the GNSO brought up issues relating to the distribution of auction proceeds at ICANN52, to address growing concerns of the community.<a href="#_ftn44" name="_ftnref44"><sup><span>[44]</span></sup></a> A Charter was then drafted, proposing the formation of a Cross-Community Working Group on New gTLD Auction Proceeds, to help ICANN’s Board in allocating these funds.<a href="#_ftn45" name="_ftnref45"><sup><span>[45]</span></sup></a> After being discussed in detail at ICANN56, the draft charter was forwarded to the various supporting organisations for comments.<a href="#_ftn46" name="_ftnref46"><sup><span>[46]</span></sup></a> The Charter received no objections from 2 organisations and was adopted by the ALAC, ASO, ccNSO and GNSO, following which members and co-chairs were identified from the organisations to constitute the CCWG.<a href="#_ftn47" name="_ftnref47"><sup><span>[47]</span></sup></a> It was decided that while ICANN’s Board will have final responsibility in disbursement of the proceeds, the CCWG will be responsible for the submission of proposals regarding the mechanism for the allocation of funds, keeping ICANN’s fiduciary and legal obligations in mind.<a href="#_ftn48" name="_ftnref48"><sup><span>[48]</span></sup></a> While creating proposals, the CCWG must recommend how to avoid possible conflicts of interest, maintain ICANN’s tax-exempt status, and ensure diversity and inclusivity in the entire process.<a href="#_ftn49" name="_ftnref49"><sup><span>[49]</span></sup></a> It is important to note that the CCWG cannot make recommendations ‘regarding which organisations are to be funded or not’, but is to merely submit a <i>proposal</i> for the <i>process</i> by which allocation is undertaken.<a href="#_ftn50" name="_ftnref50"><sup><span>[50]</span></sup></a> ICANN’s Guidebook mentions possible uses for proceeds, such as ‘<i><span>grants to support new gTLD applications or registry operators from communities’</span></i><span>, the creation of a fund for ‘<i>specific projects for the benefit of the Internet community’, </i>the ‘<i>establishment of a security fund to expand use of secure protocols’</i>, among others, to be decided by the Board.<a href="#_ftn51" name="_ftnref51"><sup><span>[51]</span></sup></a></span></span></li>
</ul>
<ul style="text-align: justify; ">
<li style="text-align: justify; "><i><span><span>A Slow Process and the Need for More Official Updates:</span></span></i><span> The lack of sufficient communication/updates about any allocation or the process behind such, in light of ICANN’s current total net auction proceeds of USD 233,455,563, speaks of an urgent need for a decision by the Board (based on a recommendation by CCWG), regarding a <i>timeframe</i> for the allocation of such proceeds.<a href="#_ftn52" name="_ftnref52"><sup><span>[52]</span></sup></a> However, the entire process has been very slow, with the <i>first</i> CCWG meeting on auction proceeds scheduled for 26 January 2016, and the lists of members and observers being made public only recently.<a href="#_ftn53" name="_ftnref53"><sup><span>[53]</span></sup></a> Here, even parties interested in applying for the same funds at a later stage are allowed to participate in meetings, as long as they include such information in a Statement of Interest and Declaration of Intention, to satisfy CCWG’s efforts towards transparency and accountability.<a href="#_ftn54" name="_ftnref54"><sup><span>[54]</span></sup></a> </span></li>
</ul>
<p style="text-align: justify; "><span>The worrying consequences of ICANN’s lack of financial as well as legal accountability (especially in light of its controversies), reminds us of the need for constant reassessment of its commitment to substantive transparency, enforcement and compliance with its rules and regulations. Its current obsessive courtship with only <i>procedural</i> regularity must not be mistaken for a greater commitment to accountability, as assured by the post-transition IANA.</span></p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; "><a href="#_ftnref1" name="_ftn1"><sup><span>[1]</span></sup></a> <span>DECLARATION OF CHRISTINE WILLETT IN SUPPORT OF ICANN’S OPPOSITION TO PLAINTIFF’S <i>EX PARTE </i>APPLICATION FOR TEMPORARY RESTRAINING ORDER, 2. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.p</span></a><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>df</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref2" name="_ftn2"><sup><span>[2]</span></sup></a> <span>4.3, gTLD Applicant Guidebook ICANN, 4-19. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref3" name="_ftn3"><sup><span>[3]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 15. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref4" name="_ftn4"><sup><span>[4]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 15. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref5" name="_ftn5"><sup><span>[5]</span></sup></a> <span>DECLARATION OF CHRISTINE WILLETT IN SUPPORT OF ICANN’S OPPOSITION TO PLAINTIFF’S <i>EX PARTE </i>APPLICATION FOR TEMPORARY RESTRAINING ORDER, 4-7. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref6" name="_ftn6"><sup><span>[6]</span></sup></a><span> PLAINTIFF RUBY GLEN, LLC’S NOTICE OF MOTION AND MOTION FOR LEAVE TO TAKE THIRD PARTY DISCOVERY OR, IN THE ALTERNATIVE, MOTION FOR THE COURT TO ISSUE A SCHEDULING ORDER, 3.</span></p>
<p style="text-align: justify; "><span>(</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-motion-court-issue-scheduling-order-26oct16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-motion-court-issue-scheduling-order-26oct16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref7" name="_ftn7"><sup><span>[7]</span></sup></a><span>(</span><a href="https://www.verisign.com/en_US/internet-technology-news/verisign-press-releases/articles/index.xhtml?artLink=aHR0cDovL3ZlcmlzaWduLm5ld3NocS5idXNpbmVzc3dpcmUuY29tL3ByZXNzLXJlbGVhc2UvdmVyaXNpZ24tc3RhdGVtZW50LXJlZ2FyZGluZy13ZWItYXVjdGlvbi1yZXN1bHRz"><span>https://www.verisign.com/en_US/internet-technology-news/verisign-press-releases/articles/index.xhtml?artLink=aHR0cDovL3ZlcmlzaWduLm5ld3NocS5idXNpbmVzc3dpcmUuY29tL3ByZXNzLXJlbGVhc2UvdmVyaXNpZ24tc3RhdGVtZW50LXJlZ2FyZGluZy13ZWItYXVjdGlvbi1yZXN1bHRz</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref8" name="_ftn8"><sup><span>[8]</span></sup></a> <span>An expedited discovery request can provide the required evidentiary support needed to meet the Plaintiff’s burden to obtain a preliminary injunction or temporary restraining order. (</span><a href="http://apps.americanbar.org/litigation/committees/businesstorts/articles/winter2014-0227-using-expedited-discovery-with-preliminary-injunction-motions.html"><span>http://apps.americanbar.org/litigation/committees/businesstorts/articles/winter2014-0227-using-expedited-discovery-with-preliminary-injunction-motions.html</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref9" name="_ftn9"><sup><span>[9]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 2. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref10" name="_ftn10"><sup><span>[10]</span></sup></a> <span>(</span><a href="http://domainincite.com/20789-donuts-files-10-million-lawsuit-to-stop-web-auction"><span>http://domainincite.com/20789-donuts-files-10-million-lawsuit-to-stop-web-auction</span></a><span>); (</span><a href="https://www.thedomains.com/2016/08/15/afilias-asks-icann-to-disqualify-nu-dot-cos-135-million-winning-bid-for-web/"><span>https://www.thedomains.com/2016/08/15/afilias-asks-icann-to-disqualify-nu-dot-cos-135-million-winning-bid-for-web/</span></a><span>)</span></p>
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; "><span> </span></p>
<p style="text-align: justify; "><a href="#_ftnref11" name="_ftn11"><sup><span>[11]</span></sup></a><span> (</span><a href="http://www.domainmondo.com/2016/11/news-review-icann57-hyderabad-india.html"><span>http://www.domainmondo.com/2016/11/news-review-icann57-hyderabad-india.html</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref12" name="_ftn12"><sup><span>[12]</span></sup></a> <span>Art III, Bylaws of Public Technical Identifiers, ICANN. (</span><a href="https://pti.icann.org/bylaws"><span>https://pti.icann.org/bylaws</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref13" name="_ftn13"><sup><span>[13]</span></sup></a> <span>1.4.1.1, gTLD Applicant Guidebook ICANN, 1-39.(</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref14" name="_ftn14"><sup><span>[14]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 15. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref15" name="_ftn15"><sup><span>[15]</span></sup></a> <span>1.2.1; 1.2.2, gTLD Applicant Guidebook ICANN, 1-21. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref16" name="_ftn16"><sup><span>[16]</span></sup></a><span>(</span><a href="https://www.verisign.com/en_US/internet-technology-news/verisign-press-releases/articles/index.xhtml?artLink=aHR0cDovL3ZlcmlzaWduLm5ld3NocS5idXNpbmVzc3dpcmUuY29tL3ByZXNzLXJlbGVhc2UvdmVyaXNpZ24tc3RhdGVtZW50LXJlZ2FyZGluZy13ZWItYXVjdGlvbi1yZXN1bHRz"><span>https://www.verisign.com/en_US/internet-technology-news/verisign-press-releases/articles/index.xhtml?artLink=aHR0cDovL3ZlcmlzaWduLm5ld3NocS5idXNpbmVzc3dpcmUuY29tL3ByZXNzLXJlbGVhc2UvdmVyaXNpZ24tc3RhdGVtZW50LXJlZ2FyZGluZy13ZWItYXVjdGlvbi1yZXN1bHRz</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref17" name="_ftn17"><sup><span>[17]</span></sup></a> <span>1.2.7, gTLD Applicant Guidebook ICANN, 1-30. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref18" name="_ftn18"><sup><span>[18]</span></sup></a> <span>DECLARATION OF CHRISTINE WILLETT IN SUPPORT OF ICANN’S OPPOSITION TO PLAINTIFF’S <i>EX PARTE </i>APPLICATION FOR TEMPORARY RESTRAINING ORDER, 4. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref19" name="_ftn19"><sup><span>[19]</span></sup></a> <span>1.1.2.5, gTLD Applicant Guidebook ICANN, 1-8. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref20" name="_ftn20"><sup><span>[20]</span></sup></a> <span>1.2.1, gTLD Applicant Guidebook ICANN, 1-21. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref21" name="_ftn21"><sup><span>[21]</span></sup></a> <span>DECLARATION OF CHRISTINE WILLETT IN SUPPORT OF ICANN’S OPPOSITION TO PLAINTIFF’S <i>EX PARTE </i>APPLICATION FOR TEMPORARY RESTRAINING ORDER, 7. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-declaration-willett-25jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref22" name="_ftn22"><sup><span>[22]</span></sup></a> <span>6.8; 6.11, gTLD Applicant Guidebook ICANN, 6-5 (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>);</span></p>
<p style="text-align: justify; "><span> DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 10. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref23" name="_ftn23"><sup><span>[23]</span></sup></a> <span>1.1.2.10, gTLD Applicant Guidebook ICANN. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref24" name="_ftn24"><sup><span>[24]</span></sup></a> <span>NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 15. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref25" name="_ftn25"><sup><span>[25]</span></sup></a><span> DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 8. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref26" name="_ftn26"><sup><span>[26]</span></sup></a> <span>26(f); 65, Federal Rules of Civil Procedure (</span><a href="https://www.federalrulesofcivilprocedure.org/frcp/title-viii-provisional-and-final-remedies/rule-65-injunctions-and-restraining-orders/"><span>https://www.federalrulesofcivilprocedure.org/frcp/title-viii-provisional-and-final-remedies/rule-65-injunctions-and-restraining-orders/</span></a><span>); (</span><a href="https://www.federalrulesofcivilprocedure.org/frcp/title-v-disclosures-and-discovery/rule-26-duty-to-disclose-general-provisions-governing-discovery/"><span>https://www.federalrulesofcivilprocedure.org/frcp/title-v-disclosures-and-discovery/rule-26-duty-to-disclose-general-provisions-governing-discovery/</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref27" name="_ftn27"><sup><span>[27]</span></sup></a> <span>6.10, gTLD Applicant Guidebook ICANN, 6-6. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>); (</span><a href="https://www.icann.org/resources/reviews/specific-reviews/cct"><span>https://www.icann.org/resources/reviews/specific-reviews/cct</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref28" name="_ftn28"><sup><span>[28]</span></sup></a><span> 12(b)(6), Federal Rules of Civil Procedure; DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 6. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>) </span></p>
<p style="text-align: justify; "><a href="#_ftnref29" name="_ftn29"><sup><span>[29]</span></sup></a> <span>DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 8. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref30" name="_ftn30"><sup><span>[30]</span></sup></a> <span>PLAINTIFF RUBY GLEN, LLC’S OPPOSITION TO DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MOTION TO DISMISS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES, 12.</span></p>
<p style="text-align: justify; "><span>(</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-opposition-motion-dismiss-first-amended-complaint-07nov16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-opposition-motion-dismiss-first-amended-complaint-07nov16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref31" name="_ftn31"><sup><span>[31]</span></sup></a> <span>(</span><a href="https://archive.icann.org/en/accountability/frameworks-principles/legal-corporate.htm"><span>https://archive.icann.org/en/accountability/frameworks-principles/legal-corporate.htm</span></a><span>); Art. 1(c), Bylaws for ICANN. (</span><a href="https://www.icann.org/resources/pages/governance/bylaws-en"><span>https://www.icann.org/resources/pages/governance/bylaws-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref32" name="_ftn32"><sup><span>[32]</span></sup></a> <span>(</span><a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1668"><span>http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1668</span></a><span>); NOTICE OF AND EX PARTE APPLICATION FOR TEMPORARY RESTRAINING ORDER: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF, 24. (</span><a href="https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-ruby-glen-ex-parte-application-tro-memo-points-authorities-22jul16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref33" name="_ftn33"><sup><span>[33]</span></sup></a><span> 6.6, gTLD Applicant Guidebook ICANN, 6-4. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref34" name="_ftn34"><sup><span>[34]</span></sup></a> <span>DEFENDANT INTERNET CORPORATION FOR ASSIGNED NAMES AND NUMBERS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO DISMISS FIRST AMENDED COMPLAINT, 18. (</span><a href="http://domainnamewire.com/wp-content/icann-donuts-motion.pdf"><span>http://domainnamewire.com/wp-content/icann-donuts-motion.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref35" name="_ftn35"><sup><span>[35]</span></sup></a> <span>(</span><a href="https://www.icann.org/resources/pages/mechanisms-2014-03-20-en"><span>https://www.icann.org/resources/pages/mechanisms-2014-03-20-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref36" name="_ftn36"><sup><span>[36]</span></sup></a> <span>AMENDED REPLY MEMORANDUM IN SUPPORT OF ICANN’S MOTION TO DISMISS FIRST AMENDED COMPLAINT, 4. (</span><a href="https://www.icann.org/en/system/files/files/litigation-dca-reply-memo-support-icann-motion-dismiss-first-amended-complaint-14apr16-en.pdf"><span>https://www.icann.org/en/system/files/files/litigation-dca-reply-memo-support-icann-motion-dismiss-first-amended-complaint-14apr16-en.pdf</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref37" name="_ftn37"><sup><span>[37]</span></sup></a><span> 501(c)(3), Internal Revenue Code, USA. (</span><a href="https://www.irs.gov/charities-non-profits/charitable-organizations/exemption-requirements-section-501-c-3-organizations"><span>https://www.irs.gov/charities-non-profits/charitable-organizations/exemption-requirements-section-501-c-3-organizations</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref38" name="_ftn38"><sup><span>[38]</span></sup></a> <span>Art. II, Public Technical Identifiers, Articles of Incorporation, ICANN. (</span><a href="https://pti.icann.org/articles-of-incorporation"><span>https://pti.icann.org/articles-of-incorporation</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref39" name="_ftn39"><sup><span>[39]</span></sup></a><span>(</span><a href="https://community.icann.org/display/alacpolicydev/At-Large+New+gTLD+Auction+Proceeds+Discussion+Paper+Workspace"><span>https://community.icann.org/display/alacpolicydev/At-Large+New+gTLD+Auction+Proceeds+Discussion+Paper+Workspace</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref40" name="_ftn40"><sup><span>[40]</span></sup></a> <span>(</span><a href="https://www.icann.org/policy"><span>https://www.icann.org/policy</span></a><span>); 4.3, gTLD Applicant Guidebook ICANN, 4-19. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref41" name="_ftn41"><sup><span>[41]</span></sup></a><span>5, Internet Corporation for ASsigned Names and Numbers, Fiscal Statements As of and for the Years Ended June 30, 2016 and 2015. (</span><a href="https://www.icann.org/en/system/files/files/financial-report-fye-30jun16-en.pdf"><span>https://www.icann.org/en/system/files/files/financial-report-fye-30jun16-en.pdf</span></a><span>);</span></p>
<p style="text-align: justify; "><span>(</span><a href="http://domainincite.com/21204-icann-has-400m-in-the-bank?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+DomainIncite+%28DomainIncite.com%29"><span>http://domainincite.com/21204-icann-has-400m-in-the-bank?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+DomainIncite+%28DomainIncite.com%29</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref42" name="_ftn42"><sup><span>[42]</span></sup></a><span> (</span><a href="http://www.theregister.co.uk/2016/07/28/someone_paid_135m_for_dot_web"><span>http://www.theregister.co.uk/2016/07/28/someone_paid_135m_for_dot_web</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref43" name="_ftn43"><sup><span>[43]</span></sup></a><span>(</span><a href="https://community.icann.org/display/CWGONGAP/Cross-Community+Working+Group+on+new+gTLD+Auction+Proceeds+Home"><span>https://community.icann.org/display/CWGONGAP/Cross-Community+Working+Group+on+new+gTLD+Auction+Proceeds+Home</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref44" name="_ftn44"><sup><span>[44]</span></sup></a><span> (</span><a href="https://www.icann.org/public-comments/new-gtld-auction-proceeds-2015-09-08-en"><span>https://www.icann.org/public-comments/new-gtld-auction-proceeds-2015-09-08-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref45" name="_ftn45"><sup><span>[45]</span></sup></a><span> (</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref46" name="_ftn46"><sup><span>[46]</span></sup></a> <span>(</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref47" name="_ftn47"><sup><span>[47]</span></sup></a><span>(</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>); </span></p>
<p style="text-align: justify; "><span>(</span><a href="https://community.icann.org/display/CWGONGAP/Cross-Community+Working+Group+on+new+gTLD+Auction+Proceeds+Home"><span>https://community.icann.org/display/CWGONGAP/Cross-Community+Working+Group+on+new+gTLD+Auction+Proceeds+Home</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref48" name="_ftn48"><sup><span>[48]</span></sup></a><span> (</span><a href="https://ccnso.icann.org/workinggroups/ccwg-charter-07nov16-en.pdf"><span>https://ccnso.icann.org/workinggroups/ccwg-charter-07nov16-en.pdf</span></a><span>); (</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref49" name="_ftn49"><sup><span>[49]</span></sup></a><span> (</span><a href="https://www.icann.org/public-comments/new-gtld-auction-proceeds-2015-09-08-en"><span>https://www.icann.org/public-comments/new-gtld-auction-proceeds-2015-09-08-en</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref50" name="_ftn50"><sup><span>[50]</span></sup></a> <span>(</span><a href="https://community.icann.org/display/CWGONGAP/CCWG+Charter"><span>https://community.icann.org/display/CWGONGAP/CCWG+Charter</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref51" name="_ftn51"><sup><span>[51]</span></sup></a><span> 4.3, gTLD Applicant Guidebook ICANN, 4-19. (</span><a href="https://newgtlds.icann.org/en/applicants/agb"><span>https://newgtlds.icann.org/en/applicants/agb</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref52" name="_ftn52"><sup><span>[52]</span></sup></a><span> (</span><a href="https://newgtlds.icann.org/en/applicants/auctions/proceeds"><span>https://newgtlds.icann.org/en/applicants/auctions/proceeds</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref53" name="_ftn53"><sup><span>[53]</span></sup></a><span> (</span><a href="https://community.icann.org/pages/viewpage.action?pageId=63150102"><span>https://community.icann.org/pages/viewpage.action?pageId=63150102</span></a><span>)</span></p>
<p style="text-align: justify; "><a href="#_ftnref54" name="_ftn54"><sup><span>[54]</span></sup></a> <span>(</span><a href="https://www.icann.org/news/announcement-2-2016-12-13-en"><span>https://www.icann.org/news/announcement-2-2016-12-13-en</span></a><span>)</span></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/icann2019s-problems-with-accountability-and-the-web-controversy'>https://cis-india.org/internet-governance/blog/icann2019s-problems-with-accountability-and-the-web-controversy</a>
</p>
No publisherPadma VenkataramanICANNTransparencyInternet GovernanceAccountability2017-10-28T15:49:38ZBlog EntryICANN’s Documentary Information Disclosure Policy – I: DIDP Basics
https://cis-india.org/internet-governance/blog/icann2019s-documentary-information-disclosure-policy-2013-i-didp-basics
<b>In a series of blogposts, Vinayak Mithal analyses ICANN's reactive transparency mechanism, comparing it with freedom of information best practices. In this post, he describes the DIDP and its relevance for the Internet community.</b>
<p style="text-align: justify; ">The Internet Corporation for Assigned Names and Numbers (“ICANN”) is a non-profit corporation incorporated in the state of California and vested with the responsibility of managing the DNS root, generic and country-code Top Level Domain name system, allocation of IP addresses and assignment of protocol identifiers. As an internationally organized corporation with its own multi-stakeholder community of Advisory Groups and Supporting Organisations, ICANN is a large and intricately woven governance structure. Necessarily, ICANN undertakes through its Bye-laws that “<i>in performing its functions ICANN shall remain accountable to the Internet community through mechanisms that enhance ICANN’s effectiveness</i>”. While many of its documents, such as its Annual Reports, financial statements and minutes of Board meetings, are public, ICANN has instituted the Documentary Information Disclosure Policy (“DIDP”), which like the RTI in India, is a mechanism through which public is granted access to documents with ICANN which are not otherwise available publicly. It is this policy – the DIDP – that I propose to study.</p>
<p style="text-align: justify; ">In a series of blogposts, I propose to introduce the DIDP to unfamiliar ears, and to analyse it against certain freedom of information best practices. Further, I will analyse ICANN’s responsiveness to DIDP requests to test the effectiveness of the policy. However, before I undertake such analysis, it is first good to know what the DIDP is, and how it is crucial to ICANN’s present and future accountability.</p>
<h3><strong>What is the DIDP?</strong></h3>
<p style="text-align: justify; ">One of the core values of the organization as enshrined under Article I Section 4.10 of the Bye-laws note that “in performing its functions ICANN shall remain accountable to the Internet community through mechanisms that enhance ICANN’s effectiveness”. Further, Article III of the ICANN Bye-laws, which sets out the transparency standard required to be maintained by the organization in the preliminary, states - “ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness”.</p>
<p style="text-align: justify; ">Accordingly, ICANN is under an obligation to maintain a publicly accessible website with information relating to its Board meetings, pending policy matters, agendas, budget, annual audit report and other related matters. It is also required to maintain on its website, information about the availability of accountability mechanisms, including reconsideration, independent review, and Ombudsman activities, as well as information about the outcome of specific requests and complaints invoking these mechanisms.</p>
<p style="text-align: justify; ">Pursuant to Article III of the ICANN Bye-laws for Transparency, ICANN also adopted the DIDP for disclosure of publicly unavailable documents and publish them over the Internet. This becomes essential in order to safeguard the effectiveness of its international multi-stakeholder operating model and its accountability towards the Internet community. Thereby, upon request made by members of the public, ICANN undertakes to furnish documents that are in possession, custody or control of ICANN and which are not otherwise publicly available, provided it does not fall under any of the defined conditions for non-disclosure. Such information can be requested via an email to <a href="mailto:didp@icann.org">didp@icann.org</a>.</p>
<h3><strong>Procedure</strong></h3>
<ul style="text-align: justify; ">
<li>Upon the receipt of a DIDP request, it is reviewed by the ICANN staff.</li>
<li>Relevant documents are identified and interview of the appropriate staff members is conducted.</li>
<li>The documents so identified are then assessed whether they come under the ambit of the conditions for non-disclosure.
<ul>
<li>Yes - A review is conducted as to whether, under the particular circumstances, the public interest in disclosing the documentary information outweighs the harm that may be caused by such disclosure. </li>
<li>Documents which are considered as responsive and appropriate for public disclosure are posted on the ICANN website.</li>
<li>In case of request of documents whose publication is appropriate but premature at the time of response then the same is indicated in the response and upon publication thereafter, is notified to the requester.</li>
</ul>
</li>
</ul>
<h3><strong>Time Period and Publication </strong></h3>
<p style="text-align: justify; ">The response to the DIDP request is prepared by the staff and is made available to the requestor within a period of 30 days of receipt of request via email. The Request and the Response is also posted on the DIDP page <a href="http://www.icann.org/en/about/transparency">http://www.icann.org/en/about/transparency</a> in accordance with the posting guidelines set forth at <a href="http://www.icann.org/en/about/transparency/didp">http://www.icann.org/en/about/transparency/didp</a>.</p>
<h3><strong>Conditions for Non-Disclosure</strong></h3>
<p style="text-align: justify; ">There are certain circumstances under which ICANN may refuse to provide the documents requested by the public. The conditions so identified by ICANN have been categorized under 12 heads and includes internal information, third-party contracts, non-disclosure agreements, drafts of all reports, documents, etc., confidential business information, trade secrets, information protected under attorney-client privilege or any other such privilege, information which relates to the security and stability of the internet, etc.</p>
<p style="text-align: justify; ">Moreover, ICANN may refuse to provide information which is not designated under the specified conditions for non-disclosure if in its opinion the harm in disclosing the information outweighs the public interest in disclosing the information. Further, requests for information already available publicly and to create or compile summaries of any documented information may be declined by ICANN.</p>
<h3><strong>Grievance Redressal Mechanism </strong></h3>
<p style="text-align: justify; ">In certain circumstances the requestor might be aggrieved by the response received and so he has a right to appeal any decision of denial of information by ICANN through the Reconsideration Request procedure or the Independent Review procedure established under Section 2 and 3 of Article IV of the ICANN Bye-laws respectively. The application for review is made to the Board which has designated a Board Governance Committee for such reconsideration. The Independent Review is done by an independent third-party of Board actions, which are allegedly inconsistent with the Articles of Incorporation or Bye-laws of ICANN.</p>
<h3><strong>Why does the DIDP matter?</strong></h3>
<p style="text-align: justify; ">The breadth of ICANN’s work and its intimate relationship to the continued functioning of the Internet must be appreciated before our analysis of the DIDP can be of help. ICANN manages registration and operations of generic and country-code Top Level Domains (TLD) in the world. This is a TLD:</p>
<p style="text-align: justify; "><img src="https://cis-india.org/internet-governance/blog/TLD.jpg/@@images/1bb21859-d1aa-41c6-b5e0-4041ae099f54.jpeg" alt="TLD" class="image-inline" title="TLD" /></p>
<p style="text-align: justify; ">(<i>Source</i>: <a class="external-link" href="http://geovoices.geonetric.com/wp-content/uploads/2013/11/parts_of_a_domain_name.jpg">here</a>)</p>
<p style="text-align: justify; ">Operation of many gTLDs, such as .com, .biz or .info, is under contract with ICANN and an entity to which such operation is delegated. For instance, Verisign operates the .com Registry. Any organization that wishes to allow others to register new domain names under a gTLD (sub-domains such as ‘benefithealth’ in the above example) must apply to ICANN to be an ICANN-accredited Registrar. GoDaddy, for instance, is one such ICANN-accredited Registrar. Someone like you or me, who wants to get our own website – say, vinayak.com – buys from GoDaddy, which has a contract with ICANN under which it pays periodic sums for registration and renewal of individual domain names. When I buy from an ICANN-accredited Registrar, the Registrar informs the Registry Operator (say, Verisign), who then adds the new domain name (vinayak.com) to its registry list, and then it can be accessed on the Internet.</p>
<p style="text-align: justify; ">ICANN’s reach doesn’t stop here, technically. To add a new gTLD, an entity has to apply to ICANN, after which the gTLD has to be added to the root file of the Internet. The root file, which has the list of all TLDs (or all ‘legitimate’ TLDs, some would say), is amended by Verisign under its tripartite contract with the US Government and ICANN, after which Verisign updates the file in its ‘A’ <a href="http://root-servers.org/">root server</a>. The other 12 root servers use the same root file as the Verisign root server. Effectively, this means that <i>only </i>ICANN-approved TLDs (and all sub-domains such as ‘benefithealth’ or ‘vinayak’) are available across the Internet, on a global scale. Or at least, ICANN-approved TLDs have the most and widest reach. ICANN similarly manages country-code TLDs, such as .in for India, .pk for Pakistan or .uk for the United Kingdom.</p>
<p style="text-align: justify; ">All of this leads us to wonder whether the extent of ICANN’s voluntary and reactive transparency is sufficient for an organization of such scale and impact on the Internet, perhaps as much impact as the governments do. In the next post, I will analyse the DIDP’s conditions for non-disclosure of information with certain freedom of information best practices.</p>
<hr style="text-align: justify; " />
<p style="text-align: justify; "><i>Vinayak Mithal is a final year student at the Rajiv Gandhi National University of Law, Punjab. His interests lie in Internet governance and other aspects of tech law, which he hopes to explore during his internship at CIS and beyond. He may be reached at vinayakmithal@gmail.com.</i></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/icann2019s-documentary-information-disclosure-policy-2013-i-didp-basics'>https://cis-india.org/internet-governance/blog/icann2019s-documentary-information-disclosure-policy-2013-i-didp-basics</a>
</p>
No publisherVinayak MithalInternet GovernanceAccountabilityICANNDIDPTransparency2014-07-01T13:01:34ZBlog EntryICANN Workstream 2 Recommendations on Accountability
https://cis-india.org/internet-governance/blog/icann-work-stream-2-recommendations-on-accountability
<b>One of the most significant initiatives to improve the accountability of the Internet Corporation of Assigned Names and Numbers (ICANN) commenced in 2014, when the Cross Community Working Group on Accountability was created. Its role was to develop a set of proposed enhancements to ICANN’s accountability to the global Internet community. This resulted in the first Work Stream (WS1) recommendations, which were eventually approved and incorporated into the bylaws of ICANN in 2016. These included a provision expressing the need for a second WS since the first one, done on a tight deadline,did not cover all the requisite issues. Instead WS1 only focused on issues that were needed to complete the Internet Assigned Numbers Authority(IANA) transition. </b>
<p style="text-align: justify; ">At the ICANN meeting in March of 2017 in Finland, the second Work Stream (WS2) was launched. The Cross Community Working Group submitted their final report at the end of June 2018 and the purpose of this blog is to look at the main recommendations given and the steps ahead to its implementation.</p>
<p style="text-align: justify; ">The new Workstream was structured into the following 8 independent sub groups as per the topics laid down in the WS1 final report, each headed by a Rapporteur:</p>
<p style="text-align: justify; ">1. Diversity</p>
<p style="text-align: justify; ">2. Guidelines for Standards of Conduct Presumed to be in Good Faith Associated with Exercising Removal of Individual ICANN Board Directors. (Guidelines for Good Faith)</p>
<p style="text-align: justify; ">3. Human Rights Framework of Interpretation (HR-FOI)</p>
<p style="text-align: justify; ">4. Jurisdiction</p>
<p style="text-align: justify; ">5. Office of the Ombuds</p>
<p style="text-align: justify; ">6. Supporting Organization/ Advisory Committee Accountability</p>
<p style="text-align: justify; ">7. Staff Accountability</p>
<p style="text-align: justify; ">8. ICANN Transparency</p>
<p> </p>
<p style="text-align: justify; "><b>1. </b><b><span>DIVERSITY Recommendations </span></b><b> </b></p>
<p>The sub-group on Diversity suggested ways by which ICANN can define, measure, report, support and promote diversity. They proposed 7 key factors to guide all diversity considerations: Language, Gender, Age, Physical Disability, Diverse skills, Geographical representation and stakeholder group. Each charting organization within ICANN is asked to undertake an exercise whereby they publish their diversity obligations on their website, for each level of employment including leadership either under their own charter or ICANN Bylaws. This should be followed by a diversity assessment of their existing structures and consequently used to formulate their diversity objectives/criteria and steps on how to achieve the same along with the timeline to do so. These diversity assessments should be conducted annually and at the very least, every 3 years. ICANN staff has been tasked with developing a mechanism for dealing with complaints arising out of diversity and related issues. Eventually, it is envisioned that ICANN will create a Diversity section on their website where an Annual Diversity Report will be published. All information regarding Diversity should also be published in their Annual Report.</p>
<p>The recommendations leave much upto the organization without establishing specific recruitment policies for equal opportunities. In their 7 parameters, race was left out as a criteria for diversity. The criteria of ‘diverse skills’ is also ambiguous; and within stakeholder group, it would have been more useful to highlight the priority for diversity of opinions within the same stakeholder group. So for example, to have two civil society organizations (CSOs) advocating for contrasting stances as opposed to having many CSO’s supporting one stance. However, these steps should be a good starting point to improve the diversity of an organization which in our earlier research we have found to be <a href="https://cis-india.org/internet-governance/blog/global-multistakeholder-community-neither-global-nor-multistakeholder">neither global nor multistakeholder</a>. In fact, our <a href="https://cis-india.org/internet-governance/blog/icann-diversity-analysis">recent diversity analysis </a>has shown concerns such as the vast number of the end users participating and as an extension, influencing ICANN work are male. The mailing list where the majority of discussions take place are dominated by individuals from industry bodies. This coupled with the relative minority presence of the other stakeholders, especially geographically (14.7% participation from Asian countries), creates an environment where concerns emanating from other sections of the society could be overshadowed. Moreover, when we have questioned ICANN’s existing diversity of employees based on their race and citizenship, they <a href="https://cis-india.org/internet-governance/blog/didp-31-diversity-of-employees-at-icann">did not give us</a> the figures citing either lack of information or confidentiality.</p>
<p style="text-align: justify; "><b>2. </b><b><span>HUMAN RIGHTS FRAMEWORK OF INTERPRETATION (HR-FOI)</span></b><b> </b></p>
<p style="text-align: justify; ">A Framework of Interpretation was developed by the WS2 for ICANN Bylaws relating to Human Rights which clarified that Human Rights are not a Commitment for the organization but is a Core Value. The former being an obligation while the latter are <i>“<span>not necessarily intended to apply consistently and comprehensively to ICANN’s activities</span></i><span>”.</span></p>
<p style="text-align: justify; ">To summarize the FOI, if the applicable law i.e. the law practiced in the jurisdiction where ICANN is operating, does not mandate certain human rights then they do not raise issues under the core value. As such, there can be no enforcement of human rights obligations by ICANN or any other party against any other party. Thus, contingent on the seat of the operations the law can vary though by in large ICANN recognizes and can be guided by significant internationally respected human rights such as those enumerated in the Universal Declaration of Human Rights. The United Nations Guiding Principles for Business and Human Rights was recognized as useful in the process of applying the core value in operations since it discusses corporate responsibility to respect human rights. Building on this, Human Right Impact Assessments (HRIA) with respect to ICANN policy development processes are currently being formulated by the Cross Community Working Group on Human Rights. Complementing this, ICANN is also undertaking an internal HRIA of the organization’s operations. It is important to remember that the international human rights instruments that are relevant here are those required by the applicable law.</p>
<p>Apart from its legal responsibility to uphold the HR laws of an area, the framework is worded negatively in that it says ICANN should in general avoid violating human rights. It is also said that they should take into account HR when making policies but these fall short from saying that HR considerations should be given prominent weightage and since there are many core values, at any point one of the others can be used to sidestep human rights. One core value in particular says that ICANN should duly consider the public policy advice of governments and other authorities when arriving at a decision. Thus, if governments want to promote a decision to further national interests at the expense of citizen’s human rights then that would be very much possible within this FOI.</p>
<p><b>3. </b><b><span>JURISDICTION</span></b><b> </b></p>
<p>A highly contentious issue in WS2 was that of Jurisdiction, and the recommendations formed to tackle it were quite disappointing. Despite initial discussion by the group on ICANN’s location, they did not address the elephant in the room in their report. Even after the transition, ICANN’s new by-laws state that it is subject to California Law since it was incorporated there. This is partly the fault of the first Workstream because when enumerating the issues for WS2 with respect to jurisdiction, they left it ambiguous by stating: :</p>
<p style="text-align: justify; "><i>“At this point in the CCWG Accountability’s work, the main issues that need within Work Stream 2 relate to the influence that ICANN ́s existing jurisdiction may have on the actual operation of policies and accountability mechanisms. This refers primarily to the process for the settlement of disputes within ICANN, involving the choice of jurisdiction and of the applicable laws, <b><span>but not necessarily the location where ICANN is incorporated.”</span></b></i></p>
<p style="text-align: justify; ">Jurisdiction can often play a significant role in the laws that ICANN will have to abide by in terms of financial reporting, consumer protection, competition and labour laws, legal challenges to ICANN’s actions and finally, in resolving contractual disputes. In its present state, the operations of ICANN could, if such a situation arises, see interference from US authorities by way of legislature, tribunals, enforcement agencies and regulatory bodies.</p>
<p style="text-align: justify; ">CIS has, in the past, discussed the concept of “<a href="https://cis-india.org/internet-governance/blog/jurisdiction-the-taboo-topic-at-icann">jurisdictional resilience”</a>, which calls for:</p>
<ul type="disc">
<li>Legal immunity for core technical operators of Internet functions (as opposed to policymaking venues) from legal sanctions or orders from the state in which they are legally situated.</li>
<li>Division of core Internet operators among multiple jurisdictions</li>
<li>Jurisdictional division of policymaking functions from technical implementation functions</li>
</ul>
<p style="text-align: justify; ">Proposing to change ICANN’s seat of headquarters or at the very least, suggest ways for ICANN to gain partial immunity for its policy development processes under the US law would have gone a long way in making ICANN truly a global body. It would have also ensured that as an organization, ICANN would have been equally accountable to all its stakeholders as opposed to now, where by virtue of its incorporation, it has higher legal and possible political, obligations to the United States. This was (initially?) expressed by Brazil who dissented from the majority conclusions of the sub-group and drafted their own minority report, which was supported by countries like Russia. They were unhappy that all countries are still not at an equal footing in the participation of management of Internet resources, which goes against the fundamentals of the multi-stakeholder system approach.</p>
<p style="text-align: justify; ">Recommendations:</p>
<p style="text-align: justify; ">The recommendations passed were in two categories:</p>
<ol type="1">
<li style="text-align: justify; ">Office of Foreign Asset Control (OFAC)</li>
</ol>
<p style="text-align: justify; ">OFAC is an office of the US Treasury administering and enforcing economic and trade sanctions based on the American foreign policy and national security objectives. It is pertinent because, for ICANN to enter into a Registration Accreditation Agreement (RAA) with an applicant from a sanctioned country, it will need an OFAC license. What happens right now is that ICANN is under no obligation to request for this license and in either case, OFAC can refuse to provide it. The sub group recommended that the terms of the RAA be modified so that ICANN is required to apply for and put their best efforts in securing the license if the applicant is qualified to be a registrar and not individually subject to sanctions. While the licensing process is underway they should also be helpful and transparent, and maintain on-going communication with the applicant. The same recommendation was made for applicants to the new gTLD program, from sanctioned countries. Other general licenses are needed from OFAC for certain ICANN transactions and hence it was proposed that ICANN pursue the same.</p>
<p style="text-align: justify; ">2. Choice of law and Choice of Venue Provisions in ICANN Agreements</p>
<p>In ICANN’S Registry Agreements (RA) and Registration Accreditation Agreement (RAA) the absence of a choice of law provision means that the governing law of these contracts is undetermined until later decided by a judge or arbitrator or an agreement between the parties. It was collectively seen that increased freedom of choice for the parties in the agreement could help in customizing the agreements and make it easier for registries and such to contractually engage with ICANN. Out of various options, the group decided that a Menu approach would be best whereby a host of options(decided by ICANN) can be provided and the party in case choose the most appropriate from them such as the jurisdiction of their incorporation.In RAs, the choice of venue was pre determined as Los Angeles, California but the group recommended that instead of imposing this choice on the party it would be better to offer a list of possible venues for arbitration. The registry can then choose amongst these options when entering into the contract. There were other issues discussed which did not reach fruition due to lack of unanimity such as discussions on immunity of ICANN from US jurisdiction.</p>
<p style="text-align: justify; "><b>4. </b><b><span>OFFICE OF THE OMBUDS</span></b><b> </b></p>
<p>Subsequent to the external evaluation of the ICANN Office of the Ombuds (IOO), there were a couple of recommendations to strengthen the office. They were divided into procedural aspects that the office should carry out to improve their complaint mechanism such as differentiating between categories of complaints and explaining how each type would be handled with. The issues that would not invoke actions from the IOO should also be established clearly and if and where these could be transferred to any other channel. The response from all the relevant parties of ICANN to a formal request or report from the IOO should take place within 90 days, and 120 at the maximum if an explanation for the same can be provided. An internal timeline will be defined by the office for handling of complaints and document a report on these every quarter or annually. A recommendation for the IOO to be formally trained in mediation and have such experience within its ranks was further given. Reiterating the importance of diversity, even this sub group emphasized on the IOO bearing a diverse group in terms of gender and other parameters. This ensures that a complainant has a choice in who to approach in the office making them more comfortable. To enhance the independence of the Ombuds, their employment contract should have a 5 year fixed term which only allows for one extension of maximum 3 years. An Ombuds Advisory Panel is to be constituted by ICANN comprising five members to act as advisers, supporters and counsel for the IOO with at least 2 members having Ombudsman experience and the remaining possessing extensive ICANN experience. They would be responsible for selecting the new Ombuds and conducting the IOO’s evaluation every 5 years amongst others. Lastly, the IOO should proactively document their work by publishing reports on activity, collecting and publicizing statistics, user satisfaction information a well any improvements to the process.</p>
<p>These proposals still do not address the opacity of how the Office of the Ombuds resolve these cases since it does not call for; a) a compilation of all the cases that have been decided by the office in the history of the organization b) the details of the parties that are involved if the parties have allowed that to be revealed and if not at the very least, the non sensitive data such as their nationality and stakeholder affiliation and c) a description of the proceedings of the case and who won in each of them. When CIS <a href="https://cis-india.org/internet-governance/blog/didp-request-5-the-ombudsman-and-icanns-misleading-response-to-our-request-1">asked</a> for the above in 2015, the information was denied on ground of confidentiality. Yet, it is vital to know these details since the Ombuds hear complaints against the Board, Staff and other constituent bodies and by not reporting on this, ICANN is rendering the process much less accountable and transparent. This conflict resolution process and its efficacy is even more essential in a multi-stakeholder environment so as to give parties the faith to engage in the process, knowing that the redressal mechanisms are strong. It is also problematic that sexual harassments complaints are dealt by the Ombuds and that ICANN does not have a specific Anti-Sexual Harassment Committee. The committee should be neutral and approachable and while it is useful for the Office of the Ombuds to be trained in sexual harassment cases, it is by no means a comprehensive and ideal approach to deal with complaints of this nature. Despite ICANN facing a sexual harassment claim i<a href="https://cis-india.org/internet-governance/blog/cis-statement-on-sexual-harrasment-at-icann55">n 2016</a>, the recommendations do not specifically address the approach the Ombuds should take in tackling sexual harassment.</p>
<p> </p>
<p style="text-align: justify; "><b>5. </b><b><span>SUPPORTING ORGANIZATION/ ADVISORY COMMITTEE ACCOUNTABILITY</span></b><b> </b></p>
<p>The sub group presented the outcomes under the main heads of Accountability, Transparency, Participation, Outreach and Updates to policies and procedures. They suggested these as good practices that can be followed by the organizations and did not recommend that implementation of the same be required. The accountability aspect had suggestions of better documentation of procedures and decision-making. Proposals of listing members of such organizations publicly, making their meetings open to public observation including minutes and transcripts along with disclosing their correspondence with ICANN were aimed at making these entities more transparent. In the same vein, rules of membership and eligibility criteria, the process of application and a process of appeal should be well defined. Newsletters should be published by the SO/AC to help non-members understand the benefit and the process of becoming a member. Policies were asked to be reviewed at regular intervals and these internal reviews should not extend beyond a year.</p>
<p style="text-align: justify; "><b>6. </b><b><span>STAFF ACCOUNTABILITY</span></b><b> </b></p>
<p>Improving the ICANN staff’s Accountability was the job of a different group who assessed it at the service delivery, departmental or organizational level not at an individual or personnel level. They did this by analysing the roles and responsibilities of the Board, staff and community members and the nexus between them. Their observations culminated in the understanding that ICANN needs to take steps such as make visible their performance management system and process, their vision for the departmental goals and how they tie in to the organization’s strategic goals and objectives. They note that several new mechanisms have already been established yet have not been used enough to ascertain their efficacy and thus, propose a regular information acquisition mechanism. Most importantly, they have asked ICANN to standardize and publish guidelines for suitable timeframes for acknowledging and responding to requests from the community.</p>
<p style="text-align: justify; "> </p>
<p style="text-align: justify; "><b>7. </b><b><span>ICANN TRANSPARENCY</span></b><b> </b></p>
<p style="text-align: justify; ">The last group of the WS2 was one specifically looking at the transparency of the organization.</p>
<p style="text-align: justify; "><i>a. <span>The Documentary Information Disclosure Policy (DIDP)</span></i></p>
<p style="text-align: justify; ">Currently the DIDP process only applies to ICANN’s “operational activities”, it was recommended to delete this caveat to cover a wider breadth of the organization’s activities. As CIS has experienced, request for information is often met with an answer that such information is not documented and to remedy the same, a documentation policy was proposed where if significant elements of a decision making process are taking place orally then the participants will be required to document the substance of the conversation. Many a times DIDP requests are refused because one aspect of the information sought is subject to confidentiality. hus one of the changes is to introduce a severability clause so that in such cases, information can still be disclosed with the sensitive aspect redacted or severed. In scenarios of redaction, the rationale should be provided citing one of the given DIDP exceptions along with the process for appeal. ICANN’s contracts should be under the purview of the DIDP except when subject to a non-disclosure agreement and further, the burden is on the other party to convince ICANN that it has a legitimate commercial reason for requested the NDA. No longer would any information pertaining to the security and stability of the Internet be outside the ambit of the DIDP but only if it is harmful to the security and stability. Finally, ICANN should review the DIDP every five years to see how it can be improved.</p>
<p style="text-align: justify; "><i>b. <span>Documenting and Reporting on ICANN’s Interactions with the Government</span></i></p>
<p style="text-align: justify; ">In a prominent step towards being more transparent with their expenditure and lobbying, the group recommended that ICANN begins disclosing publicly on at least an annual basis, sums of $20,000 per year devoted to “political activities” both in the US and abroad. All expenditures should be done on an itemized basis by ICANN for both outside contractors and internal personnel along with the identities of the persons engaging in such activities and the type of engagement used for such activities amongst others.</p>
<p style="text-align: justify; "><i>cc. <span>Transparency of Board Deliberations</span></i></p>
<p style="text-align: justify; "><i> </i>The bylaws were recommended to be revised so that material may be removed from the minutes of the Board if subject to a DIDP exception. The exception for deliberative processes should not apply to any factual information, technical report or reports on the performance or effectiveness of a particular body or strategy. When any information is removed from the minutes of the Board meeting, they should be disclosed after a particular period of time as and when the window of harm has passed.</p>
<p style="text-align: justify; "><i>d. <span>ICANN’s Anonymous Hotline (Whistle-blower Protection)</span></i></p>
<p style="text-align: justify; ">To begin with, ICANN was recommended to devise a way such that when anyone searches their website for the term “whistle-blower”, it should redirect to their Hotline policy since people are unlikely to be aware that in ICANN parlance it is referred to as the Hotline policy. Instead of only “serious crimes” that are currently reported, all issues and concerns that violate local laws should be. Complaints should not be classified as ‘urgent’ and ‘non-urgent’ but all reports should be a priority and receive a formal acknowledgment within 48 hours at the maximum. ICANN should make it clear that any retaliation against the reporter will be taken and investigated as seriously as the original alleged wrongdoing. Employees should be provided with data about the use of the Hotline, including the types of incidents reported. Few member of this group came out with a Minority Statement expressing their disapproval with one particular aspect of the recommendations that they felt was not developed enough, the one pertaining to ICANN’s attorney-client privilege. The recommendation did not delve into specifics but merely stated that ICANN should expand transparency in their legal processes including clarifying how attorney-client privilege is invoked. The dissidents thought ICANN should go farther and enumerate principles where the privilege would be waived in the interests of transparency and account for voluntary disclosure as well.</p>
<p style="text-align: justify; ">The transparency recommendations did not focus on the financial reporting aspects of ICANN which <a href="https://cis-india.org/internet-governance/blog/analysis-of-icann-financials-from-2012-2016">we have found ambiguities</a> with before. Some examples are; the Registries and Registrars are the main sources of revenue though there is ambiguity as to the classifications provided by ICANN such as the difference between RYG and RYN. The mode of contribution of sponsors isn’t clear either so we do not know if this was done through travel, money, media partnerships etc. Several entities have been listed from different places in different years, sometimes depending on the role they have played such as whether they are a sponsor or registry. Moreover, the Regional Internet Registries are clubbed under one heading and as a consequence it is not possible to determine individual RIR contribution like how much did APNIC pay for the Asia and Pacific region. Thus, there is a lot more scope for ICANN to be transparent which goes beyond the proposals in the report.</p>
<p> </p>
<p>It is worth noting that whereas the mandate of the WS1 included the implementation of the recommendations, this is not the case for WS2 and thus, by creating a report itself the mission of the group is concluded. This difference can be attributed to the fact that during the first WS, there was a need to see it through since the IANA transition would not happen otherwise. The change in circumstances and the corresponding lack of urgency render the process less powerful, the second time round. The final recommendations are now being discussed in the relevant charting organizations within ICANN such as the Government Advisory Council (GAC) and subsequent to their approval,, it will be sent to the Board who will decide to adopt them or not. If adopted, ICANN and its sub organizations will have to see how they can implement these recommendations. The co-chairs of the group will be the point of reference for the chartering organizations and an implementation oversight team has been formed, consisting of the Rapporteurs of the sub teams and the co-chairs. A Feasibility Assessment Report will be made public in due time which will describe the resources that would take to implement the recommendations. Since it would be a huge undertaking for ICANN to implement the above, the compliance process is expected to take a few years. .</p>
<p style="text-align: justify; "> </p>
<p>The link to report can be found<a href="https://community.icann.org/display/WEIA/WS2+-+Enhancing+ICANN+Accountability+Home?preview=/59640761/88575033/FULL%20WS2%20REPORT%20WITH%20ANNEXES.pdf"> here.</a></p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/icann-work-stream-2-recommendations-on-accountability'>https://cis-india.org/internet-governance/blog/icann-work-stream-2-recommendations-on-accountability</a>
</p>
No publisherakritiICANNInternet GovernanceAccountability2018-11-23T14:56:20ZBlog EntryICANN takes one step forward in its human rights and accountability commitments
https://cis-india.org/internet-governance/blog/article-19-akriti-bopanna-and-ephraim-percy-kenyanito-december-16-2019-icann-takes-one-step-forward-in-its-human-rights-and-accountability-commitments
<b>Akriti Bopanna and Ephraim Percy Kenyanito take a look at ICANN's Implementation Assessment Report for the Workstream 2 recommendations and break down the key human rights considerations in it. Akriti chairs the Cross Community Working Party on Human Rights at ICANN and Ephraim works on Human Rights and Business for Article 19, leading their ICANN engagement.</b>
<p style="text-align: justify;">The article was first<a class="external-link" href="https://www.article19.org/resources/blog-icann-takes-one-step-forward-in-its-human-rights-and-accountability-commitments/"> published on Article 19</a> on December 16, 2019</p>
<hr style="text-align: justify;" />
<p style="text-align: justify;">ICANN is the international non-profit organization that brings together various stakeholders to create policies aimed at coordinating the Domain Name System. Some of these stakeholders include representatives from government, civil society, academia, the private sector, and the technical community.</p>
<p style="text-align: justify;">During the recently concluded 66th International Meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) in Montreal (Canada); the ICANN board adopted by consensus the recommendations contained within the Work Stream 2 (WS2) Final Report. This report was generated as part of steps towards accountability after the September 30th 2016 U.S. government handing over of its unilateral control over ICANN, through its previous stewardship role of the Internet Assigned Names and Numbers Authority (IANA).</p>
<p style="text-align: justify;">The Workstream 2 Recommendations on Accountability are seen as a big step ahead in the incorporation of human rights in ICANN’s various processes, with over 100 recommendations on aspects ranging from diversity to transparency. An Implementation Team has been constituted which comprises the Co-chairs and the rapporteurs from the WS2 subgroups. They will primarily help the ICANN organization in interpreting recommendations of the groups where further clarification is needed on how to implement the same. As the next step, an Implementation Assessment Report has recently been published which looks at the various resources and steps needed. The steps are categorized into actions meant for one of the 3; the ICANN Board, Community and the ICANN organization itself. These will be funded by ICANN’s General Operating Fund, the Board and the org.</p>
<p style="text-align: justify;">The report is divided into the following 8 issues: 1) Diversity, 2) Guidelines for Good Faith, 3) Recommendations for a Framework of Interpretation for Human Rights, 4) Jurisdiction of Settlement of Dispute Issues, 5) Recommendations for Improving the ICANN Office of the Ombudsman, 6) Recommendations to increase SO/ AC Accountability, 7) Recommendations to increase Staff Accountability and 8) Recommendations to improve ICANN Transparency.</p>
<p style="text-align: justify;">This blog will take a look at the essential human rights related considerations of the report and how the digital rights community can get involved with the effectuation of the recommendations.</p>
<p style="text-align: justify;"><strong>Diversity</strong></p>
<p style="text-align: justify;">The core issues concerning the issue of diversity revolve around the need for a uniform definition of the parameters of diversity and a community discussion on the ones already identified; geographic representation, language, gender, age, physical disability, diverse skills and stakeholder constituency. An agreed upon definition of all of these is necessary before its Board approval and application consistently through the various parts of ICANN. In addition, it is also required to formulate a standard template for diversity data collection and report generation. This sub group’s recommendations are estimated to be implemented in 6-18 months. Many of the recommendations need to be analyzed for compliance with the General Data Protection Regulation (GDPR) such as collecting of information relating to disability. For now, the GDPR is only referenced with no further details on how steps considered will either comply or contrast the law.</p>
<p style="text-align: justify;"><strong>Good faith Guidelines</strong></p>
<p style="text-align: justify;">The Empowered Community (EC) which includes all the Supporting Organizations, At-Large-Advisory-Committee and Government Advisory Council, are called upon to conceptualize guidelines to be followed when individuals from the EC are participating in Board Removal Processes. Subsequent to this, the implementation will take 6-12 months.</p>
<p style="text-align: justify;"><strong>Framework of Interpretation for Human Rights</strong></p>
<p style="text-align: justify;">Central to the human rights conversation and finally approved, is the Human Rights Framework of Interpretation. However the report does not give a specific timeline for its implementation, only mentioning that this process will take more than 12 months. The task within this is to establish practices of how the core value of respecting human rights will be balanced with other core values while developing ICANN policies and execution of its operations. All policy development processes, reviews, Cross Community Working Group recommendations will need a framework to consider and incorporate human rights, in tandem with the Framework of Interpretation. It will also have to be shown that policies and recommendations sent to the Board have factored in the FOI.</p>
<p style="text-align: justify;"><strong>Transparency</strong></p>
<p style="text-align: justify;">The recommendations focus on the following four key areas as listed below:<br />1. Improving ICANN’s Documentary Information Disclosure Policy (DIDP).<br />2. Documenting and Reporting on ICANN’s Interactions with Governments.<br />3. Improving Transparency of Board Deliberations.<br />4. Improving ICANN’s Anonymous Hotline (Whistleblower Protection).</p>
<p style="text-align: justify;">The bulk of the burden for implementation is put on ICANN org with the community providing oversight and ensuring ICANN lives up to its commitments under various policies and laws. Subsequent to this, the implementation will take 6-12 months.</p>
<p style="text-align: justify;"><strong>How the ICANN community can contribute to this work</strong></p>
<p style="text-align: justify;">This is a defining moment on the future of ICANN and there are great opportunities for the ICANN multistakeholder community to continue shaping the future of the Internet. Some of the envisioned actions by the community include:</p>
<ul style="text-align: justify;">
<li>monitoring and assessing the performance of the various ICANN bodies, and acting on the recommendations that emerge from those accountability processes. This will only be done through collaborative formulation of processes and procedures for PDPS, CCWGs etc to incorporate HR considerations and subsequently implementation of the best practices suggested for improving SO/ACs accountability and transparency;</li>
<li>conducting diversity assessments to inform objectives and strategies for diversity criteria;</li>
<li>supporting contracted parties through legal advice for change in their agreements when it comes to choice of law and venue recommendations;</li>
<li style="text-align: justify;">contributing to conversations where the Ombudsman can expand his/her involvement that go beyond current jurisdiction and authority</li></ul>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/article-19-akriti-bopanna-and-ephraim-percy-kenyanito-december-16-2019-icann-takes-one-step-forward-in-its-human-rights-and-accountability-commitments'>https://cis-india.org/internet-governance/blog/article-19-akriti-bopanna-and-ephraim-percy-kenyanito-december-16-2019-icann-takes-one-step-forward-in-its-human-rights-and-accountability-commitments</a>
</p>
No publisherAkriti Bopanna and Ephraim Percy KenyanitoFreedom of Speech and ExpressionICANNIANAInternet Governance2019-12-19T11:35:16ZBlog EntryICANN Sexual Harassment Case Highlights Lack of Procedure at Global Internet Body
https://cis-india.org/internet-governance/news/the-wire-march-24-2016-icann-sexual-harassment-case-highlights-lack-of-procedure-at-global-internet-body
<b>Alleged perpetrator files counter-complaint with ombudsman’s office after being publicly identified.</b>
<p>The article was <a class="external-link" href="http://thewire.in/2016/03/24/icann-sexual-harassment-case-highlights-lack-of-procedure-at-global-internet-body-25728/">published in the Wire</a> on March 24, 2016.</p>
<hr />
<p style="text-align: justify; ">A female researcher associated with the Bangalore-based Centre for Internet and Society has alleged that she was sexually harassed at an ICANN (Internet Corporation for Assigned Names and Numbers) public meeting held in Morocco earlier this month, in an incident that highlights a lack of established procedure at the global body responsible for maintaining the technical backbone of the Internet.</p>
<p style="text-align: justify; ">According to the woman, who is currently a law student but was representing CIS at the meeting, she was sexually harassed by a participant from the private sector constituency on March 6th at a working session.</p>
<p style="text-align: justify; ">“I felt like my space and safety as a young woman in the ICANN community was at stake,” she said.</p>
<p style="text-align: justify; ">ICANN-organised events currently do not have a formal redressal system for these type of complaints nor does it have a specific anti-sexual harassment committee to which community members can file an official complaint.</p>
<p style="text-align: justify; ">The CIS representative, therefore, has taken up her case with ICANN’s ombudsman office, an office that does not have an explicit mandate to deal with incidents of sexual harassment.</p>
<p style="text-align: justify; ">“I currently am unclear as to the exact status of my complaint. The ombudsman office does not have a clear sexual harassment procedure, it has only a standards of behaviour. When I first went to them, they told me nobody has officially complained of sexual harassment since 1998,” she told <i>The Wire</i>.</p>
<p style="text-align: justify; ">“I understand the evidential burden that needs to be fulfilled for this [allegation] to be proven. I know it’s difficult to prove this. I just want an enquiry conducted properly and impartially.”</p>
<p style="text-align: justify; ">The Centre for Internet and Society released a sharp statement on Monday, pointing out that since the woman was “given no immediate remedy or formal recourse”, she had no choice but to make “the incident publicly known in the interim.”</p>
<p style="text-align: justify; ">CIS Executive Director Sunil Abraham pointed out that while the ombudsman office has been in touch with the organisation’s representative, “this administrative process is simply inadequate for rights-violation”.</p>
<p style="text-align: justify; ">To that end, CIS has called upon ICANN to “institute a formal redressal system with regard to sexual harassment and institute an anti-sexual harassment committee that is neutral and approachable”.</p>
<p style="text-align: justify; ">“Merely having an ombudsman who is a white male, however well intentioned, is inadequate and completely unhelpful to the complainant. The present situation is one where the ombudsman has no effective power and only advises the board ,” the CIS’s statement reads.</p>
<p style="text-align: justify; "><strong>ICANN perspective</strong></p>
<p style="text-align: justify; ">When asked for a comment, ICANN media representatives pointed <em>The Wire</em> to the written transcript of a public session in which this particular issue of sexual harassment was raised. In that meeting, ICANN board member Markus Kummer specifically condemns “improper conduct of any kind such as harassment” while calling for zero tolerance on such issues within the larger ICANN community.</p>
<p style="text-align: justify; ">On the issue of whether ICANN could adopt a broader policy on sexual harassment, Kummer acknowledges that while the organisation’s expected standards of behaviour “could be a bit more specific as regards harassment”, the standards are applicable to “staff and board members and we have to undergo training”.</p>
<p style="text-align: justify; ">“Now, we could also make this also available to the community but the board thought it might not be the appropriate way to go about and impose something on the community. It might be more appropriate for the community to come up with these standards…Let me once again assure the community that the board is fully cognizant of the importance of this issue and supports the community in developing standards that may be more explicit in regard of these issues,” Kummer is quoted as saying in the transcript.</p>
<p style="text-align: justify; "><strong>Complaint, Counter-Complaint</strong></p>
<p style="text-align: justify; ">The incident, however, took a different turn on Tuesday after the ICANN ombudsman wrote to the CIS representative informing her that the investigation had become “very difficult” because she had identified and named the alleged perpetrator in a public social media posting.</p>
<p style="text-align: justify; ">“By naming [the alleged perpetrator] before the process was completed, this has meant that the confidentiality of my office has been compromised and his privacy has been compromised. Leaving aside the issue of whether he actually made the comments and behaved as you describe [sic], he is entitled to a fair and impartial investigation,” the ombudsman office’s letter says.</p>
<p style="text-align: justify; ">The alleged perpetrator now, according to the letter, has filed a counter-complaint with the ombudsman and has asked the office to undertake an investigation into the female student’s actions in this regard.</p>
<p style="text-align: justify; ">“I remind you that his [the perpetrator] initial response on the initial discussion was that he could not recall making the remark. So I sought your comments. I would have liked to take your comments back to him and had some form of conversation. This may still be possible but the force of your complaint is diluted by the problem of procedural fairness by the premature publication of his name,” the letter adds.</p>
<p style="text-align: justify; "><strong>Cleaning up</strong></p>
<p style="text-align: justify; ">While the CIS representative’s complaint may be the first officially recorded incident at an ICANN meeting, sexual harassment and inappropriate gender bias at numerous technical conferences across the world (ICANN or not) has been a <a href="http://geekfeminism.wikia.com/wiki/Timeline_of_incidents" target="_blank"><span>well-documented phenomenon</span></a>.</p>
<p style="text-align: justify; ">In 2012, ICANN ombudsman Chris LaHette was forced to step in after a complaint was lodged regarding the <a href="http://domainincite.com/8146-hot-girls-land-cz-nic-in-hot-water" target="_blank"><span>insensitive advertising and promotion </span></a>surrounding the ICANN 44 meeting in Prague.</p>
<p style="text-align: justify; ">While ICANN’s “expected standards of behaviour” – basically a code of conduct – explicitly states that all “members of the ICANN community be treated equally irrespective of nationality or gender..”, there is no official policy that states what aggrieved parties should do after an incident occurs.</p>
<p style="text-align: justify; ">Such a policy must be created, CIS points out, and must be “displayed on the ICANN website, at the venue of meetings, and made available in delegate kits”.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/news/the-wire-march-24-2016-icann-sexual-harassment-case-highlights-lack-of-procedure-at-global-internet-body'>https://cis-india.org/internet-governance/news/the-wire-march-24-2016-icann-sexual-harassment-case-highlights-lack-of-procedure-at-global-internet-body</a>
</p>
No publisherpraskrishnaICANNInternet GovernanceSexual Harassment2016-04-01T15:42:49ZNews ItemICANN reveals hitherto undisclosed details of domain names revenues
https://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014
<b>Following requests from CIS, ICANN has shared a detailed list of its revenues from domain names for the fiscal year ending June 2014. Such level of detail has, until now, been unavailable. Historical data is still to be made available. </b>
<p style="text-align: justify; "> </p>
<p style="text-align: justify; ">Five days ago, CIS received a <a href="https://cis-india.org/internet-governance/blog/fy14-customer-payments-final-version/at_download/file">detailed list of ICANN’s revenues</a> from domain name sales and renewals for the fiscal year ending June 2014. The document, sent to us by ICANN’s India head Mr. Samiran Gupta, lists payments received by ICANN from registrars, registries, sponsors and other entities such as the NRO and Country Code TLD administrators. Such granular information is not available at the moment on ICANN’s website as part of its financial transparency disclosures. A <a href="https://cis-india.org/internet-governance/blog/fy14-customer-payments-summary/at_download/file">summary</a> has also been provided by ICANN.</p>
<p style="text-align: justify; ">This revenue disclosure from ICANN comes on the heels of public and email correspondence between CIS and ICANN staff. At the <a href="http://2014.rigf.asia/wp-content/uploads/2014/08/0805APRIGF-Plenary.doc">Asia Pacific Regional IGF</a> (August 3-6, 2014), CIS’ Sunil Abraham sought granular data – both current and historical – on ICANN’s revenues from the domain name industry.</p>
<p style="text-align: justify; ">Again, <a href="http://www.intgovforum.org/cms/174-igf-2014/transcripts/1986-2014-09-04-open-forum-icann-room-4">at the ICANN Open Forum at IGF</a> (4 September 2014), Sunil sought “<i>details of a list of legal entities that give money to ICANN and how much money they give to ICANN every year</i>”. In emails to Kuek Yu-Chuang (ICANN’s Asia Pacific head) and Xavier Calvez (ICANN CFO), CIS had asked for historical data as well.<span> </span></p>
<p style="text-align: justify; ">The global domain name industry is a <a href="http://www.circleid.com/posts/domain_industry_4_billion_2010/">multi-billion dollar industry</a>, and ICANN sits at the centre of the web. ICANN is responsible for the policy-making and introduction of new Top Level Domains (TLDs), and it also performs technical coordination and maintenance of the Internet’s unique identifiers (domain names and IP addresses). For each domain name that is registered or renewed, ICANN receives payment through a complex contractual network of registries and registrars. The domain name industry is ICANN’s single largest revenue source.</p>
<p style="text-align: justify; "><span>Given the impending IANA transition and accountability debates at ICANN, and the </span><a href="http://money.cnn.com/news/newsfeeds/articles/marketwire/1162596.htm">rapid growth</a><span> 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 of many countries. At the ICANN Open Forum (IGF Istanbul), </span><a href="http://www.intgovforum.org/cms/174-igf-2014/transcripts/1986-2014-09-04-open-forum-icann-room-4">Sunil raised</a><span> this very point. Had a Public Information Officer in India failed to respond to a request for information for a month (as ICANN had to CIS’ request for granular revenue data), the officer would have been fined and reprimanded. Since there are no sufficiently effective accountability or reactive transparency measures at ICANN, such penalties are not in place.</span></p>
<p style="text-align: justify; ">In any event, CIS received the list of ICANN’s current domain name revenues after continual email exchanges with ICANN staff. This is undoubtedly heartening, as ICANN has shown itself responsive to repeated requests for transparency. But it remains that ICANN has shared revenue data <i>only</i> 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. Perhaps ICANN could provide the necessary information during its regular Quarterly Stakeholder Reports, as well as on its website. This would go a long way in ascertaining and improving ICANN’s accountability and transparency.</p>
<p style="text-align: justify; ">**</p>
<p><span>The documents:</span></p>
<ol>
<li><a href="https://cis-india.org/internet-governance/blog/fy14-customer-payments-final-version/at_download/file">ICANN’s domain name revenues in FY14</a>.</li>
<li><a href="https://cis-india.org/internet-governance/blog/fy14-customer-payments-summary/at_download/file">Summary of revenue information</a>. </li>
</ol>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014'>https://cis-india.org/internet-governance/blog/cis-receives-information-on-icanns-revenues-from-domain-names-fy-2014</a>
</p>
No publishergeethaICANNTransparencyAccountability2014-12-12T05:08:02ZBlog EntryICANN response to DIDP #31 on diversity
https://cis-india.org/internet-governance/blog/icann-response-to-didp-31-on-diversity
<b>This post summarizes the response of ICANN to our inquiry on the diversity of their employees.</b>
<p>The file can be <a class="external-link" href="http://cis-india.org/internet-governance/files/didp-response">found here </a></p>
<hr />
<p style="text-align: justify;">In our <a class="external-link" href="https://cis-india.org/internet-governance/blog/didp-31-diversity-of-employees-at-icann">31st DIDP request</a>, we had asked ICANN to disclose information pertaining to the diversity of employees based on their race and citizenship. ICANN states that they are an equal opportunities employer and to ascertain the extent of people from different backgrounds in their ranks, we were hoping to be given the information.</p>
<p style="text-align: justify;">However the response provided to us did not shed any light on this because of two reasons; firstly, ICANN has this information solely for two countries namely USA and Singapore as legislation in these countries compels employers to record this information. In the US, Title VII of the Civil Rights Act of 1964 requires that any organization with 100 or more employees have to file an Employer Information Report wherein the employment data is categorized by race/ethnicity/, gender and job category. Whereas in Singapore, information on race is gathered from the employee to assess which Self-Help group fund an employee should contribute to under Singaporean law.</p>
<p style="text-align: justify;">Secondly, for the two countries, they refused to divulge information on the basis of their conditions of nondisclosure. The conditions pertinent here were:</p>
<ol>
<li style="text-align: justify;">Information provided by or to a government or international organization, or any form of recitation of such information, in the expectation that the information will be kept confidential and/or would or likely would materially prejudice ICANN's relationship with that party.</li>
<li style="text-align: justify;">Personnel, medical, contractual, remuneration, and similar records relating to an individual's personal information, when the disclosure of such information would or likely would constitute an invasion of personal privacy, as well as proceedings of internal appeal mechanisms and investigations. </li>
<li style="text-align: justify;">Drafts of all correspondence, reports, documents, agreements, contracts, emails, or any other forms of communication </li></ol>
<p style="text-align: justify;"><br />We had only enquired about the percentage of representation of employees at each level by their race or citizenship but this was deemed dangerous to disclose by ICANN. They did not volunteer anymore information such as an anonymized data set and hence we will now file a DIDP to ask them for the same.</p>
<p style="text-align: justify;">Given the global and multi-stakeholder nature of the processes at ICANN, it is also of importance that their workforce represents true diversity as well. Their bylaws mandate diversity amongst its Board of Directors and some of its constituent bodies but there is no concrete proof of this being imbibed within their recruitment ICANN also did not think it was necessary to disclose our requested information in the benefit of public interest because it does not outweigh the harm that could be caused by the requested disclosure.</p>
<p>
For more details visit <a href='https://cis-india.org/internet-governance/blog/icann-response-to-didp-31-on-diversity'>https://cis-india.org/internet-governance/blog/icann-response-to-didp-31-on-diversity</a>
</p>
No publisherAkriti Bopanna and Akash SriramICANNInternet Governance2018-08-21T17:35:06ZBlog Entry