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US gov: we can’t support ICANN accountability plan

Kevin Murphy, September 24, 2015, 09:26:32 (UTC), Domain Policy

The US National Telecommunications and Information Administration has waded into the ICANN accountability debate, possibly muddying the waters in the process.

In a blog post last night, NTIA head Larry Strickling said that community proposals for enhancing accountability were not yet detailed enough, and had not reached the desired level of consensus, for the NTIA to support them.

He urged everyone involved to simplify the proposals and to work on areas where there is still confusion or disagreement.

The comments were directed at the Cross Community Working Group on Enhancing Accountability (CCWG), a diverse volunteer committee that has been tasked with coming up with ways to improve ICANN accountability after the US government severs formal oversight of the IANA functions.

That group spent a year coming up with a set of draft proposals, outlining measures such as stronger, harder-to-change bylaws and improvements to the Independent Review Process.

But the main organizational change it proposed is where the most conflict has emerged.

CCWG thinks the best way to give the community a way to enforce accountability is to change ICANN into a membership organization, a certain type of legal entity under California law.

It would have a Sole Member, a legal entity peopled by members of each part of the community, which would have to right to take ICANN to court to enforce its bylaws.

The ICANN board doesn’t dig this idea one bit. Its outside attorneys at Jones Day have counseled against such a move as untested, overly complex and potentially subject to capture.

On a recent three-hour teleconference, the board proposed the Sole Member model be replaced by a “Multistakeholder Enforcement Mechanism”.

The MEM would create a binding arbitration process — enforceable in California court — through which ICANN’s supporting organizations and advisory committees could gang up to challenge decisions that they believe go against ICANN’s Fundamental Bylaws.

Since this bombshell, a key question facing the CCWG has been: is the board’s view being informed primarily by its lawyers, or has Strickling been quietly raising NTIA concerns about the proposal via back-channels?

If it’s the former, the CCWG and its own outside counsel could robustly argue the community’s corner.

If it’s the latter, it’s pretty much back to the drawing board — because if the NTIA doesn’t like the plan, it won’t be approved.

Unfortunately, Strickling’s latest blog post avoids giving any straight answers, saying “it is not our role to substitute our judgment for that of the community”.

But his choice of language may suggest a degree of support for the board’s position.

As I stated in Argentina in June, provide us a plan that is as simple as possible but still meets our conditions and the community’s needs. Every day you take now to simplify the plan, resolve questions, and provide details will shorten the length of time it will take to implement the plan and increase the likelihood that the plan will preserve the security and stability of the Internet. Putting in the extra effort now to develop the best possible consensus plan should enhance the likelihood that the transition will be completed on a timely schedule.

The emphasis on “simplicity” could be read as coded support for the board, which has repeatedly said that it thinks the Sole Member model may be too complicated for the NTIA to swallow.

Both the board and Strickling’s latest post refer back to a speech he made in Buenos Aires in June, in which he said:

If a plan is too complex, it increases the likelihood there will be issues that emerge later. Unnecessary complexity increases the possibility that the community will be unable to identify and mitigate all the consequences of the plan. And a complex plan almost certainly will take longer to implement.

Strickling certainly knows that the board has been citing these comments in its objection to the Sole Member model, so the fact that he chose to repeat them may be indicative of which way he is leaning. Or maybe it isn’t.

Either way, I think it’s going to be tough for the CCWG to easily dismiss the board’s concerns.

CCWG members are currently on planes heading to ICANN headquarters in Los Angeles for a two-day face-to-face meeting at which the chairs “expect that a large portion of our time… will be reserved to answering the tough questions”.

Many believe that unless this meeting is extraordinarily successful, it’s going to be tough for an IANA transition proposal to be approved by the NTIA under the current US administration.

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Comments (3)

  1. Phil Buckingham says:

    Hi Kevin, here is the RP adobe connect for anyone wanting to listen, make comments re the CCWG Accountability/ ICANN Board F2F Friday https://icann.adobeconnect.com/dialogue// Saturday
    https://icann.adobeconnect.com/dialogue/
    I agree what is needed is a combination of all the good bits from various models that must be simple understandable ( to US Congressmen !) and crucially implementable.

  2. John says:

    The transition away from benevolent US oversight, the place where the Internet was born and has flourished for the world until now, is a bad idea, based on a bogus argument repeated like a mantra in order to “sell” it, just as WMD appears to have been for the last invasion of Iraq, and nothing less than caving into the predatory desires of powerful tyranny’s and dictatorship nations and political correctness dressed up under a facade of “righteousness.” It is completely naive, disingenuous, dishonest and delusional to assert or pretend that it is either necessary or advisable. It is unworkable and can only lead to trouble and undue susceptibility to corruption and worse. If people want to continue playing the bogus “give up or we’ll break up” balkanization card argument, then let the common sense of any 12 year old or less be your guide: even if one caves into the demands related to transition, those who threaten this nonsense can always still break up and “balkanize” any time they wish afterward as well, after they have also wreaked whatever havoc and trouble they do in the meantime. You’ve heard of a solution in need of a problem? That is also what this surely is. The Internet was invented in a specific location, one that happens to be a democratic republic which has maintained its protocols in a just and beneficial manner – deal with it. It’s not broken, so don’t try to “fix” it merely because of hostility, covetousness and the threats of those who desire their own power and influence to break it or else.

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