Slimmed-Down ICANN Pact with U.S. Sets Up Review Teams, Draws Praise

Top U.S. lawmakers, who for years have warned of the dire consequences that would follow the end of formal U.S. oversight over ICANN -- as recently as last week (WID Sept 24 p1) -- strongly endorsed the agreement. The European Commission also lauded the end of “unilateral review” of ICANN by the U.S. And a longtime business critic of ICANN’s processes told us the agreement had preempted a future takeover, or “capture,” of ICANN by other large international bodies.

The relatively short agreement creates four review teams to oversee ICANN’s work. The accountability team will include the chairman of ICANN’s Governmental Advisory Committee, ICANN’s chairman, the NTIA administrator, representatives of “relevant” ICANN advisory committees and supporting organizations, and independent experts. Team members will be chosen by the GAC and ICANN chairmen. They will review ICANN’s work to assess its board’s performance and selection process, the effectiveness of the GAC, public input to ICANN and the body’s response, and policy development for “enhanced cross community deliberations.” The first accountability review will conclude by Dec. 31, 2010, and happen at least every three years. Each team includes the GAC chairman and representatives of the advisory and support groups and independent experts, but the accountability team is the only one to include the ICANN chairman. The rest include the ICANN CEO. The new CEO, Rod Beckstrom, told us that’s because accountability is a “board- level issue” suitable for the chairman, while the other teams will review “operational” matters more suited to the ICANN CEO. ICANN has already started “conversations” to fill the accountability team, he said. ICANN and the GAC jointly choose membership in each team, and ICANN’s board pledges to “take action” within six months of each team’s recommendations.

The second team will review ICANN’s work on security, stability and resiliency of the Internet and its physical infrastructure, contingency planning and “maintaining clear processes.” Its first review will start a year from Wednesday and follow at least every three years. The third team will review competition, consumer trust and choice, especially concerning the introduction of new gTLDs, recently the top concern of U.S. lawmakers and businesses. It will also consider “malicious abuse, sovereignty concerns and rights protection,” referring to intellectual property rights. “If and when” new gTLDs have been running for a year, ICANN will organize a review to gauge their performance, the application and evaluation process and safeguards. The second review will happen two years after the first, and thereafter, at least every four years.

ICANN also recommitted to enforcing its Whois policy on making available “timely, unrestricted and public access” to accurate registrant, technical, billing and administrative contact information. The fourth team will review ICANN’s Whois performance a year from Wednesday, focusing on whether it helps law enforcement and consumers. Beckstrom emphasized to us the explicit presence of privacy experts and law enforcement on the fourth review team, the first time either group has been included in a formal ICANN process -- a “big tip of the hat” to their importance.

The rest of the agreement commits ICANN to undertaking “analyses of the positive and negative effects of its decisions on the public,” including financial impact, and the impact on DNS stability. Commerce endorses the “rapid introduction” of internationalized country-code TLDs, but the agreement explicitly withholds Commerce’s approval of ICANN’s plan to expand gTLDs. The agreement is “intended to be long- standing” but can be modified by mutual consent of the parties -- or ended unilaterally with four months’ notice.

No Worries About Team Appointments

The new agreement got thumbs up from House Commerce Committee Chairman Henry Waxman, D-Calif., and Communications Subcommittee Chairman Rick Boucher, D-W.Va., in a joint statement. Commerce Committee leaders told Beckstrom in August they want a “permanent instrument” to formalize ICANN’s relationship with the U.S. (WID Aug 6 p6). Waxman and Boucher said they were “pleased that many of [their] ideas are reflected in the agreement.” Waxman called the pact a “perfect example” of the broad benefits from a public- private partnership, which will ensure the Internet remains stable and secure. Boucher noted the agreement is “permanent” and has periodic reviews. The leaders also noted ICANN’s pledge to address trademark and consumer protection before new gTLDs go forward. We couldn’t reach the House Judiciary Committee, many of whose members railed against ICANN’s gTLD plan last week, for comment.

Beckstrom said ICANN started detailed discussions with Commerce, as opposed to “conceptual discussions,” as soon as he came on as CEO in June. Serving as the first chief of the Department of Homeland Security’s National Cyber Security Center gave Beckstrom “great firsthand experience” that made it easier to negotiate with Commerce, he said. Beckstrom is “absolutely delighted” by the positive response the pact received Wednesday, he said: “We wanted a simple and clear document that everybody can easily understand.” ICANN had “some dialogue” with U.S. lawmakers, he said: “I don’t think [the provisions] caught everyone on the Hill by surprise,” despite the apparent fears of lawmakers as recently as last week that ICANN wouldn’t sign a new agreement with the U.S. The “blogosphere” made clear that ICANN didn’t intend to walk away from the U.S. entirely, though it was clear to Beckstrom when he joined that the JPA wouldn’t be renewed, he said.

The agreement is the equivalent of a “bar mitzvah” for 11-year-old ICANN, Beckstrom said. “We're being told you've matured … and now you're a grownup.” The members of the review teams, described as “volunteers” in the agreement, won’t necessarily be those who have previously led other reviews at ICANN, he said. The GAC and ICANN officials don’t expect to be able to appoint team members who will give ICANN a “soft review,” since ICANN participants have a reputation for being “strong-minded,” Beckstrom said. ICANN has shown its responsiveness by pledging to fully consider concerns and proposed solutions before the gTLD rollout, he said. The draft applicant guidebook, covering gTLD applications, will be posted online in a few days, Beckstrom said.

Businesses were worried that ICANN only wanted to be accountable “to itself,” NetChoice Executive Director Steve DelBianco told us. “That’s really where they were headed for the past year.” At the same time, the ITU was “coveting control of ICANN once it was independent.” But the new agreement “really walks that line,” DelBianco said, crediting pressure from Congress and public comments on the JPA’s expiration for the pact’s provisions. By giving the GAC -- which previously had no vote at ICANN -- a defined role on the review teams, the agreement will make the organization more attractive to governments that hadn’t previously participated, and it “pulls the legs out from under” alleged plans by the U.N. and European Commission to assert authority over ICANN, he said. Businesses aren’t worried that ICANN and the GAC will stack the teams with sympathetic members: “I'll be quite surprised if [they] try to reject a stakeholder nominee for the team who’s eminently qualified,” DelBianco said.

Former ICANN board member Michael Palage told us the pact averts an “ugly situation” in which ICANN could have tried to simply walk away from a U.S. relationship. The more permanent nature of the agreement lets ICANN and Commerce “get out of that cycle” in which ICANN is “placed under a congressional microscope” every three years. Each had been playing a “game of chicken” in connection with the JPA’s expiration, said Palage, now with the Progress & Freedom Foundation, calling the pact a “mutual win-win.” The permanent U.S. seat on the accountability panel doesn’t presage a dominant U.S. role, but simply prudent planning for a worst-case scenario at ICANN, he said. Though internationally the JPA had been viewed as “heavy-handed” U.S. oversight, over the years it had essentially become a “paper tiger with no teeth,” he said.

The Internet Society, as did other groups, credited its own advocacy for some of the provisions that went into the pact. The new framework properly emphasizes ICANN’s obligation to act in the public interest and puts responsibility on the ICANN community for improving processes, the group said.

EU Commissioner for Information Society and Media Viviane Reding said ICANN will become “more open and accountable” to users worldwide under the new agreement, “no longer subject to unilateral review” by the U.S. “If effectively and transparently implemented, this reform can find broad acceptance among civil society, businesses and governments alike,” she said. The EC will “pay close attention” to ICANN’s work on competition, Reding said, calling for “stronger external appeal mechanisms” for ICANN board decisions. Jim Dempsey of the Center for Democracy & Technology applauded the “bottom-up” agreement but echoed Reding on the “remaining questions” of appealing ICANN board decisions and the standards for judging such appeals.

An NTIA spokeswoman told us the agency had been “keeping Congress apprised about the expiration of the JPA and our discussions with ICANN leading up today’s announcement,” though she didn’t detail who had been kept in the loop. It has “provided briefings and answered questions,” in addition to testifying at an oversight hearing in June, she said.