ICANN Accountability Top Concern in Public Comments on CWG's Draft Proposal
Public comments on the Cross Community Working Group’s (CWG) Internet Assigned Numbers Authority transition draft proposal for ICANN involved ICANN accountability as much as the technical aspects of the IANA functions. Internet governance experts told us earlier this month that the draft’s primary problems stemmed from a lack of clarity and tight deadlines. The comment period ended Dec. 22, though a few late comments were filed Dec. 23.
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The draft proposal recommended four structures to replace NTIA’s oversight of the IANA functions: a Contract Co., a Multistakeholder Review Team (MRT), a Customer Standing Committee (CSC) and an Independent Appeals Panel (IAP). The Contract Co. would probably be a nonprofit entity that would be the “signatory to the contract with the IANA Functions Operator,” it said.
The ICANN board doesn’t and shouldn’t have “any role in approving ccTLD delegations and redelegations beyond verifying that due process have been followed by the IANA functions operator,” said Nominet, .uk registry operator. The registry said NTIA’s “theoretical role of certifying ccTLD delegation and redelegation decisions” should be replicated. Nominet said it had “serious concerns” about such a provision in the draft. The proposal “fails to recognise the complexity of these decisions given (for example) the importance of national or local decisions, and the differences in culture and practice in different parts of the world,” it said. In the case of “gross incompetence” or “material breach,” there should be a “nuclear option” to transfer the IANA function to an operator other than ICANN, said the au Domain Administration, the registry operator for Australia’s ccTLD.
“Any institution replacing NTIA's role as IANA function contract administrator should not be subject to the jurisdiction of a single country, unless all stakeholders should so decide,” the Brazilian government said. It recommended the CWG “resort to International Law expertise in order to evaluate different alternatives of juridical personality for the proposed 'Contract Co.'” The MRT should have “stewardship responsibilities towards the IANA functions operator,” but its “composition should not be necessarily based on the current multistakeholder model adopted within ICANN,” Brazil said, citing the “distribution” of ICANN’s supporting organizations and advisory committees.
The Internet Infrastructure Coalition said it supported the creation of the CSC to “monitor the performance of the naming functions for problems or technical irregularities.” The coalition’s members include registrars, registries and data centers, among others. “We recommend limiting the scope of the CSC to naming issues only,” it said. “It should be technical in nature and limited to a review of policy implementation,” the coalition said. The proposed Contract Co. would be a “shell organization that would only have a meaningful role in the ICANN ecosystem if the multistakeholder review team decided to transfer the contract to a new entity,” it said. “Creating a shell entity limits its attractiveness as a target for potential capture,” it said. “On the other hand, it may hamper the contracting entity’s leverage in negotiations.”
ICANN’s At-Large Advisory Committee recommended a “doomsday capability to reassign responsibility” for the IANA functions, assuming “all else fails.” ALAC said it “strongly supports” the IAP, but there haven’t been many instances for its use. It’s “important to provide an appeal process should any of the concerned parties need it in the future,” it said. “With the potential for redelegation of New gTLDs, this becomes even more important.”
“Checks and balances in the three-party arrangement have been an important part of the success of the current system,” Verisign said. “The CWG should consider the operational capabilities of another party to stand in the shoes of NTIA and/or Verisign,” it said. “The community has benefited from the operational aspect of the RZM [Root Zone Maintainer] function being performed by a public company whose shareholders have the right to elect a board of directors who appoint the Company’s officers, all of whom could be personally liable for damages resulting from breaching their fiduciary duties.”
Although the Center for Democracy & Technology “broadly supports” the draft, there remains a “lack of clarity” that “significantly” contributes to “undermining the draft proposal as a whole,” it said. “Much of the uncertainty expressed by parties with the overall draft proposal revolves around the lack of detail as to how the Contracting Co. is organized, its legal structure, the relationship between it and the MRT, etc.,” CDT said. “Further CWG discussion of the Contracting Co. and legal advice is critical at this stage.”