[governance] RE: JPA response - second draft for comments

[Milton L Mueller]

Ian
I try to make specific amendments to your language below, taking into account some of the comments, but mainly based on my own opinion, which others can accept or reject as appropriate. The biggest changes are in the last section, which I try to make much more specific. ICANN can throw any general principle it likes into its bylaws and it will be completely meaningless. We need to propose much more specific changes.

Milton Mueller
Professor, Syracuse University School of Information Studies
XS4All Professor, Delft University of Technology
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Internet Governance Project:
http://internetgovernance.org<http://internetgovernance.org/>




The Internet Governance Caucus is a global coalition of civil society and non governmental organisations and individuals actively involved the UN's Internet Governance Forum (IGF) process. Formed during the lead up to the World Summit on the Information Society (WSIS), our mission is to provide a forum for discussion, advocacy, action, and for representation of civil society contributions in Internet governance processes. We have several hundred members, with a wide spread of geographic representation; more about our organisation can be found at www.igcaucus.org

We are thankful for the opportunity to comment on the JPA with ICANN , and  respectfully submit as follows

Your Question 1 (The DNS White Paper articulated four principles (i.e. stability; competition; private, bottom-up coordination; and representation) necessary for guiding the transition to private sector management of the DNS. Are these still the appropriate principles? If so, have these core principles been effectively integrated into ICANN's  existing processes and structures?)

IGC believes these principles are important, and would like to see them embedded in the constitution of an independent ICANN.  We would  propose to replace "private sector management" with the multistakeholder principle which has evolved from the  World Summit on the Information Society and the Internet Governance Forum process which the US Government has supported, and which is an important facet, we believe, of effective internet governance arrangements.

Your Question  2. (The goal of the JPA process has been to transition the coordination of DNS responsibilities, previously performed by the U.S. Government or on behalf of the U.S. Government, to the private sector so as to enable industry leadership and bottom-up policy making. Is this still the most appropriate model to increase competition and facilitate international participation in the coordination and management of the DNS, bearing in mind the need to maintain the security and stability of the DNS? If yes, are the processes and structures currently in place at ICANN sufficient to enable industry leadership and bottom-up policy making? If not, what is the most appropriate model, keeping in mind the need to ensure the stability and security of the Internet DNS?)

IGC notes that the Internet is still in early stages of development, and is still in the process of rapid evolution. This poses difficulties in determining any model as the appropriate one in the longer term, and indeed we think the imposition of a permanent model at this point of time would be counter productive. Rather, we think the establishment of firm principles to guide the evolution of a model is the appropriate way to proceed.

Any action on the JPA must explicitly recognize that ICANN is a global governance institution with regulatory authority over an industry (domain name registration) and over critical resources (IP addresses, root servers and addresses). The standards of due process, rights, and accountability that apply to ICANN must be developed with its these facts in mind.

IGC believes that the security and stability of the Internet DNS can only be ensured by multistakeholder,  international and transnational co-operation. Without this, there will be no stability and security. That co-operation will be enhanced by a transition beyond the JPA to a situation where all stakeholders feel that they have equitable arrangements for participation.  Currently, we are not convinced that ICANN as an organization is subject to sufficient external accountability. Any changes in its current status must be designed to remedy this shortfall.

Your question 6. (The JPA between the Department of Commerce and ICANN is an agreement by mutual consent to effectuate the transition of the technical coordination and management of the Internet DNS in a manner that ensures the continued stability and security of the Internet DNS. Has sufficient progress been achieved for the transition to take place by September 30, 2009? If not, what should be done? What criteria should be used to make that determination?)

While holding some significant concerns about ICANN's treatment of civil society participation and its notable bias toward business interests, IGC does not believe that the JPA mechanism is appropriate to deal with these issues. IGC does not believe that sufficient progress has been made in these areas ; however, it still prefers to end the JPA and concentrate on an international process to remedy those problems.  I n our answer to question 7 below, we clarify that our support for a transition on September 30 2009 is subject to certain conditions and safeguards that should be agreed to as conditions of the cessation of JPA.

Your question  7. Given the upcoming expiration of the JPA, are there sufficient safeguards in place to ensure the continued security and stability of the Internet DNS, private sector leadership, and that all stakeholder interests are adequately taken into account? If yes, what are they? Are these safeguards mature and robust enough to ensure protection of stakeholder interests and the model itself in the future? If no, what additional safeguards should be put in place?

We have several concerns which we believe must be met as part of this transition on September 30 2009. We believe  that ICANN must:
 1) implement its GNSO Improvements in a way that gives parity to commercial and noncommercial stakeholders in the GNSO, without any delays or conditions;
 2) implement a real appeals mechanism that, unlike its current Independent Review Process, is binding on its Board
 3) formally recognize the internationally accepted principle of freedom of expression in its Mission and Articles, and establish a norm that its policies for administration of identifiers should not be used to violate those principles.

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