[governance] IGP proposal for ICANN reform

[Milton L Mueller]

>From http://www.internetgovernance.org/wordpress/wp-content/uploads/IGP-June09NTIAcomment.pdf (June 2009)

Still relevant:

ICANN's status as a public, global governance agency needs to be accepted and recognized. There should be lawful constraints on its mission and adequate checks on the potential for abuse of its authority. These should come from a formal international agreement initiated by the United States. This instrument should be seen not only as a way of checking or limiting abuses by ICANN itself, but also as a way of limiting interference in ICANN by governments (both foreign and the U.S.). Governments should be involved not as "oversight" authorities or "public policy makers" but as backers of a shared legal framework that maintains accountability and gives non-state actors a legal basis for settling important disputes.

An international agreement along these lines should have the following elements:
* The nongovernmental status of ICANN should be affirmed and formalized, as a protection against takeover by governments
* The sovereignty of national governments over ccTLDs should be formally recognized, and authority over their delegation ceded from ICANN to national governments using a formal, secure and verifiable process. The e-IANA concept, which allows recognized ccTLD managers to update their root zone entries directly, should be implemented.
* There should be a prohibition on using ICANN for content regulation; the instrument should also create a right of private parties to initiate legal challenges to ICANN actions on these grounds.
* The agreement should ensure the consistency of economic regulation of DNS and IP addressing with antitrust and nondiscriminatory trade principles (consistent with its current mandate to increase competition); here again, there should be a right of private parties to initiate legal challenges on these grounds.
* Selection of an appropriate body of national law under which ICANN should operate. If California Nonprofit Public Benefit is deemed the best option, then its membership provisions need to be rethought and re-applied to ICANN in a way that does not permit it to evade accountability and substitute open-ended "participation" for binding rights and obligations vis-à-vis its members. 
* GAC should be dissolved and the Supporting Organizations opened to participation by individuals from governments.
* As a final step, providing a legal foundation for ICANN as described above would allow for the dissolution of the existing IANA contract when
appropriate. But until the process was completed the U.S. would, de facto, be able to retain that authority.

We believe that formal action by the U.S. in agreement with other cooperative states is the only way to finalize the transition. Without such a legal framework, ICANN's accountability and process problems will not be solved, and may worsen. Without a transition away from the JPA, on the other hand, ICANN's legitimacy will continue to suffer, domestic U.S. interests will continue to exploit U.S. oversight to achieve shortterm
policy advantages, and the threat of an Internet fragmented by the adverse reactions of other states will continue to loom.


Milton L. Mueller
Professor, Syracuse University School of Information Studies
Internet Governance Project
http://blog.internetgovernance.org 


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