AW: [governance] Oversight

["Kleinwächter, Wolfgang"]

Parminder:
However, it is not the idea to put some governments in charge who could be giving ad hoc directions to ICANN. We need a much more sophisticated response. 

Wolfgang:
I agree. My proposal is - as expressed on this list in previous mails - to establish a multistakeholder expert group to investigate the option for such a "more sophisticated mechanism". Such a group could emerge from the IGF in 2013 and publish a RFC for global discussion in and outside the UN in 2014.  
 
 
 
Parminder:
 
An internationalised oversight board takes over the oversight function currently performed by the US, but has a minimal direct inference possibility. It does review of structure, process, mechanisms etc, but also conveys the authoritative public policy principles developed at the UN CIRP  to ICANN.  
 
Wolfgang:
 
a. I do not understand what the "oversight function currently performed by the US" is in concrete terms? The JPA has ended in October 2009. Under the AoC the USG has NO formal oversight over ICANN and does NOT review ICANN. The USG plays its role via the GAC (and it does it with strong words as we have seen in the recent RedCross/IOC debate in Prague). And the review (which includes public policy issues) is decentralized (Accountability & Transparency, Security & Sability, Competition, Whois/Privacy). The Review teams are multistakeholder bodies, nomintaed by the various constituencies themselves. They include governments (Accountability &Transparency had US, EU and Chinese government). I agree that the review mechanism needs further enhancement and I would be thankful if this list (including Parminder) would come with some concrete proposals how to have a better ICANN review mechanism. 
 
b. The USG continues to authorize the publication of zone files in the root based on an established procedure between ICANN/IANA/DOC/VeriSign. The IANA contract has to be renewed soon. Since 2004 (WGIG) we have discussed "alternatives" but no workable and useful proposal has been made so far how this procedure can be handled in a better way. In the meantime we have seen in the .xxx case that the USG/NTIA has proofed to act as a "neutral stewart" of the global Internet community. It did NOT follow the strong pressure from the US Congress and the EU Commission NOT to authorize the .xxx zone file. NTIA authorized the publication of the .xxx zone file in the root even against the spirit of its own DOC statements in the GAC. This was something like a "moment of truth" and it should be noted that Strickling defended the NTIA decision against strong criticism from inside the US with the argument that in this case NTIA has just to follow the bottom up and transparent multistakeholder policy development and decision making process even if they do not like the outcome of this multistakeholder process. Otherwise, Strickling argued,  they would have "lost its trust as "neutral stewart" of the Internet Community". Even if one does not like this process, it is not easy to "improve" it. A proposal I made in 2005 (in the WGIG) was to establish an external (multistakeholder) ad hoc committee which could be activated in cases when the USG/NTIA disagrees with a IANA decision to delete/add/modify zone files in the root.  This would be something like a "last resort" and would probably never be activated if the USG continues to execute this technical function (inherited as a result of the historical development of the Internet) in a neutral way. 
 
c. a problem of concern remains the fact that ICANN operates under Californian Law which means that all legal issues with ICANN will be handled under Californian law. The idea to incorprate ICANN under another jurisdiction (Switzerland, Belgium, the Netherlands) to have an alternative option for dispute resolution was not further discussed in the last couple of years. This could be reactivated. 
 
d. a related problem is the further develoment of the GAC-Board relationship and the "enhancement" of the understanding of the "legal nature" of a GAC advice. The new GAC advice register, established recently, is an interesting move. It was also interesting to see, that the joint GAC-Board meetings get more and more attractions and are seen obviously by broad parts of the community as more important as Board and Council meetings or the public forum. The planned "ministerial/high level meeting" of the GAC in Toronto could became a watershed in ICANNs history. It would be useful if IGC/CS positions itself to raise its voice in this process and continue to enhance its own relationship with the GAC (via ALAC/NCUC). But this has nothing to do with the role of the US, although the USG is a strong member in the GAC (as the governments of Brazil, India, Kenia, Egypt, China, EU, UK, Germany, Italy, Norway, Australia, Russia etc.). 
 
wolfgang

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