After reading Steve Delbianco’s recent CircleID article entitled The Tale of Two Governance Models I was torn. On one hand I agreed and supported Steve’s comments about the strength of the bottom-up consensus driven model upon which ICANN was originally founded. As I am about to begin my thirty fifth ICANN regional meeting over the last eleven years, it is a model which I still believe in and fiercely fight to defend. However, on the other hand I look back over the last eleven years and see how a humble primarily technical coordinating body which operated on consensus, appears to be morphing into a market regulator with no apparent safeguards to hold it accountable to anyone in either the public or private sectors.

While Steve DelBianco , Anthony VanCovering , Paul Levins and others within the ICANN community have recently been critical of the International Telecommunication Union governance model, I have a slightly different perspective. Over the last several years I have had the opportunity to work as a consultant for two United National agencies, the Universal Postal Union (UPU) and the International Telecommunication Union (ITU), in connection with new generic Top-Level Domain (gTLD) initiatives. While there are clear differences between the ICANN and UN models, in my opinion each has their own respective strengths and weaknesses. While much attention has been paid to the UN weaknesses, I thought it constructive to add to the marketplace of ideas and identify some of the inherent weaknesses in the ICANN model and how the recent actions of the ICANN Board may compound this problem.

There is probably no better succinct statement of ICANN’s original mandate as a bottom-up consensus driven technical coordinating body than the following statement by then ICANN Board Chair Ester Dyson before the US House Judiciary back in 1999. In addressing allegations that ICANN was NOT a regulator she stated:

If they come into existence, these contracts will be the product of voluntary agreements; since ICANN has no governmental power, and indeed no existence outside the context of community consensus, it cannot coerce cooperation. If such a series of contracts is created, that will be both evidence of the success of this consensus-development process and a strong incentive for those who wish to benefit from connection to this network of networks to comply with ICANN policies—which will by definition be nothing more than a reflection of community consensus.

When one looks at the proposed registry agreement in the current applicant guidebook, it is hard to reconcile this agreement with the original statements of Ester Dyson. In fact, the current document resembles more a one-size fits all adhesion contract in which the registry operator must provide a total indemnification to ICANN, although on the positive side they are not asking for one’s first born child as collateral. Unfortunately, ICANN’s general counsel has systematically removed the cross indemnification provisions that used to exist in the original voluntary registry agreements that his predecessor drafted and executed.

While the ICANN Board is driving toward closure on the remaining unresolved issues in connection with the new gTLD application process, the following inherent weakness in the ICANN governance model has been exposed.

ICANN’s policy development process remains largely driven by actors with an economic interest, and there are times when those economic interests dictate the blocking or impeding of consensus development.

Unfortunately there has never been a full and frank discussion of this governance Achilles heel within the ICANN community. Although the United States Government and ICANN acknowledged the importance of this issue in Paragraph four of the Affirmation of Commitments which states:

ICANN and DOC recognize that there is a group of participants that engage in ICANN’s processes to a greater extent than Internet users generally. To ensure that its decisions are in the public interest, and not just the interests of a particular set of stakeholders, ICANN commits to perform and publish analyses of the positive and negative effects of its decisions on the public, including any financial impact on the public, and the positive or negative impact (if any) on the systemic security, stability and resiliency of the DNS.

I am not naïve and do not believe that ICANN as an organization should be paralyzed into inaction in the absence of consensus. While the ICANN directors have a fiduciary duty under California law to act in the best interest of the corporation, as a trustee of a global resource it needs to be asking itself how can it remain true to its bottom-up consensus drive roots when it acts in the absence of consensus. I respectfully submit that the answer lies in the Government Advisory Committee which under the ICANN bylaws are required to “provide advice on the activities of ICANN as they relate to concerns of governments, particularly matters where there may be an interaction between ICANN’s policies and various laws and international agreements or where they may affect public policy issues.”

While the Thursday ICANN public forum in Cartagena will see an endless procession of prospective applicants calling for the ICANN Board to finalize the Applicant Guidebook, I have a more modest goal. I would like to see the ICANN Board commit to its obligations set forth in the Affirmation of Commitments and produce a report analyzing the positive and negative effects of its decisions on the public. Once this report is published the ICANN Board and the Government Advisory Committee can then engage in a “good faith” consultation “in a timely and efficient manner, to find a mutually acceptable solution” to any differences in connection with the new gTLD implementation process as required by the bylaws.

As a consultant working with several new gTLD applicants I would like ICANN to begin closure on the new gTLD implementation process. However, there is a right way and a wrong way to achieve this goal. Hopefully, ICANN will choose the path set forth in the Affirmation of Commitments and its bylaws.