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Making ICANN History in the Shadow of the Magna Carta

Two miles (and a short Tube ride) from where ICANN is gathering in London, rests an original copy of the Magna Carta, which introduced the concept of imposing limits on the powers of the king. I’m taking the proximity of this icon of constitutional history as a good omen for our task: to create a charter to limit ICANN’s powers and enhance its accountability, in the wake of the U.S. Government’s decision to terminate its legacy role.

ICANN management has only recently—and reluctantly—acknowledged the need for enhanced accountability mechanisms to replace the leverage the US government wields through its ability to withhold the IANA contract from ICANN’s custody. It now falls to the broader Internet community to create a permanent mechanism by which to review (and potentially reverse) actions of the ICANN the corporation.

If the early comments on the accountability process are any indication, we are off to a good start. Constituencies that typically can’t agree on the color of the sky are suggesting that ICANN needs a new, independent accountability mechanism as a check on ICANN’s board and management.

How such a body would be empanelled and empowered could be sorted-out by the working group that convenes next month. But I would argue that it should be rooted in the existing community and constituency model that develops ICANN policies today.

Try to imagine a permanent Cross-Community Working Group on Accountability, with representatives named by—and answerable to—established constituencies for generic and country-code TLDs, advisory committees for at-large users (ALAC), Governments (GAC), and technical groups for Security & Stability (SSAC), Root Server operators (RSSAC), numbering resources (NRO), and the IETF.

This permanent group could have a limited charter with authority to act in these ways:

  • Invoke the Independent Review Process to question decisions reached by ICANN management or board.
  • Name representatives to the Independent Review Panel.
  • Name representatives to Review Teams created originally by the Affirmation of Commitments, without needing approval from the chair of ICANN’s board.
  • Review and approve proposed ICANN budgets
  • Approve changes to ICANN Bylaws and Articles of Incorporation

This new accountability committee would be like a legislative branch for ICANN, to go along with its judiciary branch (Independent Review Process) and executive branch (the board and management). While members of the ICANN board have explicit fiduciary duty to ICANN the corporation, members of this new committee would instead serve their respective constituencies by ensuring that ICANN lives within its bylaws and serves the interests of global Internet users and registrants.

Other changes may be needed to support this mechanism, including strengthening the aforementioned “judiciary” branch. But addressing the accountability issue in this way places the responsibility for ICANN accountability directly in the hands of those who most need ICANN to be accountable. To increase our confidence in this new mechanism, we should ask how it would answer several stress tests it might one day confront.

ICANN’s management and board are no monarchy. But they do wield considerable power. My hope is that we can borrow from the ideals of the Magna Carta to create checks and balances to ensure the rights of the Internet stakeholders ICANN was created to serve.

By Steve DelBianco, Executive Director at NetChoice

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