In May 2015, I produced a paper for Chatham House and the Canadian institute CIGI. The paper, entitled ‘ICANN: Bridging the Trust Gap‘, explores the accountability issues that have been exposed since the US Government announced its intent to step away from its control over the IANA.
The recently published 199 page hand-over plan, produced by the ICANN community, has been criticised for being overly-complex. Typical of the quirky, process-driven ICANN world, the solution (IANA transition mechanisms) has been defined before tackling the problem (ICANN accountability). It is worth revisiting ‘Bridging the Trust Gap’, and exploring the reasons why ICANN’s accountability is a difficult problem to solve.
What is the IANA Transition?
The IANA (Internet Assigned Numbers Authority) is a small but strategic resource. It is the authoritative database for the world’s domain names, IP addresses, and protocol assignments. As such, it represents control over the lightweight glue that holds the Internet together and keeps it functioning.
Historically, the US Government has approved every update to the IANA database. Because of the strategic importance of the IANA, this clerical function has long attracted controversy, and has been the source of power struggles in governance since the late 1990s. But it’s that oversight that also provides, as I put it in my article, “a symbolic umbilical cord between ICANN and an external body. Once cut, there would be no external constraints on ICANN, a private, unregulated monopoly with control over global critical Internet resources.”
So discussions within ICANN about what the successor oversight mechanism should be have, naturally, brought to light concerns about general accountability. And, in particular, the recognition that IANA transition should be dependent on ICANN’s wider accountability has exposed a “trust gap” between ICANN the community and ICANN the corporation.
What’s trust got to do with it?
ICANN is a transparent organisation. It has open policy processes, four types of reviews at three-year intervals, is working on becoming more international and opening up board selection practices. All good.
Most of the tensions it experiences are pretty much inevitable – big players participating more (because they can afford to) than individual stakeholders, for instance.
But some are not.
It’s unusual to find a global public good operated through a non-profit on the West Coast, and there is a potential conflict between the directors’ fiduciary interests and the public interest. In the company’s (very) technical bylaws, the public interest is hardly mentioned. And given the absence of any membership, how is the corporation’s interest actually to be understood – in whose interest should ICANN’s directors exercise their fiduciary obligations?
The ICANN board is also left to review its own decisions. Its Accountability and Transparency Review Team (second review) noted that community perception that all Reconsideration Requests were rejected was . . . indeed the case!
ICANN’s hyper-transparency could be part of the problem. Where everything is public or subject to surveillance, experiments show that people tend to be unduly submissive, or may respond adversely to a climate of suspicion.
Both ATRT and the WHOIS Policy Review Team noted the difficulties they encountered in getting even basic operational and financial information from staff. Meanwhile staff can feel besieged by the “community” members whose own behaviour can become distorted through a sense of power and entitlement.
Financially, ICANN is stable, with cash reserves of around $400 million. Its income increased from $51 million in 2008 to £78 million in 2013; but at the same time there has been a marked upswing in its travel budgets and associated expenditure: 22% of turnover in 2014 – up 55% on the previous year, and growing. ICANN directly funds attendances at its own meetings and is a contributor to other internet governance meetings like IGF and NetMundial that support the multistakeholder model.
There’s nothing amiss, but the company’s financial strength married to imperfect levels of oversight (ICANN no longer publishes detail reports of travel support per meeting) clearly represents an accountability risk.
While at first sight, ICANN’s structure blends all stakeholders, the key policy-making engine all-but excludes governments and the community of users. Without integration into the GNSO process, their inputs tend to be ad hoc and late. Legitimacy suffers due to lack of stakeholder diversity, even if that diversity increases the time frames and costs of policy making.
What’s the way forward for ICANN?
The ICANN community has so far responded positively to the challenge of IANA transition. It’s now inevitable that the IANA contract will be renewed this September to give the community more time to solve accountability.
My recommendations centre on introducing a membership and “institutionalizing mistrust”, a phrase borrowed from Piotr Stzompka, and used here to describe the process of accommodating and representing community concerns in a series of checks and balances.
I argue for the introduction of a membership into the corporate structure, perhaps by mapping the current structure of the ICANN community into a clear franchise – one member, one vote. It won’t be easy, but it won’t be without precedent: it can learn from other not-for-profits and charities that have made the same, or similar, changes.
Members would be able to recall individual board directors, change bylaws, receive accounts and appoint auditors. Naturally, these changes aren’t likely to transform overnight the rather sleepy financial oversight the community currently exercises. But conforming to a more ‘normal’ not-for-profit structure would help define the agenda at general meetings, and force a focus on financial accountability. Currently, the community is sleepwalking through the warning signs on ICANN’s finances.
There are clear areas for improvement, but there are also positive signs. So far ICANN has responded constructively to the challenge of the IANA transition. Currently there are plans for an annual contract review every September for the next four years. This could provide ICANN with the time needed to improve accountability.