ICANN 3.0: Comments of Michael Palage on the NTIA's ICANN NOI

1444 EYE STREET, NW



SUITE 500



WASHINGTON, D.C. 20005202-289-8928



mail@pff.org



www.pff.org

Before theDEPARTMENT OF COMMERCENational Telecommunications and Information AdministrationAssessment of the Transition of the TechnicalCoordination and Management of theInternet

’

s Domain Name & Addressing System)))NTIA Docket No.090420688-9689-01

COMMENTS OF MICHAEL PALAGE, ADJUNCT FELLOWAT THE PROGRESS & FREEDOM FOUNDATION

1

I have been an active participant within the Internet Corporation for Assigned Names andNumbers (ICANN) process since its inception as an intellectual property lawyer and informationtechnology specialist. Over the last ten years, I have served in a number of leadership positionswithin ICANN, including a three-year term on its Board of Directors (2003-2006).I applaud the NTIA for using the broad scope of this NOI to refocus the global Internetcommunity on the original intent/focus of

ICANN’s

MoU/JPA with the Department of Commerce (USG). Unfortunately, over the last few years, ICANN has strayed from its narrowmission as the technical coordinating body originally envisioned in the 1998 White Paper, andhas instead become a quasi-monopolistic regulator accountable to no one but itself. This NOIprovides the global Internet community the opportunity to deconstruct the current

“

ICANN2.0

”

governance model and refocus on a successor

“

ICANN 3.0

”

governance model. I submit

that ICANN 3.0 needs to be a mix of getting “back to basics” (restoring ICANN’s origin

al mission)

and implementing important “lessons learned” since ICANN’s creation about how to make the

organization more effective and accountable. I discuss four broad issues:

ICANN’s Periodic Review of its internal operations and supporting organizations

has

failed, and has become nothing more than a “perpetual motion machine of publiccomments and documentation producing no meaningful results.” Only a secondEvolution and Reform Process can solve ICANN’s current deficiencies;

ICANN must hardcode into its policies and its contracts the principle that its policiescannot supersede national laws;ICANN must cease any operational role in technical infrastructure as required by itsbylaws and focus instead on its mission as a technical coordinator; and

Congress must avoid “kicking the JPA can down the road” and instead provide much

-needed leadership by creating a solid foundation for ICANN 3.0 in legislation afterproper consultation with the Government Accountability Office.

1.

The views expressed herein are the author’s own, and are not necessarily the views of the PFF board,

fellows or staff.

Comments of Michael Palage, The Progress & Freedom Foundation

2

ICANN

’

s Previous Evolution & Reform Process

In 2002-2003, ICANN conducted an extensive

“

Evolution & Reform

”

process, whereby thebroader Internet community engaged in constructive, if heated, debate, on the future evolutionof ICANN.

2

This process resulted in substantive changes (creating ICANN 2.0), including areduction in the size of the ICANN Board; the addition of new bodies such as the Country CodeName Supporting Organization (ccNSO) and the At Large Advisory Committee (ALAC); theremoval of one of the original Supporting Organizations, the Protocol Supporting Organization(PSO); and a host of other substantive changes.Also incorporated into the amended bylaws of ICANN 2.0 was a provision that called for theperiodic review of the various organizations within the ICANN structure. While a feworganizations were specifically required to be reviewed, the ICANN Board was left free todesignate the review of any organization within ICANN

’s complicated structure

. ICANN hasrepeatedly cited its use of this discretionary review mechanism as proof that it has completedthe necessary steps to ensure its future evolution in a predictable fashion

—

and to free theorganization of its obligations under the MoU/JPA. In fact, Paul Twomey, ICANN

’s

Presidentand CEO, recently

touted this process as “built into the DNA of ICANN as an institution” and

assuperior to other international entities

—

particularly ones founded by treaties because they are

“products of their time and

to change them over time becomes very difficult. Both because of founding constitutional instruments and also because the deal is done at a certain stage this itis hard to change the power structure.

”

3

A.

The

Ineffectiveness of ICANN’s Periodic Review

The principle of the periodi

c three year review incorporated into ICANN’s bylaws as part of the

Evolution and Reform process sounds ideal in principle, but in practice, it has been largelyineffective. Instead of providing for an evolving ICANN structure, these periodic three yearreviews have proven nothing more than a perpetual motion machine of public comments anddocumentation producing no meaningful structural or operational changes.Nothing more clearly illustrates

ICANN’s inability

to implement the Periodic Review process in atimely fashion than its failure to comply with Article IV Section 4 of the ICANN Bylaws:The first of such [Independent Reviews], to be initiated no later than 15 December2003 and to be completed in time for Board consideration at ICANN's annualmeeting in 2004, shall be of the GNSO Council and the ICANN Root Server SystemAdvisory Committee. The second of such reviews, to be initiated no later than 15November 2004 and to be completed in time for Board consideration at ICANN'sannual meeting in 2005, shall be of the ccNSO, the ccNSO Council, and such otherorganizations as the Board may designate.

4

2.

See

Committee on ICANN Evolution and Reform, www.icann.org/en/committees/evol-reform/. 3. Interview with Paul Twomey,

On The Record with Paul Twomey of ICANN

, San Francisco Chronicle, May 9,2009, www.sfgate.com/cgi-bin/blogs/chroncast/detail?entry_id=39589 (5:30 time marker -65:10). 4. Bylaws of ICANN, last amended March 20, 2009, Article IV, Sec. 3, athttp://www.icann.org/en/general/bylaws.htm [hereinafter

ICANN Bylaws

].

Comments of Michael Palage, The Progress & Freedom Foundation

3

The first Independent Review process of an ICANN supporting organization conducted underthis provision was indeed that of the Generic Names Supporting Organization (GNSO) Council.But this review was not initiated until mid-October 2004, nearly one year later than required bythe bylaws.

5

This report was completed and posted for public comment in December 2004.

6

However, the ICANN Board never took any specific action on the report, instead launching anew review of the entire GNSO structure during its Luxemburg regional meeting in July 2005.

7

That review and implementation process will soon be entering its fourth year. (This is not a

“process” but a sa

ga!) While the most recent target for completion was

ICANN Board’s

2009annual meeting, there are growing signs that this goal will also not be met. These protractedand serious delays involving just one of ICANN

’s many

Supporting Organizations demonstratethe shortcomings of the Periodic Review process to date.

Further proof of ICANN’s failure to comply with its own bylaws is evidenced by its failure even

to

commence

a review of the ccNSO, which the ICANN Bylaws required ICANN to initiate byNovember 15, 2004 and complete by December 4, 2005. On December 8, 2006

—

two years

after the initiation of the ccNSO review was required by the bylaws

—

the ICANN Board finallyapproved a resolution stating that the ccNSO review would commence by July 2008 (2.5 yearslate).

8

Unsurprisingly, ICANN also missed that deadline, and has now simply stated that the

ccNSO review “will commence in the near future.”

9

A timely independent review of the ccNSO

’s

structure and operation is critical given financialdocuments recently released by ICANN showing a $7.4 million difference between the cost of services provided to the ccNSO, and the revenue collected by ICANN from it. Specifically, theICANN Expenditure Analysis by Stakeholder Interest Area shows a $9 million outlay for ccNSOsupport in fiscal year budget 2010.

10

However,

ICANN’s

proposed 2010 budget (yet to beapproved) projects only $1.6 million in revenue from the ccNSO

—

a 30%

reduction

from the2009 budget.

11

This substantial subsidy of ccNSO operations from gTLD revenues is a growingconcern and appears to conflict with the 2000 GAO Report

’s statement

that ICANN wasrequired to operate on a cost recovery basis for the services it provides.

12

5. Special Meeting of the Board Minutes, Oct. 18, 2004, www.icann.org/en/minutes/minutes-18oct04.htm. 6.

See

Independent GNSO Council Review, http://gnso.icann.org/announcements/announcement-22dec04.htm. 7.

See

ICANN Board Meeting, Luxembourg Approved Resolutions

,

July 15, 2005,www.icann.org/en/minutes/resolutions-15jul05.htm. 8.

See

Regular Meeting of the Board Minutes, Dec. 8,2006, www.icann.org/en/minutes/minutes-08dec06.htm. 9. ICANN Organizational Reviews, Mar. 20, 2009, www.icann.org/en/reviews/. 10.

See

ICANN Expenditure Analysis: by Stakeholder Interest Area, May 2009, at 8,www.icann.org/en/financials/eag-analysis-29may09-en.pdf.11.

See

Draft FY10 Operating Plan and Budget, May 17, 2009, at 15, www.icann.org/en/financials/proposed-opplan-budget-v1-fy10-17may09-en.pdf . 12.

See

Government Accountability Office,

Department of Commerce: Relationship with the Internet Corporation for Assigned Names and

Numbers, July 7, 2000, www.gao.gov/new.items/og00033r.pdf .

Category:	Government Docs
Rating:
Upload Date:	06/09/2009
Copyright:	Attribution Non-commercial
Tags:	.net gao regulation .com legislation Congress registry noi MoU jpa iana icann (more tags) .net gao regulation .com legislation Congress registry noi MoU jpa iana icann NTIA PSO pff VeriSign White Paper U.S. Constitution Progress & Freedom Foundation network solutions internet governance gac gtld palage department of commerce independent review paul twomey government accountability office accountability mechanisms icann 3.0 mike palage jpa/mou icann 2.0 periodic review technical coordinator alac country code name supporting organization protocol supporting organization at large advisory committee dennis carlton marco lorenzo evolution and reform process telnic .tel universal postal union .post registry agreement root l server government advisory committee public tldsupporting organization private tldsupporting organization property clause kremen v. network solutions thomas v. network solutions a root (fewer)

Documents

People