Arun Mohan Sukumar heads the Cyber Initiative at the Observer Research Foundation, New Delhi, and is a participant in the Cross-Community Working Group on Enhancing ICANN Accountability. You can follow him on Twitter @arunmsukumar.
At the ICANN 54 meeting in Dublin last week, the IANA transition process reached a crucial breakthrough: the group tasked with recommending measures to elicit accountability from ICANN broadly agreed on the legal vehicle to enforce them. There was a sharp difference of views between the ICANN Board of Directors and the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG) in the days leading up to the meeting. Although the CCWG proposed turning ICANN into a membership organization that would allow the ICANN community to remove any or all of the board and modify the corporation’s budget, the Board argued such a “radical” restructuring could potentially destabilise its governance. The Dublin meeting reached a modus vivendi, with both sides agreeing to a proposal that will largely mirror ICANN’s existing structure, while offering additional checks on the Board’s decision-making powers.
The CCWG was created late last year, and its recommendations are one part of the package the U.S. National Telecommunications and Information Administration (NTIA) will consider as part of the IANA transition process. Although the consensus reached in Dublin is good news to make ICANN accountable, there is still one major hurdle to address: managing governments’ relationship with ICANN after the IANA transition.
In March 2015, a sub-group of the CCWG was created to perform stress tests—testing ICANN’s governance mechanisms against crisis scenarios—and provide recommendations. For instance, the CCWG accepted a recommendation that empowers ICANN’s communities to remove Board members and block ICANN’s annual budget if ICANN were to be engulfed by a major corruption scandal like the one that affected FIFA. Among the thirty-six stress tests conceived by the sub-group was a scenario where some governments could potentially take control of ICANN. The Governmental Advisory Committee (GAC), currently comprising more than 140 countries, has a special relationship vis-à-vis the ICANN Board. Although the GAC’s counsel is not binding, the ICANN Board is required to take such advice into account and “find a mutually acceptable solution” on public policy matters. However, the GAC offers such advice only if there is consensus among governments within the committee. In cases where a small minority of governments objects to the GAC’s advice, those objections are communicated to the Board.
Stress Test 18 envisages a future instance where GAC rules are changed to allow for majority voting. In such a situation, a dominant number of governments could bulldoze their way through the GAC, and demand that the ICANN Board follow its advice. To prevent this, the CCWG suggested ICANN bylaws be changed to make the Board answerable only to GAC advice that is supported by consensus. Given that Stress Test 18 constrains the GAC, it has got governments up in arms and threatens to stall the IANA transition altogether. Several countries, notably Brazil, Spain, Denmark and Argentina, see the proposed modification as unacceptable.
The GAC’s Dublin communiqué indicates the committee is split down the middle: while some prefer GAC advice that reflects consensus, others see Stress Test 18 as intrusive and tampering with the way GAC makes decisions. To complicate matters further, the NTIA has suggested that the U.S. government considers the Stress Test “both appropriate and necessary”. The Chairman of the U.S. Senate Committee on Commerce, Science and Transportation weighed in on the accountability debate ahead of Dublin, stressing in a letter to the ICANN board that “community empowerment over government control” would be the “bedrock of Congressional support” for the IANA transition.
To be sure, the chances of government capture as conceived by the stress test are slender. It is unlikely that the United States, European Union or Brazil is simply going to roll over and allow for changes to the GAC’s operating procedures. Majority voting in the GAC would render it akin to a United Nations committee, a scenario that most countries are keen to avoid. The GAC’s institutional culture is different from that of a conventional inter-governmental body: GAC veterans, unlike their counterparts in New York or Geneva, are well-versed in the multistakeholder policy development process at ICANN. The pulls and pushes of international politics still apply, but as a collective, the GAC has come to accept its limited role in ICANN’s governance.
The issue is controversial because some governments see the U.S. support for Stress Test 18 as a strategy to limit their influence while maintaining its own privileged position. Indeed, the U.S. government could well re-take contractual oversight of IANA functions after the transition is complete. This eventuality is more likely than majority voting at the GAG given that ICANN will continue to be legally rooted in the United States. On the other hand, Stress Test 18 has support from ICANN’s business and civil society stakeholders, because it insulates the corporation from political processes the WSIS+10 review.
Stress Test 18 now threatens to invite the traditional conflict between multistakeholder and intergovernmental processes to ICANN’s turf. While the proposal to modify GAC’s operating principle is well-intentioned, the CCWG should evaluate whether it is trying to fix a system that isn’t broken. It is important that ICANN’s relationship with governments is carefully balanced with other constituencies after the IANA transition, but the GAC already operates under its own system of political checks. As it heads into the final stages of the proposal, the CCWG would do well to assess the real risk of governments capturing ICANN’s policymaking before pushing ahead with Stress Test 18.