Release date: 16 August 2008
This is a summary and analysis of comments made during the first public comment period of the Improving Institutional Confidence (IIC) consultation held between 16 June and 31 July 2008.
This document is an attempt to provide an objective summary of those comments. Given the breadth of responses, it is less detailed than the responses themselves. In the effort to draw together threads of argument and agreement, it is also possible that some subtleties found in individual posts may have been lost. If there is a question over a specific point, you are encouraged to consult the response itself directly. All responses can be found online at: http://forum.icann.org/lists/iic-consultation/.
This summary will be made publicly available and posted to the public comment forum specifically set up for the consultation.
If an individual or organization feels the summary does not accurately represent the input received, they are encouraged to email their concerns to firstname.lastname@example.org and ICANN will endeavor to find a solution.
The public comment period received 22 responses from a range of individuals and organizations.
Consistent with feedback provided during the public session on this consultation at ICANN’s Paris meeting on 23 June, respondents welcomed and accepted the five areas that had been put forward by the President’s Strategy Committee (PSC) as the main topics for review and discussion, although a number also suggested additions.
Due to this acceptance, the following summary and analysis of comments is broken up into each area to aid efficient and effective understanding of the issues and views. Comments that do not fit into one of these areas – and other suggested areas for review – appear at the end of the document.
Thanks to the extra depth that written documents afford, the comments have been compiled and appended to numbered paragraphs in the longer Improving Institutional Confidence in ICANN document, rather than the shorter Transition Action Plan. Where appropriate, relevant sections of the Action Plan have been pulled into this summary to give extra clarity.
The five areas put forward for discussion are:
All comments made to the comment process, as well as a summary/analysis of feedback from the Paris meeting, can be found online at: http://forum.icann.org/lists/iic-consultation/
The Improving Institutional Confidence (IIC) consultation has a series of dedicated webpages, with an index page in English at http://www.icann.org/en/jpa/iic/.
Please note that numbered paragraphs (in italics) have been taken from the Improving Institutional Confidence in ICANN document, which can be found at: http://www.icann.org/en/jpa/iic/improving-confidence.htm.
Additional paragraphs from the Transition Action Plan (http://www.icann.org/en/jpa/iic/action-plan.htm) may be added where appropriate to provide additional clarity.
Where individual respondents are recognized through their initials, if you hold your mouse over the hyperlink it should reveal their identity. A full list of respondents is given at the end of the document.
1.3. The PSC believes that consensus or super-majority requirements will continue to be the main device to protect against self-interested capture. ICANN must continue in any changes to its structures to craft careful and vigilant protection, as it has done historically. ICANN also needs to avoid ‘apathetic’ capture - where participation by certain groups may dissipate, leaving the organization with narrow participation. To prevent this, there is a need for continued focus on maintaining large and diverse interest groups within the Supporting Organization and Advisory Committee structures.
There was unanimous support for this statement (from those respondents that commented on the issue). However a number of ancillary points and suggestions were made.
Continuous outreach and engagement was needed to deal with the issue of “apathetic capture” [ETNO, ISOC] and to build up ICANN’s legitimacy and stature [ICC]. Transparency and accountability are also important in dealing with capture [ISOC, ICC].
The risk of external capture – particularly by multi-government organizations – needs greater attention [SB, ICC, ATT, JZ], a part of which was a need to recognize and acknowledge the current geopolitical environment [ATT]. ICANN can minimize the risk of capture by maintaining its technically oriented mission [ATT].
1.4. The impact of anti-trust and competition laws is also important. ICANN needs to ensure it remains in jurisdictions that have strong anti-trust laws so that there is continued and comprehensive legal overview of decisions that are made, to ensure they are not biased or preferential to a particular group or organization. This is a fundamental protection.
There was unanimous agreement (from those respondents that commented on the issue) with the suggestions that ICANN be based in a jurisdiction with strong anti-trust laws, but a number of commentators noted that the United States is not the only location where this is the case [ETNO, MW].
1.5. Voting rights and representational participation in the constituencies are a main area for influence and capture, so the PSC believes that there needs to be greater transparency surrounding the participants in the Advisory Committees and Supporting Organizations. There needs to be discussion of cross participation in Councils and constituencies by single or related entities. Requiring statements to clearly identify conflict of interest is necessary.
[From the Transition Action Plan: 1.5 -- Place limitations on cross-participation in councils and constituencies by single or related entities]
Reflecting feedback also received in Paris, all respondents on this issue felt that individuals and organizations should be able to participate in several supporting organizations, advisory committees and/or constituencies [ETNO, MK, ATT, SM].
The suggestion of voting restrictions across constituencies or supporting organizations was undecided. It was argued that there are situations where one entity has a legitimate role in two different constituencies or supporting organizations [ETNO, FR]. Such situations may be remedied with a particular stakeholder being granted specific authorization to vote in more than one capacity [FR].
The issue will require further investigation as was made clear by a number of respondents who expressed uncertainty about voting restrictions while recognising the valid reason that they had been suggested [MK, ATT].
The idea of requiring statements that identified any conflicts of interest was unanimously agreed to by those respondents that raised the issue (consistent with feedback from the Paris meeting).
1.6. Finally, the PSC notes that ICANN’s committee structure and processes provide strong counters to capture, as outlined in the Frameworks and Principles on Transparency and Accountability. The number of committees and the breadth of representation provide important guards against capture by one interest group and that it is not possible for any individual to force their ideas onto others. As identified above they can be enhanced.
A number of respondents raised concerns about the IDN “fast track” approach (where non-controversial top-level domains in non-ASCII script may be approved before the full gTLD/IDN policy is completed). As it relates to how the current processes work, the fast track risks giving governments undue influence over expansion of the domain system in other languages [SB, AM]
There are numerous mentions of ICANN’s “community” in the IIC documents and this section in particular. It was pointed out that there is no definition of who or what that community actually is [VB, GS]. One respondent felt that who the community is should be defined in ICANN’s charter [VB]
[From the Transition Action Plan: 2.3 -- Continue regular periodic reviews of ICANN structure, and of Reconsideration, Independent Review and Ombudsman functions]
A number of respondents felt attention should be paid to the periodic review process. In particular: the consultants chosen to carry out a review, and changes that may be made with an expectation that they can be fixed later [ETNO].
The issue of GNSO reform gave the greatest cause for concern, with respondents asserting that reducing the role of non-contracting parties - in particular business users, but also end users - may reduce accountability [ATT, SM, GS], as well as raise the risk of capture [MK, ISOC, SM]. It may be hard to resolve the claim that governments are representative of the people with ICANN’s stated model of representation [GS].
2.3 However, given the importance of ICANN’s role, the PSC believes that the organization needs to have world-leading accountability mechanisms.
A number of possible additional accountability mechanisms were put forward, including:
It was also pointed out that any new accountability measures introduced needed to serve not only current participants in ICANN but also future participants [VB]
[From the Transition Action Plan: 2.4 -- Enhance and expand contractual compliance and enforcement]
There was widespread agreement with the need for ICANN to maintain and enforce its contracts. Improvements have been made but further work and clarity over what can be enforced is needed [ETNO]
2.6 The community could require the Board to re-examine a decision through a two-thirds majority vote of two-thirds of the Councils of Supporting Organizations and two-thirds of members of Advisory Committees; for the GAC it may be sufficient to have a consensus statement from all the members present at a physical meeting. As final accountability rests with the Board, the Board cannot be forced to change its decision, only to re-examine it. There would need to be a reasonable time limit on such a vote to ensure that contracting parties or third parties can have certainty in Board decisions.
The mechanism suggested was not a practical solution, argued some that agreed with the principle, since it requires votes from supporting organizations on subjects and issues not relevant to them [ETNO]; and because the threshold may be too high for a mere re-examination of a decision [MK].
It may be sufficient for a majority vote of the relevant supporting organization or the GAC to request re-examination of a Board decision [ETNO], but at the same time the fact that no level of required participation in a GAC decision had been included was a concern [ETNO].
If such a mechanism was put in place, it would need to include a clear timeframe and the existing situation should not change until the appeal had proved successful [ETNO].
However, a number of respondents took issue with the mechanism, saying that since the process would only allow for the Board to re-examine its own decision, it was not effective as an accountability measure [JZ, VB]. Such a mechanism would need some form of external review to give the process credibility [ETNO, ICC].
One respondent cautioned that ICANN should avoid establishing an economic interest for the organization in its domain name decisions and consider the implications of using auctions to resolve disputes in the allocation of top level domain names. [ATT].
2.7 Second, if the Board does not change a decision after the above re-examination mechanism, there may be circumstances where it is appropriate for the ICANN community through its supporting organizations and advisory committees to move for changes to the composition of the Board, by way of a “no confidence” vote.
Again, there was broad support for this proposal in principle but with a variety of concerns. There would, for example, need to be a careful review for how to implement the mechanism [MW, ICC, ATT], including a description of the vote procedure [ETNO]. There was also a risk that such a system could cause instability [FR].
The idea of replacing the entire Board, rather than individuals members, was supported [ETNO], although the entire mechanism was also characterized as a “nuclear option” that no one would want to actually exercise [JZ].
2.11 The PSC considers these proposals could be major elements of the solution to the issue of accountability, subject to analysis and the views of the community through consultation.
It was argued that the suggested changes would in fact strengthen opportunities for control of the Board by small and poorly populated constituencies since they are recognized within the system [VB].
[FromTransition Action Plan: 3.1 -- Explore adjusting the bylaws to confirm ICANN’s historic headquarter location in the United States, while allowing for the establishment of legal presence in other jurisdictions]
3.3. When ICANN was launched almost ten years ago, the full extent of the Internet’s promise as a critical communications infrastructure of the world was just beginning to be understood. Today, the Internet reaches more than one billion users. The next billion users will come from those regions of the world where the Internet is currently less prevalent – Africa, Latin America, Asia and Eastern Europe.
It was agreed that ICANN needs to look carefully at future users of the Internet in making decisions about its future [VB, SB, MW, EL] – particularly the billions of users who don’t use the Roman alphabet [SB, MW]
The organization should commit to rotating its meetings around the globe [VB], providing effective remote participation [VB], and translating its materials [VB, ICC, ETNO]. ICANN also needs a staff hiring policy that reflects the global community of users [ICC].
It may be useful for ICANN to produce figures on the degree of international participation [VB].
3.4. ICANN is already addressing some of these challenges in its structure. Its bylaws establish geographical diversity in terms of the composition of its board and other structures. As ICANN has expanded its staff, it has taken steps to also ensure its global diversity. ICANN is also on the verge of introducing internationalized domain names.
With respect to ICANN’s current structure, a number of respondents raised concerns that the role of governments, specifically the Governmental Advisory Committee (GAC), had not been referenced in the documents. The GAC should continue solely in an advisory role, it was proposed [ATT, ISOC, SB].
One respondent urged the organization to look forward and review whether its current consensus-based decision-making processes would continue to be appropriate, or effective, as the Internet continues to grow in size and importance [MW].
3.5. During its consultations (not only recently but over the last two years), the PSC has received input from global stakeholders external to the United States that ICANN should also be represented in other jurisdictions. The PSC believes that that it would assist increase the credibility of ICANN’s claim to be an entity serving a global community for ICANN to have representation in other countries additional to that which it will always possess in the United States.
The expansion of ICANN into other jurisdictions received almost unanimous support (from those respondents that commented on the issue), but with some reservations: such an expansion would need to occur alongside outreach efforts [ETNO, ISOC]; it would require careful monitoring and dialogue with the community [ETNO]; and it should only occur within budgetary constraints [MK].
One respondent disagreed with the majority view and was not convinced that subsidiaries may enhance accountability, suggesting that they may end up a waste of money [VB]. Another noted that ICANN already has geographical representation through its diversity in staff, Board and policy representatives, as well as offices in other parts of the world [ATT].
3.6. The PSC emphasizes that an additional legal presence will strengthen ICANN's fundamental multi-stakeholder model and underline the element of public trust that is a key element of its mission. The PSC believes that such a presence is not about reducing accountability. Indeed it will provide for more acceptance and confidence in ICANN as it will have a legal personality that is additional to its US presence. There are also clear advantages to diversity and representation in having presences in additional jurisdictions as well as operational advantages in the employment of staff.
While nearly all respondents agreed with the idea of ICANN maintaining global presences, there was some concern and confusion over the suggestion of “legal presences”. Such an approach raised concerns about legal and jurisdictional issues that might arise [VB, ISOC] and how such presences would coexist with the established legal presence and headquarters in the US [ATT]. Another respondent opposed the creation of extra legal entities [MK].
3.7. The PSC stresses that additional presences are not about building a treaty or intergovernmental organization with diplomatic immunities. ICANN - both in its US-based corporate form and any additional presence it may have globally - must remain true to the unique multi-stakeholder, “private sector led” model that has been its hallmark from the beginning.
The issue of ICANN being “private sector led” was embraced by many – with a number requesting that it be given its own separate area of the IIC consultation (see “Consultation Topics and Timeline” below). However, that role should not allow business to bend policy to own interests [VB].
ICANN should recognize that it has duties beyond a normal not-for-profit organization in that it has a mission of public trust as a steward of the Internet's unique identifiers [ATT, VB]. One respondent suggested that part of ICANN responsibilities and duties in this role would be to include the issue of human rights in policy processes [VB].
4.1. The PSC believes that ICANN must always be financially and operationally secure. ICANN must continue to maintain business practices that instill confidence, certainty and stability.
One respondent stressed that there is a need for transparent, legally
sustainable and credible dispute resolution for conflicting names in new
gTLDs – particularly with respect to national government concerns [ATT]
At the same time, several respondents argued that the IDN fast track risks putting businesses with existing domains in a difficult position as only IDN ccTLDs will be made available initially and not gTLDs [JE, SB, AM]
4.2. The Strategic, Operating and Budget planning processes including measures such as the current Reserves Policy provide confidence that ICANN is a stable and well functioning organization. The PSC believes that these processes should be maintained and enhanced.
4.3. In addition, ICANN’s current funding is highly dependent on registries and registrars. Other funding sources need to be explored and enhanced to lessen that dependency.
Most respondents agreed with the aim of seeking more funding sources but, again, there was uncertainty about how this would be done. ICANN should ensure it didn’t stretch beyond its limited technical remit in looking for sources of money [ISOC], and it should resist taking a financial interest in any of its policy decisions [ATT].
Exploring other sources of funding may help raise the barrier to capture [ICC, SM], and one respondent suggested Regional Internet Registries (RIRs) and country code top-level domains (ccTLDs) would be good starting points [ETNO]. However many respondents wished to see the details before providing an opinion [MK, FR, ICC].
5.1. This area relates to concern that the ICANN should always remain focused on its narrow technical mission and remain a not for profit corporation which has a mission of public trust. ICANN should be headquartered in a stable environment with a strong history of freedom of expression and a legal structure that favors competition and private sector leadership.
5.3. ICANN has declared (through the media and other public statements) that it will not leave the United States. In addition, continuation of the US legal jurisdiction is important for the ongoing stability of the nearly 1000 contracts ICANN presently has with registries and registrars, many of them in the United States.
There was some debate on this point. While it was agreed that remaining under US jurisdiction would provide stability [ATT, SM] and legal certainty [ATT], it was argued that the stability of contracts was less important than barriers to entry for non-US companies, or incompatible legal regimes between ICANN contracts and local regulations [MW]. In addition, it was argued that stability should encompass a strong history of freedom of expression and a legal structure that favors competition and private sector leadership [ATT].
5.5. The PSC considers the security and stability of the Internet’s unique identifiers is one of the most important aspects of ICANN’s mission. Consequently, it suggests that this be enshrined in the format of ICANN’s future strategic and operational planning.
The importance and priority of the Internet’s security and stability to ICANN’s work was strongly attested to by all respondents, with some stressing it was the most important issue that ICANN had to concern itself with [RHu].
However, it was important that ICANN be clear about its mandate when it came to security and stability [ICC], and that it not confuse the security and stability of the organization itself with security and stability of the Internet [MW].
The organization was urged to become more proactive on security matters [GK, ATT, RHu], possibly providing some metrics that quantified the DNS’ integrity [RHu]. ICANN should make DNSSEC implementation a priority [GK, ATT, RHu] – but also recognise that it is not an end solution and may already be coming too late [RHu]
The issues of new gTLDs, IDNs and IPv6 were repeatedly raised by respondents as topics that ICANN needed to focus on.
5.7. The PSC believes the current IANA functions work well but is aware that many members of the community believe that they can be improved.
A number of respondents emphasized the importance of efficient running of the IANA functions, each prompting for further improvements [ATT, ICC, ETNO]. Excellence should be a permanent requirement, and a program drawn up to improve every aspect of IANA, not just automation and delegation [ETNO].
5.8. Under the IANA contract the PSC notes that ICANN was required to develop and implement a process for consulting with the relevant governments and ccTLD managers to encourage greater efficiency and responsiveness to these entities in processing ccTLD requests, consistent with the processing metrics. That process arrived at suggested improvements to streamline the IANA function and is presently subject to discussion between ICANN and the United States Department of Commerce.
It was suggested that care needed to be exercised over improvements to the IANA function, and that all three distinct components of the IANA function be recognized and protected [ISOC].
Respondents also considered the United States government’s role. ICANN should find ways to continue the positive aspects of the current relationship, argued one respondent [MS]. There was no dissatisfaction with the practical use that had been made of the arrangement, said another [VB].
The Department of Commerce reflected that it was open to operational efficiency measures that addressed governments’ legitimate public policy and sovereignty concerns [MAB].
5.10. ICANN and Verisign signed an agreement in 2006, under which they agreed to work together to establish a timetable for the completion of the transition to ICANN of the coordination and management of the ARPA TLD, and the root zone system, in particular to enable ICANN to edit, sign and publish the root and ARPA zones. ICANN should work to implement, after discussions with Verisign and the US Department of Commerce, this “Root Server Management Transition Completion Agreement”.
There were a range of views on this point. The US Department of Commerce stated that it did not have any plans to discuss with ICANN or VeriSign a change in roles, nor any plans to transition management of root zone file to ICANN [MAB].
Some respondents agreed with this approach. ICANN needs to deal more effectively with other security and stability issues before it takes on root zone management, commented one [GK]. The IIC consultation should focus on completion of the Joint Project Agreement (JPA) and so not include IANA [ATT, ICC] since its functions are not a part of the JPA [MAB, ICC].
Others felt differently, approving of such a transitional step [FR], and suggesting that the transition of root zone management to ICANN was essential for it to become an independent, international body [ETNO].
A number of respondents reflected on the differing views, arguing for a careful, diplomatic approach to the issue [ISOC], noting the different interpretations of ICANN’s role [MK], noting that the agreement referred to was not easy to find [SM], and suggesting that the IIC consultation focus on internal reorganization and accountability mechanisms if there could not be agreement on a way forward [VB].
As part of the Transition Action Plan, three questions were asked in order to check that the IIC consultation was going along the right lines. Many respondents provided answers to each:
A. Have the key elements required for an un-capturable, accountable, internationalized, stable and secure ICANN post-JPA been accurately and sufficiently identified?
A number of additional elements were identified by respondents:
Other respondents remarked that there was a need for greater detail in the documents [ETNO]; that some elements would be enhanced by a renewed agreement (JPA) with US government [MK]; that it may be useful to re-examine the Action Plan’s assumption that the JPA will end in September 2009 [SM]; and that since much of the work took place in unchartered territory, it was better to be slow and cautious than to be sorry [GS].
B. Are the initiatives described sufficient to meet the objectives?
There needed to be broader participation in the consultation, it was argued [VB] and participants need to be kept regularly informed of progress [BDC]. There needs to be more information about the transition mechanism itself - a plan with milestones and procedures [ETNO]. And there should be metrics and clear attainable goals [JZ], as it is not clear what ICANN has achieved or is achieving [SM].
C. Is the timeline set out sufficient to allow sufficient community consultation, and bylaw changes and other implementation steps to occur?
A number of respondents raised their concern that the timelines were too compressed [MK, ATT, SM, ICC] and this may reduce participation [VB, ICC]. Bylaws changes would require full consensus from the ICANN community [ETNO]. ICANN will not be able to see the results of the measures introduced before the JPA ends [MK].
With regard to increasing participation, it was suggested that a number of other meetings be held to get people’s input into the process [ATT].
The consultation periods at each stage need to be lengthened to ensure the community's understanding and participation [ATT], and a final comment period on the final documents, plus a well-defined implementation process was needed [ETNO]. A slower, more conservative approach to change should be taken [GS].
There was also concern about the length of the documents [VB], and it was suggested that the Transition Action Plan and Improving Institutional Confidence in ICANN documents be combined into one [ATT].
There was discomfort that the discussions on creating and revising the documents were being held in private [VB].
The PSC recommends the formation of a special Expert Advisory Group to assist with consultations on the Analysis and Design project.
There was widespread support for the group, but it would need broad representation [ETNO] and in particular business representatives [SM, ICC]. It may prove useful in helping to organize meetings [BDC].
AM: Andrew Mack, Principal, AMGlobal Consulting
BDC: Bertrand de la Chapelle, Special Representative to the French government
CM: Christopher Martin, United States Council for International Business (USCIB)
EL: Evan Leibovitch, North America Regional At Large Organization (NARALO)
ETNO: European Telecommunications Network Operators’ Association
FG: Fernando G. Guerrero, CEO, SolidQ.com
FR: Frederic Riehl, Director of International Relations, Federal Department of the Environment, Transport, Energy and Communication, Switzerland
GK: George Kirikos
GS: George Sadowsky
ICC: International Chamber of Commerce
ISOC: Internet Society
JE: Jaser Elmorsy, CEO, Bluebridge Technologies
JZ: Jonathan Zuck, President, Association of Competitive Technology (ACT)
MAB: Meredith A. Baker, Acting Assistant Secretary for Communications and Information, United States Department of Commerce, National Telecommunications and Information Administration
MK: Michael K Kirk, Executive Director, American Intellectual Property Law Association (AIPLA)
MS: Mike Sax
MSe: Michael Setton, CEO, Cyberfab
MW: Mathieu Weill, General Manager, AFNIC
RHu: Robert C. Hutchinson, Internet Product Architect
SB: Steve Delbianco, Net Choice Coalition
SM: Steve Metalitz, Counsel, Coalition for Online Accountability (COA)
VB: Vittorio Bertola, ISOC Italy