Despite considerable congressional opposition to the move, the Obama administration is still not backing away from its announcement it will be cutting ICANN loose from its last remaining moorings sooner rather than later.
Formally known as the Internet Corporation for Assigned Names and Numbers, the group is still tied to the United States – which, after all, not only invented the Internet but gave it to the world – by a contract with an otherwise obscure agency within the United States Department of Commerce. It’s an appropriately thin thread, one that allows other countries and stakeholders to have confidence the Net is free from the heavy-handed control of any government or stakeholder while at the same time assuring that the values that make the Internet work (antipathy to global censorship, freedom of access, free speech) can’t be done away with by a vote of the board.
ICANN is the nerve center of Internet governance. It’s a self-perpetuating body representing stakeholders that makes the rules for everyone, insuring for example that the URL you type into your browser is the one to which you are eventually connected. It has a lot of power.
Cutting it loose from its final connection to the U.S. government would only give it more. This might be why ICANN CEO Fadi Chehade is the only other person outside of Barack Obama’s Internet policy team in a rush to get the deal done by September 30th, the will of Congress and the American people (who, after all, paid for the ‘Net’s creation and have a better claim of “ownership” than anyone else) be damned. In fact, video of Chehade has just surfaced in which he can be seen and heard “slagging off an independent team investigating how the internet will be governed in future,” the U.K. Register reported Tuesday.
None of this has been going down well on Capitol Hill. At a hearing on February 25 Senate Energy and Commerce Committee Chairman John Thune expressed his concern that what was being proposed involved a lot of leaping and very little looking. The South Dakota Republican said that, “in the absence of the contract with the U.S government, ICANN could become an organization like FIFA – the international soccer organization that is flush with cash, unresponsive to those it supposedly serves, and accountable to no one.”
Even those who aren’t fans of international soccer are at least vaguely aware of the various scandals that have rocked FIFA in the last several years. It’s been bad for the game and bad for the countries involved in the allegations of favoritism, bribery, and other corruption. Thune is right when he says the same could eventually be true of ICANN – which, for example, can generate as much money as it likes simply by rolling out new domain name extensions or by imposing some kind of additional global access fee on the technology companies that own, operate, and oversee the hardware. While nobody would know for sure where the money would go, we know where it would come from: the Internet’s end users.
ICANN says its board is accountable to the stakeholders – but that’s only because it says it is. Stakeholders have no real power in the organization in a legal sense, despite what Chehade has said publicly. Their ability to influence decisions is purely a matter of moral suasion; that, and the sole remaining contract with the U.S. government.
There is a way to change things so that even if ICANN’s contract with the U.S. Government is allowed to lapse, the global Internet community can be assured that the Internet will continue to function as before and will not become captive to a bloc of nations hostile to free thought or to a branch of the United Nations.
Chehade and his allies are resistant to the idea, but ICANN could be made accountable to a group of “members” selected by the various stakeholder organizations that make up the international community. The members would have a say on policy and governance matters and would be the ones with ultimate responsibility and control, assuring that the Board and staff faithfully implement the policies promulgated by the multi-stakeholder community. The members would have the right to remove board members who fail to uphold the values that currently drive the Internet.
The law firm representing ICANN in all this, Jones Day, has opined that the membership option is not permissible. Indeed, they seem to hold that the present setup is not only the best of all possible worlds and also the only legal option available.
“California law requires that the activities and affairs of ICANN must be conducted and all corporate powers must be exercised by or under the direction of the Board,” the firm said in a memo to ICANN’s Cross-Community Working Group.
But, say other attorneys who have looked at the issue, Jones Day’s analysis simply misses the section of California law that specifically authorizes “members.”
ICANN’s leadership will not, apparently, countenance any limits on its current plenary power. And they have found a law firm willing to defend their position at all costs. Any deal letting ICANN out on its own as a self-governing international body like FIFA or the International Olympic Committee needs to be done right or not at all. Before Congress even considers allowing the Obama administration to move ahead as it apparently intends, it must require that ICANN make the kind of changes to its governing structure that will not only protect its board and staff but will protect us all.
Peter Roff is a senior fellow at Frontiers of Freedom, an organization that works to insure public policy consistent with American constitutional principles remains at the forefront of the political and intellectual debate.
