ICANN descends into farce as bigwigs try to cling to power

Analysis The process to bring greater accountability to domain-name overseer ICANN descended into farce last week when the organization's board tried to skewer plans to force it to answer to the internet community while simultaneously claiming it supported the idea.

In an extraordinary, almost surreal three-hour teleconference, the working group drawing up plans to make ICANN – wannabe masters of the internet – more open and responsive to the public were treated to a level of Orwellian "double speak" rarely seen outside the British civil service.

Most significant was a complete rejection of the group's main recommendation that the internet community be formally represented as an official "member" of the organization, giving it a legal right to insist on change.

To the group's bemusement, then frustration and then anger, representatives of the board repeatedly argued that they were in agreement with the idea before pushing for a completely different proposal.

Board members read carefully written statements, and then regurgitated the same phrases and word structures in response to increasingly pointed questions from the group.

At the heart of the issue is the fact that the board does not want anyone but itself to be given a right to decide what the organization does. Rather than allow a mechanism that would introduce that right, it argued instead for a "binding arbitration" approach, suggesting that it was possible to oblige ICANN to make changes without an adjustment to the organization's structure.

Unfortunately for the board, the group has been working on the plans for eight months alongside expert legal advice and reached the "sole member" solution precisely because it knew that anything but a full legal right would leave the board and staff completely in charge of any future changes.

Cementing the group's belief that without a formal right ICANN would continue to block real reform, the board then dismissed the idea that the internet community have a veto right over ICANN's budget.

That budget veto is intended to act as a final backstop if the organization refuses to make agreed changes – something it has failed to do repeatedly, leading to no less than eight accountability reviews in the past 10 years. The idea is that if ICANN fails to act, the internet community would be able to effectively shut the organization down.

The board's "draft" also dismissed every other proposal that would see the community given equal status to it. Those proposals included: approving bylaw changes; removing underperforming directors; and strengthen the "independent review process".

And yet, as the board's representatives went through its list, arguing instead for arbitration, a "right to consult" and a "right to reconsideration" rather than real, enforceable powers, they insisted that they agreed with the group.

One member even argued that the board and community had "90 per cent agreement on substance", leading one community member to suggest that figure was based on word count rather than fundamental positions.

The legal analysis

While the ICANN board inhabited its own world, the organization's staff also appears to have disappeared into its own rabbit hole, commissioning a legal response from its outside counsel on the proposals, and then using that response to argue to back up its own points.

In response, the community asked for its independent lawyers to review ICANN's lawyer's response, and that response tore into ICANN's lawyers' arguments.

Broadly speaking, ICANN corporate's arguments boil down to a concern about "unintended consequences." However, despite repeated requests, neither the board nor staff has outlined any scenarios or possible consequences, whereas the working group has structured much of its work around a long series of "stress tests" to ensure that its final proposals achieve their aims.

ICANN also argues on the sole member issue that it is untested. In response, the working group's lawyers note that the member approach is "common in non-profit governance systems and a sole member structure is relatively simple".

It adds: "Based on our work advising non-profits on governance over many years, we do not expect that the transition to a Sole Member poses any significant risks related to inexperience." And goes on to note that ICANN corporate's alternative proposal is also untested.

The arguments go back and forth but, as we noted almost a year ago, the key question remains the same: can ICANN be forced to agree to oversight of its decisions?

Long time observers of the organization had no doubt that when it came to the crunch, the board and staff would do everything in their power to prevent the internet community from having a legal right to enforce change.

At the start of the process for control of the critical IANA contract that keeps the internet glued together, ICANN did everything it could to prevent any discussion of changes to its processes or structure. That led to an unprecedented letter from every head of ICANN's supporting organization and advisory committees saying that reform of the DNS overlord was intricately tied in with the IANA contract.

When the US government made it plain that it would not sign the critical IANA contract over to ICANN until there were accountability reforms, the ICANN board argued that if Uncle Sam did not approve of any changes then the process would not meet a consensus view and so could not move forward.

In response to that effort, the US Congress tacked an amendment onto the proposed Dotcom Act that explicitly stated the internet working group's plans should be taken as the benchmark for accountability changes.

But ICANN's staff and board are so used to getting their way that even the thought of legislation specifically engineered to force them to capitulate did not impose self-reflection.

And so the working group was faced this month with the extraordinary spectacle of board members telling them they agree with them while trying to completely gut their proposals; insisting that they are in control when the law may say otherwise; and arguing that the firm and well articulated ideas put forward are untested while promoting their own vague and unworkable alternatives.

If there is any plus side to the teleconference it is that it should be plain for all to see just why fundamental accountability changes are needed at the organization. The harder ICANN works at denying them, the more important they become. ®