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The DNS White Paper has stood the test of time remarkably well. More than a decade after it was published, its principles of stability, competition, and private-sector-led DNS management remain the gold standard for DNS governance. ICANN is struggling to achieve that standard, however, and a dramatic change in direction may need to be considered.
ICANN's weaknesses are depriving it of the institutional confidence it needs. A broad consensus of ICANN constituents wants ICANN to continue striving for the principles laid out in the White Paper, as indicated by comments published during last year's evaluation of the Joint Project Agreement. But the same diverse body of constituents found that ICANN is falling considerably short of these principles by failing to develop sufficient accountability, transparency, and legitimacy. Comment after comment bemoaned these institutional weaknesses in terms that echo criticisms voiced since ICANN's beginnings. These criticisms mean, sadly, that after 12 years ICANN still does not hold the trust of the people and organizations that it serves.
Solving this problem without harming ICANN's capacity to act effectively has proven to be a daunting challenge. Some reform proposals won't work. Replacing supervision by the United States with supervision or control by a governmental organization, or by transforming ICANN itself into a governmental organization, would exacerbate ICANN's weaknesses by increasing the risk of bureaucratic sclerosis, capture, and corruption. ICANN needs institutional confidence to survive, but some changes might make matters worse.
In a new white paper [PDF], I propose a different solution. For ICANN to exemplify the principles set forth in the White Paper, its corporate structure should be reconfigured to ensure accountability. That new structure and ICANN's fundamental commitments should be reduced to a written charter and presented to a representative body of ICANN constituents for ratification.
This is the fresh start ICANN needs. For the first time, a genuinely representative group of constituents would consider ICANN's most basic governance document and vote as a body whether to adopt it. Democratic legitimacy would finally attach to ICANN's exercise of power over the Internet DNS. Obtaining the Internet community's consent to ICANN's continuing exercise of its unique powers would lend ICANN authority and enable it to maintain its independence.
Key provisions of the charter should include:
- Limit ICANN's authority to the narrow mission of performing the technical management and coordination of the Internet DNS. ICANN's powers need to be held within the narrow technical purposes for which it was created to prevent mission creep, where ICANN tries to resolve matters over which it has no authority.
- Put ICANN's core obligations from the Affirmation of Commitments into the Charter, to give those obligations greater permanency. Require ICANN to maintain the security and stability of the Internet DNS without qualification or trade-off.
- Enumerate and check the powers of the board of directors. Board decisions need to be subject to reversal, not merely reconsideration. Board members should be bound by the charter and the (revised) bylaws and removable if unfaithful to them.
- Remove the president as an ex officio member of the board of directors. Make him independent of the board, instead, with power to veto decisions that are manifestly inconsistent with the charter and bylaws.
- Create corporate members of record, place directors under fiduciary duties to those members, and authorize the members as a body to remove any director found to have violated the charter or bylaws.
- Restrain ICANN's budget growth to 10% per year and its net uncommitted assets to the total annual budget of four years before. Require excess revenues to be redistributed for infrastructure and security improvements, WHOIS and contract compliance, and remote meeting facilities and a travel allowance for participation in ICANN's meetings and proceedings by ICANN constituents from developing countries.
- Establish a Board of Review with authority to adjudicate disputed decisions of the board of directors and to reverse them if repugnant to the charter or bylaws.
- Make bylaws subject to amendment by a 2/3 vote of the board of directors and the charter subject to amendment by a 2/3 vote of all members of record.
Ratifying a charter with these attributes would strengthen ICANN's accountability, transparency, and legitimacy while achieving the principles on which it was founded. ICANN then would be more likely to develop the institutional confidence indispensable to its success.
A copy of the white paper, entitled "A Fresh Start for ICANN," is available here [PDF].
Written by R. Shawn Gunnarson, Attorney at Law, Kirton & McConkie
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More under: DNS, ICANN, Internet Governance
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