ICANN Accountability Post-JPA: No Meaningful Change Expected
From IP Justice

(30 Sept. 2009) While many are dancing in the streets over today.s decision by the US Government to loosen some of its ties to ICANN as its a single governmental authority, I.m not convinced this decision will change much on a practical level. The Affirmation of Commitments was signed today by ICANN and the US Government to replace the Joint Project Agreement, and expand oversight to a more international community.

Unfortunately ICANN still lacks any framework for meaningful accountability to the public. And recent efforts seem to indicate noncommercial interests are being systematically squeezed out of ICANN, which is dominated by lobbyists from big business and special interests. Adding more governments to ICANN.s accountability framework is good on many levels since it recognizes the important global resource that we all share and depend upon and have a right to shape the policy of.

But the devil will be in the details of this plan and its implementation in the coming year. And the plan itself calls for oversight to come from those who make the decisions that will be over-seen – a plan not exactly designed for meaningful nor independent oversight.

As published by the Internet Governance Project on its analysis of today.s agreement:

“. What ICANN needs, and has always needed, is to adhere to basic liberal-democratic norms about rule by law, not rule by men. As we have stated time and again, ICANN.s accountability problems derive not from a lack of .oversight. by specific people or stakeholders, but from a lack of membership and globally applicable rules that define the parameters within which ICANN must operate . and from the lack of procedural mechanisms to enforce such constraints. Any oversight panel must have specific, well-defined laws, rules or principles to use as a standard against which to judge ICANN.s performance. Those rules must be known to all participants and relied upon by all as the basic rules of the game. If those rules don.t exist (and they still don.t), a .review panel. can become just another layer of politics and second-guessing superimposed upon an already messy and diffuse process. .”

With free expression rights and uncomfortable truths being subjugated to “politically correct” speech at ICANN, the organization has a very long way to go in demonstrating it can be trusted with the global public interest to this bystander.

Also concerning is ICANN.s expansive role into increasing the protection for trademark rights and its desire to become some kind of global consumer protection agency – a far cry from its limited technical mandate, but with arguably unlimited jurisdiction and oversight over Internet activities.

Absent from today.s “Affirmation of Commitments” (sounds soothing, doesn.t it?):

– Where are the guarantees to protect freedom of expression in its policies and operations?

– Where is ICANN.s commitment to ensure due process protections in domain name registrations or other ICANN administrative procedures?

– Where is ICANN.s concern for the privacy rights of Internet users who depend upon ICANN policies and practices to communicate in a online environment?

– Where is protection for noncommercial interests in ICANN.s bottom-up frame-work? Business and government get their seat at the table, but noncommercial users (all of the nonprofit organizations, universities, foundations, public interest groups, develop-oriented groups and individuals) were left off the table in the re-organization of oversight.

And considering the fact that this agreement does not impact the agreement that ICANN has with IANA, which is where the real power lies, isn.t today.s announcement mostly smoke in mirrors?

Too much is missing from this commitment for me to believe any meaningful reform can take place at ICANN as a result this agreement alone. Only time can tell.