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US Government waves the caution flag at ICANN

This month, ICANN is driving hard to get two of its horses to the finish line.  The first is barely a year old – it’s the first formal review of ICANN’s accountability and transparency.   The second horse is going on 4 years old: ICANN’s plan to introduce hundreds of new top-level domains (TLDs) for the Internet.


Just as these horses have entered the home stretch, one of the racecourse officials is vigorously waving the yellow caution flag.   And ICANN would do well to pull back on the reins.


Earlier today, US National Telecommunications and Information Administration (NTIA) head Lawrence Strickling sent a letter  to ICANN Chairman Peter Dengate Thrush, regarding the proposed ‘final’ Guidebook for new TLDs.   The NTIA letter suggests that in its race for new TLDs, ICANN is trampling its obligations to assess costs and benefits and to explain its unilateral decision to eliminate restrictions on cross ownership among registries and registrars.


ICANN agreed to these obligations just a year ago, when it signed an Affirmation of Commitments with NTIA.  In the Affirmation, ICANN committed to do  ‘fact-based policy development’, and to ‘provide a thorough and reasoned explanation of decisions taken’.


NTIA doesn’t think ICANN is meeting its commitment, and most of us in the online business community agree.  The concerns raised by NTIA are plainly stated, and are similar to comments coming in from many other government and Internet stakeholders.


But there’s a risk that this plain message could be obscured by concerns about the US Government re-asserting its legacy of oversight over ICANN, which it created over 10 years ago as a way to internationalize Internet management.


NTIA stepped back from formal oversight of ICANN when it signed the Affirmation of Commitments in October 2009.  I was among those who applauded the Affirmation agreement as a way to transition ICANN from US oversight to independence, while providing explicit accountability to public and private sector stakeholders.


So it’s a little bit surprising for the US Government to assert itself so strongly just a year after ICANN’s transition from US oversight.   After all, the Affirmation created new mechanisms for global stakeholders to conduct reviews of ICANN’s execution for things like accountability and maintaining security of the DNS.


But as a signer of the Affirmation, NTIA is doing what any contract partner must do:  if you think your counterpart is heading down a path that will lead to failure and broken obligations, you need to say so —  in no uncertain terms and as early as possible, so that course corrections can be taken before things go too far off course.


That’s pretty much what NTIA is doing now by waving the caution flag at ICANN.   The Agency’s letter cites the same principles and obligations that guided the Accountability Review just completed, as well as the next Accountability Review sometime after 2012.   These principles and obligations, however, need to apply every day, not just at review time every 3 years.


Like it or not, the Affirmation of Commitments is now the only mechanism we have when it comes to holding ICANN accountable to its role and responsibilities to the global public interest.  But it’s not just the job of US Government to point out how ICANN is straying from its obligations.   All of us in the Internet community need to hold ICANN accountable, in online comments and on-site in Cartagena next week.


It’s not just good policy that’s at stake here; a botched new TLD plan could endanger ICANN’s very existence.


ICANN is riding for a fall if it disregards concerns of global governments and businesses.   Because there’s another horse in this race: the United Nations and its 185-year old bureaucracy, the ITU.  The ITU is riding a much older and slower horse, as I described in a post this week.


But if ICANN stumbles, you can bet the ITU will ride into the lead.  And we will see a very different kind of accountability if the United Nations takes charge of the internet: each government gets one vote, with no votes for civil society or private sector folks who built the internet and create nearly all the content and commerce.


Many of us in the private sector, along with a handful of governments, have been defending the ICANN model from growing encroachment by the United Nations and the ITU.   ICANN needs to show some appreciation for its precarious situation.


ICANN can start by easing-up on the reins and explaining how and why it’s making unilateral decisions.  And ICANN should deliver the economic study of costs and benefits before it tries to force a final plan for launching TLDs.    Think of it as putting the horse back in front of the cart where he belongs.


–Steve DelBianco