The NGO and Academic ICANN Study (NAIS) just issued a statement on the structure of the ICANN Membership entitled "A Defining Moment for the At-Large and ICANN". The striking thing about this statement is how yielding it is: although it contains more-than-ritual denunciations of ICANN's having ignored the main points of the group's previous effort, the bulk of the statement is about how best to implement things the NAIS opposes.
I'll grant that a great deal of careful thinking has gone into this statement, and that its recommendations are far better worked out than anything that has emanated from ICANN on these subjects. The plan for graduated fees based on national wealth, with caps on numbers to prevent vote rigging, makes sense...if you are going to charge fees--which NAIS opposes, although personally I am prepared to compromise on this one. The suggestions for structuring the at-large membership are positively thoughtful...if you are going to cut down the number of at-large directors, which NAIS opposes and which I consider to be an unacceptable breach of faith by ICANN, unless it greatly narrows its mission. Actually, these proposals would make sense even if ICANN were to stick to its promise of half the directors at-large. And, there is indeed a crying need for decent electoral rules.
The budgetary projections for the at-large are of particular interest. They seem very plausible. Indeed, this is the one area where the statement shows real spine - it rejects categorically the idea that the at-large can pay for itself and says that it will need to be partly funded by ICANN for some time to come.
Alas, the most important idea, once one has given up on fighting for the nine elected at large directors, is buried in section 5 under "other issues". It's worth quoting:
ICANN should adopt language in its bylaws and/or Articles of Incorporation that restate and clearly indicate the limits on ICANNís activities in concrete terms. This will greatly assuage fears that ICANN could succumb to ďmission creep,Ē leveraging its authority over key systems into action on policy questions it is incompetent to address. Particularly if the At-Large representation on the Board is to be reduced from its current level, that reduction must be accompanies by this important additional protection to ensure that ICANN does not entangle itself in improper issues of public policy.
I couldn't agree more. I might even go farther and ask why one would think words alone will restrict ICANN. ICANN claims a narrow mission today, yet those gTLD contracts happened anyway. Something more structural, either self-policing or externally policed, is required.
One common fear expressed about ICANN is that it will gradually lessen its resistance to expanding its agenda into highly charged areas of substantive regulation of the Internet, such as content regulation, privacy, speech protection, taxation, and other such matters. This fear has begun to materialize as ICANN has begun, without a clear mandate, to extend its authority deep into the new gTLD contracts (many of which number in the hundreds of pages), into areas of consumer protection, and into new naming systems that may or may not layer on top of the DNS Restating the mission in a clear, concise manner will clarify that ICANNís appropriate range of activity is narrow. Concrete limits will insulate ICANN from pressure to act over-broadly, or in such a way as to threaten its legitimacy before the world.
Without a clearer statement of ICANNís mission, the Internet-using public will remain insecure about ICANNís authority and responsibilities. Over time, such insecurity would threaten not only ICANNís institutional stability, but that of the network itself.
But back to the NAIS Statement. What worries me is not the goals but the lack of an "or else." Suppose, for example, ICANN acts on the other parts of this report and ignores the mission creep. Or suppose it ignores both the mission creep and the funding and organizational needs of the at-large. Will we see the authors of this report at the barricades? Is there a bottom line here? After all, key parts of the previous NAIS report, itself hardly a radical treatment of the issues, pretty well got ignored by ICANN, which is getting ready to find a consensus for a wholly different plan it made up.
In light of ICANN's treatment of the first NAIS report, this follow-up is a weaker report than we could have hoped for. It's insufficiently clear if there is a point beyond which the distinguished authors of this paper will stop ameliorating brilliantly and instead say that some things are simply unacceptable.
ICANN defined itself some time ago. I hope this is not a defining moment for the NAIS.
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