Only a handful of comments were filed on the PSC draft plan for Improving Institutional Confidence. http://forum.icann.org/lists/iic-implementation-plan/index.html#00012 ATT made some intriguing suggestions to improve accountability. NetChoice raised similar concerns (below). We welcome your support for these ideas. The deadline was May 11, but your comments will likely be posted if you get something in today. --Steve NetChoice comments on the Feb-2009 DRAFT Implementation Plan for Improving Institutional Confidence (IIC) I want to acknowledge the considerable work of the President¹s Strategy Committee (PSC) in developing this report. While I hesitate to ask volunteers to take-on more work, I hope that PSC members can take their work to the next level and soon. There is a growing urgency regarding institutional confidence, since ICANN¹s transition agreement (JPA) with the U.S. Government expires at the end of September. Moreover, the draft Plan does not include adequate proposals or sufficient implementation details in at least two critical areas, Accountability and Capture. Before describing where the IIC Plan needs more work, I should first address what transition means in the context of ICANN and the work of the PSC. In April of 2008, ICANN¹s chairman tasked the PSC to outline a plan for developing this transition framework.¹ This was a same-day response to a statement by the U.S. Commerce Department, pointing out that more work remains to increase institutional confidence¹. It seems to me that ICANN has perfected the method to respond to challenges of this type: develop a study; solicit public comments; then declare that the challenge has been met. I¹ve heard ICANN leaders tell Washington audiences that ICANN¹s transition is a fait accompli, since the JPA will simply expire on schedule. ICANN leaders have admonished me (and others) who ask whether the JPA¹s terms have really been met. If you accept ICANN¹s view, there¹s nothing left but the countdown to September 30, 2009. But hold the countdown for just a moment and think about what transition really means. The JPA is the latest agreement in a commitment the U.S. Government made 10 years ago to transition its original role of DNS management to a private sector organization created specifically for this purpose -- ICANN. For 10 years, ICANN has worked to become the kind of organization that could handle management of the DNS according to the principles articulated by the US and embraced by the world. I still believe that ICANN will fulfill the role it was created for. But I don¹t believe that ICANN today has the mechanisms to ensure that it remains accountable to those principles and is led by the private sector instead of governments. And absent those mechanisms, I don¹t believe it¹s in the interest of anyone to effect a full transition of DNS management roles. Only one recommendation in the draft IIC plan (2.9) would subject ICANN¹s board to external review, but that measure (Establish an extraordinary mechanism for the community to remove and replace the Board¹) would be too difficult to invoke and would create unacceptable and uncontrollable risks if it were ever actually used. The draft Plan for IIC should be expanded to include additional mechanisms that hold ICANN accountable for its decisions in the development and execution of DNS policies. The PSC has more work to do in this area to explore alternative plans, including the possibility of an ad-hoc or standing judiciary¹ that could hear appeals, perhaps through arbitration or something akin to what ICANN proposed for hearing objections to new gTLD applications. Additionally, the PSC could explore the principles and foundational documents that would form the basis to evaluate appeals of ICANN decisions. Finally, the IIC Plan does not adequately address the growing risk that ICANN¹s role could be captured by governments and multi-governmental organizations. The fact that over a billion people have access to the Internet is due to private sector innovation and over a trillion dollars in private sector investment. It¹s going to take yet more private sector investment to reach the next billion people, so ICANN needs to maintain the confidence of the private sector. NetChoice has been raising concerns about the risks of government capture at ICANN and IGF meetings and in comments filed over the last two years. For example: 1. At the 2003 Internet Governance Forum, the Russian Government asked the United Nations to take control of critical Internet resources, raising the risk of government capture. http://blog.netchoice.org/2007/11/dont-blame-it-o.html 2. In our Jan-2008 comments at the mid-term of the JPA, we raised the issue of government capture and suggested that U.S. oversight was providing some protection from capture. http://www.ntia.doc.gov/ntiahome/domainname/jpacomments2007/jpacomment_001.p df 3. In July 2008, we warned that ICANN¹s fast-track program would give governments initial control of Internationalized Domain Names (IDNs) with non-Latin alphabets. http://forum.icann.org/lists/iic-consultation/msg00024.html 4. After ICANN dismissed our concerns about government capture of IDNs, we reiterated the risks in our Oct-2008 comments on IIC. http://comment.icann.org/?14@@.ee7bbd2/1 5. Last week, we criticized yet another plan for government capture of ICANN, the G-12 for the internet¹. http://www.netchoice.org/press/eu-plan-to-increase-government-control-is-not -the-answer-for-icann.html Over the last year we have seen increasing ways and means of governments capturing the private sector¹s leadership role at ICANN. At the same time, government-controlled country-code domains have maintained their independence from ICANN policies and financial support, while insisting on having initial and exclusive control over new top-level Internationalized Domain Names. We appreciate the chance to comment on ICANN reports and draft plans, but it can be very discouraging when our concerns are dismissed even more so when events show that these concerns are justified. While NetChoice will continue to participate in ICANN, there is a real risk that broader participation could wane if others¹ concerns are similarly dismissed. Diminished public participation could have the unfortunate effect of letting ICANN leadership conclude that the Internet community broadly supports ICANN plans. That kind of false confidence could be the beginning of the end for institutional confidence in ICANN. Steve DelBianco Executive Director NetChoice Coalition 1401 K St NW, Suite 502 Washington, DC 20005 www.netchoice.org <http://www.netchoice.org>