2015-12-23

ICANN Accountability, What Is The Global Public Interest (GPI)?

A dispute is brewing between the ICANN Board of Directors and the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability)--which is part of the IANA Stewardship Transition process--over the definition of, or application of, the term "global public interest" (GPI) as it applies to the CCWG-Accountability proposal.

The term global public interest is used in ICANN's Articles of Incorporation as set out by Board Member Bruce Tonkin in his response below to the question recently asked by the CCWG-Accountability:

CCWG-Accountability Question: "What are the legal basis and criteria  by which the Board considers a given Recommendation to be contrary to the Global Public Interest? Clarification would really be useful to help our group, but also the Chartering Organizations, to check our own recommendations."

Response from the Board Liaison (Bruce Tonkin): "Coming to an agreed definition of the global public interest is part of ICANN’s strategic plan. It is the 5th of five strategic initiatives: “Develop and implement a global public interest framework bounded by ICANN’s mission.” Until this is done, the Board is guided by the global public interest as set out in our Articles of Incorporation: "... in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, ICANN shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by

(i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet;

(ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space;

(iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system;

(iv) overseeing operation of the authoritative Internet DNS root server system;

and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv)."

By inference therefore any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board."


One Comment, of several, in Reply by one CCWG-Accountability participant:

"With respect Bruce, that is not responsive.  Your last statement that " any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board" is a truism -- but there are many things that might limit your ability (lack of funding say) that are not in any way connected to the global public interest.  You cannot possibly mean that if the Board thinks it limits ICANN it is, by definition, not in the GPI -- or if you do mean that then the Board has a very, very inflated sense of itself and the relative importance of its mission.

"Likewise there are many things in the global public interest that would improve (or at least not diminish) ICANN's ability to deliver the services it is tasked with delivering.   You can't possibly be saying that things which are affirmatively in the global interest (greater diversity, for example) are not in ICANN's definition of GPI if they can be judged by ICANN to interfere with its operations.   That, in effect, gives the Board a veto to say that it if adversely effects us, it can't be in the GPI -- even when the broader definition of GPI clearly suggests that it is.

"The Board's objection to enhanced transparency (in its comments on the Third Proposal) is a perfect example of this latter case -- the Board substituting its own judgement of what is good for ICANN for a judgment of what is in the GPI.  I am more than willing to agree that greater transparency might impose greater process restrictions on Board activity and thus, in some perverse sense, be read to "limit ICANN's ability to deliver" its services -- by putting in more restrictions on what the Board can do.  But for the Board to equate that with a restriction that is contrary to the GPI is to mistake ICANN for the globe and ICANN's interests for those of the people it serves.

"I continue to be dismayed at this type of response from the Board which reflects a lack of understanding of what the accountability project is all about."

See also on Domain MondoICANN, Domain Industry, Special Interests, and the Global Public Interest - excerpt:
... The Institute of Chartered Accountants in England and Wales argues that applying a detailed definition [of "Public Interest"] is likely to result in unintended consequences .... Meaning of public interest | ALRC | Australian Law Reform Commission: "... Should public interest be defined? 8.35 ‘Public interest’ should not be defined, but a list of public interest matters could be set out ..." (emphasis added)
Also note the public interest is a term used in the Affirmation of Commitments (AoC) agreement between ICANN and the U.S. government (NTIA) dated September 30, 2009 (to be incorporated into ICANN's bylaws in accordance with the latest draft proposal):

".... 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. 4. DOC affirms its commitment to a multi-stakeholder, private sector led, bottom-up policy development model for DNS technical coordination that acts for the benefit of global Internet users. A private coordinating process, the outcomes of which reflect the public interest, is best able to flexibly meet the changing needs of the Internet and of Internet users. ICANN and DOC recognize that there is a group of participants that engage in ICANN's processes to a greater extent than Internet users generally. To ensure that its decisions are in the public interest, and not just the interests of a particular set of stakeholders, ICANN commits to perform and publish analyses of the positive and negative effects of its decisions on the public, including any financial impact on the public, and the positive or negative impact (if any) on the systemic security, stability and resiliency of the DNS .... 9.1 Ensuring accountability, transparency and the interests of global Internet users: ICANN commits to maintain and improve robust mechanisms for public input, accountability, and transparency so as to ensure that the outcomes of its decision-making will reflect the public interest and be accountable to all stakeholders...."

See also on Domain Mondo





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