Controlling Internet Infrastructure: The 'IANA Transition' and ICANN Accountability, Part II

In Part 1 of this series on Controlling Internet Infrastructure, we described the “IANA transition,” the U.S. government’s plan to relinquish its special oversight role in connection with the Internet Corporation for Assigned Names and Numbers (ICANN) by terminating the contract pursuant to which ICANN has been managing the Internet’s “domain name system” since 1999. The goal of the IANA transition is to eliminate the contractual lever through which the U.S. government has exercised regulation, oversight, and control over ICANN’s DNS management activities since ICANN was formed in 1998. No element of the transition plan is more important than the design of effective “accountability” mechanisms, and the U.S. government should not proceed with the transition unless and until it has satisfactory answers in hand. In this paper, we employ the tools of constitutional analysis to come up with an effective accountability structure and discuss their application in practice. A constitutional solution for ICANN involves, at a minimum, the following four elements: 1. A clear and precise delineation between the powers that the corporation may, and those that it may not, exercise. 2. A division of the institution’s powers so that they are not concentrated in one set of hands. 3. Internal, institutional mechanism(s) to enforce the constraints of (1) and (2). 4. Transparency and simplicity. We then apply these principles to ICANN’s current structure and proposed changes that will occur as a result of the IANA transition. The goal of this paper is to articulate a clear vision for the design of a new suite of checks and constraints, which we believe is a precondition to the IANA transition and the elimination of the U.S. government’s contractual oversight role in the domain name system.