3.6.1.2 A Proposal for Limiting ICANN's Mission

Traditional governance models present a variety of methods for constraining the power of governing bodies. These include careful definition of the powers of governance bodies and the rights of those impacted, often codified in a "constitution" or some other public and visible document; a system of checks and balances designed to limit the power of any particular individual or body; and the ability to appeal and reject actions that violate these "constitutional" strictures.

Using this analogy as a model, we suggest that ICANN undertake to limit its own power through the following four elements:

Create "constitutional" limits in charter and bylaws. ICANN should develop and adopt revisions to its charter and to its bylaws that explicitly enumerate the types of issues and powers that the Board may exercise. This should include:
An enumeration of the types of activities ICANN may undertake
An enumeration of the scope of topics on which ICANN can make decisions - i.e., those surrounding the technical coordination of Internet naming and numbering and unique protocol assignments.
A specific statement that all powers not enumerated for the board should devolve to the stakeholders in ICANN and the individual users of the Internet.
A policy directive that when in doubt, the board shall resolve conflicts about its jurisdiction by limiting the policy-oriented character of decisions in favor of technical coordination.
Declaration of user rights. As an affirmative check on overreaching actions by the Board, ICANN should enact a formal declaration of rights reserved for ICANN stakeholders and Internet users. These reserved powers and rights should generally guarantee individuals and organizations around the world the protection of their individual liberties (of the sort contemplated by the UN Universal Declaration of Human Rights), their property, their expectation to be treated fairly and with due process. Specifically, ICANN's charter and bylaws should prohibit the ICANN Board of Directors from adopting any policies that infringe
The right of all individuals and organizations worldwide to participate in the domain name system and the IP addressing system without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
The right of all individuals and organizations worldwide in full equality to a fairness and due process in the determination of their rights and obligations with respect to the assignment and subsequent maintenance or possible loss of domain names and IP addresses, and other attendant rights and obligations, which ICANN may seek to enforce.
The right of all individuals and organizations worldwide to freedom of opinion, which includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of national frontiers.
The right of all individuals and organizations worldwide to privacy. No one shall be subjected to arbitrary interference with his or her privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Limits on amendment power. Codified limitations and rights provide an incomplete guarantee without restrictions on their future amendment. For example, while ICANN's current bylaws require a two-thirds majority for amendment, in its first two years of operation ICANN modified its bylaws nine (9) times, often in ways that substantially changed key governance strictures. (See http://www.icann.org/general/archive-bylaws/bylaws-history.htm) ICANN is currently in violation of its bylaws regarding the timing and implementation of its ALM study, with little apparent consequence.

In order to protect the rights of the public in the face of majoritarian impulses by the Board, ICANN should adopt a much heightened amendment process for those charter and bylaws provisions governing the scope of its authority and the rights of users. This process should include-

Approval of changes by a super-majority of board;
Approval by a super-majority of SOs (possibly including the GAC); and
In some cases particularly involving the rights of the ALM, approval by referendum of the ALM.
Enforcement of constitutional limitations and rights. Finally, limitations and rights can provide only limited legitimacy without some enforcement mechanism for ensuring that the Board acts in accordance. Currently, it is the Board itself that is responsible for overseeing the Boards activities. ICANN should institute a system of checks and balances through some appeals process should decisions of the board violate the constitutional guarantees outlined. These might include:
Inclusion of language in charter of organization - This could allow enforcement under law of the state of incorporation (e.g., California, USA).
Creation of a "judiciary" that serves as a real oversight body (see below) - As noted in the accountability section, the creation of an independent oversight organization for appeal of ICANN actions could provide a means of such enforcement. Note that the Independent Review Committee, originally intended to provide such a role, is viewed by many as insufficiently independent to play this role
Self-enforcement - We note that the mere existence of a statement on limits and powers does provide some measure of protection, by providing guidance for the Board and ICANN community in considering proposed actions. But many will find this of only limited value, as it remains for the Board to show that it can act against what may be perceived as short-term interest in favor of long-term limitations that provide legitimacy.

Other methods for imposing structural limitations may exist. We note with approval but caution the attempts by some in ICANN to use "consensus" and bottom-up policy development as a limitation on ICANN activities and as protection for individual interests impacted by those activities. While this is a most promising alternative to date ICANN has increasingly rejected the consensus process, and it remains unclear how consensus could be meaningfully achievable for contentious policy decisions.

In the absence of such measures, we believe the package set forth above is essential to ensure that the governance and participation mechanisms set forth provide ICANN with sufficient legitimacy.

3.6.1.1 The Need to Limit ICANN's Mission

3.6.2 Accountability