Global Public Interest and ICANN

By Gangesh Varma

Global Public Interest is a difficult term to define. Any attempt to define it has always been met with resistance, or dissatisfaction. Yet, it features prominently in ICANN’s universe – through its bylaws, documents and contracts. In this post, I recapitulate the discussions surrounding global public interest within ICANN’s remit, the subject of a high interest session at ICANN 55 earlier this month.

Debates surrounding the term were revived during deliberations of the Cross-Community Working Group on Enhancing ICANN’s Accountability (CCWG-Acct). It was among the most difficult issues discussed due to diverging perspectives from various stakeholders. One of the recommendations of the CCWG-Acct is to embed the concept in the core values of ICANN’s bylaws as follows:

“Seeking and supporting broad informed participation and reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent.”[1] [Emphasis added]

ICANN’s struggle with global public interest is not new or isolated to the transition process. In 2013-14, a Strategic Panel led by Nii Quanyor examined this topic. The Report of the Panel attempted a broad definition of global public interest as follows:

“ICANN defines the global public interest in relation to the Internet as ensuring the Internet becomes, and continues to be, stable, inclusive, and accessible across the globe so that all may enjoy the benefits of a single and open Internet. In addressing its public responsibility, ICANN must build trust in the Internet and its governance ecosystem.”[2]

This broad and aspirational definition formulated by the Strategy Panel, did not receive complete support from the Community. However, it was not entirely rejected. This was the basis of further effort to source an understanding of the concept from the various departments within ICANN. The Development and Public Responsibility Programs Department at ICANN conducted a survey across the organization. It compiled resources and research on this subject to facilitate a discussion within ICANN’s multistakeholder Community i.e. the Supporting Organizations (SOs) and Advisory Committees (ACs).

Following this stock-taking, the session at Marrakech also updated the Community on a workshop organised on this subject at the Internet Governance Forum last year. The workshop discussed the idea of global public interest with reference to critical internet resources[3].  It highlighted the various traditional understandings of “in public interest” that is usually associated with developing regulation. It also focussed on the linkages between public interest and human rights including concepts like social justice, equal access, cultural diversity etc. It highlighted the regional perceptions of public interest and its possible contribution to conceptualizing ‘global public interest’. One of the key takeaways from the IGF workshop that resonated at the session in Marrakech was the idea that public interest is an aspirational goal, and cannot be fully achieved.

The diverging views are broadly in two categories. First, public interest as a concept that has a specific definition that can be articulated and achieved in each case. Second, is a broader perception of public interest. Here, it is perceived to be a purely aspirational goal, which must not be defined because it varies with context and is easily susceptible to exceed ICANN’s limited mission. While fears of such ‘mission creep’ are not unfounded, it must be noted that public interest appears not only in ICANN’s bylaws, but also as a criteria in some of its contracts. This compels a clearer and more tangible definition of the concept.

ICANN can take a two-prong approach to this challenge. First, is to pursue a definition for the broad aspirational goal that can be applied across its operations. As suggested during the session at Marrakech, the starting point could be definition of the Strategy Panel. This can be further refined and developed with the support of principles from the NETmundial meeting that were achieved through a global multistakeholder process. The Report titled “The Public Core of the Internet” is a resource that can help create the idea of critical internet resources as a global public good. This would protect the core infrastructure of the internet from unwarranted interventions by states or other stakeholders. Inspiration can be drawn from similar concepts in international environmental law, particularly that of the ‘common heritage of mankind’.  The second prong, would focus on key instances of specific use of public interest criteria in ICANN’s contracts and operations. Here, developing a tangible and functional definition using the inventory created is necessary. Lessons can be drawn from conceptualization of public interest in disciplines like international investment laws.

Currently, ICANN has turned to its SOs and ACs to consider this arduous task of defining global public interest. The idea of setting a Cross Community Working Group has been suggested, and a mailing list for discussions has been set up.The Wiki page  made is an invaluable resource for anyone to begin their engagement in this discussion.

[1] See page 5, and 19 of Annex 05

[2] See Page 4 of Report of Strategy Panel on the Public Responsibility Framework available here

[3] During the WSIS Process, the United Nations Working Group on Internet Governance described critical Internet resources as including the administration of the Domain Name System, the Internet Protocol addresses, administration of the root server system, technical standards, peering, and interconnection, as well as telecommunication infrastructure, including innovative and convergent technologies.

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