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A History of Holding ICANN to Account

Paul Levins

I'm attending only my second ICANN meeting here in Prague since I left the role as Executive Officer and Vice President Corporate Affairs at ICANN in January 2010. I know it's been said before but I guess ICANN is like the lyrics in The Eagles song Hotel California: "you can check out any time you like, but you can never leave".

Today at the meeting's opening, outgoing President and CEO Rod Beckstrom said that on his first day on the job he was given a 'blank sheet of paper' and told that the Memorandum of Understanding (MoU) with the US Department of Commerce was not going to be renewed by ICANN and "you better come up with something better and you have to get it done in 90 days because the MoU is going to expire."

It's great rhetorical flourish but the reality is vastly different.

There were reams of paper and seemingly endless discussions that took place before Rod's arrival. We were not starting with a blank piece of paper. It's to his credit that he allowed that to continue, but it's not healthy to perpetuate a belief that what replaced the Joint Project Agreement — the Affirmation of Commitments (AoC) — was miraculously developed in the space of only weeks prior to the expiration of the JPA — that an accountability rabbit was pulled from the hat.

Nothing could be further from the truth.

It was ultimately the result of ten years of community effort.

But in the lead up to the JPA expiry, the direct negotiating and writing team was me, Theresa Swinehart and importantly — from the Department of Commerce (DoC) — the willing, creative and sincere cooperation of Fiona Alexander and Larry Atlas the then Senior Advisor at the Office of the Assistant Secretary for Communication at the National Telecommunications and Information Administration (NTIA).

The first written draft of what is now the AoC was exchanged with the Department of Commerce in June 2009, before the transition from a long standing President and CEO in Paul Twomey to the then newly appointed CEO, Rod Beckstrom and discussions about the words that might be in it commenced at least 8 months before.

When I left the organisation, there was a lot of buzz about this newly inked AoC, because it was a landmark agreement that concluded the long standing Joint Project Agreement. It was a buzz because it was the culmination of effort by the entire community over 10 years, not the work of any one individual.

Now all the talk is the possibility of almost 2000 new gTLDS and the capability of ICANN to deliver the introduction of those.

But it was very encouraging to hear Chairman of the ICANN Board Steve Crocker in his opening address today emphasise that the Board will not be distracted from the important work of the Accountability and Transparency Review Team (ATRT).

With a new CEO in Fadi Chehade (whose opening remarks at ICANN 44 here in Prague demonstrate a man imbued with sincerity, experience and truth), it's ever more important to understand the evolution of the Affirmation and what led to its creation.

Indeed a concise history of the entire progress of the agreement with the Department of Commerce is found in the Board Minutes.

That history demonstrates the many voices that contributed to the AoC's development. There was also an extensive process by the Presidents Strategy Committee, not to mention all the work by the community itself since the inception of the organisation.

In many respects though, the AoC was formed from the original submission that the Board sent to 2008 Mid Term Review that the US department of Commerce issued concerning the expiry of the JPA. In it they said that after (then) 10 years of organisational performance the time had come for the JPA to be ended. They reinforced that view again in 2009 with an outline of what should be in the AoC in their response to the second NOI that was held in the lead up to the end of the JPA.

They said that the JPA should be replaced by a document that included inter alia:

  • Retain a narrow mission 

  • Remain based in the US and uniquely positioned to operate the IANA contract 

  • Remain not for profit 

  • Remain private sector led, multi-stakeholder organization 

  • Ensure the participation of Governments through the Governmental Advisory Committee 

  • Remain committed to continuous improvement 

  • Derive its legitimacy from the support and participation of the global Internet community 

  • Be accountable to the global Internet community.

If these elements look similar to what is in the AoC, it's because direct discussions with the Department of Commerce about the words in the Affirmation was an ongoing exercise over almost a year prior to the conclusion of the JPA.

Interestingly the original draft was called the 'Charter of Commitments'. But after concern by the DoC that the term "Charter" may not be appropriate, the word "Affirmation" was suggested by ICANN staff, because it basically means something that is declared to be true.

That's important because we wanted the commitments being made, to be true, sincere and a promise not only to the ICANN community, but also the community of Internet stakeholders at large.

That basis of truth and sincerity is what should continue to drive the AoC's ongoing implementation. But it should also drive the corporate memory of its creation.

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The Authors of ICANN's Constitution Steve DelBianco  –  Jun 26, 2012 1:57 AM PDT

Thanks, Paul, for giving the back story behind the Affirmation of Commitments.  And thanks for the role you played in crafting what has become ICANN's Constitution.

When the Affirmation was first revealed, I was among those expressing surprise about its unique framework of principles and performance reviews. I was also optimistic that more governments would appreciate how the Affirmation cut ICANN's "apron strings" to the US Government by broadening ICANN's accountability to all global stakeholders.

Three years later, how is the Affirmation measuring-up to its aspirations?

The ICANN community is getting more comfortable with conducting the reviews required by the Affirmation, although ICANN management hasn't figured out how to fully implement all the recommendations coming out of the first review. 

Governments' engagement with the GAC seems to have improved during the post-Affirmation era.  Though its hard to tell if governments actually see the Affirmation as making ICANN accountable to all global stakeholders. 

Maybe that's because only the US was the only government who has signed the Affirmation. 

I'd be interested to hear Paul's view on whether any and all governments should add their signatures to the Affirmation — thereby affirming THEIR commitment to the ICANN model, too.

More Affirmations? Paul Levins  –  Jun 27, 2012 12:44 AM PDT

Steve

The AoC is a device for the USG and ICANN to express ongoing commitment to each other. The USG commits to the Multi stakeholder model and ICANN commits to a set of accountabilities and reviews.  While from ICANN's side the commitments and the reviews may be a way for ICANN to be held accountable to stakeholders everywhere, the agreement is with the USG. 

In the drafting the thought did occur to me at least that it * could * be a device that others (governments and institutions) might sign. That is, they commit to the multi-stakeholder model as long as it holds certain characteristics and ICANN commits to the reviews.

In fact I recall discussing this with some board members at the time and I'm pretty sure Janis Karklins then GAC Chair.

I'm not sure the AoC as it stands can just be wholly signed by another party other than the USG (some governments may object to ICANN's commitment to remain Headquartered in the USA for example). But I do think and have always thought that it does hold some features that multiple parties could sign to signal their commitment to the model. 

So for example, wouldn’t it be interesting to see if one could get the ITU to sign such an agreement?  I suggested that in a previous blog.

But I know some have concerns as to how that might work.  Would that introduce a sort of two-tier participation in the GAC (some governments signing and others not)?  Instead of strengthening ICANN, it might highlight the differences in support levels.  That may not be a bad thing!  Or would negotiating separate agreements of the same sort, risk divergence between the different versions?

In many respects that was the point of the blog:  This stuff doesn't happen overnight or even in 90 days!  It's hard. It depends on relationships of long standing and discussions with in this case, the DoC, the community, congressional staff, business groups, upstanding coalitions of trade associations like NeChoice ;-) and many many more.

SO in short, I agree it would be a great thing to get others to commit to the multi-stakeholder model - to ICANN.  There are some issues that need to be resolved (not insurmountable) and you might even base it on the AoC, but I'm not sure you can just get governments/institutions sign the petition, as it were.

But as I said earlier, a great second cab off the commitment rank would be to negotiate with the ITU to sign an AoC like agreement.

AoC and reviews so far Kieren McCarthy  –  Jun 26, 2012 6:04 AM PDT

I am delighted something useful has come out of Rod's latest attempt to rewrite history in his favor. Glad you got this down Paul.

I think enough time has passed for me to raise what my unrealized concerns were with the draft Affirmation at the time. Both since came true and both concerned membership of the different review teams.

Having been witness to - and in fact part of - some of the previous ICANN attempts at review, I thought it was a mistake to effectively give ICANN staff control of who would be on the committees themselves. Frequently in the past ICANN had decided people it knew it could "rely upon" not to say or doing anything it didn't like. Or if they did, to be persuadable to let it drop for the greater good.

Under the AoC, ICANN's chair and the GAC chair get to decide the membership of each review team. But in reality of course this means that ICANN's staff devises processes to decide on the team and then put them forward in a recommendation to the ICANN chair. Giving the GAC chair a deciding role was one balance although the rationale in elevating the GAC above other SOs and ACs was always a cause for concern in an affirmation that sought to solidify the multistakeholder model.

And the other was the word "relevant" as it appeared next to "representatives of the relevant ICANN Advisory Committees and Supporting Organizations" when it came to the review team. It only opened the possibilities of composition to be messed about with.

So what happened straight off the bat with the ATRT was a ridiculously time-consuming and irrelevant seven-month staff-run process to decide (i.e. try to fix) who would appear on the crucial first review team (four months to devise the system; three months to decide members). That gave the ATRT significantly less time to actually do its work.

The composition was also built on intrinsic biases, affected by the actual people ICANN wanted on the review team at the time. So we have two people from the ccNSO, four from the GAC, four from the GNSO but only one from ALAC and ASO (and none from the tech side).

So my concerns came true - and they could still be used by the organization to have undue influence on the people that actually sit on the review teams.

For the ATRT this issue became far less important because Larry Strickling decided he would invest the time and trouble himself to sit on the team (rather than designate someone else as the GAC chair did). As a result it became extremely difficult for ICANN's chair to fudge the review results (and my god, he did try).

In fact the ATRT should never have worked but for the determination of Strickling, chair Brian Cute, and a number of other notable insiders deciding that actually here was an opportunity to do some good. And they pushed extremely hard not just during the review but for months afterwards - and even now Strickling is applying pressure, in a speech just last week. Let's not forget that he even had to explicitly use the IANA contract as a stick to force ICANN to act.

This strong review team has since lent confidence to the other review teams. Emily Taylor stood up to several powerful groups and individuals in creating the Whois report. But she *still* saw the final report treated in an offhand way by ICANN's new chair Steve Crocker until the FTC and Department of Commerce specifically highlighted it. And ICANN's legal team has, I believe, *still* not released some simple but important data.

As for the SSR review, I understand the staff tried to pressure review team members to sign a non-disclosure agreement before they could be given any information: a ridiculous idea given that the reviews are supposed to be independent.

Anyway, in summary, and so far, the reviews have worked. But only because of the determination and expertise of most of the review team members. Every team has also faced coordinated opposition from ICANN staff in trying to get hold of information and in implementing subsequent recommendations.

That is why I think your post's last paragraph ("That basis of truth and sincerity is what should continue to drive the AoC's ongoing implementation. But it should also drive the corporate memory of its creation") is so important.

So far the AoC has held up — but only because of the clear memory of where it came from and heavy engagement of high-quality review team members. The independent reviews need time to forge a fierce and untouchable independence. Hopefully that will start to come with the next iteration of the ATRT review, coming very soon.

Thanking those "who hold the pen" Avri Doria  –  Jun 26, 2012 6:15 AM PDT

I really appreciate that you finally told the story. I thought it was a pity that people like Fiona, Theresa, and yourself who were responsible for the grand compromise and the huge step forward represented by the Affirmation were forgotten, obscured, and in some cases displaced by those who took the bows.

Happy to see you back!

ATRT - more work needed Michael Roberts  –  Jun 26, 2012 9:41 AM PDT

From the perspective of someone who was involved with the development of the original JPA in 1999, it's refreshing to see an effort to maintain an accurate rendition of history, and to see signs of community support for sustained reinvention of ICANN in response to constant change in its environment.

I'm also encouraged to see senior people recently use the word "narrow" in relation to mission, goals and accountability.  As Board Chair Crocker reiterated this week, ICANN is not, and cannot be, the global source of Internet policy.  Any informed view of global Internet politics must acknowledge a myriad of interests, some enlightened and some not.  As with the functioning of the net itself, the policy fabric must be a federated and collaborative one. 

In this connection, those involved with ATRT going forward need to look for areas in which to narrow its scope and focus.  In an arena in which many voices keep arguing that ICANN has the broad mission to govern the Internet, when it clearly does not, there is a tendency to round up on every demonstration of transparency and accountability.  Whatever the causes, including management and staff resistance, the first round of ATRT diverted enormous amounts of community and staff energy at a time when the organization was faced with major operational challenges.  We need to leaven the second round with a sharp assessment of which review criteria worked and which contributed to needless bureaucratic wasted effort.

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