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Quelle Suprise! ICANN's Accountability Plan Gives ICANN Board Total Control

Robin Gross

Quelle Suprise! ICANN’s Accountability Plan Gives ICANN Board Total Control; Limits Accountability Improvement Measures to Toothless Self-Policing

I. ICANN's So-Called "Enhancing Accountability" Process

After a long await, ICANN's senior management finally released its plan for "Enhancing Accountability" at the private California corporation that makes global Internet domain name policy. Unfortunately, the accountability deficit crisis created by ICANN's longstanding policy of purely "self-policing" with no meaningful external accountability mechanisms will not be solved by this weak plan for more self-policing.

Perhaps telling was the organization's initial and consistent framing of the issue as "maintaining" accountability beyond the end of the US Government's stewardship role, rather than acknowledging that this effort was in response to widespread community outcry expressing major dissatisfaction with ICANN's inadequate existing accountability measures.

Conflict of Interest Disregarded by ICANN in Formulation of Plan

Many organizations and individuals commented online and during the London ICANN #50 meeting about the inherent conflict of interest with respect to an organization that proposes to manage the process that could reveal the organization's accountability shortcomings and thus not always show the organization in its best light if the process is rigorously pursued. Rather than heed the numerous cautions from the community regarding ICANN's conflict of interest in attempting to design the process to hold itself accountable, ICANN plans to be in charge of every key element of the process.

Irregular Process Employed in Development of ICANN Plan

From the beginning, ICANN's senior management has driven the entire process for creating this plan, from posting a series of leading and somewhat irrelevant questions on which it would take public comment on accountability, and then developing the plan 100% internally without an opportunity for the community to provide meaningful input. ICANN should have invited the community to make proposals for a plan based on the public comment, but ICANN senior management reserved the plan development right exclusively to itself.

No Bottom-up Proposal For Consideration, Only Top-Down Edict for Implementation

Nor is ICANN permitting a public comment period on its accountability plan, which is odd given the importance of the issue, ICANN's inherent conflict of interest in the underlying issue, and the stated regular practice of providing an opportunity for public comment on an ICANN proposal. But in this case, it isn't a proposal for the public to comment on, or which the community may influence; rather, it is ICANN's plan for what it intends do (not much) and ICANN isn't taking input on it. There is not the usual pretense of "bottom-up" from senior staff about this ICANN plan. Instead ICANN senior staff fully admits its judgment supersedes the community's judgment in ICANN's belated written explanation for its plan.

Irregular Delay of Publication of Qualities Recognized to be Built into Plan

Another irregular aspect of this process, which coincidentally disempowered the community's ability to engage in the plan's development, was senior management's decision to withhold its synthesis of the public comments until after staff developed and published its plan as a fait-de-complait. And even then, the belated synthesis was framed as an argument in favor of staff's specific plan forward, rather than a neutral evaluation of the public comments and inviting community discussion about the specific needs and desired characteristics to build into the plan.

ICANN senior staff claims there was no time to entertain proposals from the community. The initial public comment period ended before the London ICANN meeting in June, so ICANN could have invited proposals at any time over the last 6-8 weeks of public delay but behind the scenes engineering. Whatever the intent was in delaying the release of this information to the public, it was inappropriate for staff to delay the sharing of its plan until it was too far along in the process for the community to provide meaningful input. That just isn't how "bottom-up" policy is made, if we are being honest.

At best, ICANN senior staff's handling of the process was another half-baked and hurried mistake that breeds mistrust. At worst, it demonstrates a troubling misuse of staff position in the process to engineer an outcome favoring the organization at the expense of other legitimate interests.

ICANN Declares Itself Top Decision Maker

Despite ICANN senior management assurances in London when speaking to community groups, that the community would primarily be making these key decisions, ICANN now openly claims it is in a position to over-rule the community and impose its own judgment over that of the community on these key decisions about how to hold the organization accountable for its actions.

Although ICANN senior management frequently claims the organization is "bottom up" and therefore legitimate in its authority, ICANN has not explained on what authority it may replace the bottom up community's judgment with its own in the formulation of this plan/edict. It remains to be seen if the community will quietly accept this ICANN power play and further usurpation of the interest ultimately served by ICANN away from the public interest. What if the community actually calls ICANN on its flimsy and self-serving justifications?

II. Substance of the ICANN Plan

Don't Get Too Excited

It should come as no surprise that a plan which was developed through a process entirely controlled by ICANN senior management favors the organization in its substance as well. Bad process produces outcomes equally bad in substance.

In short, the plan will be largely ineffective about addressing ICANN's major accountability problems, such as constant mission creep, top-down decision making, transparency shortcomings, failing to respect human rights in org policies, and meaningless internal redress measures when the board/staff fail to follow the organization's bylaws or other stated processes.

Under its plan, ICANN is creating three new bodies to work under the banner "Enhancing ICANN Accountability and Governance". The "Coordination Group" prioritizes issues and makes decisions about final recommendations and solutions on issues identified by the "Cross Community Group". ICANN has also created the "Public Experts Group" which is comprised of 4 individuals that ICANN has deemed "respectable" to appoint 7 people onto the key decision making "Coordination Group".

ICANN Board Will Exclusively Decide Which Improvements to Accept

All one really needs to know is that under ICANN's plan, its board may adopt or reject any recommendation of this accountability effort at its own option. So despite widespread calls for independent accountability measures from the community, ICANN board will make all final decisions about what accountability improvements may actually be made. Under ICANN's plan, recommendations that call for the board to operate in a more transparent manner could be rejected by the board for example. A plan for more self-policing does not provide confidence that meaningful accountability reform will result from this effort, unfortunately.

ICANN Board Will Exclusively Develop Groups' Charters

Since the power to decide which of the groups' recommendations are implemented was not enough control over this effort for ICANN's board, the plan further provides for the board to be in total control of the development of the charters under which the accountability groups will operate. Not exactly "bottom up" operations. Nothing gets in that the board doesn't want, and nothing coming out will be adopted that the board doesn't approve.

Group Members Include Several Obliged to Protect ICANN

The Coordination Group, which is empowered with prioritizing issues and recommending solutions, is far too heavily stacked with individuals who are beholden to ICANN for their appointment or are a representatives of the organization and under a legal obligation to always act in the best interests of the corporation. Besides the stakeholders who represent communities ICANN was established to serve, ICANN has installed a staff member, which management confirmed would be one of ICANN's lawyers, onto the Coordination Group. ICANN has also decided that a board member should additionally serve as a liaison on the Coordination Group. Both the ICANN board member and ICANN staff lawyer are under strict legal obligations to protect the corporation under California law by virtue of their fiduciary role with respect to the organization and attending legal obligations. So there are at least two members of the Coordination Group with strong incentives to avoid finding any fault with the organization or need for serious improvement. ICANN additionally plans to appoint someone who is an "expert on the ATRT process" (aka "ICANN insider") to the Coordination Group.

What this process highlights is that the public's interest to rigorously pursue accountability improvements in a global governance organization clashes with hard and cold corporate legal obligations to protect the corporation. ICANN's board, senior staff, and lawyers hold obligations under California law to always act in the best interests of the corporation — not the public interest. This means they can't admit mistakes, and will be legally obligated to mitigate ICANN's responsibility for any wrongdoing. Board member and lawyer "whistle blowers" are generally illegal in California. Given reports of disgruntled ex-ICANN board members receiving cease and desist letters citing this legal obligation to keep quiet, there is little incentive for these group members to push for a thorough and rigorous examination of ICANN's accountability shortcomings within the group.

Anti-Democratic: Comprised too Heavily of Non-Stakeholder "Advisors"

As a global public governance institution, ICANN has an obligation to aspire to and operate in accordance with democratic principles for it to have any legitimacy to govern. Unfortunately this plan takes ICANN and its unique model of multi-stakeholder governance several steps away from "democratic", in which decisions are made by the stakeholders, those impacted by the decisions — and more towards a top-down corporate structure that operates in the interest of the private organization, instead of the public interest.

ICANN has installed (up to) 7 "advisors" to additionally serve on the Coordination Group, who are not stakeholders, but should provide expertise on specific issues related to accountability. The two main problems with this plan is that any external "advisors" should be selected by a legitimate bottom-up process, and should serve, in fact, in an "advisory" role — and not in a decision making role. The non-democratic "advisors" is another sign from ICANN that it doesn't actually trust bottom-up governance, but instead relies heavily on hand-picked "experts" to temper the will of the stakeholders — those who are subject to ICANN's policies. No rationale was provided by ICANN for why it needs so many non-stakeholder decision makers in proportion to actual stakeholders given democratic principles of self-governance.

As noted, these non-stakeholder "advisors" shall be appointed by 4 individuals that ICANN has deemed "respectable" (which means not likely to cause any trouble for the organization), who together ICANN calls "the Public Experts Group". Despite ICANN's attempt at slight-of-hand regarding the organization's unacceptable appointment of these "advisors" (shifting from board to staff appointment, but still ICANN-appointed), these appointments are not truly independent if they were selected by someone that ICANN senior management had to approve in the first place. The source of authority (the corporation, not the bottom-up public) is still the same in both cases and illegitimate for being anti-democratic. The community should be making these appointments, especially given the organization's inherent conflict of interest in the underlying issue.

Decision Making Roles Mislabeled as Advisory Roles in ICANN Plan

Furthermore, they are not truly "advisors" used for "specific expertise", but rather are appointments empowered to make decisions about final recommendations. Those are entirely different roles with different sources of authority. Democratic values require "advisors" to in fact serve in an "advisory" role, and not in a decisional role, which is reserved for stakeholders — those governed by the decisions this group makes. Experts are certainly welcome and should be utilized in a true advisory role. It is simply dishonest for ICANN to label people "advisors" while empowering them to be key decision makers in the process.

ICANN Decided It is the Primary Interest to be Served by the ICANN Plan

It was a remarkable move for ICANN to so openly claim in its plan that its own corporate interest supersedes the interest of the Internet community that the organization was established to serve. ICANN boldly stated in its "analysis of comments" that ICANN itself is a stakeholder in this process as a holder of resources, and as such is entitled to be the predominant decisional point and interest served in this effort.

With this plan ICANN has officially usurped the authority of those stakeholders that the organization is supposed to serve. The public interest must yield to the organization's separate interest. ICANN has become an "end" in and of itself with a blank checkbook and unbounded ambition.

III. Conclusion: Search For True ICANN Accountability Must Move Elsewhere

Despite the overwhelming call for the community creation of an independent accountability process, board-controlled toothless, self-policing is all ICANN senior management will permit with this effort. The community will have to come together and build a plan of its own in order to get the much needed accountability improvements that are necessary for the management of critical Internet resources. Certainly some painless minor cosmetic type improvements could be achieved with ICANN's plan, but the painful efforts required to achieve meaningful accountability from ICANN will have to move to another forum, outside of ICANN's control.

Addendum: ICANN Accountability Discussion at IGF 2014

We can take a closer look at the ICANN accountability crisis at the United Nations Internet Governance Forum (IGF), which meets in Istanbul from 2-5 September 2014 to explore Internet governance issues. A panel discussion to tackle the issue of ICANN accountability will be held on Wednesday, 3 September from 9:00 — 10:30 a.m. in Istanbul (9:00am PDT), with online remote participation available.

The IGF workshop panelists include Larry Strictling of the US NTIA, Pat Kane of Verisign, ICANN Board Member Gonzalo Navarro, Carlos Afonso of CGI.br, Avri Doria, Jordan Carter of InternetNZ, and ICANN Ombudsman Chris LaHatte. The IGF workshop #23 entitled "Accountability in the ICANN Multi-Stakeholder Governance Regime" is moderated by Robin Gross and co-sponsored by IP Justice, CGI.br, the Internet Governance Project, the Public Interest Registry, the Internet Commerce Association, and InternetNZ. David Cake of Electronic Frontiers Australia is the remote participation moderator for this IGF session, which will be held in the IGF venue room #2.

More information on this IGF Workshop #23 is available here.

By Robin Gross, Founder and Executive Director of IP Justice. I am also former Chair of ICANN's Non-Commercial Stakeholders Group (NCSG).

Related topics: ICANN, Internet Governance, Policy & Regulation

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Comments

Robin is Way Off Base Michael Roberts  –  Aug 21, 2014 1:59 PM PST

Thanks for the frothy rhetoric.  Unfortunately, there is a real world out there.  A rule of law world, where contracts, and legal venues, and corporate bylaws matter.  Wishing for a better world doesn't change that reality. 

The ICANN Board has aggressively sought to involve the community in a satisfactory follow on to the expiration of the NTIA contract.  That contract is legally binding on both ICANN and the US Govt.  If there is to be a successor contract dealing with alleged failures to perform,and enforceable remedies, then a suitable entity with the power and willingness to contract with ICANN needs to be found.  Or not found, if a consensus emerges that ICANN's ATRT processes are adequate.

Please don't insult us with claims that a vaporous gathering of self-appointed stakeholders are suddenly in a position to fulfill the NTIA conditions.  This is hard. If you want to contribute to a good solution, stop throwing rocks at ICANN and do your homework.

Conflict of interest...at ICANN? Jean Guillon  –  Aug 22, 2014 1:44 AM PST

Come on, I think we should stop with this thing about conflict of interest. The world knows that there is no conflict of interest from any person involved in ICANN activities… in .wine in particular :-)

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