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ICANN Community Issues Unprecedented Letter Questioning ICANN's Proposed Accountability Process

Philip S. Corwin

In another unpredicted development the entire community of ICANN stakeholders has sent a joint letter to CEO Fadi Chehade and the ICANN Board that strongly questions the "Enhancing ICANN Accountability and Governance – Process and Next Steps" document published by ICANN staff on August 14th over widespread community objections. Signatories to the August 26th letter (text below) include the GNSO Council and all of the GNSO's stakeholder groups and constituencies, the Country Code Name Supporting Organization, the At-Large Advisory Committee, the Security and Stability Advisory Committee — and, most surprisingly, the Governmental Advisory Committee.

The letter states that "substantial questions and concerns remain unanswered, including around the process to date and the plan as constructed" and promises to deliver a "list of clarifying questions and comments within seven days" so that the signatories "not only understand the proposed approach, but are able to endorse it". In other words, the current Accountability Process lacks the endorsement of any stakeholder group within ICANN.

In addition to this letter and the detailed questions to be delivered to ICANN next week, a number of ICANN stakeholder groups are preparing to file a formal Reconsideration Request to ICANN's Board by the required 14-day (August 28) deadline in which the Board will be asked to review and reverse or modify the staff plan on the grounds that both its substance and the process by which it was created have materially harmed their interests. In an ironic twist those stakeholders are requesting that the Board hold the staff accountable for the alleged violations arising from publication and adoption of this non-endorsed Accountability Process.

Comments filed with ICANN as well as other community input indicated a strong preference for the establishment of a standard Cross-Community Working Group (CCWG) to develop the vital enhanced accountability measures that are supposed to accompany any proposal for facilitating the IANA functions transition away from US control, with experts available to facilitate the work of that CCWG at its request. Instead, ICANN's staff are trying to unilaterally impose an overly complicated tripartite construct that resembles a Rube Goldberg machine.

The staff proposal would segregate community discussion into an Accountability & Governance Cross Community Group that would have a restricted ability to appoint participants to the Accountability & Governance Coordination Group in which the real decisions would be made, and which would issue a final report and recommendations. Meanwhile, a separate Accountability & Governance Public Experts Group (PEG) would appoint up to seven "experts" to the decision-making group. Many within the ICANN community view the proposed structure as designed to dilute the strength of any final recommendations for new enhanced accountability measures; especially the establishment of an independent appeals mechanism with the power to reverse decisions that violate ICANN Bylaws, and to discipline Board members and staff. It is highly doubtful that anything as robust as the "KEY PRINCIPLES FOR COORDINATION OF INTERNET UNIQUE IDENTIFIERS" that are attracting increasing support among Internet companies, trade associations, and civil society could ever emerge from such a process.

In addition, the staff-imposed Process contains this key language:

Following public comment, the Coordination Group will submit its final report to the ICANN Board. The ICANN Board will immediately and publicly post the final report, consider whether to adopt all or parts of it, and direct the CEO to implement those parts it has accepted once that decision is made. ICANN staff should be involved in assessing feasibility and flagging implementation concerns as early as possible in the recommendation development process to allow for alternatives to be identified. To be clear, ICANN's goal is to have this work develop recommendations that are capable of implementation, and not solely to go through the exercise of a review. Any decision by the Board to not implement a recommendation (or a portion of a recommendation) will be accompanied by a detailed rationale.

As described, ICANN staff will have free rein to assess "feasibility" and to flag "implementation concerns" throughout the process, and the Board will be able to cherry-pick the final recommendations and reject anything it cares to, with no standard for rejection and subject only to the requirement that it provide some rationale for its decision. It is almost impossible to envision anything that imposes enhanced accountability and binding disciple on the Board and staff resulting from such a Process.
On August 19th, five days after imposing this Process as a fait accompli without any opportunity for public comment, ICANN announced the members of the PEG.

They are:

  • Mr. Brian Cute – CEO of The Public Interest Registry
  • Ms. Jeanette Hofmann – Director, Alexander von Humboldt Institute for Internet and Society, in Berlin, Germany
  • Amb. Janis Karklins – Latvian Ambassador
  • Hon. Lawrence E. Strickling – NTIA Administrator and Assistant Secretary for Communication and Information of the U.S. Department of Commerce

It is particularly disquieting to see Secretary Strickling on this list as it may be viewed by some parties as implying US government endorsement and support for an ICANN staff-originated Process that was imposed over the objections and concerns of ICANN community leaders and that has subsequently elicited widespread pushback from the entire community. This is not how the much vaunted multistakeholder model is supposed to operate.

Just two months ago all of the GNSO constituencies issued a joint statement at ICANN's London meeting in which they called for "the Board to support community creation of an independent accountability mechanism that provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community" and asked "the ICANN Board and Staff to fulfill their obligations and support this community driven, multi-stakeholder initiative".

Instead of supporting the community's desire for an Accountability CCWG, the staff has indicated its apparent mistrust of the community through this attempt to impose its own Accountability Process that many believe will dilute any final recommendations — and even then allow the Board to reject any of them for any reason whatsoever. That staff attempt has resulted in this new and broader message to ICANN that extends well beyond the boundaries of the GNSO, including the GAC. It appears that ICANN's staff is driving unprecedented unity within the ICANN community — unfortunately, that unity is based on unanimous and extremely serious concerns about staff actions on a matter of overarching importance.

The road ahead on Accountability will either follow the flawed path developed by staff — with active community participation in substantial doubt — or, even if significant modifications are achieved through united community resistance, the forthcoming Process may well be marred by lingering mistrust as a result of this high-handed staff action. All of this is very unfortunate and was totally avoidable if ICANN had simply allowed for bottom-up development and made adequate solicitation of public comment before adopting a final Accountability Process.

The text of the letter follows.

* * *

August 26, 2014
Fadi Chehadé, CEO, ICANN
Dr. Stephen Crocker, Chair, ICANN Board of Directors

Dear Fadi, Steve and ICANN Directors,
Regarding ICANN's announcement on August 14, 2014, Enhancing Accountability: Process and Next Steps, the Supporting Organisation, Advisory Committee, Stakeholder Group and Constituency chairs formally request additional time and opportunity to review and discuss the proposal contained in the announcement and in the subsequent FAQ's published on August 22, so that next steps can be confirmed with increased support from the ICANN community.

Recognizing that the ICANN plan is a brand new construct that was announced without a corresponding public comment period, substantial questions and concerns remain unanswered, including around the process to date and the plan as constructed.

The undersigned Supporting Organisation, Advisory Committee, Stakeholder Group and Constituency leaders are currently engaging our respective groups' bottom-up, consensus processes at this time to develop and finalize a list of questions that will require clarification or correction. As a result, additional opportunity is needed to ensure understanding of the proposal and the ways in which it is responsive to the interests and working methods of the ICANN stakeholder groups. We commit to submitting to ICANN staff our list of clarifying questions and comments within seven days of this letter.

Since the Enhancing Accountability process will affect ICANN's future, as well as the range of stakeholders impacted by its decisions, we trust that this request will be received positively and lead to further engagement on this important matter to ensure that the SOs, ACs and SGs and Cs not only understand the proposed approach, but are able to endorse it.

Signed,
Elisa Cooper, Commercial Business Users, Commercial Stakeholder Group
Olivier Crépin-LeBlond, At-Large Advisory Committee
Rafik Dammak, Non-Commercial Stakeholder Group
William Drake, Non-Commercial Users
Keith Drazek, Registry Stakeholder Group
Heather Dryden, Governmental Advisory Committee
Patrik Fältström, Security and Stability Advisory Committee
Byron Holland, Country Code Names Supporting Organization
Tony Holmes, Internet Service Providers, Commercial Stakeholder Group
Michele Neylon, Registrar Stakeholder Group
Jonathan Robinson, Generic Names Supporting Organization Council
Kristina Rosette, Intellectual Property, Commercial Stakeholder Group

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own. Visit Page
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Share your comments

Phillip,This is a well-researched post about the Byron Holland  –  Aug 29, 2014 12:19 PM PST

Phillip,

This is a well-researched post about the current processes regarding ICANN accountability. I appreciate the fact that you are bringing light to this important issue at this time. However, as one of the signatories to the letter, I would like to clarify our impetus for sending it.

The issue of ICANN accountability is, as you know, very important to the stakeholder community. As the chair of the ccNSO, I felt that it is my responsibility to ensure that community has sufficient time to engage in a meaningful review of the proposal and FAQs. I am confident my colleagues from other constituencies feel the same way for their communities. Unfortunately, the timelines identified by ICANN do not allow for that meaningful review.

We are committed to ensuring this initiative is successful. However, without trust in the process I fear that the outcome will not be accepted. We sent this letter to simply to ask for more time to consult with our respective communities to ensure ICANN, and indeed the broader ICANN community, is on the right track. Through a thorough, broad-based review of the proposal, we will bring enhanced credibility to the process, and therefore strengthen the outcome.

Byron

Different parts of the community had different objectives Philip S. Corwin  –  Aug 30, 2014 9:25 AM PST

Byron:

Thank you for your kind remarks regarding the research underlying the article. While I realize and accept that not all readers will agree with every opinion expressed in my writings, I strive to ensure that the facts underlying them are objective, comprehensive and well-documented. I always hope that what I publish will inform subsequent discussions and thereby be useful to the ICANN community and beyond.

I appreciate your clarification that the ccNSO signed onto the letter "simply to ask for more time to consult with our respective communities". Other signatories had varying objectives. For example, for the NCSG, RySG, and BC the joint letter was the first step toward a just-filed formal Reconsideration Request sent to the Board alleging material negative impact and asking that ICANN confer with the community and amend the proposed Accountability Process.

What is most important is that, regardless of motivation or objective, the entire ICANN community is raising serious questions about a process imposed by staff without adequately taking community input into account or seeking additional public comment on their proposal. I think we all hope that the Board will understand the very serious nature of these concerns and act accordingly.

Best, Philip

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