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ICANN's Comment Period on Accountability Process Seeks Scope Limitations

Philip S. Corwin

Bowing to unprecedented community pressure in the form of a unanimous letter questioning its staff-developed Accountability Process, as well as a reconsideration request filed with the Board, on September 5th ICANN issued a notice titled "Public Comment Invited: Enhancing ICANN Accountability Process". The notice opens a 21-day public comment period on that staff proposal.

However, ICANN staff apparently cannot resist asserting some form of top-down control even what that very conduct is at issue, and the notice and accompanying explanation contain attempts to restrict and unduly channel the scope of community comment.

The explanation instructs that the scope of the comments should be narrowly focused:

"This public comment period is focused on addressing questions about the design of the Enhancing ICANN Accountability Process — not about the potential solutions or outcomes of the review… issues and solutions are not under discussion here. The question for this public comment discussion is: Are there any final modifications or improvements needed to the Enhancing ICANN Accountability process design to allow for this discussion to proceed?"

The question that ends that excerpt clearly asserts that the staff-designed plan should be the starting point for comments focused on "modifications and improvements" to it. But many in the community feel that the staff proposal is unduly complex and deliberately designed to dilute its views, while granting ICANN's Board excessive latitude to reject any and all recommendations that are eventually produced. A fully open comment period should allow suggestions for replacement of all or part of the staff's proposed Process. Besides, how can you untangle the design of a process from the issues it is addressing and their potential solutions?

Additionally, notwithstanding its admonition to focus on process, ICANN itself uses the notice to assert limitations on the substance of what may be produced by whatever final Process is ultimately adopted. And it relies on its characterization of statements made by the U.S. government at this past week's Istanbul IGF meeting as the foundation for that assertion. The explanation asserts:

"This process is intended to deal with focused systemic issues caused by the changing historical relationship with the United States, including for example, by stress testing against internal or external captures or takeovers, and safeguards against capture at all levels, which is a pre-condition of the IANA stewardship transition. Statements made by the NTIA since posting clarify that this process is limited to ensuring ICANN remains accountable in the absence of its contractual relationship with the U.S. Government. This process could potentially include an evolution of the AoC, but does not replace or duplicate existing ICANN accountability processes such as the Accountability and Transparency Reviews that deal with routine execution of tasks.

ICANN is an evolving organization with existing review mechanisms that ensure it continues to evolve to events not related to the changing relationship with the U.S. Government.

...In the previous public comment and public sessions, community members have identified many possible solutions of how to enhance ICANN accountability, such as the development of new community driven redress mechanisms. These proposed issues and solutions as they pertain to the changing relationship with the US are expected to be addressed by the process." (Emphasis added)

Likewise, the notice further asserts that a major factor underlying the opening of the comment period was:

"The emphasis made by the U.S. government at ICANN's Town Hall Meeting at the Internet Governance Forum (IGF) in Istanbul that the enhancement of ICANN's accountability mechanisms be narrowly focused on those related to the IANA Functions Stewardship Transition, that is reiterating its focus is on the changing historical contractual relationship with the US, and that both the transition and accountability processes be delivered simultaneously by September 2015 when the IANA contract expires." (Emphasis added)

It is quite difficult to parse these statements and comprehend what ICANN actually believes is in scope for this comment period. A narrow focus on the termination of the clerical role played by the U.S. in reviewing proposed IANA functions root zone changes seems completely at odds with envisioning comments on the Affirmation of Commitments (AoC). The accountability concerns that drove the recent unprecedented community actions are based in the widely held views of many stakeholders that ICANN's existing accountability measures are inadequate — and that ICANN may exercise its right to terminate the AoC between it and the U.S. once the IANA transition is completed. Even if AoC termination does not occur, ICANN may face growing pressure to expand the counterparty end of the AoC so that it is no longer an agreement solely between it and the U.S. And, as the AoC is the basis for the periodic Accountability and Transparency Reviews, one cannot discuss one and ignore the other.

Another confusing aspect of the guidance is its concession that new community driven redress mechanisms are within the scope of the Accountability Process. Overall, the coming termination of the unique U.S. oversight tied to periodic re-awarding of the IANA functions contract is the most fundamental change to ICANN since its creation, and a fair and open process would deem almost any suggestion for enhanced accountability as within scope.

So far as U.S. remarks made this past week in Istanbul, the IGF 2014 website does not appear to provide a transcript of the September 2nd Town Hall meeting referenced above, and ICANN's own IGF webpage contains no mention of the event, so it is not clear whether ICANN's characterization of Secretary Strickling's remarks is fully accurate. But it is not unusual for U.S. officials to tailor their remarks for overseas audiences, and the one that gathered in Istanbul would probably equate any extension of the IANA contract beyond September 2015 as indicative that the U.S. may not intend to complete the transition.

In any event, ICANN's characterization of Secretary Strickling's remarks is at some considerable variance his last official statement on this subject made in the U.S. and posted at the NTIA website, his July 22nd remarks at the American Enterprise Institute. He told that audience:

"We have not set a deadline for this action. While the current contract with ICANN expires in September 2015, we have repeatedly noted that we can extend the contract for up to four years if the Internet community needs more time to develop a proposal that meets the criteria we have outlined. In the meantime, our current role will not change… Also this spring, in response to community discussions at its Singapore meeting, ICANN announced a separate process to address ways to improve its overall accountability. Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA. This important accountability issue will and should be addressed before any transition takes place." (Emphasis added)

As can be seen, in those remarks Secretary Strickling reiterated that September 2015 is a goal and not a deadline ( a point he also emphasized in Congressional testimony); and that the accountability process, while separate from the IANA transition discussions, should address ICANN's "overall accountability" and should be completed before the transition is made final.

There is a transcript of a separate IGF Istanbul session on Core Internet Values in which Secretary Strickling made some interesting observations on the current process:

"Now I think as we move forward, our commitment to the multistakeholder process, I hope people feel, has been very concretely demonstrated by our announcement in March to transition out of our remaining role in terms of our stewardship of the IANA functions. And I do think that this is really putting our many where our mouth is, in terms of the United States support of the multistakeholder process. We're watching with great, almost amusement as the community takes this on. I think it's a real test to the community of the multistakeholder model and can they organise themselves? Can they now focus on the important issues and get to consensus? I think upon the successful completion of this, and I do expect a successful completion, this process will be much stronger for what the community is going through right now as they try to wrestle with all of the different issues that are emerging about how broad the analysis has to be and how they go about bringing together all the different interests of ICANN in one place on what is perhaps the most fundamental Question ICANN has had to face since its creation back in 1998." (Emphasis added)

Indeed, the ICANN community has organized itself as never before around the fundamental questions of what kind of robust and enforceable accountability measures ICANN requires in the aftermath of U.S. withdrawal from IANA functions oversight, and the design of the process for determining that. And the community has done this in spite of, and in reaction to, continued efforts of ICANN staff to control the structure, scope, and timing of the Accountability Process. The stakes are very high — as Secretary Strickling confirmed, this is "the most fundamental Question ICANN has had to face" since its creation.

So what happens next? True to form, ICANN staff is pressing ahead with its staff-designed Process instead of properly putting it on hold during the comment period, declaring:

"The Enhancing ICANN Accountability mechanisms will remain operational through this comment period but will not address the substantive issues of enhancing ICANN accountability in the absence of the U.S. Government contract until the end of the 21-day public comment period. Any changes to the process structure instituted following the 21-day public comment period will be implemented accordingly." (Emphasis added)

Meanwhile, the segments of the community that filed the Reconsideration Request for Board review of staff actions have wisely elected to leave it in place and not withdraw it until they can see whether this comment period results in meaningful alterations of the Accountability Process.

It must be noted that the community is being given only three weeks to comment on an Accountability Process of which it has no clear or common understanding. On September 3rd the same stakeholders that signed the unanimous letter questioning the Process submitted a detailed letter of inquiry asking for specific information about it. That letter contains twenty separate questions, many of which include multiple additional sub-questions, and there is no guarantee that a response will be received from ICANN staff during the comment period. How can one submit final comments on a Process that is not fully understood?

In addition, the comment period closes at midnight on Saturday, September 27th — and the opening meetings of the ICANN 51 meeting in Los Angeles start on Saturday, October 11th, just two weeks to the day after that. So time is very short and the community is unlikely to have detailed answers to its questions about the staff plan until late in the comment period, if then.

Given the present situation the best course for the stakeholders who came together and brought the pressure to obtain this comment period is to continue to press forward and build consensus on key aspects of the Accountability Process they want and the scope of what it should address — and ignore ICANN staff attempts to impose any artificial deadlines or limitations on the scope, or the substance and timing, of the Process. After all, if the community had accepted ICANN's August 14th process as the fait accompli that staff intended, instead of coming together and pushing back, there wouldn't even be a public comment period opening now.

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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Pesky multi-stakeholder annoyances Antony Van Couvering  –  Sep 08, 2014 9:05 AM PDT

Yeah it's a problem when you're trying to do what's good for everyone and they just don't understand that you should leave all the thinking to them.  It would be so much cleaner and quicker if they would just go along and do what the smart people suggest, sigh.

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