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Rx for Dublin Progress: Board Transparency, Specificity, and Community Acknowledgement

In just a few days the ICANN 54 meeting will be up and running in Dublin, and schedule revisions are being implemented to devote even more time to discussion of accountability measures to accompany the transition of IANA stewardship. These developments come in the wake of the ICANN's Board pronouncement that it will not support either the "sole member" model (SMM) devise by the CCWG-ACCT (CCWG) after ten months of intensive labor, or even the "designator" model that it was considering as a possible fallback (this second Board stance being particularly peculiar in that many believe that ICANN already operates as a type of designator model, albeit not one that takes full advantage of potential community accountability measures).

On October 11th Board member Chris Disspain sent an email to all CCWG members and participants in which he declared, "In essence for me it's all about time", and went on to argue that the only accountability proposal on the table which might avoid the need for another NTIA extension of the IANA contract past September 2016 was that advanced by the Board. In response, Jordan Carter of .NZ observed. "We are under time pressure because ICANN's Board and staff engaged in a process of delay and deferral that meant that the Accountability discussion didn't properly start until late November/early December 2014. Without that instinctive and disappointing response, we would have had a further ~ 6 months to work through these issues."

To that response I would add that the Board withheld providing notice of its non-support of the SMM until a late September face-to-face (F2F) meeting in Los Angeles, when it surely must have been close to that generally negative conclusion at least by the time of the CCWG meetings attended by Board members and held mid-July in Paris. This candor/transparency failure has thus also added to the present time pressure by delaying the delivery of unwelcome but nonetheless vital information to those striving toward acceptable and effective consensus within the CCWG.

As to whether adoption of the Board's status quo with cosmetic enhancements Member Empowerment Model (MEM) proposal would actually help meet NTIA's deadline of receiving a final proposal before year's end, Carter observed, "there is no massive restructuring in any of these models, and all the CCWG proposals have been thoroughly stress tested. It is the Board's MEM model that is the weakest in this regard, having been developed behind closed doors and not subject to rigorous stress testing. It is today the highest risk option on the table." (Emphasis in original) Indeed, almost any proposal that is not a minor revision of the SMM proposal would have to undergo dozens of stress tests and be put out for another round of public comment, both to identify weaknesses and gaps as well as demonstrate the community support that both the NTIA and the U.S. Congress have declared mandatory.

No one knows what will transpire in Dublin or whether the meeting will enhance progress or exacerbate gridlock. The purpose of this article is not to suggest a particular way forward toward a specified accountability model, but to suggest changes in the operating style of the Board and its inside and outside legal advisors that can facilitate progress and minimize the odds of gridlock.

Here are those suggestions:

1) The Board must immediately start operating in a far more transparent manner as regards its consideration of Accountability proposals — so that the community knows as much about the Board's legal advice, deliberations, degree of consensus, and decision-making process as the Board knows about the community's.

We live in an age where nearly every operation of government in democratic nations is broadcast and web-streamed live. And ICANN is a public benefit corporation ICANN spun out of the department of Commerce and charged with protecting and furthering the global public interest in the domain name system, and is officially committed to organizational transparency. Yet there are no videos or audios of Board meetings as well as no transcripts, and the minutes of those meetings provide little detail regarding how decisions were reached, and whether there was any significant dissent or compromise by Board members in regard to published decisions or public positions.

CCWG members seem aligned in thinking that greater transparency is an integral part of enhanced accountability, and the focus of the CCWG is to ensure greater Board accountability. Yet the CCWG's proposal defers consideration of most transparency enhancements to post-transition work stream 2 (WS2).

While that is generally reasonable given the complexity of these issues, one key exception should be made — and that is in regard to the transparency of the Board's consideration of the very accountability measures being developed for WS1 and 2.

It seems inconceivable that necessary ICANN accountability can be achieved if the Board persists in its presently opaque mode of operation following the transition. The time for the Board to embrace true transparency that shines a cleansing light on Board operations is coming, and opening the window on its own accountability deliberations is the logical place to begin.

The ultimate default for all Board activities should be full transparency, with redaction only for narrowly circumscribed matters. Absent such transparency, the lingering question will always be, "What are they hiding? Another secret Resolution like the September 2103 one that triggered this whole process?"

While that is a long-term goal, the defined tasks for WS1 should be a pre-transition implementation requirement that all Board activities encompassing Accountability matters relating to the IANA transition be fully transparent to the community once a final proposal has been approved by the Chartering Organizations.

That requirement would shrink the current yawning gap between the nearly unlimited information available to the Board regarding the community's activities (via the CCWG) on accountability matters, versus the community's near total lack of access to Board consideration of the same subject. The Board has full access to every email and every opinion from CCWG counsel at the moment it is sent across the CCWG email list, and any member of the Board can participate fully in CCWG discussions and meetings. By contrast, the community has no access to internal Board emails regarding accountability, no access to General Counsel and Jones Day legal opinions except on a highly selective and delayed basis, and no ability to even observe, much less participate, in Board discussions of accountability.

The result of this glaring information asymmetry is a data disconnect that is antithetical to fostering consensus between the CCWG and the Board regarding accountability. The Board sees everything the CCWG is doing in real time, while the CCWG sees nothing of relevant Board activities and information until it chooses to share it, and even then such access is of a limited nature.

Imagine if the CCWG had been provided equivalent access to Board discussions and legal documents before the July F2F meeting in LA. Perhaps the decision would have been made not to hold the meeting if the CCWG knew that the Board had determined to never support the sole member model (SMM). Or perhaps CCWG access to Board discussions and General Counsel/Jones Day analysis on a timelier basis would have fostered a constructive dialogue and facilitated preparations that would have permitted the LA meeting to be far more productive, rather than leaving many CCWG members feeling they had walked into an ambush.

While WS1 should require that all Board activities encompassing Accountability matters relating to the IANA transition be made fully transparent to the community, the better course would be for the Board to voluntarily begin that practice immediately.

The benefits of such near-term voluntary Board action would include these:

  • It would help make up for lost time. It is quite apparent that the fallout from the LA meeting, as well as the subsequent Board statement indicating non-support for the designator fallback, includes adding at least weeks if not months to the CCWG's process as it strives to determine both the reasons for the Board's position and a viable way forward in reaction to it. Restricting information flows is highly inefficient. CCWG access to Board accountability deliberations in real time would substantially improve the overall efficiency of the accountability shaping process.
  • It would demonstrate the Board's commitment to a far higher level of transparency, and its acknowledgement that such transparency is the bedrock foundation of the enhanced accountability that must accompany the transition.
  • It would help restore trust between the CCWG and the Board, which has been substantially bruised in LA and subsequently.

Finally, while I would not advocate open participation by CCWG members in Board accountability discussions to the same extent that Board members can participate in CCWG activities, I would propose consideration of establishment of select CCWG liaisons who can do so, and then report back to the CCWG on the Board's thinking and concerns.

Let's be frank. The CCWG and the Board are presently at an impasse, and if this accountability effort fails it will be seen as a major failure of the multistakeholder model (MSM) itself. That's highly unfortunate, because the MSM has worked exceedingly well as demonstrated by the quality and quantity of the CCWG's work product to date; the problem lies not with the stakeholders but the Board
A perception of MSM failure is a mortal threat to ICANN's future and simply unacceptable. Dramatic shifts are required now to foster positive progress in Dublin.

2) Concerns communicated by the Board and its legal advisers regarding perceived problems in and issues arising from the CCWG proposal should be specific in detail, not general and undefined.

It is not productive for the Board and its legal advisers to raise broad and amorphous charges about the CCWG proposal such as "instability", "capture", and "against the global public interest" without citing specific examples of what specific bad acts might result from the proposal's implementation and subsequent abuse.

Rather than alleging that under some proposed accountability model ICANN processes might somehow be captured by a subset of supporting organizations (SOs) and advisory committees (ACs), who might then act against the global public interest, we should demand going forward that those raising such concerns, including the Board, cite specific examples of what harms they envision.

That is the only way in which the purported threat can be evaluated and stress tested. Without such specificity, such vague concerns seem akin to ghosts and goblins hiding in dark shadows — which disappear instantly when the lights are switched on. Specificity is the light switch that allows the community to see whether anything scary is really there and, if it is, to devise means for addressing it.

3) The Board and its legal advisers should display greater respect for the CCWG's and the overall ICANN community's ability to gauge the global public interest.

In its October 1st "High Level Response to CCWG Counsel's 29 September 2015 Slides", ICANN's outside counsel Jones Day stated:

proponents of the CCWG's Proposal minimize or ignore the fact that the shift to the SMM would place a significant amount of power in the hands of individuals and stakeholders that hold no fiduciary obligations to ICANN or the global stakeholder community. These individuals and stakeholders are free to act in their personal interest and are not required to make decisions based on what is best for ICANN, the ICANN community, and the global public interest. (Emphasis added)

While the Board may credibly state that it has a fiduciary duty to ICANN and strives to makes decisions beside upon what is best for ICANN, it cannot claim to make decisions based on what is best for the ICANN community — as its first duty is to the Corporation. And it is quite evident from the current accountability discussion that its views are at significant variance from those of the community members comprising the CCWG.

Most importantly, the Board has no greater claim to representing the global public interest than the community from which it is largely drawn. Reckless charges that the always open and increasingly diverse ICANN community does not represent the global public interest of Internet users is a suicidal argument against ICANN's own legitimacy, as well as that of its Consensus Policies which are developed by the community and imposed on all registry and registrar contracted parties.

As for the matter of the "global public interest" within the ongoing accountability process, points #2 & 3 of the CCWG Charter state:

2. If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board.

3. The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution. (Emphasis added)

I have inquired several times on the CCWG email list whether the Board's concerns regarding the SMM or Designator models amounted to a formal belief that they threatened the global public interest, and so far there has been no statement from any Board member that they did — much less a formal invoking of the formal dialogue process provided for in the CCWG Charter.

If the Board believes that either or both of those proposed models does so it would seem appropriate to immediately provide the required detailed rationale (back to point #2 on specificity) and start the necessary dialogue. If it does not, then it seems quite inappropriate and non-constructive for ICANN Counsel to raise such a purported threat to the global public interest in their memoranda.

The most unacceptable Board action would be to wait until after Dublin to invoke the "not in the global public interest" standard and thereby cause further process delay.

Conclusion

The Board and the ICANN community must engage in constructive dialogue in Dublin and seek to increase mutual understanding and narrow differences — so long as the dialogue does not descend into a bilateral negotiation process. The Board is an important stakeholder, but it is just one of many. The final CCWG proposal presented to the chartering organizations must be seen as a balanced, effective, and workable product of the multistakeholder process rather than perceived as a capitulation to an intransigent and opaque Board.

Adoption of the procedural improvements proposed in this article cannot ensure success in Dublin or beyond on accountability and the IANA transition. But they can provide a much greater likelihood of success by embracing the efficiency of openness, focusing on detailed specifics, and acknowledging that the community's understanding of and commitment to the global public interest is as strong and legitimate as the Board's.

By Philip S. Corwin, Founding Principal of Virtualaw LLC – 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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