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What Is the Purpose of ICANN's Comment Periods?

Michael Karanicolas

Almost every institution which purports to provide space for public accountability includes some sort of formalized process by which the public can have their say. And in almost every instance, they struggle with a tension between the desire to provide a commenting process which is meaningful and substantive (or, at least, which appears to be so), and a desire to adopt whatever course of action the institution thinks is best.

If the public comments come back supporting the same outcome that the institution likes, it's easy enough to just rubber stamp that course of action and move forward. But what happens when, god forbid, the public seems to want something different than what you've decided to give them?

ICANN found itself facing this dilemma when a recent public comment period on changes to the .org registry agreement returned over 3,000 comments (a huge number for an ICANN consultation). These overwhelmingly opposed the new terms, particularly a decision to scrap price caps on .org domains. Although a number of the comments were drafted by domainers, there were also a large number submitted by non-profits, who were concerned that their own domain name costs might rise significantly under the new terms. These were likely mobilized by the National Council of Nonprofits, an advocacy group with 25,000 institutional members who have been vocally opposed to the changes. In at least one case, a registrar specifically notified their .org registrants about the new proposed contract, and that there was a comment period ongoing. ICANN promised to "consider the feedback from the community on this issue”, but ultimately decided the commenters were all just wrong in their interpretation of the changes, and elected to plow ahead with their chosen course of action.

In response to a pair of appeals against the decision, filed by the Electronic Frontier Foundation, a digital rights group, and by Namecheap, a domain name registrar, ICANN's Ombudsman went a step further, noting that, because a large number of the comments were submitted electronically and contained similar talking points, they could essentially be dismissed as being "akin to spam".

This is a hugely problematic stance for an ICANN representative to take, as it essentially invalidates a core tool for civil society advocacy. Grassroots mobilization, particularly around electronic comment periods, is a routine tactic for NGOs, having been utilized most famously in response to the FCC's Net Neutrality consultation. To be clear, there is no suggestion that these comments were submitted by bots, or that the individuals and organizations purporting to have authored them did not actually send them in, but rather that a domain industry lobby group was instrumental to spreading the word about the change, and whipping up public opposition. In other words — they were engaging in advocacy. However, regardless of whether this particular campaign originated from an industry group, a registrar, or from the National Council of Nonprofits, it is troubling to see ICANN dismissing comments because they were collected via an organized campaign, since it essentially closes off the comment space to anyone other than ICANN insiders. This defeats the purpose of having public comments in the first place.

None of this is to suggest that public consultations should be a matter of direct democracy. There is an important role for ICANN's institutional expertise in guiding the decision-making process. But the fact that such an overwhelming response was ignored leads to natural questions about whether any level of public opposition would have been sufficient to force a change in strategy. And if the answer is no, what was the point of these consultations?

This is a challenge which every institution that holds public comment periods has to grapple with at some point. But the fact that ICANN's response to this level of opposition was, first, to merely restate their original rationale for the decision, and second, to invalidate the commenters as "akin to spam" suggests ICANN staff have not made any effort to try and develop a coherent policy on how to meaningfully incorporate public commentary into their decision-making process.

ICANN plays a unique role in the Internet governance space, and its legitimacy is heavily predicated on its public accountability. If ICANN does not take this duty seriously, people will naturally start to question why it should be entrusted with this role.

By Michael Karanicolas, Wikimedia Fellow at Yale Law School
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Well said! Zak Muscovitch  –  Sep 14, 2019 4:20 PM PST

Assisting concerned registrants and nonprofits in expressing their opinion via a grassroots letter writing campaign is akin to “spam”? I mean, really. Shameful position, let alone for an Ombudsman, of all people.

Moreover, ad one commenter pointed out in DomainIncite (http://domainincite.com/24720-org-price-cap-complaints-more-like-spam-says-ombudsman) ICANN could have and probably should have asked .org registrants directly what they thought and the result would have been a heck of a lot more opposition to removing price caps than this.

Here is the ICA’s letter to the Ombudsman addressing this issue:
https://www.internetcommerce.org/wp-content/uploads/2019/09/Letter-to-ICANN-Ombudsman-September-12-2019.pdf

Much at stake Kathy Kleiman  –  Sep 15, 2019 4:27 PM PST

The issue at stake – as shown in comments by EFF, NCSG and the Internet Governance Project – is far more than the rise of .ORG prices.  Free Expression, Due Process and the value of the Multistakeholder Process itself (or lack thereof) lie at the heart of the harm caused by ICANN Staff’s decision to extend to .ORG terms, policies and processes never intended by the Community for large legacy gTLDs.  These de-stabilizing Staff decisions lie at the heart of the concerns the ICANN Board has been asked to re-consider.

Links:
URS Is a Bad Fit for .ORG, Says EFF — http://www.circleid.com/posts/20190806_urs_is_a_bad_fit_for_dot_org_says_eff/

The real problem with the new .ORG contract – https://www.internetgovernance.org/2019/07/04/the-real-problem-with-the-new-org-contract/

EFF and DNRC Oppose the Addition of Censorship-Promoting Terms to the .ORG Registry Agreement — https://mm.icann.org/pipermail/comments-org-renewal-18mar19/2019q2/003200.html

NCSG Comments on .ORG Renewal — https://mm.icann.org/pipermail/comments-org-renewal-18mar19/attachments/20190430/b10daf64/NCSG.ORGRenewalComment.pdf

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