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The ICANN Accountability and Transparency Review Team Recommendations: To Implementation, And Beyond

Brian Cute

Buzz Lightyear, the astronaut character from the movie Toy Story, is known for his tagline, "To infinity, and beyond!" ICANN can take a lesson from the ebullient Buzz with respect to accountability and transparency. Just as Buzz believed he could fly beyond infinity, ICANN should view full implementation of the Accountability and Transparency Review Team (ATRT) recommendations not as the last stop, but as the next stop on its important journey of accountability and transparency. There is indeed accountability and transparency beyond the ATRT recommendations.

The next step, of course, is the Board's implementation of the ATRT recommendations. The importance of this cannot be overstated. The Board sent a strong and positive signal in San Francisco that it intended to implement all of the ATRT recommendations. The Internet community is watching very carefully to see what the Board does with respect to implementation at the June meeting in Singapore. Importantly, the community is watching how the Board and Staff go about the business of implementation. This too must be done in an accountable, transparent and timely fashion, and to date, there are some doubts on that point. A Staff proposal to the Board on implementation of the Recommendations was posted publicly. However, the level of visibility into this aspect of the process and an articulation of how ICANN is interacting with the community as it builds its specific plans for implementation could be improved. Assistant Secretary Larry Strickling of the U.S. Department of Commerce, a member of the ATRT, underscored in recent speeches the importance of timely and full implementation of the ATRT recommendations. It is also worth noting that the ATRT identified certain recommendations that were to be implemented prior to June. Stay tuned.

Beyond the ATRT recommendations, the ICANN Board and Staff should be continuously thinking about ways to improve accountability and transparency. One important area that is not addressed in the ATRT recommendations is the issue of a "revolving door" policy. Revolving door policies exist for a number of governments and organizations as a simple matter of good governance. Where an industry is subject to regulation or oversight by a particular body, there is a risk that members of the oversight body will take jobs in the industry that they have been regulating, and thus be in a position to unduly influence the oversight body to the advantage of their particular firm. Likewise, members of industry can join the oversight body and unduly influence decision-making or the creation of rules to the advantage of his or her former employer. This type of behavior can raise questions about the accountability and transparency of the oversight body, and can seriously damage its reputation.

Revolving door policies typically constrain a former oversight body member's ability to lobby or make "representational contacts" with the oversight body for a proscribed period of time — typically for a period of one year, which is described as a "cooling off period." The constraints apply to management level employees and, when combined with an appropriate and enforced conflict-of-interest policy, can minimize the risk of real or apparent undue influence. Typically, these constraints are targeted against lobbying activities. An appropriate balance should be struck so that the oversight body neither loses access to critical industry expertise necessary for informed oversight nor imposes overly broad constraints that preclude a former member of the oversight body from employment in the industry altogether. With a common sense approach, properly implemented and enforced revolving door rules will instill confidence in the integrity of the oversight body's decision-making and policy creation. Apparently, there is no revolving door policy that applies to ICANN Board members or ICANN senior staff. There are plenty of examples of revolving door rules that ICANN could use as a point of reference to address this important issue.

With ICANN on the verge of releasing new top level domains, the risk associated with this type of unchecked behavior is high. The risk to ICANN's reputation is also high, particularly coming at the end of a contentious and protracted process of designing the rules under which a newTLD round can be launched. The ATRT recommendations are an important concrete step toward improving accountability and transparency for ICANN. A revolving door policy would demonstrate that ICANN is thinking beyond those important targets as well.

By Brian Cute, Chief Executive Officer, .ORG, The Public Interest Registry
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And whistleblowing Kieren McCarthy  –  May 16, 2011 1:19 PM PDT

The revolving door point is a good one. I would add to it the lack of a whistle-blower policy for those are still behind the door.

In one of the earlier reviews back in 2007 into ICANN's accountability and transparency by the One World Trust, it recommended the creation of a whistle-blower policy. And ICANN formally said it would introduce one - but nothing has happened since.

In its final report in March 2007, the One World Trust said: "While ICANN has three mechanisms for investigating complaints from members of the ICANN community, the organisation does not have a policy or system in place that provides staff with channels through which they can raise complaints in confidentiality and without fear of retaliation. Having such a policy (often referred to as a whistleblower policy) is good practice among global organisations."

As so it recommended that: "ICANN should consider developing a whistleblower policy that enables staff to raise concerns in a confidential manner and without fear of retaliation; and developing appropriate systems to foster compliance."

See: http://www.icann.org/en/announcements/announcement-4-29mar07.htm

ICANN's response in June 2007 was categorical: "A whistleblower policy will be developed by General Counsel that outlines ICANN’s local obligations under law as well as a statement of principle to develop a uniform approach across ICANN offices." (Point 4.2: http://www.icann.org/en/transparency/mop-update-07jun07.htm)

Nearly four years later and there is still no whistle-blower policy.

What that means for ICANN's current promises to introduce the recommendations that your review team developed, Brian, I don't know but I think you are wise to be keeping an eye on actual, real developments.

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