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Removing Principle of Confidentiality in ICANN's NomCom is a Bad Idea

Wolfgang Kleinwächter

In its informal background paper "Applying the Highest Standard of Corporate Governance" (August 2011) the European Commission proposes to revise the procedures of ICANNs Nominating Committee (NomCom). Instead of the confidential treatment of applicants the EU calls for an open publication of "a full list of candidates". Is this a good idea? I don't think so.

The rationale behind the EU proposal is "to improve confidence on the selection procedure" and "to avoid conflict of interests". But the proposed improvement is based on a wrong assumption, it ignores the real practice and it could become counterproductive.

The NomCom selects eight voting members of the ICANN Board in a staggered process over a period of three years. Seven Board members are elected by the Supporting Organizations and the At Large Advisory Committee. The Board is completed by the CEO and a couple of non-voting liaisons to advisory committees.

The NomCom emerged in 2002 as a substitute for an election process. Originally that board was designed for 19 voting members: Nine coming from the three supporting organizations, nine from At Large and the CEO. An At Large election test took place in 2000 for five directors but it produced mixed results. An "At Large Study Group" (ALSG) chaired by the former Swedish prime minister Carl Bildt analyzed the strengths and weaknesses of an open election process in a community with a potential of hundreds of millions of Internet users (and voters). In 2002 — as part of its reform process — the ICANN Board decided to reduce the number of voting members in the board from 19 to 15. It established the NomCom as an independent body and gave the NomCom a right to select half of the board members. As in open and free election, everybody can apply for an ICANN leadership position, but the final decision is now in the hands of the independent NomCom which represents the various constituencies of ICANN.

The NomCom is totally independent. It communicates with the broader community but it takes no orders neither from the CEO or the Chair of the Board nor from other ICANN Bodies. It has 15 voting members. Each ICANN constituency can send a pre-determined number of voting members to the NomCom. The At Large Advisory Committee (ALAC) sends for instance five voting members — that is one third of the voting power — to the NomCom. As an unwritten rule, NomCom voting members serve no longer than two years. The NomCom Chair, his/her Associate and Adviser are non-voting members. This avoids the emergence of "cliques" or "voting blocks" in the NomCom.

All this gives the NomCom a high degree of legitimacy. The NomCom represents indeed the various members of the ICANN family in a rather balanced way which constitutes a high degree of legitimacy. One can put it this way: The ICANN community itself — via its delegates to the NomCom — selects in a bottom up process its own leadership. This is a good example for a functioning bottom up participatory democracy. Probably the NomCom is the most democratic element in the whole ICANN architecture.

One basic principle of the NomComs is the confidentially of its work. To be more precise: The NomCom treats the personal data of the applicants in a confidential way. But with regard to its policies, procedures and practices the NomCom it as open and transparent as possible. The principle of confidentiality protects primarily the candidate and gives the NomCom enough independent decision making power for the final selection.

ICANNs board of directors should include not only world class experts, the board as a whole has to have also a broad mix of multidisciplinary expertise to meet the broad challenges which come with the development of the Internet and the management of its critical resources as the DNS. The board needs experts from technology, management, finances, law, policy, security, just to flag a view needed skills.

One of the benefits of the NomCom selection process is that it allows to rebalances imbalances which can occur from the election of Board members via the SOs or ACs. One example: If the sitting board has already four lawyers there is no need to select another lawyer even if a candidate with the legal expertise is extremely well qualified. But if there is no lawyer in the board, the NomCom has a chance to find a world class lawyer to fill such a skill gap.

As mentioned above the principle of confidentiality protects the candidate. In an open election process candidates fight against each other and at the end of the election there are winners and losers. The NomCom procedure does not know losers. If nobody knows that somebody has applied, nobody will treat this person as a loser is she/he is not selected. And as described above, the final selection is determined by a lot of criteria, which include also gender and age balance, balance between Internet pioneers and newcomers or outsiders and others.

With other words, if a very well qualified candidate is not selected, it does not mean that she/he is not fit for the job. She/he does not fit into the concrete board mix of the year. The next year this can be different because the rotation principle leads to a permanent re-composition of the board. There were some well qualified ICANN directors, who did not fit into the mix in her/his first application year, but made it the other year. Once again: The principle of confidentiality protects a candidate against potential damages of her/his reputation. It is not a principle which hides or promotes conspiracy.

Part of the "Statement of Interest" (SOI) which candidates have to deliver is also a clear statement with potential conflicts of interests. And this element has certainly played an important role in the final selection procedure in every NomCom since 2002.

The NomCom attracts every year around 80 applications from all over the world. And the quality of the candidates is growing. Since two years the so-called "World Cup Approach" was used by the NomCom to reduce the pool of candidates gradually to find out the best people. In the final pool — the so-called semifinal — we had about a dozen remaining candidates and each of them would be an excellent ICANN director. Only after a very careful discussion of the various combinations and how a certain "plate" would fit into the sitting board, the 15 voting members made their final decision.

If the principle of confidentiality would be removed this would change the nature of the NomCom process. As a consequence one would have to go back to elections with all the problems and uncertainties which have been analyzed by the Bildt-Group in 2001.

If the EU proposal would be implemented the risk is high 1. that it would discourage the application of high qualified candidates who fear to loose and to damage their reputation; 2. that it would stimulate aggressive public campaigning of and fighting among candidates; 3. it would promote extensive lobbying towards individual NomCom members, including hidden efforts to buy votes.

Since 2002 about 25 ICANN directors were selected by the NomCom. I do not know one single case where we had a "conflict of interest" problem. The cases where such a conflict emerged were with directors who made its way into the board via the supporting organizations and the ALAC. Insofar one can ask the question: "What is broken with the NomCom?". And if it isn´t broken, don´t fix it!

By Wolfgang Kleinwächter, Professor Emeritus at the University of Aarhus and Member of the ICANN Board. In his article he expresses his very personal opinion.

Related topics: ICANN, Policy & Regulation

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Comments

Time for the NomCom to wake up Kieren McCarthy  –  Sep 09, 2011 5:34 PM PDT

This issue of an excessively secretive NomCom has been going on at least five years, and each time it is defended by… those that have been in the NomCom.

The broad point for why change is needed: there should be no place for a highly secretive body within the ICANN structure, particularly one that makes vital decisions.

Just about the only thing that people know about the NomCom is who it's members are. The rest of it is a complete black box that once a year pumps out names of people who then go on to make vital decisions for the organization.

It is extraordinary that this arrangement is not only allowed to continue but is actively and aggressively defended. In fact, the NomCom has grown its own sub-culture where it already has all the answers to why it cannot change. And why that is in the interests of ICANN. And yet, every year, people ask: why is this process so secretive?

You put forward the well-worn counter-arguments to change:

* People won't want to apply (for fear of losing face)
* It will cause campaigning
* It will cause lobbying

So let's just agree that there isn't going to be wholesale change in the NomCom in the next year: the fear of change is too great; the fear of unintended consequences looms too large.

What about a simple inclusion of new defaults?

At the moment, there is no option for people to go public with their application. In fact, it is actively discouraged and looked down upon. Only this year, a female applicant from Russia tweeted that she thought she might have been chosen — and the NomCom and ICANN worlds were all a-chatter about how appalling that was. I personally heard two people saying "we can't choose her now".

That is a very strange cultural default. Someone is proudly and publicly saying: "I have put myself forward for this volunteer position. And I am excited about possibly being chosen." And the response: "Off with her head." This is not a healthy situation.

And it explains why the NomCom *ONLY* gets 90 applicants each year.

Around 1,500 people going to ICANN meetings three times a year. I know from my research that one third of them have never been to an ICANN meeting before (every meeting btw, one third); and a further third have been to one or less that year.

The NomCom is looking at a pool of 3,000 active ICANN participants. Only 3 percent ever apply to take a leadership role. Has the NomCom ever asked people why? I doubt it. Why? Because the NomCom culture is closed, secretive, insular, elitist. Ironically, most of the people in it aren't, but the Committee itself is.

So, since people are always complaining about the NomCom's secrecy, and since the NomCom constantly assures everyone that everything is above board and works really well, why not just dip a toe into the pool of greater openness?

Why doesn't the NomCom provide a box on the application this year which says: "I wish to make my application public." Just a box. People can tick it or not tick it. And underneath that box, reads: "Whether or not you choose to make your application public will have no bearing whatsoever on your application."

Applications are published on the NomCom website. Those that are public contain full details (minus contact details); those private, just their region, sex, and positions they are applying for.

NomCom members would be explicitly told that no discussion of whether a candidate's application is public or not is relevant or allowed during discussions.

In fact, if you want to live within normal ICANN standards, the box would be ticked by default and people will have to untick it. That would provide the privacy that the NomCom claims is so absolutely vital to the election process.

It would be interesting to see how many people next year decide how important it is that no one knows they stood for election.

Here's a question.

Why doesn't the NomCom makes its procedures public? And its meeting dates public?

What could possibly happen one way or another is people knew the actual process by which people were chosen, or when those meetings physically took place?

This should be absolutely baseline for a Committee that makes such important decisions. But it isn't. I can feel NomCom members actively trying to thing of more reasons why they can't tell anyone how the NomCom makes decisions or when. Except it can. And it should. But the culture of secrecy prevents it from happening.

Another question.

When so much thought is gone into selecting people - why doesn't the NomCom ever provide the *reasons* that it choose the people it did?

We are assured it was for very good reasons. What were those reasons? We can't tell you, but they were very good. This is a nonsense. If you spend 12 months making a decision about five people, there should be an expectation that the reasoning for those choices is explained.

It simply isn't good enough for the NomCom to say: "You have to trust us." In the exact same way that the community has made it very clear that it is not acceptable for the ICANN Board to simply announce the results of its discussions without explaining its reasoning, rationale and material used to get to that point.

As to the campaigning and lobbying claims - I don't buy it. I have seen first hand the intense campaigning and lobbying that goes on. The only difference is that it only happens among the real insiders. Is that their privilege? The fact that they have discerned the secret inner workings of the NomCom - is their reward to be granted a little more influence than others?

CIRA, auDA, Nominet, ARIN, APNIC, ISOC and dozens of other Internet organization run an open election process. Why should ICANN be any different?

But there is a bigger point here.

ICANN is entering a new phase. It is becoming larger, more important, more influential. More is expected of it. Its culture and approach can no longer be decided by a small cliche of accepted insiders.

ICANN is moving (being dragged) into an era of greater openness and transparency. The NomCom is an anachronism from a different time. It can either accept that and start making changes, serious changes, now; or it can continue to cling on to its outdated secrecy and group-think justifications and eventually be shredded or discarded. No one will miss it.

Let the process breathe. The NomCom needs to take the power away from itself and give it to the people that are actually applying. And if it doesn't, then the next ATRT review will do it for them.

Even a broken clock can be right sometimes Avri Doria  –  Sep 09, 2011 8:45 PM PDT

I have had a lot of problems with the government oriented solutions that the EC papers have been proposing for ICANN.  But this time, they are right.  Nomcom needs fixing if it has any chance of being an appropriate way of picking leaders for ICANN.

- Nomcom should not work in secret.
- Nomcom should not be an insiders game.
- Nomcom should not be something that ICANN staff might have involvement with depending on decisions made by the chair - it should be completely separate from the ICANN ,Staff.
- Nomcom should not be controlled by a group of business stakeholders - Commercial stakeholders get at least 6 of the seats on the Nomcom, with Commercial participants possibly getting many of the other seats - in fact only 2 of the seats are set aside for noncommercial participants, the NCUC seat and the academic seat - the Business Constituency alone gets two seats: one for large businesses and one for small businesses.
- Nomcom chairs should not be selected in secret by the board without at least getting community comment first.  At the very least the people responsible for chairing Nomcom should be vetted by the people involved in ICANN.

But most certainly, Nomcom should publish the names of candidates and should solicit comments from the community on the applicants for the posts Nomcom is responsible for selecting.

I'd agree with a lot of what Michele Neylon  –  Sep 10, 2011 7:44 AM PDT

I'd agree with a lot of what Kieren said.

The secrecy surrounding NomCom isn't healthy. I've absolutely no idea how it works, when it works, or anything else about it.

I'd agree that publishing candidates etc., could have a negative effect, but I'd also like to think that people wouldn't be afraid to announce their intention to put themselves forward for a position if they wanted to. Candidates should have that choice themselves.

Publishing Candidates Names Avri Doria  –  Sep 10, 2011 8:59 AM PDT

Reading Michele's note that mentions the possible negative effects I am reminded of a long held belief.  Yes, there may be some negative effects, but the hurly burly of ICANN is such that if someone cannot weather the negative effects of having their name published while being considered for a task, they will never be able to survive the scrutiny and discomfort that is sometimes the reward for participation in ICANN.

As a privacy matter, I agree that candidates should be able to chose this for themselves.  But except in rare occasions, I would hope that those who chose to hide their identities would not be selected.  So I guess I disagree with Kieren on this point - it should have an effect of whether they are chosen on not chosen.

Avri - I was thinking more about Michele Neylon  –  Sep 10, 2011 9:08 AM PDT

Avri - I was thinking more about people canvassing for votes or trying to influence the selection panel. I wasn't as concerned about the other side of it.

Michele

Canvassing is fine .. I'm thinking of the shadier side of things Suresh Ramasubramanian  –  Sep 12, 2011 8:43 AM PDT

vote buying for instance.

But a transparent election process kind of guards against this.

And it also gives us a far wider consensus than what a nomcom can provide.

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