Thanks Robin. This is undoubtedly the single best summary of ICANN's so called accountability efforts that has been written. A must read.

-----Original Message-----
From: Robin Gross <[log in to unmask]>
To: [log in to unmask]
Date: Thu, 21 Aug 2014 11:48:01 -0700
Subject: Quelle Suprise!  ICANN’s Accountability Plan Gives ICANN Board Total Control

> I wrote my take on ICANN's accountability plan which was announced a
> few days ago by ICANN.
> 
> http://bit.ly/1p0Hy38
> 
> Best,
> Robin
> ---------------------------
> Quelle Suprise!  ICANN’s Accountability Plan Gives ICANN Board Total
> Control
> 
> ICANN Limits Accountability Improvement Measures to Toothless
> Self-Policing
> 
> By Robin Gross
> 
> I.  ICANN’s So-Called “Enhancing Accountability” Process
> 
> After a long await, ICANN’s senior management finally released its
> plan for “Enhancing Accountability” at the private California
> corporation that makes global Internet domain name policy. 
> Unfortunately, the accountability deficit crisis created by ICANN’s
> longstanding policy of purely “self-policing” with no meaningful
> external accountability mechanisms will not be solved by this weak plan
> for more self-policing. 
> 
> Perhaps telling was the organization’s initial and consistent framing
> of the issue as “maintaining” accountability beyond the end of the
> US Government’s stewardship role, rather than acknowledging that this
> effort was in response to widespread community outcry expressing major
> dissatisfaction with ICANN’s inadequate existing accountability
> measures.
> 
> Conflict of Interest Disregarded by ICANN in Formulation of Plan
> 
> Many organizations and individuals commented online and during the
> London ICANN #50 meeting about the inherent conflict of interest with
> respect to an organization that proposes to manage the process that
> could reveal the organization’s accountability shortcomings and thus
> not always show the organization in its best light if the process is
> rigorously pursued.  Rather than heed the numerous cautions from the
> community regarding ICANN’s conflict of interest in attempting to
> design the process to hold itself accountable, ICANN plans to be in
> charge of every key element of the process.
> 
> Irregular Process Employed in Development of ICANN Plan
> 
> From the beginning, ICANN’s senior management has driven the entire
> process for creating this plan, from posting a series of leading and
> somewhat irrelevant questions on which it would take public comment on
> accountability, and then developing the plan 100% internally without an
> opportunity for the community to provide meaningful input.  ICANN
> should have invited the community to make proposals for a plan based on
> the public comment, but ICANN senior management reserved the plan
> development right exclusively to itself.
> 
> No Bottom-up Proposal For Consideration, Only Top-Down Edict for
> Implementation
> 
> Nor is ICANN permitting a public comment period on its accountability
> plan, which is odd given the importance of the issue, ICANN’s
> inherent conflict of interest in the underlying issue, and the stated
> regular practice of providing an opportunity for public comment on an
> ICANN proposal.  But in this case, it isn’t a proposal for the public
> to comment on, or which the community may influence; rather, it is
> ICANN’s plan for what it intends do (not much) and ICANN isn’t
> taking input on it.  There is not the usual pretense of “bottom-up”
> from senior staff about this ICANN plan.  Instead ICANN senior staff
> fully admits its judgment supersedes the community’s judgment in
> ICANN’s belated written explanation for its plan.
> 
> Irregular Delay of Publication of Qualities Recognized to be Built into
> Plan
> 
> Another irregular aspect of this process, which coincidentally
> disempowered the community’s ability to engage in the plan’s
> development, was senior management’s decision to withhold its
> synthesis of the public comments until after staff developed and
> published its plan as a fait-de-complait.  And even then, the belated
> synthesis was framed as an argument in favor of staff’s specific plan
> forward, rather than a neutral evaluation of the public comments and
> inviting community discussion about the specific needs and desired
> characteristics to build into the plan.  
> 
> ICANN senior staff claims there was no time to entertain proposals from
> the community.  The initial public comment period ended before the
> London ICANN meeting in June, so ICANN could have invited proposals at
> any time over the last 6-8 weeks of public delay but behind the scenes
> engineering.  Whatever the intent was in delaying the release of this
> information to the public, it was inappropriate for staff to delay the
> sharing of its plan until it was too far along in the process for the
> community to provide meaningful input.  That just isn’t how
> “bottom-up” policy is made, if we are being honest. 
> 
> At best, ICANN senior staff’s handling of the process was another
> half-baked and hurried mistake that breeds mistrust.  At worst, it
> demonstrates a troubling misuse of staff position in the process to
> engineer an outcome favoring the organization at the expense of other
> legitimate interests.
> 
> ICANN Declares Itself Top Decision Maker
> 
> Despite ICANN senior management assurances in London when speaking to
> community groups, that the community would primarily be making these
> key decisions, ICANN now openly claims it is in a position to over-rule
> the community and impose its own judgment over that of the community on
> these key decisions about how to hold the organization accountable for
> its actions.
> 
> Although ICANN senior management frequently claims the organization is
> “bottom up” and therefore legitimate in its authority, ICANN has
> not explained on what authority it may replace the bottom up
> community’s judgment with its own in the formulation of this
> plan/edict.  It remains to be seen if the community will quietly accept
> this ICANN power play and further usurpation of the interest ultimately
> served by ICANN away from the public interest.  What if the community
> actually calls ICANN on its flimsy and self-serving justifications?
> 
> II.  Substance of the ICANN Plan
> 
> Don’t Get Too Excited
> 
> It should come as no surprise that a plan which was developed through a
> process entirely controlled by ICANN senior management favors the
> organization in its substance as well.  Bad process produces outcomes
> equally bad in substance.   
> 
> In short, the plan will be largely ineffective about addressing
> ICANN’s major accountability problems, such as constant mission
> creep, top-down decision making, transparency shortcomings, failing to
> respect human rights in org policies, and meaningless internal redress
> measures when the board/staff fail to follow the organization’s
> bylaws or other stated processes.
> 
> Under its plan, ICANN is creating three new bodies to work under the
> banner “Enhancing ICANN Accountability and Governance”.  The
> “Coordination Group” prioritizes issues and makes decisions about
> final recommendations and solutions on issues identified by the
> “Cross Community Group”.  ICANN has also created the “Public
> Experts Group” which is comprised of 4 individuals that ICANN has
> deemed “respectable” to appoint 7 people onto the key decision
> making “Coordination Group”.
> 
> ICANN Board Will Exclusively Decide Which Improvements to Accept
> 
> All one really needs to know is that under ICANN’s plan, its board
> may adopt or reject any recommendation of this accountability effort at
> its own option.  So despite widespread calls for independent
> accountability measures from the community, ICANN board will make all
> final decisions about what accountability improvements may actually be
> made.  Under ICANN’s plan, recommendations that call for the board to
> operate in a more transparent manner could be rejected by the board for
> example.  A plan for more self-policing does not provide confidence
> that meaningful accountability reform will result from this effort,
> unfortunately.
> 
> ICANN Board Will Exclusively Develop Groups’ Charters
> 
> Since the power to decide which of the groups’ recommendations are
> implemented was not enough control over this effort for ICANN’s
> board, the plan further provides for the board to be in total control
> of the development of the charters under which the accountability
> groups will operate.   Not exactly “bottom up” operations.  
> Nothing gets in that the board doesn’t want, and nothing coming out
> will be adopted that the board doesn’t approve.
> 
> Group Members Include Several Obliged to Protect ICANN
> 
> The Coordination Group, which is empowered with prioritizing issues and
> recommending solutions, is far too heavily stacked with individuals who
> are beholden to ICANN for their appointment or are a representatives of
> the organization and under a legal obligation to always act in the best
> interests of the corporation.  Besides the stakeholders who represent
> communities ICANN was established to serve, ICANN has installed a staff
> member, which management confirmed would be one of ICANN’s lawyers,
> onto the Coordination Group.  ICANN has also decided that a board
> member should additionally serve as a liaison on the Coordination
> Group.  Both the ICANN board member and ICANN staff lawyer are under
> strict legal obligations to protect the corporation under California
> law by virtue of their fiduciary role with respect to the organization
> and attending legal obligations.  So there are at least two members of
> the Coordination Group with strong incentives to avoid finding any
> fault with the organization or need for serious improvement.  ICANN
> additionally plans to appoint someone who is an “expert on the ATRT
> process” (aka “ICANN insider”) to the Coordination Group.
> 
> What this process highlights is that the public’s interest to
> rigorously pursue accountability improvements in a global governance
> organization clashes with hard and cold corporate legal obligations to
> protect the corporation.  ICANN’s board, senior staff, and lawyers
> hold obligations under California law to always act in the best
> interests of the corporation – not the public interest.   This means
> they can’t admit mistakes, and will be legally obligated to mitigate
> ICANN’s responsibility for any wrongdoing.  Board member and lawyer
> “whistle blowers” are generally illegal in California.   Given
> reports of disgruntled ex-ICANN board members receiving cease and
> desist letters citing this legal obligation to keep quiet, there is
> little incentive for these group members to push for a thorough and
> rigorous examination of ICANN’s accountability shortcomings within
> the group.
> 
> Anti-Democratic: Comprised too Heavily of Non-Stakeholder
> “Advisors”
> 
> As a global public governance institution, ICANN has an obligation to
> aspire to and operate in accordance with democratic principles for it
> to have any legitimacy to govern.   Unfortunately this plan takes ICANN
> and its unique model of multi-stakeholder governance several steps away
> from “democratic”, in which decisions are made by the stakeholders,
> those impacted by the decisions -- and more towards a top-down
> corporate structure that operates in the interest of the private
> organization, instead of the public interest.
> 
> ICANN has installed (up to) 7 “advisors” to additionally serve on
> the Coordination Group, who are not stakeholders, but should provide
> expertise on specific issues related to accountability.  The two main
> problems with this plan is that any external “advisors” should be
> selected by a legitimate bottom-up process, and should serve, in fact,
> in an “advisory” role -- and not in a decision making role.  The
> non-democratic “advisors” is another sign from ICANN that it
> doesn’t actually trust bottom-up governance, but instead relies
> heavily on hand-picked “experts” to temper the will of the
> stakeholders – those who are subject to ICANN’s policies.  No
> rationale was provided by ICANN for why it needs so many
> non-stakeholder decision makers in proportion to actual stakeholders
> given democratic principles of self-governance.  
> 
> As noted, these non-stakeholder “advisors” shall be appointed by 4
> individuals that ICANN has deemed “respectable” (which means not
> likely to cause any trouble for the organization), who together ICANN
> calls “the Public Experts Group”.  Despite ICANN’s attempt at
> slight-of-hand regarding the organization’s unacceptable appointment
> of these “advisors” (shifting from board to staff appointment, but
> still ICANN-appointed), these appointments are not truly independent if
> they were selected by someone that ICANN senior management had to
> approve in the first place.  The source of authority (the corporation,
> not the bottom-up public) is still the same in both cases and
> illegitimate for being anti-democratic.  The community should be making
> these appointments, especially given the organization’s inherent
> conflict of interest in the underlying issue.
> 
> Decision Making Roles Mislabeled as Advisory Roles in ICANN Plan
> 
> Furthermore, they are not truly “advisors” used for “specific
> expertise”, but rather are appointments empowered to make decisions
> about final recommendations.  Those are entirely different roles with
> different sources of authority.  Democratic values require
> “advisors” to in fact serve in an “advisory” role, and not in a
> decisional role, which is reserved for stakeholders – those governed
> by the decisions this group makes.  Experts are certainly welcome and
> should be utilized in a true advisory role.   It is simply dishonest
> for ICANN to label people “advisors” while empowering them to be
> key decision makers in the process.
> 
> ICANN Decided It is the Primary Interest to be Served by the ICANN Plan
> 
> It was a remarkable move for ICANN to so openly claim in its plan that
> its own corporate interest supersedes the interest of the Internet
> community that the organization was established to serve.  ICANN boldly
> stated in its “analysis of comments” that ICANN itself is a
> stakeholder in this process as a holder of resources, and as such is
> entitled to be the predominant decisional point and interest served in
> this effort.
> 
> With this plan ICANN has officially usurped the authority of those
> stakeholders that the organization is supposed to serve.  The public
> interest must yield to the organization’s separate interest.   ICANN
> has become an “end” in and of itself with a blank checkbook and
> unbounded ambition.
> 
> III.  Conclusion: Search For True ICANN Accountability Must Move
> Elsewhere
> 
> Despite the overwhelming call for the community creation of an
> independent accountability process, board-controlled toothless,
> self-policing is all ICANN senior management will permit with this
> effort.  The community will have to come together and build a plan of
> its own in order to get the much needed accountability improvements
> that are necessary for the management of critical Internet resources. 
> Certainly some painless minor cosmetic type improvements could be
> achieved with ICANN’s plan, but the painful efforts required to
> achieve meaningful accountability from ICANN will have to move to
> another forum, outside of ICANN’s control.
> 
> Addendum:  ICANN Accountability Discussion at IGF 2014
> 
> We can take a closer look at the ICANN accountability crisis at the
> United Nations Internet Governance Forum (IGF), which meets in Istanbul
> from 2-5 September 2014 to explore Internet governance issues.  A panel
> discussion to tackle the issue of ICANN accountability will be held on
> Wednesday, 3 September from 9:00 – 10:30 a.m. in Istanbul (9:00am
> PDT), with online remote participation available. 
> 
> The IGF workshop panelists include Larry Strictling of the US NTIA, Pat
> Kane of Verisign, ICANN Board Member Gonzalo Navarro, Carlos Afonso of
> CGI.br, Avri Doria, Jordan Carter of InternetNZ, and ICANN Ombudsman
> Chris LaHatte.  The IGF workshop #23 entitled “Accountability in the
> ICANN Multi-Stakeholder Governance Regime” is moderated by Robin
> Gross and co-sponsored by IP Justice, CGI.br, the Internet Governance
> Project, the Public Interest Registry, the Internet Commerce
> Association, and InternetNZ.   David Cake of Electronic Frontiers
> Australia is the remote participation moderator for this IGF session,
> which will be held in the IGF venue room #2.
> 
>  More information on this IGF Workshop #23 is available here:
> 
>   
> http://ipjustice.org/wp/2014/08/21/igf-2014-workshop-23-accountability-
> in-the-icann-multi-stakeholder-governance-regime/
> 
>  
> 
>