FYI: IP Justice comment submitted to ICANN Accountability and Transparency Review Team posted here: http://tiny.cc/ognid and http://forum.icann.org/lists/atrt-questions-2010/msg00021.html Begin forwarded message: > From: Robin Gross <[log in to unmask]> > Date: July 14, 2010 6:13:06 PM PDT > To: [log in to unmask] > Subject: Lack of Accountability to Non-Commercial Users Remains > Problematic for ICANN's Promise to Protect the Public Interest > > IP JUSTICE COMMENTS ON ACCOUNTABILITY AND TRANSPARENCY ISSUES AT ICANN > Submitted by Robin Gross, IP Justice Executive Director > 14 July 2010 > > IP Justice appreciates this opportunity to provide comment to the > ICANN Accountability and Transparency Review Team. As a nonprofit > public interest organization, IP Justice is concerned with the > public interest aspects of ICANN policy and is a member of the Non- > Commercial Users Stakeholders Group (NCSG). > > IP Justice is deeply concerned that ICANN is insufficiently > accountable to relevant non-commercial interests. Certain > interests, such as business interests (in particular the trademark > and domain name industries) are over-represented at ICANN both in > structure and in practice. On the other hand, non-commercial > interests and individual Internet users are not given the > appropriate representation, although some improvements have been > made in recent years. There is a real worry that ICANN is an > "industry organization" and works predominantly for trademark > interests and the domain name industry. Too often non-commercial > concerns are ignored by ICANN; without any real "muscle" behind non- > commercial interests, ICANN has little incentive to protect those > interests in its policy development process. > > Examples where ICANN insufficiently accounted for the concerns of > non-commercial Internet users include the staff and board's > handling of the new NCSG formation and its refusal to accept the > charter drafted by global civil society and ultimate > disenfranchisement of non-commercial users of 3 of its 6 GNSO > Counsel seats (see IGP comment for specifics on this NCSG issue). > Another example is the creation of the 1-sided IRT Team, consisting > almost exclusively of large trademark owners, which instituted > rules forbidding IRT members from discussing IRT policy provisions > with the community they represent, and proposed a "trademark wish > list" of policy recommendations (see Komaitis comment for details > on this IRT issue). It is also worth noting that despite NCSG > and At-Large long standing opposition to the "morality and public > order" objections to new gtlds, citing freedom of expression > concerns, staff chose to make protecting trademarks an "over- > arching issue" that needs addressing by an IRT, while ignoring the > freedom of expression concerns expressed by NCSG and At-Large > members. Public comments submitted by parties lacking muscle seem > to go straight into the trash bin at ICANN. Civil society is not > going to continue to participate in public comment periods where > ICANN does not consider and respond to the substantive issues > raised, as it is a complete waste of time and legitimizes an > illegitimate system. Unfortunately ICANN public comment periods > seem to be little more than window-dressing and fodder for ICANN > press releases. > > Another example of ICANN not providing sufficient attention to the > concerns of non-commercial users include the staff's refusal to > follow-up on its promise to provide key legal research reported to > support the staff's creation of legal standards for morality and > public order objections to new domains. Members of NCSG asked for > this legal research a dozen times -- and it was promised by staff > -- but the research never materialized -- and the accuracy of > staff's supposed legal standards remain in wide dispute. One > cannot help but wonder if staff's refusal to provide the promised > research in dispute is a reflection of the lack of "muscle" in the > ICANN community behind the party making the request. There is no > accountability mechanism - no check on the staff to actually > respond to concerns from the community. In the current > environment, ICANN staff declares that "international law says x, > y, and z", but there is no way to dispute that claim or to view the > info that led ICANN staff to reach that (faulty) conclusion. > Staff's response of "just trust us" is not an acceptable form of > accountability for a global governance organization charged with > protecting the global public interest on matters of stability and > security of the Internet. Transparency also provides a *quality > control check* that is often over-looked given the other important > values transparency also serves, but is nonetheless important. > > ICANN is run too much like a large corporation and not enough like > a genuine public interest organization. Besides the "corporate > culture", the legal corporate governance structure of ICANN is a > significant part of the problem in the organization's lack of > accountability and transparency. California law requires the ICANN > Board of Directors to be the ultimate decision makers for ICANN > policy and governance matters. This is inherently at adds with > providing an independent mechanism to check that decision making > process, which is required for good public governance. > > Under California law, which governs ICANN, the organization's board > of directors is ultimately responsible and has the final say on > decisions; but the reality is that the workload required to > understand all the issues is unrealistic for a volunteer board. > The result is that staff "briefs" the board according to the > staff's desires, ultimately managing the process that an over- > extended board cannot. The problem of "staff capture" creates a > significant and growing problem for ICANN's accountability and > transparency (particularly given the exploding budget and overpaid > staff & consultants). The staff's practice of providing secret > briefing papers to the board on matters of key policy or governance > dramatically undermines their claims of transparency and openness. > > There must also be more openness and transparency in viewing board > deliberations at ICANN. Board decisions are made in secret without > the community having an understanding of the reasoning behind the > policy decisions and the specific positions taken by those chosen > to represent them. The board should be less concerned with > demonstrating a unified public front on policy decisions - a > practice that encourages secretly negotiating unanimous votes with > no public airing of the various views of the board. The board owes > -- and community needs to witness -- a substantive dialectic at the > board level on public policy issues. Each board member's > individual vote should be recorded and published, as is done for > legitimate public governance institutions in the interests of > transparency and good governance. > > Also, the GNSO's policy development process that works via > "consensus" encourages a constant "chipping away" of the rights of > Internet users with no fundamental principles (privacy, free > expression) that can't be bargained away by the business interests > at the negotiating table who vastly out-number non-commercial > participants. There seems to be a prevailing view that individual > protections provided by public institutions in governance matters > should not be extended at ICANN because ICANN is a "private > corporation" (rather than a public institution or government > actor). Yet any "private" governance model that leaves "public" > guarantees of civil liberties, due process rights, and other public > interest concerns in the past is a deeply flawed step backwards > that must be immediately challenged. > > The lack of funds to support meaningful participation in the ICANN > policy process remains one of the biggest hurdles for noncommercial > participation and magnifies the under-representation of > noncommercial users in ICANN policy decisions. Empowering the At- > Large structures and providing Internet users a real and direct > election for their board representation and other leadership > positions would be a significant step to increase accountability > with respect to individual Internet users. Members of At-Large > structures should be treated on an equal footing with the > Government Advisory Council members with appropriate consideration > given to the view of individual Internet users as expressed through > the At-Large structures. > > Another problem for ICANN's accountability is its current model for > an "ombudsman". Having an independent, neutral, ethical, and > competent "third-party" to oversee certain governance decisions is > a fine idea in principle. But to work in practice, it requires an > ombudsman that is not *really* a member of the ICANN staff; that > remains neutral on pending matters; doesn't publicly take a > position on a pending dispute and encourage the community to agree > with that position on a public blog before the other side of the > dispute has responded to the complaint, for example. For an > "ombudsman" to work, it would have to be a person who does not "pal > around" with staff and come running to the defense of staff (or > their agents) against the community every time a complaint is > filed. A real *outsider* with genuine independence and neutrality > would have to exist for that model to provide meaningful > accountability. A credible ombudsman would not be found by a legal > tribunal to be "uncredible" for manipulation of evidence in a > dispute proceeding. A respectable ombudsman would not launch into > a moral crusade imposing a personal view of "civility" at ICANN, > while demeaning "little people" in real life. So there are > troubling implementation issues regarding ICANN's current ombudsman > model that significantly undermines ICANN's legitimacy and ability > to serve the public interest. > > In conclusion, while some improvements have been made in recent > years, ICANN should do more to promote meaningful accountability > and transparency. In particular, it must support and maintain a > vibrant and welcoming space for truly non-commercial > participation. ICANN must live up to its promise to promote the > global public interest and be more than just an industry > organization concerned primarily with negotiating policies that > serve entrenched commercial players. > > Respectfully submitted, > Robin Gross > IP Justice > > > IP JUSTICE > Robin Gross, Executive Director > 1192 Haight Street, San Francisco, CA 94117 USA > p: +1-415-553-6261 f: +1-415-462-6451 > w: http://www.ipjustice.org e: [log in to unmask] > > > IP JUSTICE Robin Gross, Executive Director 1192 Haight Street, San Francisco, CA 94117 USA p: +1-415-553-6261 f: +1-415-462-6451 w: http://www.ipjustice.org e: [log in to unmask]