I hope James Wire could make it. We need East Africa Community representation at ICANN@reinforced On Thu, Jul 15, 2010 at 11:07 PM, Robin Gross <[log in to unmask]> wrote: > 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] > > >