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/ > > > >