Thank you for accepting public comment on this important issue addressing the legitimacy and accountability of an institution that provides Internet governance services to the global community, ICANN. While it is unfortunate that ICANN refused to entertain community drafted proposals on this effort to address the organization's accountability crisis, I do appreciate this opportunity to provide comment on the plan created by ICANN staff.
I support the cross community statement submitted by RySG, RrSG, Business Constituency, Intellectual Property Constituency, ISP Constituency, & ALAC:
A few points should be emphasized and added, however:
Scope of Accountability Improvements Must NOT be Narrowed
ICANN should not be permitted to limit the scope of this accountability effort as it appears to be doing in its 18 Sept. letter to leadership. ICANN's claims about the need to narrow the scope of the accountability work to only those accountability issues that relate specifically to the IANA stewardship transition should be rejected. There is no logical reason to limit the scope of the group's work, except to stifle the community from exploring accountability issues that ICANN would rather not be explored. ICANN's attempt to limit the scope of accountability efforts is an example of where ICANN's conflict of interest unfortunately influences its handling of the issue in the overall process.
Only Stakeholders Should be Included in Consensus Calls
Decisions on the coordination group should be made by the stake-holders whom ICANN was established to serve, not appointed "experts", ICANN staff, or board. Experts should serve in an advisory role, providing expertise to the stakeholders as requested, but should not comprise the decision making body nor consensus calls. ICANN Board and Staff should serve in liaison and informational roles in coordination group and not comprise the decision making body nor consensus calls. Stakeholder representatives should be provided "alternates" to assist with work on the coordination group. ICANN often claims to be legitimate because its governance decisions are made via bottom-up processes. "Bottom-up" decision making requires that those people who are impacted by the decisions should be making them. It is the democratic principle of self-governance which ICANN should be incorporating into its structures including the organization's critical accountability efforts. The community should drive this process, not staff nor board of ICANN, and not appointed experts.
Provide for Independent Accountability Mechanisms
The importance of an independent mechanism that ensures ICANN will be accountable to the community it serves cannot be underscored enough. None of ICANN's existing accountability mechanisms are independent from the board and thus all accountability improvements depend on the agreement of ICANN's board of directors to implement. While trust is important and a necessary precondition to productive engagement, trust alone is insufficient for building a robust governance system that is capable of remaining accountability irrespective of the individuals serving in official or decision making capacities. The goal is to build a system that doesn't have to rely on trusting the specific individuals who make decisions. We should build a governance system with robust checks and balances and independent mechanisms that ensure accountability in the absence of trust and regardless of motivations.
Board Rejection of Accountability Recommendations
Neither ICANN's Board nor staff should be allowed to reject the recommendations of the group without going through the community engagement process described in the cross community submission. I appreciate the staff's effort to require some engagement with the community should the board wish to reject recommendations, however I believe the process for rejection outlined in the cross community submission more appropriately handles the various interests at play.
New "Other" Category Invites Gaming, Discourages Engagement in Process
I have concern about the opportunity for "capture" or "gaming of the system" from the creation of the new "other" category of stakeholder. Stakeholders should make decisions, and ICANN has already provided for a mechanism to incorporate all the various significant interests or stakeholders via the SO/AC model. Creating the "other" category seems ripe for gaming and incentivizing people to NOT engage in the ICANN process, but rather remain an "other", separate from the process in order to obtain disproportionately high representation rights in the overall process.
ICANN is Not a Stakeholder and Must Address Conflict Issues
ICANN the corporation is not a stakeholder in the way that the community members are as alleged by ICANN in its plan's "rationale" and the corporation does have a conflict of interest in the underlying subject matter that must be dealt with. It was disappointing that despite the numerous comments in the previous round calling for attention to the issue of ICANN's conflict of interest in the underlying subject, ICANN has still been unwilling to acknowledge its conflict of interest, nor provide any strategy to reassure the community that it can be adequately addressed.
Respectfully Submitted,
Robin Gross
IP Justice
* Note: While I am a member of ICANN's Non-Commercial Stakeholders Group and presently serve on NCSG's Executive Committee, I submit this comment in my personal capacity as an active participant at ICANN for more than a decade.