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Comments on Discussion Draft: Affirmation Reviews

  • To: "affrev-draft-processes@xxxxxxxxx" <affrev-draft-processes@xxxxxxxxx>
  • Subject: Comments on Discussion Draft: Affirmation Reviews
  • From: Shawn Gunnarson <sgunnarson@xxxxxxxxxx>
  • Date: Tue, 2 Feb 2010 11:15:52 -0700

Mr. Lorenzoni:

I appreciate this opportunity to submit these comments on the draft proposal 
concerning Affirmation Reviews (Proposal) and compliment ICANN for responding 
in a constructive way to its responsibilities described in the Affirmation of 
Commitments (Affirmation).  After careful review, I recommend that the Proposal 
be replaced by a narrower and less prescriptive document or, at least, that a 
few refinements be adopted to preserve the independence and autonomy of the 
review teams.

The Affirmation publicly announced ICANN's commitment to organize periodic 
reviews of its activities with respect to (1) its transparency, accountability, 
and commitment to acting in the public interest; (2) its security plan; (3) the 
competition, consumer trust, and consumer choice promoted (or not) by the 
possible introduction of new gTLDs; and (4) its WHOIS policy. These reviews 
comprise an essential part of the Affirmation; indeed, describing how and why 
they will be conducted occupies over half the content of the Affirmation.

The Proposal drafted by ICANN in response consists of a "draft framework" 
intended "to provide a vehicle for community comment on all aspects of the 
review process, and to serve as guidance for the review teams." Proposal, at 3. 
This framework rehearses the Affirmation's requirements, proposes review 
methodology, describes preliminary activities, sets out a timeline, and 
recommends draft terms of reference for the first Accountability and 
Transparency review. Id. at 5. Although the Proposal is detailed and lengthy, 
my recommendations address only a few points of particular concern.  (A minor 
correction should be made to the pagination of the Proposal.  It should list 
page numbers consecutively as "Page 1 of 32," "Page 2 of 32," and so forth, 
rather than as "Page 1 of 1.")

*                Substituting the Proposal with a less prescriptive document 
would be more likely to produce the independent reviews required by the 
Affirmation. The Proposal states that review teams "are independent from the 
ICANN Board and staff" and that they have "full decisional and operational 
autonomy." Id. at 3, 22. I wholeheartedly endorse the need for such 
independence and autonomy, which would seem necessary if the reviews required 
by the Affirmation are to be something more useful than a rubber stamp for the 
status quo.  Yet the Proposal somewhat inconsistently sets forth a detailed 
review methodology, the preferred size of review teams, criteria for selecting 
members of the review teams, and a timeline chock full of intermediate 
deadlines-none of which is mentioned in the Affirmation. This level of detail 
is so prescriptive, in fact, that it could undermine the effectiveness of 
reviews evidently intended by the Affirmation to supply an independent look at 
ICANN's activities. Assurances of the review teams' independence and autonomy 
are barely noticeable in the crowd of detailed recommendations described in the 
Proposal. It should be replaced with a shorter document that more narrowly sets 
out the requirements that the reviews must satisfy under the Affirmation and 
emphasizes ICANN's availability to assist with organizing the review teams. 
Even if the Proposal is not replaced, it can be improved with a few refinements 
described below.

*                Eliminate the recommended use of consultants.  This 
recommendation cannot be fairly attributed to the Affirmation. Introducing 
experts in "participatory or empowerment evaluation" is at best superfluous and 
at worst inconsistent with the Affirmation.  Eliminating their recommended use 
will streamline the pre-review process, substantially reduce the estimated cost 
of the reviews, and bring them into line with the language of the Affirmation.

*                Public comment periods should be standardized and reasonable 
but no shorter than 30 days.  The Affirmation requires public comment on the 
constitution of the review teams, the terms and output of each review, and the 
review teams' recommendations to ICANN's Board of Directors. Those comments are 
intended to improve and strengthen the work of the review teams. To ensure that 
members of the public have an adequate time to prepare and submit comments on 
the critical stages of the reviews, as required by the Affirmation, a 
standardized public comment period should be adopted.  That period should be 
reasonable but no shorter than 30 days.

*                Leave the size and selection criteria of the review teams to 
be determined by the parties authorized by the Affirmation to select them. The 
Affirmation plainly states who will determine "[c]omposition of the review 
team" for each type of review. Specifying selection criteria for team members 
is inconsistent with that authority. Public comment on the constitution of each 
review team is the only constraint placed by the Affirmation on the selection 
of review team members by the designated parties, and that authority should not 
be limited further.

*                Leave the selection of review methodology to the review teams. 
Selecting the methodology by which each review is to be conducted is the heart 
of the review process. Interfering with the work of the review teams on this 
point threatens their independence and, with it, the basic usefulness of the 
reviews themselves. Each review team should be left free to select the review 
methodology that seems to it best suited to address the matters assigned it by 
the Affirmation. Having said that, the Affirmation specifically requires review 
teams to publish the terms and output of each review for public comment and to 
amend the review in light of such comments before presenting its 
recommendations to the Board of Directors. The soundness of the reviews is 
adequately ensured by these requirements; they should not be multiplied beyond 
what the Affirmation provides.

In conclusion, I appreciate the opportunity to present these comments and look 
forward to participating in the Affirmation Review process as it continues 

R. Shawn Gunnarson
Kirton & McConkie
518 West 800 North, Suite 204
Orem, Utah 84057
(801) 426-2100

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