ICANN Transparency and Accountability

["Edward Hasbrouck" <edward@xxxxxxxxxxxxx>]

ICANN has asked for "community input on the development of transparency 
and accountability management operating principles ... as part of the 
strategic plan". 

I have previously made comments on the draft ICANN strategic plan, 
specifically addressing exactly these questions of transparency and 
accountability.  I made these comments in person at the public forum on 
the strategic plan at ICANN's meeting in Vancouver in December 2005, and 
again in the online public forum on the draft strategic plan in March 
2006.  I reiterate them and incorporate them here by reference:  

http://forum.icann.org/lists/stratplan-draft-comments/msg00000.html 

These were the *only* non-spam or timely comments on the draft of the 
strategic plan, but they have been entirely ignored.

ICANN has asked specific questions, including, "What standards of 
transparency are appropriate in ICANN operations and activity?"

I believe that the appropriate standard of transparency for ICANN is the 
standard in ICANN's current bylaws: "ICANN and its constituent bodies 
shall operate to the maximum extent feasible in an open and transparent 
manner".  I believe that there is a community consensus that (1) this 
standard of transparency should be retained, (2) ICANN has not complied 
with this clause of its bylaws, and therefore (3) major change by ICANN is 
essential for ICANN to comply with its existing transparency standard.

ICANN also asks, "How would you define "transparency" in the ICANN 
context?"  Three aspects of the current definition of the required 
standard of transparency are important:  (1) "ICANN and its constituent 
bodies" (i.e. all ICANN bodies, not just the Board of Directors), (2) 
"shall operate" (i.e. not just meetings but all "operations") and (3) "to 
the maximum extent feasible" (so that the *sole* test of whether a 
particular transparency request must be granted -- such as for access to 
meetings, documents, or records -- is whether it is feasible).

All of these three aspects of the meaning of transparency, as it is 
defined by the present ICANN bylaws, have been ignored by ICANN.  Many 
ICANN bodies, such as the Reconsideration Committee, have never held a 
public meeting.  Most GAC meetings are closed to the public and 
journalists.  Many ICANN bodies operate through means that are labelled as 
something other than a "meeting", such as a Board "retreat" or "dinner", 
or operate through non-public e-mail discussion lists.  Many feasible 
requests for transparency measures, such as to observe meetings or obtain 
copies of documents and records, have been ignored or denied.

ICANN also asks, "What standards of accountability are appropriate in 
ICANN operations and activity?"

Currently, ICANN is not accountable to the public or the community of 
Internet users, and is accountable to no external entity other than the 
governmental authorities of the state of California (who have the 
authority to revoke ICANN's corporate charter) and of the USA (which has 
the power to revoke, or to enforce, its contracts with ICANN). 

I believe that there is a community consensus (1) that oversight of ICANN 
solely by the governmental authorities of the state of California, and/or 
the USA, is neither appropriate nor sufficient, and has not been 
effective, and (2) that ICANN should be accountable to Internet users and 
potential users, through some means or body external to ICANN itself.

ICANN purports to operate in a bottom-up manner, but it does not.  Most 
ICANN decision-making is top-down.

ICANN purports to develop policies by consensus, but it does not.  Most 
policies and decisions are made by vote of the Board of Directors, or by 
fiat of ICANN's staff.

ICANN purports to operate openly and transparently, but it does not.  Most 
ICANN operations are conducted in secret.

ICANN purports to be acccountable, but it is not.  Even if ICANN were to 
implement its bylaws on independent review -- which it has not done -- any 
recommendations of an Independent Review Panel would only be advisory, and 
could be ignored by ICANN with no other penalty than having to pay for the 
IRP arbitration.  That is not sufficient to constitute "accountability".

Changes to ICANN's *principles* of accountability might be, and probably 
are, necessary to provide genuine accountability to some entity or through 
some means external to, and independent of, ICANN. But the most urgent 
need is for ICANN to begin to comply with the principles of transparency 
and accountability in its existing bylaws, with immediate effect.

Here is an outline of some of the basis components of a plan to bring 
ICANN into compliance with its transparency and accountability Bylaws:

(1) Admit publicly that ICANN does not comply with the principles of 
openness, transparency, and accountability in its Bylaws.  No meaningful 
progress is likely to be possible while ICANN continues to pretend that 
its current operations are to the maximum extent feasible open, 
transparent, accountable, or in compliance with ICANN's Bylaws.

(2) Appoint a "General Manager, Public Participation", as required by the 
Bylaws.  The present advertisement for the job with this title describes a 
manager of propaganda, not a manager of participation.  Appropriate 
expertise for this job would include experience in management of an 
organization that makes decisions by consensus, and skills in  
facilitation, coordination of decentralized voluntary committees, and 
participatory decision-making by geographically diverse participants.  
Expertise with online participation tools would be a major plus.

(3) With immediate effect, require all ICANN bodies to operate 
transparently, to the maximum extent feasible.

(4) Schedule a public and properly-noticed meeting of the Reconsideration 
Committee, as soon as feasible consistent with proper notice, to consider 
and act on the outstanding requests for reconsideration, including mine.

(5) Schedule a public and properly-noticed meeting of the Board of 
Directors, as soon as feasible consistent with proper notice, to consider 
and act on the outstanding requests for stay pending independent review, 
including mine, and to begin a policy-development process, in accordance 
with the procedural rules in ICANN's Bylaws, to designate an Independent 
Review Panel provider and to develop policies and procedures for 
independent review of ICANN decisions, so that those requests can be 
referred to a duly-designated IRP according to duly-approved procedures.

(6) Begin a policy-development process to develop procedures for 
compliance with ICANN's transparency Bylaw.  This should include:

        (A) standards for required notice of meetings (by whatever name they 
are 
called, and by whatever means they are conducted) and agendas;

        (B) public designation of a point of contact for requests for 
documents, 
records, or access to meetings;

        (C) standards for responses to such requests (time limits, notice of 
reasons if it it is deemed "not feasible" to grant a request, etc.);

        (D) contractual terms to be incorporated in all new or renewal ICANN 
contracts delegating decision-making authority, mandating compliance with 
these standards in the exercise of authority delegated by ICANN.

Expertise in these areas could, and should, be sought from those with 
experience with governmental and other transparency regulations, including 
Freedom of Information Act officers (by whatever names), journalists, and 
public-interest transparency advocates and organizations.

(7) Begin a process of review and publication of previously non-public 
ICANN operational records, such as meeting records, mailing lists, and 
decision documents.  Expertise could and should be sought from government 
employees, journalists and other users of records, and transparency 
advocates with experience in the "declassification" of government and 
other archives that have improperly been withheld from public disclosure.

(8) Begin a process of public review and "de novo" reconsideration of 
previous ICANN decisions made through procedures inconsistent with the 
maximum extent feasible of openness and transparency.

As an advocate for transparency, accountability, and decision-making by 
consensus, I stand ready to work with ICANN to realize the goal of 
compliance by ICANN with its transparency and accountability Bylaws.

Sincerely,

Edward Hasbrouck




----------------
Edward Hasbrouck
<edward@xxxxxxxxxxxxx>
<http://hasbrouck.org>
+1-415-824-0214

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