Personal Responses to Accountability & Transparency Review Team Questions
While these answers to the questions contained in http://www.icann.org/en/reviews/affirmation/community-questions-18may10-en.pdf have been reviewed by the membership of the Non Commercial stakeholder Group, they are the personal answers of the author. I have not bothered to repeat all the questions and refer he reader back to http://www.icann.org/en/reviews/affirmation/community-questions-18may10-en.pdf. Avri Doria 1. The ICANN Policy 'Support' Staff has operated in a very non accountable way in many of its dealings with the Board on "behalf' of the rest of the volunteer community. Instead of serving as a reliable broker, it has a well established practice of send secret reports to the Board on policy and on SO and AC affairs. On a few occasions when those reports have become known, they appeared to contain false statements. It is impossible to know whether the apparent false statements are due to errors or strategy, but they have nevertheless appeared to be false. And whether the false statements were accidental or intentional, the community never has a chance to review what is written or to respond and correct the record. The community has frequently asked for these secret reports to made public - especially those that pertain to the activities and decision making of the SOs and ACs, with the understanding that there are occasionally issues that need to be private, but the Policy 'Support' Staff has mostly not responded to the requests, let alone opened itself up to scrutiny and accountability. It is impossible to know how many ICANN Board decisions were based on faulty information and all private memos from the last year's must to be made public and open to public scrutiny if ICANN is ever to be considered an accountable and transparent institution. I understand that the Board is currently considering an experiment to see if perhaps some of the information can be made public. While the thought is nice, this is far too little. What is required is for there to be a change in the mentality of ICANN from one of a Culture of Secrecy where some things are carefully made public, to a Culture of Openness where some things are carefully made secret. This would be a major reversal in the mindset of much of ICANN's leadership. 2. The Ombudsman is not a viable option. Perhaps in theory it is, but an Ombudsman is supposed to be someone who is outside the organization and who is guaranteed neutral by virtue of this separateness. We have an Ombudsman who has been involved in the organization longer than many of the volunteers or staff members and is an integral part of the staff who pals around with them and the Board. This is not, in any way, a viable accountability mechanism. In order to become a viable accountability mechanism, it would be necessary to replace an Ombudsman every 2 or 3 years, and it would be necessary for the person picked to remain separate from the Staff and the volunteers. 3. For the most part, the decision making that goes on in the SOs seems transparent - certainly more so than most other organizations or parts of ICANN. However, due to the black hole that exits between SO recommendations, secret staff reports and recommendations, and secret Board deliberations, most of the transparency is lost. Staff reports should be publicly vetted and Board deliberations should be audiocast and recorded - in the same way laudable way that the A&T RT has decided on and which the GNSO has a history of. 4. ICANN is still primarily focused on supporting those who can make money on GTLDs and on assuaging the anger of a few powerful governments and not on the Global Public Interest. For example, there is still a great imbalance, 3:1, in the GNSO between those who represent business and those who represent the Non Commercial interests. In terms of an event, I believe that the preference that the ICANN staff clearly showed to releasing IDN ccTLDs over IDN gTLDs, including reports (again always difficult to report without revealing sources from within the ICANN blanket of secrecy) that there was a guarantee that the IDN ccTLDs would be in the root 6 months before any new gTLD were allowed in the root. The clear way in which the staff hustled to overcome any IDN ccTLD issues, including the technical one, e.g. IDNAbis or Synchronized TLDs, while languishing through the creation of the so-called Overriding Issues to slow down the new gTLD process was a way to meet international pressure from governments at the cost of competition and freedom in the creation of IDN gTLD by the same populations who are now receiving the IDN ccTLDs. In each of the countries where new IDN ccTLDs have been put into the root before businesses or the civil population had an opportunity to apply for a gTLD, the By-laws mandate for competition has been deliberately sacrificed. I hope that the Review Team has the ability to dig into any and all email archives and to question staff members (past and present) under guarantees of personnel immunity on events that occurred over the past years in managing to push the Fasttrack , which started long after the new gTLD policy, into the root at least 6 months ahead of new gTLDs Because they are allowed to act secretly in these as well as many other respects, it is impossible to know exactly what the Staff is doing. In addition to eliminating the ability of the Staff to work in secret, there should be whistle blower programs and protections to encourage those staff members who see problems to report them publicly without fear or retribution. Whistle blower programs have, in many institutions, proven to be the best regulatory mechanisms. Volunteers should not have to receive reports of Staff activities with the urging that they cannot repeat what they are being told because it might cost them their job. 5. I believe it is really remiss that the Board is responsible for evaluating its own performance as opposed to having a committee that includes members of the SO and ACs do the evaluation. An appeals mechanism is most definitely necessary, and various recommendations for such an appeals mechanisms were made the during the review before the MOU was replaced by the AOC. While the AOC Review mechanisms are a start, they are not sufficient. Discussion should be initiated on a standing multistakeholder oversight entity. 6. The GAC is only one of two ACs in a position to review the performance of the public interest. The ALAC should have equal consideration in that effort. I believe the by-laws requirement that the GAC give non-binding advice and that there be a policy for responding and deliberating that advice is a good rule that should be extended to the ALAC. I also believe that this needs to be done in an open and transparent way. I believe that some of the tendency these day to regard GAC principles as addenda to the by-laws is misplaced and a serious error. The role of the GAC and ALAC is not oversight, but advice on the full scope of ICANN issues and activities. It should also be clear that there is a difference between concrete advice and general principles. While general principles should be given careful regard in policy creation, they are not advice that merits the by-law mandated remedy. 7. The reviews of GAC and ALAC issues need to be deliberate and specific, with the discussions open to the community and the results clearly and adequately published for reference. The most important improvement that needs to be made is to give ALAC the same non binding consideration that the GAC has in terms of advice that is listened to, understood, considered, deliberated, and responded to. 8. While comment response is improving, it is not good enough yet. All comments should be reviewed and responded to in writing. Not all comments require or merit a change in the process, policy or document under review, but all need to be reviewed and understood with the responses clearly documented. In some cases this has started happening and that is good. In other cases this has not happened either because the staff was said to not have the resources or because the volunteers did not feel the comments merited a response. This is an area where further improvement is required. 9. The current rush to create a central DNS Cert authority with invitation-only meetings and staff declarations that this is an operational issue and not a policy issue is the latest event of that nature. By and large most ICANN 'operational' decisions are never fully explained and never opened to review and response by the ICANN volunteer community unless the community raises a fuss. This is an area where great improvement is required as it must be recognized that all operational issues have a certain degree of policy effect. 10. I believe the recent ICANN staff decision to reserve Geographical names in way contrary to the policy recommendation of the GNSO that had been approved by the Board is one such instance where the decision was neither embraced, supported or accepted. This is a problem. 11. I think the policy development process is improving in this regard with more diverse working groups and earlier discussion of issues. The secrecy at the top, however, where the policy recommendations can be obviated though various means (including secret misinformation) remains a serious problem, and a way in which the improvements can be negated.