Personal Responses to Accountability & Transparency Review Team Questions

[Avri Doria <avri@xxxxxx>]

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.