Lack of Accountability to Non-Commercial Users Remains Problematic for ICANN's Promise to Protect the Public Interest

[Robin Gross <robin@xxxxxxxxxxxxx>]

IP JUSTICE COMMENTS ON ACCOUNTABILITY AND TRANSPARENCY ISSUES AT ICANN
Submitted by Robin Gross, IP Justice Executive Director
14 July 2010

IP Justice appreciates this opportunity to provide comment to the  
ICANN Accountability and Transparency Review Team.  As a nonprofit  
public interest organization, IP Justice is concerned with the public  
interest aspects of ICANN policy and is a member of the Non- 
Commercial Users Stakeholders Group (NCSG).
IP Justice is deeply concerned that ICANN is insufficiently  
accountable to relevant non-commercial interests.  Certain interests,  
such as business interests (in particular the trademark and domain  
name industries) are over-represented at ICANN both in structure and  
in practice.  On the other hand, non-commercial interests and  
individual Internet users are not given the appropriate  
representation, although some improvements have been made in recent  
years.  There is a real worry that ICANN is an "industry  
organization" and works predominantly for trademark interests and the  
domain name industry.  Too often non-commercial concerns are ignored  
by ICANN; without any real "muscle" behind non-commercial interests,  
ICANN has little incentive to protect those interests in its policy  
development process.
Examples where ICANN insufficiently accounted for the concerns of non- 
commercial Internet users include the staff and board's handling of  
the new NCSG formation and its refusal to accept the charter drafted  
by global civil society and ultimate disenfranchisement of non- 
commercial users of 3 of its 6 GNSO Counsel seats (see IGP comment  
for specifics on this NCSG issue).  Another example is the creation  
of the 1-sided IRT Team, consisting almost exclusively of large  
trademark owners, which instituted rules forbidding IRT members from  
discussing IRT policy provisions with the community they represent,  
and proposed a "trademark wish list" of policy recommendations (see  
Komaitis comment for details on this IRT issue).    It is also worth  
noting that despite NCSG and At-Large long standing opposition to the  
"morality and public order" objections to new gtlds, citing freedom  
of expression concerns, staff chose to make protecting trademarks an  
"over-arching issue" that needs addressing by an IRT, while ignoring  
the freedom of expression concerns expressed by NCSG and At-Large  
members.  Public comments submitted by parties lacking muscle seem to  
go straight into the trash bin at ICANN.  Civil society is not going  
to continue to participate in public comment periods where ICANN does  
not consider and respond to the substantive issues raised, as it is a  
complete waste of time and legitimizes an illegitimate system.   
Unfortunately ICANN public comment periods seem to be little more  
than window-dressing and fodder for ICANN press releases.
Another example of ICANN not providing sufficient attention to the  
concerns of non-commercial users include the staff's refusal to  
follow-up on its promise to provide key legal research reported to  
support the staff's creation of legal standards for morality and  
public order objections to new domains.  Members of NCSG asked for  
this legal research a dozen times -- and it was promised by staff --  
but the research never materialized -- and the accuracy of staff's  
supposed legal standards remain in wide dispute.   One cannot help  
but wonder if staff's refusal to provide the promised research in  
dispute is a reflection of the lack of "muscle" in the ICANN  
community behind the party making the request.  There is no  
accountability mechanism - no check on the staff to actually respond  
to concerns from the community.   In the current environment, ICANN  
staff declares that "international law says x, y, and z", but there  
is no way to dispute that claim or to view the info that led ICANN  
staff to reach that (faulty) conclusion.  Staff's response of "just  
trust us" is not an acceptable form of accountability for a global  
governance organization charged with protecting the global public  
interest on matters of stability and security of the Internet.   
Transparency also provides a *quality control check* that is often  
over-looked given the other important values transparency also  
serves, but is nonetheless important.
ICANN is run too much like a large corporation and not enough like a  
genuine public interest organization. Besides the "corporate  
culture", the legal corporate governance structure of ICANN is a  
significant part of the problem in the organization's lack of  
accountability and transparency.  California law requires the ICANN  
Board of Directors to be the ultimate decision makers for ICANN  
policy and governance matters.  This is inherently at adds with  
providing an independent mechanism to check that decision making  
process, which is required for good public governance.
Under California law, which governs ICANN, the organization's board  
of directors is ultimately responsible and has the final say on  
decisions; but the reality is that the workload required to  
understand all the issues is unrealistic for a volunteer board.  The  
result is that staff "briefs" the board according to the staff's  
desires, ultimately managing the process that an over-extended board  
cannot.  The problem of "staff capture" creates a significant and  
growing problem for ICANN's accountability and transparency  
(particularly given the exploding budget and overpaid staff &  
consultants).  The staff's practice of providing secret briefing  
papers to the board on matters of key policy or governance  
dramatically undermines their claims of transparency and openness.
There must also be more openness and transparency in viewing board  
deliberations at ICANN.  Board decisions are made in secret without  
the community having an understanding of the reasoning behind the  
policy decisions and the specific positions taken by those chosen to  
represent them. The board should be less concerned with demonstrating  
a unified public front on policy decisions - a practice that  
encourages secretly negotiating unanimous votes with no public airing  
of the various views of the board.  The board owes -- and community  
needs to witness -- a substantive dialectic at the board level on  
public policy issues.  Each board member's individual vote should be  
recorded and published, as is done for legitimate public governance  
institutions in the interests of transparency and good governance.
Also, the GNSO's policy development process that works via  
"consensus" encourages a constant "chipping away" of the rights of  
Internet users with no fundamental principles (privacy, free  
expression) that can't be bargained away by the business interests at  
the negotiating table who vastly out-number non-commercial  
participants.   There seems to be a prevailing view that individual  
protections provided by public institutions in governance matters  
should not be extended at ICANN because ICANN is a "private  
corporation" (rather than a public institution or government actor).   
Yet any "private" governance model that leaves "public" guarantees of  
civil liberties, due process rights, and other public interest  
concerns in the past is a deeply flawed step backwards that must be  
immediately challenged.
The lack of funds to support meaningful participation in the ICANN  
policy process remains one of the biggest hurdles for noncommercial  
participation and magnifies the under-representation of noncommercial  
users in ICANN policy decisions.   Empowering the At-Large structures  
and providing Internet users a real and direct election for their  
board representation and other leadership positions would be a  
significant step to increase accountability with respect to  
individual Internet users.  Members of At-Large structures should be  
treated on an equal footing with the Government Advisory Council  
members with appropriate consideration given to the view of  
individual Internet users as expressed through the At-Large structures.
Another problem for ICANN's accountability is its current model for  
an "ombudsman".  Having an independent, neutral, ethical, and  
competent "third-party" to oversee certain governance decisions is a  
fine idea in principle.  But to work in practice, it requires an  
ombudsman that is not *really* a member of the ICANN staff; that  
remains neutral on pending matters; doesn't publicly take a position  
on a pending dispute and encourage the community to agree with that  
position on a public blog before the other side of the dispute has  
responded to the complaint, for example.  For an "ombudsman" to work,  
it would have to be a person who does not "pal around" with staff and  
come running to the defense of staff (or their agents) against the  
community every time a complaint is filed.  A real *outsider* with  
genuine independence and neutrality would have to exist for that  
model to provide meaningful accountability.  A credible ombudsman  
would not be found by a legal tribunal to be "uncredible" for  
manipulation of evidence in a dispute proceeding.  A respectable  
ombudsman would not launch into a moral crusade imposing a personal  
view of "civility" at ICANN, while demeaning "little people" in real  
life.   So there are troubling implementation issues regarding  
ICANN's current ombudsman model that significantly undermines ICANN's  
legitimacy and ability to serve the public interest.
In conclusion, while some improvements have been made in recent  
years, ICANN should do more to promote meaningful accountability and  
transparency.  In particular, it must support and maintain a vibrant  
and welcoming space for truly non-commercial participation.  ICANN  
must live up to its promise to promote the global public interest and  
be more than just an industry organization concerned primarily with  
negotiating policies that serve entrenched commercial players.
Respectfully submitted,
Robin Gross
IP Justice


IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
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