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Comments of Coalition for Online Accountability

  • To: <board-review-interim@xxxxxxxxx>
  • Subject: Comments of Coalition for Online Accountability
  • From: "Metalitz, Steven" <met@xxxxxxx>
  • Date: Fri, 17 Apr 2009 12:04:03 -0700

Attached (and pasted below) please find comments on the Coalition for Online 
Accountability re the Board review interim report.  

Steven J. Metalitz
Counsel, Coalition for Online Accountability

The Coalition for Online Accountability (COA) offers the following comments on 
some aspects of the "ICANN Board Review Working Group Report for discussion 
with the ICANN community," sometimes referred to as the "interim report." See 
http://www.icann.org/en/public-comment/#board-review and links therein. See the 
end of this submission for information about COA.  

        Introductory Remarks   

        ICANN has enshrined in its bylaws a culture of reiterative review of 
its structures and component entities.  According to the ICANN web site, five 
of these reviews (including the Board review) were in process on March 20 (the 
most recent date for which data is available).  See 
http://www.icann.org/en/reviews/.  In fact this understates the impact on the 
organization of this culture of constant - some might say obsessive - review.

        COA is most familiar with the review of the Generic Names Supporting 
Organization.  That review has evidently been "completed," from ICANN's 
perspective.  But all GNSO participants (including the Intellectual Property 
Constituency, to which COA belongs) remain deluged by a flood of demands to 
expend limited time, resources, and mental bandwidth on implementation of the 
results of the review.  From COA's perspective, the thousands of person-hours 
that have been devoted to the GNSO review have produced very little of concrete 
benefit, and have diverted scarce time and attention from real issues that 
should be addressed.  Perhaps that cost-benefit balance will change over time, 
but this is very unlikely to happen before it is time for the next GNSO review 
mandated by the ICANN by-laws.  

        In this environment, it is almost impossible for COA or its members - 
or any other person or entity  with business, professional or personal 
responsibilities outside of ICANN --  to participate meaningfully in the 
multitudinous ICANN review processes. We know that our views are shared by many 
other active participants in the IPC and other constituencies.  Perhaps this 
helps explain why the four reviews currently open for public comment at one 
stage or another have, as of April 16, attracted a grand total of 19 public 
comments, perhaps a third of which appear to be spam.  See 

        Nonetheless, we are motivated to submit these comments on the Board 
review, because it is clearly needed.  ICANN, whether viewed as a non-profit 
corporation, a forum for competing and collaborating interests, or a 
"community," is not as well served as it should be by the way its Board of 
Directors is currently chosen, how it now operates, and how it communicates 
with the rest of the organization.    

        Comments on Interim Report  

        Recommendation #1:  Reduce the size of the Board.  

        COA is not necessarily opposed to some reduction in the size of the 
Board.  But the more important question is how the Board should be constituted. 

        We support a reduction in the number of Board members chosen through 
the Nominating Committee process.  For an organization that is supposedly 
striving to increase its accountability and transparency, it is hard to defend 
the current practice of choosing the majority of its leadership through a 
Nominating Committee process that is designed to be entirely unaccountable and 

        We oppose giving the At Large Advisory Committee the right to appoint 
voting Board members, particularly if the overall size of the Board is to be 

        COA strongly opposes a reduction in the number of Board members chosen 
by the Supporting Organizations, particularly the GNSO.  The Board may need 
more, not fewer, members who are chosen (even if indirectly) by organizations 
and individuals with vital and direct stakes in the policy decisions 
recommended by GNSO and brought to the Board.  In this regard, we are 
constrained to note that, as one piece of unfinished business in the 
"completed" GNSO review, the Board has yet to decide the process for filling of 
Board slots allocated to the "restructured" GNSO, although a concrete proposal 
supported by all the GNSO constituencies has been before it for almost nine 
months.  See 

        Recommendation #5:  Make board membership more sustainable.  

        COA opposes the recommendation to "abandon extensive minutes for Board 
meetings."  It is interesting that the main justification for this 
recommendation seems to be the complaint of Board members that it takes them 
too much time to review drafts of such detailed minutes.  The focus should not 
be on the convenience of Board members, but on transparency as to the decisions 
taken (or not taken) by the Board, and the reasons pro and con for doing so.  

        Currently, when the Board meets in public (in conjunction with ICANN 
meetings), the decisions and reasons (at least those stated in the meeting by 
Board members) are available instantly.  For all its other meetings, this 
information is only released long after the event.  Indeed, as of April 16, 
2009, the most recent Board meeting for which formal "minutes" have been posted 
on the ICANN website took place on October 1, 2008.  For subsequent non-public 
meetings, a "preliminary report" has been posted, some of which are very 
detailed (see, e.g., December 11, 2008), others of which consist only of the 
text of resolutions adopted (see, e.g., February 3, 2009).  See generally 
http://www.icann.org/en/minutes/. Whether through the prompt release of 
detailed minutes or otherwise, a better and more consistent solution is needed. 

        COA supports in principle the payment of reasonable remuneration to 
Board members, particularly to the Chair of the Board.  To be effective in this 
role, the Chair must devote an extraordinary amount of time and other resources 
to the post.  The failure to pay any remuneration for these efforts can only 
have, in the long run, a degrading effect on the quality of the Board members 
in general, and of the chair in particular.  One result to be avoided is that 
the President, as the only Board member who is compensated  by ICANN, assumes a 
disproportionate role on the Board.  Whether or not there are, as the Interim 
Report puts it, any "post-JPA waters" through which ICANN must be "navigated," 
it seems quite likely that the complete lack of remuneration for Board members 
is a negative factor in recruitment of the highest quality leadership.  

        The Interim Report refers to "a separate exercise to determine 
appropriate parameters for Board compensation in an organization such as 
ICANN."  This reference should be explained, as we are unaware of any such 
"exercise."  COA has no comment to offer at this point about the appropriate 
level of remuneration for Board members.  

        We also note the reference to "consideration [to be] given to 
compensation for others who make a significant contribution and commitment to 
ICANN, such as chairs and perhaps councils of Supporting Organizations and 
Advisory Committees."  This proposal raises issues that are distinct from those 
regarding compensation of Board members and should be considered separately. 

        Recommendation #8:  Clarify the board's accountabilities.  

        Item 8(d) mentions "possible conflict issues in the board's role 
overseeing the ICANN community whether its members are appointed by those who 
are doing the work."  This is far from the only source of concern about whether 
the Board adequately discloses conflicts of interests, and whether its existing 
conflicts policy, now a decade old, adequately protects against the appearance 
or reality of impropriety in this regard.  COA has stressed the need for an 
updated and more rigorous conflicts policy in several previous public 
submissions. See 
http://forum.icann.org/lists/recon-bylaws-revision/msg00000.html (joint 
comments with INTA Internet Committee); 
http://forum.icann.org/lists/bcoc/msg00002.html.  We understand from the most 
recent posted minutes of the Board Governance Committee that, as of February 
28, 2009, the BGC directed its members "to provide Staff with final edits to 
the revised Conflicts of Interest Policy." 
http://www.icann.org/en/minutes/minutes-bgc-28feb09.htm.  COA hopes that the 
revised policy will be released for public review in the very near future.  

        We agree that "the future work division between paid staff and 
volunteers" (see item 8(e)) is a critical issue for ICANN.  With the explosive 
growth in the organization's budget and its staffing levels, business 
participants in ICANN (other than those with contractual relationships with the 
organization, i.e., registries and registrars) have yet to experience the 
increase in staff support that they require, although there have been some 
steps in the right direction. 

        If there are questions concerning these comments, please do not 
hesitate to contact the undersigned.  

        Respectfully submitted, 

        Steven J. Metalitz, counsel to COA 

COA consists of nine leading copyright industry companies, trade associations 
and member organizations of copyright owners.  These are the American Society 
of Composers, Authors and Publishers (ASCAP); the Business Software Alliance 
(BSA); Broadcast Music, Inc. (BMI); the Entertainment Software Association 
(ESA); the Motion Picture Association of America (MPAA); the Recording Industry 
Association of America (RIAA); the Software and Information Industry 
Association (SIIA); Time Warner Inc.; and the Walt Disney Company.  COA is a 
member of the Intellectual Property Constituency of ICANN's Generic Names 
Supporting Organization (GNSO). COA and its participants have engaged actively 
in many aspects of ICANN's work since the inception of the organization

 <<COA comments on board review submitted 041709 (2201691).pdf>> 

Attachment: COA comments on board review submitted 041709 (2201691).pdf
Description: Adobe PDF Document

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