Comments on Independent Reviewer's Report on the ICANN Board

[Antony Van Couvering <avc@xxxxxx>]

I thank ICANN for the opportunity to comment on the 100-page  
"Independent Reviewer's Report on the ICANN Board."  While my  
consulting company, Names@Work, works on projects connected to ICANN,  
I speak here as an individual, and not on behalf of any client.
With all the fuss about new gTLDs, this important report, and the  
recommendations made in it, must have escaped the notice of the many  
intelligent commentators within the ICANN community.  I say must have,  
because the conclusions of the report, and its recommendations, will  
cause grave concern to those who read it.
The report was written by the Boston Consulting Group, which "has  
focused on helping clients achieve competitive advantage," and Colin  
Carter & Associates, which provides "high level advice to major  
corporations in Australia and internationally."  This cliched  
corporate marketing-speak, which comprises the very first part of the  
report, is an important clue to the perspective of the report's  
authors, and perhaps the key to decoding their recommendations.
The report's authors treat the Board's work as if efficiency of  
execution, streamlining of process, and avoidance of fatigue by the  
Board's members are the criteria by which to judge it.  These are  
perhaps the proper values of the Board of a for-profit global  
corporation, but they are not appropriate for ICANN, which has assumed  
the heavy burden of a global public trust.
The authors of the report disclaim this bias, but I find that hard to  
credit.  They say (page 12) that "As reviewers, we have no intrinsic  
problem with ICANN’s model."  How, um, comforting.  If it is not  
intrinsic, what kind of problem do they have?  Clearly, if they bother  
to disclaim a particular class of discomfort, another one must exist.   
Bear in mind that these are the same people that put the words "public  
trust" in quotes in the previous paragraph.  Whatever the intentions  
of the reviewers, they are necessarily steeped in the corporatist  
values that they operate from.  These are not ICANN's values.  The  
Report must be read with their evident discomfort with ICANN's  
structure in mind.
For ICANN, the values must be not efficiency, but proper check and  
balances; not streamlining, but right action; and not alleviating the  
boredom of its Board, but in finding Board members who can shoulder  
the important challenge that a seat on the ICANN Board represents.   
This is not to say that there are not ways to achieve better results  
with fewer groans, and the report does include some useful  
suggestions, such as fewer Board teleconferences and longer face-to- 
face meetings.  Recommendations such as these are welcome, though one  
questions the need for an expensive 100-page study to rejigger meeting  
times.
The composition, agenda, and work effort of the Board must be seen in  
relation to the challenges that face ICANN.  The narrow lens of  
decision-making efficiency is grossly inappropriate to this remit, and  
renders the conclusions and recommendations of the Report misguided  
and dangerous.  The Board's work must also be seen in light of ICANN's  
stated guiding principles, which include diversity, transparency, and  
outreach.  As ICANN grows, it must also become concerned with the  
concentration of power in a few hands, in tandem with the absence of  
informed and active oversight.
Any suggestions regarding recomposition of the Board and its duties  
must be evidence-based.  This Report, however, has little of that,  
relying largely the authors opinions and what they take to be common  
knowledge.  I would say that until recently it was "common knowledge"  
that real estate was a safe investment.  Let us have thorough  
substantiation of recommendations, and less faith in experts whose  
common knowledge has filled the boards of the banks and hedge funds  
that have ruined a generation.
REDUCING THE SIZE OF THE BOARD

The first recommendation of the Report, to reduce the number of Board  
members, whether by some or by half, fails to conform to any of  
ICANN's principles.  Almost by definition a halving of the Board's  
membership is a loss of diversity, especially given the laudable  
representation on the Board of citizens of numerous countries and  
varieties of viewpoints.  Furthermore, the diversity of the Board, in  
and of itself, has been one of ICANN's major successes when it comes  
to outreach to those affected by ICANN's work, and a smaller Board  
clearly does not advance that agenda.  Transparency suffers too, in  
that it takes only one truth-telling Board member to inform the world,  
and our chances of that are much reduced by a smaller group, who must  
necessarily feel a greater solidarity with one another, and in  
consequence feel a smaller responsibility to the wider ICANN  
community.  ICANN's work is under constant attack; each member of a  
smaller Board would be subject to much greater scrutiny and criticism,  
the natural response to which is defensiveness and evasion.  The early  
ICANN Boards, which were smaller, exhibited exactly this behavior,  
whereas members of the later, larger Boards have been much more  
approachable and willing to express diverse opinions.
The authors of the report seem to recognize this, but come to an  
opposite conclusion:
"Quite different opinions can be seen in the survey results but it is  
not really
surprising that a diversity of views emerges. Our view is that this  
reflects the
truly challenging complexity of ICANN and its governance task as well  
as the
diversity of background of the board members themselves. On a large  
range
of issues – particularly on those relating to role, structure, process  
and people
– the board members are not of one mind.   These are mostly the areas  
where
opportunity for improvement exists." [Summary of Conclusions, Page 4]

Later on, they come up with a bare assertion that covers the rest of  
their thoughts on this matter (page 19):
"Some might think too that a large board is better able to exercise  
its duty of oversight over management than would a small board. But  
experience indicates that the opposite is true."
Footnotes?  References?  Case studies?  Anyone? Bueller?   
"Experience" (someone's, apparently) is what "indicates" that their  
point is correct.  I dispute that this thin and unsupported assertion  
should be the basis for a radical transformation of the Board.
I take the diversity of the Board to be a good thing, not bad.  That  
Board members are "not of one mind" is the point of having a Board,  
instead of a dictator.  Diversity of opinion is to be cherished, not  
paved over so that the limousines of particular interests can enjoy a  
faster ride to the finish.  This is not an "opportunity for  
improvement" but a bedrock principle of the organization.
In my opinion, the recommendation to reduce the Board membership,  
without proper compensating measures preserve diversity and openness,  
based on an unsupported assertion of "experience" and some surveys of  
corporate boards, is reckless and unsubstantiated and should be  
rejected.
ADDING AN OBSERVER FROM THE GOVERNMENT ADVISORY COMMITTEE

Among the sub-recommendations included in the Report's is that the  
Government Advisory Committee should have an observer role on the  
Board.  Apart from the insulting (to the ICANN community) arrogation  
to the GAC of an authority which is precisely prevented by its status  
as an advisory committee, this recommendation is absurd in the face of  
the previous recommendation, the diminution of the size of the Board.   
Is the Board better off with fewer members, or not?  You can't have it  
both ways.   Furthermore, there is no discussion of why this should be  
so other than that the Report's authors understand that "government  
support is critical" and therefore "accept that a GAC observer at  
Board meetings may be important."  It sounds as if someone has been  
feeding them a recommendation.  Isn't support from Internet users also  
critical?  Or from trademark holders?  Or from root server operators?   
Why shouldn't we all get observer status.
The role of the GAC is currently one that we must tolerate, rather  
than celebrate or encourage.  If we wanted a greater role for national  
governments and "international fora" we could turn ICANN over to the  
ITU, where it would be run as the telephone system is.  ICANN's  
history, debates, and original intent is to avoid precisely that.  The  
careful distance at which national governments are kept is part of  
ICANN's DNA, and this proposal is another instance of the Reports lack  
of sympathy or understanding of ICANN's mission.
BOARD COMMITTEES

I am once again appalled by the recommendations put forth.  I have no  
issue with making workloads easier to manage, but it is as if this  
Report were commissioned by, and written by, people who would destroy  
the democratic character of ICANN (such as it is).
Let us start with what the authors view as the "Core Committees."   
Excluded as a "core" committee is Public Policy and Ethics.  How is  
Public Policy not a core mission of ICANN?  It may be argued that  
public policy is the sole mission of ICANN, but it can certainly not  
be relegated to the sidelines.
But far more concerning is the recommendation that the Board be  
involved in selecting its successors.  The Report's authors seem to  
regard ICANN's community as employees -- that is, expensive annoyances  
that are necessary, but hardly to be consulted on matters of importance.
I quote:

"It is worth pointing out that in the corporate sector, the  
‘Governance Committee’ is typically another name for Nominations  
Committee and the selection of board members is one of this  
committee’s most important duties. At ICANN, of course, the nomination  
process is dealt with by parties external to the ICANN board (such as  
the NomCom) and so it is not part of the
Governance Committee’s scope. We have a point of view on this and  
believe strongly that the existing board should have some substantial  
input into the selection of new board members."
Perhaps the authors are ignorant of the fact that for a short time we  
had actual elections to the Board, before the putsch in Ghana and the  
painful constitution of the NomCom, which has actually done a fine  
job.  The quality of our Board members is better than it has ever been.
As to the authors having a "point of view," so what?  I "believe  
strongly" that this recommendation is a abomination.  I wonder what  
the authors would make of the governments of the United States, France  
or indeed any democracy.  Why don't the Senators have "substantial  
input" into their successors?  There are very good reasons for  
avoiding self-perpetuation of ruling powers, and they are the basis  
for all democratic institutions.  Either ICANN has a community or it  
does not.  If it does, the members must be treated with respect, not  
as if they are an impediment to efficient work.
As to the Board Members experience, I am amused and disgusted by  
Exhibit 9 on page 41, which by virtue of its irrelevant  
classifications manages to shunt many of our best Board members into  
the category of "Other."  Nowhere does this pointless chart mention  
anything about experience with the Internet, of management of not-for- 
profits, of experience with global organizations, multi-stakeholder  
organizations, or indeed of anything relevant to ICANN.   Instead, we  
have multiple categories representing corporatist job descriptions:  
CEO, CFO, Banker, Investment Manager, etc.  Speaking as a CEO myself,  
this chart tells me all I need to know about the (lack of) imagination  
that went into this report.
COMPENSATION

The Report ignores a festering problem with the Board, namely the  
grossly inequitable compensation of different members. Basically, the  
frugal are unpaid, while the profligate are remunerated handsomely.   
The Report talks about salaries, but they ignore expenses, which in  
the past have threatened to overwhelm other compensation.  I wrote  
satirically about this at http://www.namesatwork.com/blog/2008/09/10/majority-of-icann-board-hopelessly-naive 
. I am, sadly, not amazed to find that those are lauded for their  
executive experience in Exhibit 9 of the Report are for the most part  
those who put in for tens of thousands (or more) in expenses, while  
those in the "other" category managed to do their job without soaking  
domain name registrants.
Because this unequal expense-taking is highly corrosive of trust in  
the Board, I would recommend that certain tightly-defined expenses  
(e.g., air travel) be reimbursed, while other egregious forms of  
corporate raiding (e.g. Paul Twomey's "currency adjustments") should  
be relegated to the category of poll taxes, protection money and other  
illegal payments.
SUMMARY

As must be clear to any reader, I would throw away the entire report  
as worthless.  In fact, I would simply ignore it if not for the  
pernicious recommendations that ICANN might take seriously as a result  
of having (over-) paid for it.  The mind-set, bias, and basic  
understanding of the authors comes from the corporate world, and  
whether they thought they could set that aside and make a fair  
assessment, very obviously they could not.  The entire document is  
shot through with unwarranted assumptions, riddled with  
unsubstantiated opinions, and as a whole has been rendered useful only  
for demonstrations on how to recycle wastepaper by the authors'  
evident ignorance of ICANN's history or its values.
Whenever an organization hires a consultant to tell it what to do, it  
usually means one thing: that they already know what should be done  
(or what they want to do) but don't have the courage to say it out  
loud without the cover of an "independent" opinion.  Most of us who  
have worked in corporate America have seen this at play (or see the  
movie "Office Space" for a particularly telling rendering).  Pick the  
right consultant, and they will bring you the right result.  That this  
is here the case is obvious from various recommendations that the  
authors of the Report "accept," e.g. the addition of a GAC observer.   
How are they "accepting" this?  From whom did they get that idea?   
They certainly didn't think this up on their own; there was obvious  
input from somebody, if only at the initiation stage.  If the Board  
feels they need to do something with this Report (other than burn it),  
they should find out who commissioned it and have them explain their  
motives, and inquire about their input into it.  That would do more  
good for the organization than any of the recommendations contained in  
the Report.
With the recent highly painful revelations about how completely  
ineffective corporate Boards have been in the financial, automobile,  
real estate and other commercial sectors, I recommend in the strongest  
terms that ICANN staff and the ICANN Board ignore the recommendations  
of this Report, whose authors come from that dysfunctional universe,  
in their entirety.  They may, however, make food use of the surveys of  
the Board and staff published here, which is practically the only part  
of the Report that is evidence-based.
Finally, please excuse typos, missing words, and other detritus of a  
long letter written with a tight deadline.  Thank you for your  
patience with this long comment.
Antony Van Couvering