ATRT-2 and the bigger picture.

[JJS <jjs.global@xxxxxxxxx>]

In submitting the following remarks, I wish to emphasize a few points:
- although I am a member of the ALAC, these remarks are made in a private
capacity;
- over the past months, position papers have emanated from the full ALAC
(White Paper on "Making ICANN Responsive, Relevant and Respected", or R3),
or from individual members of that Advisory Committee ("A Call for ICANN To
Embrace its Inner Regulator, the necessity of a more-regulatory role, to
serve the public interest and address increasing challenges").
- I wish to underline that my remarks below in no way contradict or lessen
my support for the 2 above-mentioned position papers, of which I happen to
be a co-author. But here are two sets of issues which, I think, deserve an
even closer look.

1) MAKING ICANN MORE INTERNATIONAL

It is striking to note that some of the more meaningful decisions taken
recently in ICANN do not stem from the reviews, commitments or other formal
undertakings of this corporation (recommendations from "Improving
Institutional Confidence" by the ICANN President's Strategy Committee;
Affirmation of Commitments; ATRT-1; Board Global Partnerships Committee).

By announcing the opening of hubs in Istanbul and Singapore, the current
CEO has given more symbolic value, and some hope for further
internationalization of ICANN, than gigabytes of analyses and promises
subsequently mothballed. The potential impact of setting up these hubs
becomes apparent when considering their remit: Fadi Chehadé has stated that
they will be not just regional contact points, but "part of ICANN's plans
to reshape the organization to be more global and inclusive", adding that
they would handle "the same operations as that of its current Los Angeles,
U.S., headquarters". Of course, we have to see what real tasks they will be
assigned, and gauge in the longer term their real contribution to the
ICANN, other than regional outreach.

Thus, while ATRT2 is asking the obvious question about how thoroughly
previous remedies (including ATRT-1) have been implemented, another
question begs to be asked: *to what extent can the ATRT process
(encyclopaedic, time-consuming, very detailed, but not always centered on
the bigger picture) address some of the more fundamental questions*, e.g.
- by construct, ICANN is a corporation under California law; what must be
achieved for the organization to become truly international?
- The current CEO hails from the Middle East and is, by any measure, far
more international than almost anyone else in the organization. But he is
also a citizen of the USA. This in no way diminishes his merit, but brings
forth another question: in time, will the Department of Commerce be
prepared to accept the nomination of a CEO who is not a citizen of the US
nor of the ANZUS?
- How international is the ICANN Board? How many of the current Directors,
presented as citizens from other sovereign states, are also US citizens? Is
this, should this be taken into account with regard to the by-law which
restricts the number of members from any one region, say North America?
- It took a long time (more than 2 years) for the Board to endow itself
with a Global Partnerships Committee, following upon a proposal made by one
Board member early in 2008. The rationale was to provide the Board with
some oversight on an area of activity of growing importance, and which, by
tradition, belonged exclusively to the CEO and a handful of people he
chose. Now, about 3 years after that committee was set up, can it
confidently be said that this Committee has fulfilled its remit by
identifying international and institutional challenges to ICANN, by
providing orientations to the corporation, by overseeing the international
and institutional work carried out so far by 2 successive CEOs and their
teams, by charting the way to a viable ecosystem of the Internet in which
various actors would each play their role fully, rather than pursue mutual
attrition?

2). GOVERNANCE

Over the years, ICANN has been required to measure up to high standards of
transparency and accountability. Overall, this has been done in a
painstaking way, with results in some areas. But in several instances,
small improvements have left in place some larger ambiguities. For
instance, there have been many declaratory precautions to justify the
presence of a notable proportion of domain name business representatives on
the Board, while skirting the more fundamental debate about how to better
promote the global public interest. Another example is provided by what
seems to be embarrassment when the Board must address the full implications
of a multi-stakeholder system, which many in our community now perceive as,
simply, a clever tool for self-regulation.

There remains a sense that *ICANN is somewhat less demanding with respect
to its internal processes*, than it is externally. ACs and SOs are required
to conduct their community duties against a set of ever more stringent
rules about notification, public comment, publication. Beyond argument, all
of this is for the benefit of the community. But at the same time, *some
areas of internal governance remain obscure*, perhaps simply for lack of
total transparency, *or require improvement*: for instance, the community
is entitled to know in detail, and in writing,
- How are the Chairs of some important Board Committees actually appointed
(Board Governance being the most important in this respect)? Does the
current practice not represent a risk of capture?
- How are Board Committees actually populated (each step needs to be
detailed)? Why are the Committee Chairs not freely elected by their
respective members? Does the current practice not constitute a risk of
capture?
- How are the Board Chair and Vice Chair actually elected? Who discovers
the cast ballots, proclaims the result, and has the custody of the ballot
papers? Are the ballot papers at the disposal of Board members, or perhaps
of the Ombudsman? Is the community satisfied that the current practice,
inspired by Dickensian clubs where such questions would be considered
intolerably rude, is consistent with the highest requirements of
contemporary accountability, of escape from capture? And if indeed all
these precautions are now routinely taken, does the Board have an approved
set of Rules of Procedure, setting out these minutiae about voting,
populating, nominating for the Board itself?
- Is it reasonable that the Board should provide to the Nominating
Committee, in rather detailed fashion, the "profile" of the Board Members
it claims it requires in the next turnover? How does this ensure that the
global public interest will not be subordinated to the ability to read a
balance sheet, to calculate the intensity of an electrical signal, or to
rattle out by heart all the ways to bypass a piece of fiscal legislation,
say for the greater benefit of a large trademark?

In summary, while I laud ICANN and its overseers for going into ever more
intricate motions of self-appraisal, my experience as a volunteer in this
corporation has heightened my concern that delving into detail now carries
a greater risk of missing some of the portent challenges of transparency,
multi-stakeholderism, and the global public interest.

Jean-Jacques Subrenat, 25 May 2013.