Comment on CCWG-Accountability Second Draft Report - Jacob Malthouse

[Jacob Malthouse <jacob@xxxxxxxxxx>]

Dear CCWG Accountability,

Thank you for the opportunity to provide feedback on this second round
report. At this stage, I am concerned about a number of potential
shortcomings may negatively impact both competition and policy-making
within the Internet Community. In this comment I explore these shortcomings
and urge the working group to explain how this report already addresses
them or how it will address them in a subsequent version.

The report does not describe a process, with clear guidance and thresholds,
for the Board, mediator or a panel to determine whether complaints are
spurious, repetitive or anti-competitive. There is no avenue for expediting
complaints or for dismissing them early in the process. While ICANN, the
Board or a panel could in theory dismiss complaints, in practice they have
not done so.

Despite this lack of mechanisms to protect process integrity, process
timelines are either vague, non-binding or have been extended. This
includes a broadened disclosure process, a six month reconsideration
process, no timelines on cooperative engagement, addition of mediation, and
addition of en banc appeal of the independent review. This is troubling
given that most current accountability mechanism timelines have not been
met by ICANN or the panels to date. It would be helpful to explore what
remedies might exist for ICANN, complainants and impacted third parties as
a result of these extended processes.

Perhaps as a result of their vagueness, the proposed mechanisms are not
described 'end-to-end' anywhere. However, one can easily imagine them
taking two years and up to four if determinations are vague, are re-hashed
or if there are additional 'in program' appeals such as those anticipated
to exist within future new gTLD rounds with insufficient bright lines
between them and this overall process. It would be helpful to have a full
"end-to-end" process description with timelines, costs and resources
involved on the part of ICANN, complainants and impacted third parties and
considering the implications of in-program appeals. Such a description and
infographic would outline best, expected and worst case scenarios.

In spite of this expansion of existing mechanisms, resources to handle
complaints appear to have been reduced (i.e. all reconsideration requests
are to be funnelled through the Ombudsman though no expansion of resources
available to that office is considered, reduced number of panelists
compared to the active pool available through ICDR, the entire board must
look at all reconsideration requests, etc.).

It would be helpful to understand the working group's rationale for
expanding access to these mechanisms while appearing to also reduce
resources available to process them. A 'surge' in complaints as a result of
a program or policy implementation by ICANN - such as an expansion of the
number of generic top-level domains - does not appear to be addressed in
the stress tests. This means that the maximum number of complaints that
could be addressed by the Board, mediation or by the standing panel at any
given time is not explored. A "pile-up" of extended, repetitive processes
that impacts the Board, third-parties and policy making appears a serious
risk.

For example, there are already reconsideration requests being filed on
independent review outcomes (See RfR 15-7) and repeated filings of
reconsideration requests happening under the current regime (See RfRs 15-1,
15-5, 15-8, 15-9 & 15-10). Despite this, there seems to be no discussion
about the risk of repeated use and re-use of the accountability mechanisms
to extend or repeat consideration of the results of accountability
processes in a slightly modified way. Indeed, the word 'finality' is not
mentioned a single time in the document. It is therefore unclear what the
end point of the accountability mechanisms are.

These proposed changes and current uses of ICANN accountability mechanisms
point to increased impact on third parties going forward. However, there is
no discussion of minimizing the impact of the process on third parties,
despite the fact that many more third parties are now being impacted by
accountability mechanisms than are actually using them, even under the
current more restrictive accountability regime (8 parties on hold for
Vistaprint IRP, 10+ parties on hold for Dot Registry IRP).

Overall, I am concerned about the chilling effect on ICANN staff dialogue
and policy implementation, community policy-making, industry competition,
and the overall drain on community resources as a result of the apparent
lack of consideration of these points in this proposal.

I encourage the working group to update this document so that it clearly
addresses each of these points, or to respond to these points explaining
how they are in fact addressed already in the document or will be addressed
as part of another work stream.

Thank you for the opportunity to comment and I wish the working group every
success in its effort to strengthen the ICANN multi-stakeholder model.

-- Jacob Malthouse