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Specific Suggestions to Improve ICANN's Plan for "Enhancing Accountability": Don't Narrow Scope; Clarify Roles of "Experts" as Advisors, Need Independent Accountability; ICANN is Not a Stakeholder and Must Provide for Its Conflict of Interest; Community Should Drive the Process

  • To: comments-enhancing-accountability-06sep14@xxxxxxxxx
  • Subject: Specific Suggestions to Improve ICANN's Plan for "Enhancing Accountability": Don't Narrow Scope; Clarify Roles of "Experts" as Advisors, Need Independent Accountability; ICANN is Not a Stakeholder and Must Provide for Its Conflict of Interest; Community Should Drive the Process
  • From: Robin Gross <robin@xxxxxxxxxxxxx>
  • Date: Sat, 27 Sep 2014 15:35:15 -0700

Thank you for accepting public comment on this important issue addressing the 
legitimacy and accountability of an institution that provides Internet 
governance services to the global community, ICANN.  While it is unfortunate 
that ICANN refused to entertain community drafted proposals on this effort to 
address the organization's accountability crisis, I do appreciate this 
opportunity to provide comment on the plan created by ICANN staff.

I support the cross community statement submitted by RySG, RrSG, Business 
Constituency, Intellectual Property Constituency, ISP Constituency, & ALAC:

A few points should be emphasized and added, however:

Scope of Accountability Improvements Must NOT be Narrowed

ICANN should not be permitted to limit the scope of this accountability effort 
as it appears to be doing in its 18 Sept. letter to leadership.  ICANN's claims 
about the need to narrow the scope of the accountability work to only those 
accountability issues that relate specifically to the IANA stewardship 
transition should be rejected.  There is no logical reason to limit the scope 
of the group's work, except to stifle the community from exploring 
accountability issues that ICANN would rather not be explored.  ICANN's attempt 
to limit the scope of accountability efforts is an example of where ICANN's 
conflict of interest unfortunately influences its handling of the issue in the 
overall process.

Only Stakeholders Should be Included in Consensus Calls

Decisions on the coordination group should be made by the stake-holders whom 
ICANN was established to serve, not appointed "experts", ICANN staff, or board. 
 Experts should serve in an advisory role, providing expertise to the 
stakeholders as requested, but should not comprise the decision making body nor 
consensus calls.  ICANN Board and Staff should serve in liaison and 
informational roles in coordination group and not comprise the decision making 
body nor consensus calls.  Stakeholder representatives should be provided 
"alternates" to assist with work on the coordination group.  ICANN often claims 
to be legitimate because its governance decisions are made via bottom-up 
processes.  "Bottom-up" decision making requires that those people who are 
impacted by the decisions should be making them.  It is the democratic 
principle of self-governance which ICANN should be incorporating into its 
structures including the organization's critical accountability efforts.  The 
community should drive this process, not staff nor board of ICANN, and not 
appointed experts.

Provide for Independent Accountability Mechanisms

The importance of an independent mechanism that ensures ICANN will be 
accountable to the community it serves cannot be underscored enough.  None of 
ICANN's existing accountability mechanisms are independent from the board and 
thus all accountability improvements depend on the agreement of ICANN's board 
of directors to implement.  While trust is important and a necessary 
precondition to productive engagement, trust alone is insufficient for building 
a robust governance system that is capable of remaining accountability 
irrespective of the individuals serving in official or decision making 
capacities.  The goal is to build a system that doesn't have to rely on 
trusting the specific individuals who make decisions.  We should build a 
governance system with robust checks and balances and independent mechanisms 
that ensure accountability in the absence of trust and regardless of 

Board Rejection of Accountability Recommendations

Neither ICANN's Board nor staff should be allowed to reject the recommendations 
of the group without going through the community engagement process described 
in the cross community submission.  I appreciate the staff's effort to require 
some engagement with the community should the board wish to reject 
recommendations, however I believe the process for rejection outlined in the 
cross community submission more appropriately handles the various interests at 

New "Other" Category Invites Gaming, Discourages Engagement in Process

I have concern about the opportunity for "capture" or "gaming of the system" 
from the creation of the new "other" category of stakeholder.  Stakeholders 
should make decisions, and ICANN has already provided for a mechanism to 
incorporate all the various significant interests or stakeholders via the SO/AC 
model.  Creating the "other" category seems ripe for gaming and incentivizing 
people to NOT engage in the ICANN process, but rather remain an "other", 
separate from the process in order to obtain disproportionately high 
representation rights in the overall process. 

ICANN is Not a Stakeholder and Must Address Conflict Issues

ICANN the corporation is not a stakeholder in the way that the community 
members are as alleged by ICANN in its plan's "rationale" and the corporation 
does have a conflict of interest in the underlying subject matter that must be 
dealt with.  It was disappointing that despite the numerous comments in the 
previous round calling for attention to the issue of ICANN's conflict of 
interest in the underlying subject, ICANN has still been unwilling to 
acknowledge its conflict of interest, nor provide any strategy to reassure the 
community that it can be adequately addressed.

Respectfully Submitted,
Robin Gross
IP Justice

* Note: While I am a member of ICANN's Non-Commercial Stakeholders Group and 
presently serve on NCSG's Executive Committee, I submit this comment in my 
personal capacity as an active participant at ICANN for more than a decade.

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