Summary/analysis of comments received
Summary of comments on the Draft ICANN Management Operating Principles October 2007 Background On June 23, 2007 ICANN posted a set of draft Management Operating Principles for public comment. Comments were taken through an online forum and at a public forum at the ICANN meeting in San Juan at the end of June. In addition, comments were received from the International Chamber of Commerce. The online forum closed on 31 August, but late comments were accepted and have been incorporated into this analysis. Nine comments were received on the online forum, of which two were spam and three were on topics unrelated to the Management Operating Principles. This analysis attempts to summarise the relevant comments from the online forum, comments made at the San Juan public forum and the ICC comments. Where possible and practical, individual comments have been attributed to individuals or organizations by attaching initials to the comments. A key to the initials used can be found at the end of this paper. General comments There was general support for the posting of the comments for discussion and the involvement of the wider Internet community in the discussion. There was also general support for the development of the Management Operating Principles as a way of communicating ICANN standards, although many commentators noted that it was only in the ongoing implementation of the principles and frameworks that their value could be judged. Two responses suggested that the pace of work at ICANN was too fast and that therefore there was not sufficient time to respond in appropriate detail to all of the issues on the table at any one time. Establishing clear priorities would assist in addressing this. (BG, USCIB) Transparency There was general recognition that ICANN has made significant improvements in transparency (ICC), with some describing this as "great strides" in transparency (JN, USCIB) and "a lot of good work" (BT). There was also an acknowledgement that ICANN was "more transparent than most international organizations" (MM). Specific comments were made about progress on Board agendas, discussions and minutes where preliminary reports are delivered within 72 hours of the meeting (USCIB, ICC) and planning and budgeting processes (ICC). One suggestion for improving transparency was the production of special Board reports for major decisions showing how stakeholder input was used in coming to a decision. (ICC) However, the point was also made that just making information available was not sufficient. The information needs to be easily digested. (MCa) On a related point, there was the comment that ICANN cannot be accountable and transparent to a global community in a single language and that ICANN needs to evolve towards a multilingual environment. (MCh, ICC) With regard to the specific wording of the principles, the suggestion was made that the second bullet of the third principle (To maximize transparency of the consultation process) be changed to read: Require that all comments be tagged with the sender's name and any relevant affiliation (where the individual is speaking on behalf of a group). Where the respondent is an ICANN Supporting Organisation, Advisory Committee, or constituency group, some indication must be given of the process that was used to develop the comment and the parties who took part in that process (Change in bold, original wording was "should") (CG) Translation Two comments were received on the Translation principles. One suggested that that they were good (BT). The other suggested that more detail be made available on the translation approval process. (CG) However, in other places in the discussion, comments were made about the importance of ICANN evolving to a multi-lingual environment (see Transparency section above). Consultation There was some support for the consultation principles (BT) and no comments in opposition. Suggested changes included a request that earlier notification of policies under consideration and longer response periods (USCIB). There was a similar suggestion that a more specific time period be specified in the principles, and where items are to be publicly discussed at a meeting, applicable information should be available at least one week prior to the meeting (CG). One commentator suggested that ICANN adopt a "push" approach for consultation, using mailing lists and newsletters to alert members of the community to forthcoming and current issues. (USCIB) A request was also made for one of the ICANN meetings each year to be nominated as a place where business users can provide targeted input on issues. (USCIB, ICC) Advance notice of meeting agendas would assist with travel planning for this meeting (ICC). Whistle Blower Policy There was support for the implementation of a whistle blower policy for ICANN. (JN) Information Disclosure Policy The suggestion was made that the Information Disclosure Policy should start from the position that all documents and reports used by the Board in policy deliberations be made public (BT). However, the view was expressed that this was the starting point for the policy, based on the recommendations of the One World Trust report (JJ). Another suggestion was that the concept of timed exposure (where documents are made public some amount of time after they have been used by the Board) might be an improvement to the current process. (PDT) One comment was received which suggested that all of the exemptions proposed in the Information Disclosure Policy were barred by ICANN's Bylaws because the Bylaws state that ICANN "shall operate to the maximum extent feasible in an open and transparent manner" (EH) Accountability Many commentators suggested that significant improvement had been made in the area of transparency, and that the real issue was accountability. The comments can be grouped around three themes: * What are ICANN's external accountabilities? * What are ICANN's internal accountabilities? * Are there sufficient checks and balances in the current system? External accountabilities The discussion on external accountability focused on the issue of what is above ICANN to which ICANN might be held accountable. An important aspect of discussion is the accountability to governments and importance of the rule of law in ICANN's accountability framework. There was recognition that the accountabilities provided by ICANN's status as a not-for-profit corporation in the State of California were important and valuable. It was suggested that ICANN's relationship with the United States Government through the Joint Project Agreement and the IANA contract also provide some external accountability. (MM) There were some comments that there was currently no obvious solution about how external accountabilities might be structured if the nature of the relationship with the United States Government changed. The view was expressed that ICANN should remain a private sector organization to avoid being brought into geopolitical conflicts. (MM). A further comment suggested that the difficulty of determining accountability in the ICANN context may be due to the fact that the ICANN model is a relatively new model of governance and old models of accountability were being used to assess it. (PL) Internal accountabilities There was some support for the improvements in internal accountabilities (BT, MM). The major point of discussion was the lack of a mechanism for removing Board members who "fall asleep at the beach" rather than fulfil their responsibilities. That is, there is little in the current frameworks to hold individuals accountable (PDT). While the Code of Conduct goes some way to providing a framework for this type of accountability, there may be the need to strengthen these at the Board level to clarify the rules that Board members have to follow to be in "good standing". (VC) An alternative perspective on internal accountabilities was that ICANN needed to be accountable to people who provide input into the process (KM). In such a model, it would be important to ensure that those making comments also felt accountable for their comment. (MCa) One way of dealing with this would be through the concept of "good standing" as mentioned above (PDT). Checks and balances The discussion on checks and balances focused on the issue of how ICANN could deal with situations where the Board as a whole (or at least a majority of its members) was believed or deemed to be acting inappropriately, or where one Board member was acting inappropriately and needed to be removed. Some were of the view that the current Reconsideration and Independent Review processes were not strong enough to deal with this situation (JN, BT, PDT, USCIB) and that because the Independent Review reports back to the Board, the process seems circular (SC). A common theme in the suggestions for improvement was the idea of two Boards or two "Houses". It was suggested that the original idea of the Independent Review Panel was that it would be "a panel of the great or good" who could act as an Upper House or Senate without any constitutional authority, but acting as a place of appeal regarding Board actions and decisions. (PDT) However, this had never been implemented. A similar idea is that of two Boards, one focused on the day to day matters of the organization (policy, contracts, etc) and the other focused on governance issues (eg financial reporting) and acting as a place of appeal for the decisions of the first Board. (VC) It was commented that the problem with this model is that it risks "infinite recursion" in the sense that someone would be needed "to watch the watchers" of the second Board and so on. (VC) A slight variation on these ideas was that of a Board and an assembly or membership such as that found at the American Cancer Society, where the two groups have checks and balances over each other. (JN) The difficulty with this model in the ICANN setting is that ICANN does not have a membership structure. (VC) Another perspective on checks and balances was the suggestion to provide a mechanism whereby a super majority vote of the Supporting Organizations could have power of veto over a Board decision. (JN, USCIB) This idea received some implicit support (BT) and no specific criticisms. The suggestion was also made that it may be appropriate to improve standards of accountability by strengthening the level of support needed for some decisions by requiring a supermajority. (USCIB) One commentator also suggested that internal accountability could be improved by having end users elect Board members through the At-Large process. (MM) Others struggled to see how this might work out in practice, given the given the scale of the problem (more than one billion Internet users) and the difficulty in establishing who is eligible to vote. (VC) While much of the discussion focused on the accountability at the Board level, some indicated that there is a need for accountability at all levels and the issues raised above apply not just to the Board but to all elected or nominated representatives within the community. (MCa, PDT) Strengthening the Independent Review process was recommended by one commenter, and in particular the idea that the findings of the Independent Review should be not merely advisory (USCIB). Further, there was a suggestion that the findings of the Independent Review should automatically be made public rather than allowing either party to opt not to have the decision made public. (EH) On the issue of whether ICANN is a new model of multi-stakeholder decision making, there was the suggestion that as ICANN has developed this new model, it must also set out the way for improving accountability within the model. In this sense, it must develop an international multi-stakeholder accountability solution. (PDT) Financial accountability There were two comments that financial controls needed to be improved by reintroducing the Budget Advisory Group rather than the current process where all members of the community are consulted on the Budget. (JN, USCIB) Code of conduct There was support for the Code of Conduct: "The ICANN Code of Conduct is a great thing to have" (BT) and no points of criticism. Next steps A revised set of Management Operating Principles will be posted for comment in advance of the Los Angeles meeting. Comments will be received at the LA meeting and on an online forum. Based on the comments received, documents will be redrafted and presented to the community for further comment. Contributors BG Bill Graham, Government of Canada BT Bernard Turcotte CG Chuck Gomes EH Edward Hasbrouck ICC International Chamber of Commerce JJ John Jeffrey, ICANN General Counsel JN Jon Nevett KM Kieren McCarthy, ICANN General Manager Public Participation MCa Marilyn Cade MCh Mawaki Chango MM Milton Mueller PDT Peter Dengate-Thrush, ICANN Board PL Paul Levins, Executive Officer and Vice President Corporate Affairs, ICANN SC Susan Crawford, ICANN Board USCIB United States Council for International Business VC Vint Cerf, Chairman of the ICANN Board Attachment:
Summary of comments on the ICANN MOP Oct 07 final.doc |