Comments on Improving Institutional Confidence in ICANN

[Carlton Samuels <carlton.samuels@xxxxxxxxxxxxxx>]

Having reviewed the recommendations of the President's Strategy Committee
(PSC) on how to improve institutional confidence, I make these observations:

*1. Safeguard ICANN against Capture*
The committee is rightly convinced that ICANN must be safeguarded against
"all types of capture" and it gives several avoidance-specific
recommendations, including measures that improve the GAC influence in ICANN.
The committee also recognizes "inappropriate or inadequate staff conduct" as
a mechanism for capture.  It feels this risk is appropriately addressed and
reduced by "Review and enhance the professional code of conduct for the
staff to highlight
their obligations of independence, impartiality and support for the
community". With respect, this might be good but not good enough.

I believe that the lack of diversity in staff at the policy-level in ICANN
is a de facto measure of capture. At least of a certain kind.

ICANN's extant employment policy and operational procedures actively
discriminates against qualified candidates for senior ICANN policy-making
posts that are nationals of countries other than EU and the United States or
without a legal right to work in places where ICANN has established
offices.  This means the United States, Belgium and Australia.

As a result, nationals of countries that provides the highest growth rate of
Internet engagement and will contribute significantly to shaping the future
of the Internet are disqualified from participating in policy development as
members of ICANN professional staff.  When this matter was directly raised
with a ranking ICANN executive, the employment laws of the State of
California was fingered as culprit. For an entity with aspirations of global
responsibilities and the commitment to meeting the needs of the global
internet community of the future, that was the wrong answer and
disingenious, at best.

ICANN would burnish its case for capture avoidance and transparency by
ensuring that there is diversity of all kinds in its senior staff.  This is
not now the case and it undermines all claims of being capture-free and
transparent.

*2. Maintain and strengthen transparency in the constituent parts of ICANN.*

There are now some ICANN constituencies that are wedded to the idea of
closed meetings in conducting business in the public interest. I would not
wish to reach for an explanation other than the most ordinary but it is
rather surprising to this reviewer that the concept of open meetings as a
measure to "maintain and strengthen transparency in constituent parts of
ICANN" did not make the list of PSC's considered options.  Sunshine laws
adopted in several political jurisdictions enable the open meeting concept.
ICANN would be well-advised to take note and emulate.

Finally, it is important for ICANN - the corporation - to note that some of
these issues decrease the goodwill it would seek to build among the world's
people, especially as it contemplates a post-JPA future.  It is therefore in
its institutional interest to act affirmatively on them.

Carlton Samuels
The University of the West Indies