APC Comment on proposed Bylaw Changes

[Willie Currie <wcurrie@xxxxxxx>]

*Comment on ICANN's Proposed Bylaw Changes to Improve Accountability*

Association for Progressive Communications (APC)

25 September 2009

Thank you for the opportunity to comment on ICANN's Proposed Bylaw 
Changes to Improve Accountability.
*Problems with the proposed bylaws*

There are two inter-related problems with the proposed bylaws:

1. While the provision for the ICANN community to request for the Board 
to re-examine a decision is a step forward, there is still no democratic 
sanction for the Board if the community fundamentally disagrees with a 
Board decision even after it is re-examined by the Board. The community 
still does not have the power to dismiss the Board.
2. While the Independent Review Body and the expansion of its functions 
is a step forward, it still does not address the problem that the Board 
can ignore its findings and recommendations if the Board determines that 
the recommendations 'are not in the best interests of ICANN'.
Both bylaws ultimately depend on the disposition of the Board towards 
the issue under re-examination or review. Certainly it would be an 
unwise Board that completely ignores the expressed views of two-thirds 
of the ICANN community or the reasoned recommendations of senior 
jurists, but bylaws are not about dispositions, they are to do with fair 
and reasonable conduct by those in authority. In the event that that is 
lacking, there needs to be some ultimate sanction such as a power for 
the ICANN community to dismiss the Board. The ICANN President's Strategy 
Committee (PSC) recognised this in its recommendations on accountability 
when it proposed the establishment of 'an extraordinary mechanism for 
the community to remove and replace the Board in special circumstances' 
in its recommendation 2.9. This is simple democracy and is a basic 
feature of all democratic organisations. That it is missing from ICANN's 
bylaws is a signifier of a lack of accountability and democratic 
procedure that cannot be cured by the current proposed amendments.
It is also interesting to note that the EU in its recent communication 
on internet governance was of the view that 'one element of an evolution 
of the current governance system could be the completion of an 
internal ICANN reform leading to full accountability and 
transparency'.[1] 
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Unfortunately, inasmuch as these two bylaw amendments are intended to 
achieve 'full accountability', they fall short.
*Recommendations*

  1. APC supports the proposed bylaw to have a Community Re-examination
     Vote but the threshold of a two-thirds majority vote of two-thirds
     of the Councils of all Supporting Organizations and a two-thirds
     majority vote of each Advisory Committee is too high.  That
     threshold is appropriate for a process to remove the Board. For a
     vote to re-examine a Board decision a simple majority is more
     appropriate for the following reasons:

-          An accountability mechanism has to be meaningful, in the 
sense that it should be capable of being exercised. In a 
multi-stakeholder community like ICANN, setting the threshold too high 
for the community to even get to first base will have the effect of 
discouraging the exercise of this accountability mechanism and make it 
moot. This carries the risk of the attempt to put in place 
accountability mechanisms itself instilling little institutional 
confidence in ICANN and adding to the frustrations of the community.
-          An accountability mechanism should act as a check on the 
Board to be particularly mindful of the consequences of its decisions 
with regard to fairness, fidelity and rationality. If the threshold is 
set too high and the chances of the community ever exercising this 
option are too remote, that diminishes the value of the accountability 
mechanism as real check on the Board. This in turn will play back on the 
issue of instilling institutional confidence and instead of full 
accountability, stakeholders will see token accountability.
2.      APC does not understand why recommendation 2.7 of the PSC has 
been dropped. This recommendation is that ICANN should 'seek advice from 
a committee of independent experts on the restructuring of the review 
mechanisms to provide a set of mechanisms that will provide for improved 
accountability in relation to individual rights and having regard to the 
two proposed further mechanisms in RECOMMENDATIONS 2.8 and 2.9'.The 
reason given in the table of the ICANN report "Improving Institutional 
Confidence: The Way Forward", published on 31 May 2009 is that 'These 
measures alone are insufficient to address all community concerns'. 
Obviously getting advice is not going to address all community 
concerns.  Independent advice is of value in breaking down the risk of 
'group think' in the formulation of policy and bylaws by an institution. 
Not getting advice when it is explicitly recommended by an august body 
like the PSC which had the explicit mandate of making recommendations on 
instilling institutional confidence then raises the question of why this 
recommendation was dropped. This creates in stakeholders a perception 
that ICANN does not take the issue seriously enough, especially when a 
non- reason is offered as formal justification for not seeking advice. 
Accordingly APC recommends that ICANN does proceed to implement 
recommendation 2.7 of the PSC and seek advice from a committee of 
independent experts on the restructuring of review mechanisms.
3.      APC is of the view that proceeding to establish a new 
Independent Review Body while an important case is underway before the 
existing Independent Review Panel is problematic because the issue of 
the powers of the Independent Review Panel are part of the process under 
review. The views of ICANN with regard to the powers of the Independent 
Review Panel are well canvassed in its submission in the ICM Registry, 
LLC v. ICANN matter currently being heard before the Independent Review 
Panel.[2] 
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ICANN essentially argues that the results of the Independent Review 
Process are not binding on the ICANN Board because 'the plain language 
of the IRP provisions, which are set forth in Article IV, section 3 of 
ICANN's Bylaws, provides that the Panel's declaration is advisory to the 
ICANN Board and is not binding.'[3] 
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In its response, ICANN further noted the views of its advisory committee 
that worked on the development of an independent review process to the 
effect that 'the ICANN Board /should retain ultimate authority/ over 
ICANN"s affairs -- after all, it is the Board, not the [independent 
review panel], that will be chosen by (and is directly accountable to) 
the membership and the supporting organizations'.[4] 
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While APC supports the expansion of the proposed Independent Review 
Body's mandate to include fairness and rationality, we are concerned 
that the Board can still ignore its findings and recommendations if the 
Board determines that the recommendations 'are not in the best interests 
of ICANN'. This is an issue that a committee of independent experts 
could address. It would also be wise to see what the current Independent 
Review Panel has to say on this issue in its finding and recommendations 
on the ICM Registry, LLC v. ICANN matter, before establishing the 
proposed Independent Review Body.
4.      APC recommends that the issue of the PSC recommendation 2.9 on 
an extraordinary mechanism for the community to remove and replace the 
Board in special circumstances be reconsidered by a committee of 
independent experts. Without such a measure, ICANN cannot be considered 
a democratic body, plain and simple.  ICANN's  reasons advanced for 
dropping this recommendation state that 'this recommendation recently 
drew much resistance and doubt from community members' and that it is 
held that it is 'too difficult to invoke and would create unacceptable 
and uncontrollable risks if it were invoked' .  Mention is made of a 
concern that 'the focus on voting and majorities the mechanisms require 
are far removed from ICANN's consensus-based model.'[5] 
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These reasons do not really spell out what these risks would be nor do 
they illuminate why a predominantly consensus-based model could not have 
in place a mechanism to be used in special circumstances, perhaps when 
the consensus breaks down, for example.
*In conclusion*

APC commends ICANN for taking steps to improve accountability in the two 
proposed bylaws. Unfortunately they do not go far enough in the 
direction of full accountability.
Willie Currie

APC Communications and Information Policy Programme Manager


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[1] 
<mailbox:///C%7C/Users/willie/AppData/Roaming/Thunderbird/Profiles/ltue1zav.default/Mail/Local%20Folders/Sent?number=112851834#_ftnref1> 
Commission of the European Communities: Internet Governance: the next 
steps, 18 June 2009 
http://ec.europa.eu/information_society/policy/internet_gov/docs/communication/comm2009_277_fin_en.pdf
[2] 
<mailbox:///C%7C/Users/willie/AppData/Roaming/Thunderbird/Profiles/ltue1zav.default/Mail/Local%20Folders/Sent?number=112851834#_ftnref2>ICANN's 
Response to Claimants Memorial on the Merits 
http://www.icann.org/en/irp/icm-v-icann/icann-response-for-icm-memorial-on-merits-08may09-en.pdf
[3] 
<mailbox:///C%7C/Users/willie/AppData/Roaming/Thunderbird/Profiles/ltue1zav.default/Mail/Local%20Folders/Sent?number=112851834#_ftnref3>ICANN's 
Response to Claimants Memorial on the Merits, paragraph 78, p 29
[4] 
<mailbox:///C%7C/Users/willie/AppData/Roaming/Thunderbird/Profiles/ltue1zav.default/Mail/Local%20Folders/Sent?number=112851834#_ftnref4> 
ICANN's Response to Claimants Memorial on the Merits, paragraph 89, p34
[5] 
<mailbox:///C%7C/Users/willie/AppData/Roaming/Thunderbird/Profiles/ltue1zav.default/Mail/Local%20Folders/Sent?number=112851834#_ftnref5>  
ICANN: "Improving Institutional Confidence: The Way Forward",  31 May 2009