Re: [APC-IGF] APC Comment on proposed Bylaw Changes

[John Dada <johndada@xxxxxxxxxxxx>]

Thanks Willie

Succint.


On 25 Sep 2009, at 11:32, Willie Currie wrote:

> 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] Unfortunately, inasmuch as  
> these two bylaw amendments are intended to achieve 'full  
> accountability', they fall short.
> Recommendations
>
> 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] 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] 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]
> 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]  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
>
>
> [1] 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]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]ICANN’s Response to Claimants Memorial on the Merits, paragraph  
> 78, p 29
> [4] ICANN’s Response to Claimants Memorial on the Merits, paragraph  
> 89, p34
> [5]  ICANN: “Improving Institutional Confidence: The Way Forward",   
> 31 May 2009
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John Dada PhD, MPH, RN, DipHE
Program Director
Fantsuam Foundation
Kafanchan, Nigeria
<http://www.fantsuam.org>