NetChoice statement on proposed bylaw changes for accountability mechanisms

[Steve DelBianco <sdelbianco@xxxxxxxxxxxxx>]

To see the importance of real-time accountability mechanisms like these
bylaw changes, think about what happened in a World Cup qualifying soccer
match earlier this month.
 
Ireland and France squared-off on 18-November, and their match went into
extra time to determine who would advance to the World Cup finals.  That¹s
when French player Thierry Henry set up the winning goal with a perfect pass
to a teammate who headed in the decisive goal.  Thing is, video replays show
clearly that Henry used his left hand to keep the ball in play.
 
Henry¹s hand ball (and the referee¹s missed call) happened in just seconds,
but the effects will last until 2013, when Ireland will get its next shot at
the World Cup finals.
 
This incident revived calls to allow video review of disputed goals in
soccer.  Scottish Football chief Gordon Smith said, ³Wednesday night showed
what¹s at stake at the highest level of the game, but it could have been
clarified and cleared-up immediately.² [1]
 
But given the non-stop nature of soccer, we¹re not likely to see matches
stopped for video review. Soccer has a long tradition of resisting change,
and as the French coach put it, ³These things even out.² [2]
 
ICANN, on the other hand, is on the verge of implementing its own kind of
replay review, in the form of community re-examination and an Independent
Review Body (IRB). 
 
Fortunately, there¹s less resistance to change in a ten-year old
organization that¹s still evolving.   And just like a World Cup match, there
is much at stake when ICANN¹s Board renders a decision.  Moreover, some
ICANN decisions have lasting implications without much of a chance for
things to ³even out² for those stakeholders who are adversely affected.
 
That opens the door for ICANN to adopt accountability mechanisms that can
correct bad calls in real-time.  A re-examination and Independent Review
Body will bring the kind of accountability that you just can¹t get by
spending years (and millions of dollars) on arbitration and appeals.
 
But before we bolt these changes into ICANN¹s bylaws, let¹s adopt the
President¹s Strategy Committee¹s recommendation to seek advice from some
experts. (see PSC Recommendation 2.7)
 
There¹s another issue to consider before adding these mechanisms to ICANN¹s
bylaws ­ the question of whether to make IRB decisions binding or advisory.
My NetChoice membership is conflicted about this, but I think the IRB should
not be placed in the position of making ICANN policy.  Rather, the IRB is
there to help ICANN avoid making bad policy.
 
To give IRB decisions some much-needed teeth, I think we should turn to the
new Affirmation of Commitments for help.
 
The first review team established by the Affirmation will look at various
aspects of ICANN¹s Accountability to community and commitments.  In
conjunction with these bylaw changes, let's make the first Accountability
metric an assessment of how well ICANN¹s Board followed-through on IRB
findings.  
 
That way, ICANN¹s community and Board retain their authority to develop
policy and make decisions.  But we¹ll all know that an Affirmation review
team will be holding the Board accountable to the IRB findings.   This ought
to help ICANN¹s management and Board take IRB findings seriously.  Or, if
they choose to disregard IRB findings, ICANN management will know that it
has to justify their actions in a transparent proceeding before the entire
community.
 
While Soccer has a rich tradition that rightly resists change, ICANN is a
young organization that is still developing its traditions.  So let¹s seek
expert advice about the details of these review mechanisms before enshrining
them in the bylaws.   And while the IRB decisions shouldn¹t be binding,
let¹s bind the IRB process with the regular accountability reviews
established under the Affirmation of Commitments.
 
-- 
Steve DelBianco
Executive Director
NetChoice
http://www.NetChoice.org and http://blog.netchoice.org
+1.202.420.7482