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ACT Comments on IIC Proposed Bylaw Changes

  • To: <iic-proposed-bylaws@xxxxxxxxx>
  • Subject: ACT Comments on IIC Proposed Bylaw Changes
  • From: "Jonathan Zuck" <jzuck@xxxxxxxxxxxxx>
  • Date: Fri, 27 Nov 2009 17:22:13 -0500

Comments of Association for Competitive Technology (ACT) President
Jonathan Zuck on the Proposed Bylaws Changes to Improve Accountability



It's called a confidence game. Why? Because you give me your confidence?
No. Because I give you mine. - House of Games



The question of confidence in ICANN is at a critical juncture. The
Improving Institutional Confidence (IIC) Consultation is one of the most
important processes ICANN has ever undertaken, as it seeks to address
the issues identified by the ICANN community as being most significant
to the organization's continued evolution and stability.  The timing of
the IIC Consultation around the expiration of the Joint Project
Agreement (JPA) and its absence from the agenda in Seoul might lead a
cynic to conclude that the consultation was itself an attempt to boost
confidence, at a critical moment, rather than a true consultation.  The
mere act of asking the questions, placing confidence in the community,
creates a temporary sense of empowerment sufficient to smooth the way
for a transition away from the JPA.  It is essential that this process
continue to be taken seriously lest it be viewed as simply a "confidence


The proposed bylaws changes currently under consideration are important
in that they represent the first concrete outcomes of the IIC process.
Appropriately, they address the top-line issues of accountability and
redress.  On behalf of the nearly 4,000 small IT companies represented
by the Association for Competitive Technology I thank ICANN for the
opportunity to offer a business perspective on the proposed bylaws
changes, as well as recommendations for advancing the IIC process


The proposed bylaws changes currently under consideration both go to the
challenge of strengthening ICANN's accountability to the millions of
companies, organizations and users affected by its decisions. The new
bylaws changes are both encouraging - in that they reflect the sense of
the community that ICANN requires a more effective system of checks and
balances - and incomplete as they do not fully address the concerns
raised in the consultation.  That the IIC bylaws are incomplete is not
necessarily problematic, since policy development within ICANN is a
naturally iterative process. But it is important that the ICANN
community and staff recognize these as iterative steps and remain
committed to the process of improving institutional confidence. 


With the signing of the Affirmation of Commitments, there has been a
temptation in the community to roll the issues raised by the IIC
consultation into the discussion of how to implement the AOC review
processes. This would be a serious mistake. While the AOC is a valuable
and important document, it does not and should not take the place of a
thorough and continuing community effort to strengthen accountability
and institutional confidence within ICANN.  In fact, in an environment
of increased autonomy for ICANN, the need for improved institutional
confidence is even greater.


Another way to depoliticize the review process is objectify the criteria
on which various initiatives and decisions are reviewed. As ICANN
Chairman Peter Dengate Thrush so aptly said at the most recent meeting
in Seoul, "what gets measured gets done." It is time for ICANN to
develop real, effective metrics for evaluating the effectiveness of
bylaws changes such as those currently under consideration and those
that we can hopefully expect to see in the future. 


Bylaws Changes and the Need for Metrics


It is appropriate and commendable that the first bylaws to come out of
the IIC consultation go to the challenge of strengthening ICANN's
accountability. From the inception of this unique organization more than
a decade ago, the question of how to achieve true accountability has
been the subject of significant debate. With the expiration of the
Memorandum of Understanding/Joint Project Agreement with the U.S.
Government, that issue became even more acute. 


The business community expressed concern that ICANN's processes left the
organization accountable only to itself. In particular companies pointed
out that they had no effective means of redress in the event that an
adverse ICANN board decision harmed their business. To the extent that
ICANN operates as a quasi-regulator, and makes decisions that have real
and lasting impact on business practices - not just in the naming
sector, but throughout the business community - industry leaders argued
that ICANN needed a more effective system of accountability and redress.


Although the proposals currently under consideration go directly to that
point, it is at best unclear whether they will adequately addressed the
concerns raised during the IIC process. 


The first change, the implementation of a "community reexamination vote"
aims to empower the ICANN community to reconsider a decision made by the
ICANN Board. While this added layer of review is welcome, it is unclear
in practice how it will impact the decision-making process and what, if
any, protection it offers to entities harmed by an ICANN board decision.


The supporting organizations and constituencies responsible for
initiating and conducting a community reexamination process are the very
same that develop and promote the policies enacted by the board. While
this process may be useful as a check against rogue actions by the
board, it offers little likelihood of aiding an organization or group of
organizations steamrolled by a more powerful voting bloc within the
ICANN process. Without objective criteria in place to transcend the
process, the outcome is likely to be a lengthy duplicate of what went


The second change expands the scope of the external independent review
body. Under this change, that external body will be able to consider not
just whether ICANN followed its own bylaws in making a decision, but
also the "rationality" of that decision. Here too, ICANN has provided a
valuable opportunity for external review of decisions made by a body
that has a tendency toward insularity. But how and to what extent this
feature will allow for effective review and reversal of damaging
decisions is unclear. 


Both bylaws provide an excellent example of something that most within
the ICANN community have already agreed upon - at least in principle.
Metrics are vital to determine the extent to which these and other
proposals improve accountability and strengthen institutional
confidence. Developing and implementing these metrics should be the
foremost priority in the continuation of the Improving Institutional
Confidence consultation. 


The IIC Consultation is Critical and Must Continue



While challenging and time-consuming, the IIC Consultation is a uniquely
important process that must continue if it is to achieve its lofty
goals. The AOC is a valuable agreement that has been rightly praised as
laying the groundwork for ICANN's continued evolution. But the AOC is
neither intended, nor suitable for addressing the systemic internal
issues that the IIC was meant to resolve. The panels established by the
AOC create an important layer of review in the ICANN process, but they
do not in any way take the place of the ICANN community, staff and
board, which are charged with making substantive policy changes within
ICANN. Community participants in the IIC process called for the
development of effective and measurable tools to strengthen transparency
and accountability. That work is unfinished and must be completed.


Although the IIC has yet to fully achieve the goals it established for
itself, the process has been enormously fruitful, helping to crystallize
the outstanding concerns of the ICANN community and begin to establish a
path toward meaningful reform.  If nothing else, the massive, global
participation in the IIC process demonstrates the community's eagerness
to address these issues and to help ICANN establish itself as the
accountable, transparent and stable organization the community expects
it to become. 


The important transformative process begun under the Improving
Institutional Confidence Consultation has not been completed, and should
continue - either in its previous form or as a new community
consultation. The task of creating effective mechanisms to ensure
accountability, transparency and institutional confidence falls squarely
on ICANN and the extended ICANN community. The ICANN board and staff
must provide the community the venue it needs to continue this process. 


Thank you again for the opportunity to comment on these recommendations.


Jonathan Zuck


Association for Competitive Technology




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