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Re-Send Text Version of CDT comments

  • To: principles-comments@xxxxxxxxx
  • Subject: Re-Send Text Version of CDT comments
  • From: David McGuire <dmcguire@xxxxxxx>
  • Date: Tue, 31 Oct 2006 17:04:44 -0500

Attached is the text version of CDT's comments on the Management Operating Principles.

David McGuire
Director of Communications
Center for Democracy & Technology
(202) 637-9800 x106
(202) 423-7432 (mob)

Preliminary Comments on the Development of Transparency and Accountability 
Management Operating Principles for the Internet Corporation for Assigned Names 
and Numbers (ICANN)

By the Center for Democracy & Technology


The Center for Democracy & Technology (CDT) is a Washington-based nonprofit 
organization that works to promote democratic values and constitutional 
liberties in the digital age. CDT works with public interest groups, technology 
companies, individuals, regulators and lawmakers to support rules and 
structures that preserve the essentially democratizing nature of the Internet. 

From the outset of the global Internet governance debate, which began in 
earnest with the establishment of the Internet Corporation for Assigned Names 
and Numbers (ICANN) in 1998, CDT has played an active role. Working through the 
ICANN process, CDT has advocated for changes to make the organization more 
transparent and representative.  For example, in July 2004, CDT issued a paper 
-- "ICANN and Internet Governance: Getting Back to Basics" -- urging that ICANN 
offer greater openness and adhere to a narrow mission. That document is 
available at http://www.cdt.org/dns/icann/20040713_cdt.pdf. Outside of ICANN, 
through its Global Internet Policy Initiative, CDT has worked on the ground in 
developing nations to promote the creation of legal and regulatory structures 
that support development of an open Internet. CDT is actively committed to 
bringing together voices from industry, civil society and governments to 
address the unique issues posed by this global medium.


Earlier this year, when the National Telecommunications and Information 
Administration (NTIA) asked Internet stakeholders to comment on whether ICANN 
had met the milestones established under the Memorandum of Understanding with 
the U.S. Government, roughly 700 Internet stakeholders from around the world 
responded. The comments illustrated both the intense global interest in 
Internet governance and the wide range of opinions regarding ICANN, the 
historic role it has played in global Internet governance and the path it 
should follow as it continues its evolution.

Remarkably, despite the wide range of often-conflicting positions expressed in 
the comments, one common theme did emerge: ICANN must improve the transparency 
and accountability of its operations if it is to cement itself as an 
internationally respected steward of the Domain Name System (DNS). 

Like many other groups, CDT focused on the concerns surrounding transparency 
and accountability in comments submitted to the NTIA last July: 

"Equally troubling is that ICANN has made little effort and even less progress 
toward improving the transparency of its decision-making processes. Too much 
deliberation on important issues still takes place behind closed doors and on 
private phone calls. ICANN's non-appointed, full-time staff is still perceived 
as wielding too much influence in setting ICANN policy. Absent real 
representation, this lack of transparency has dealt a serious blow to ICANN's 
efforts to establish a truly bottom-up coordination structure. Most people 
outside the ICANN structure and even some that are ostensibly participating in 
the "bottom-up coordination" remain perplexed as to how ICANN reaches its 
decisions and which stakeholder groups maintain the real influence with 
decision makers." 

-CDT Comments to NTIA (07/07/2006) 

Until these issues are fully addressed, very few in the global Internet 
community will be comfortable with the idea of ICANN standing alone, absent any 
oversight. To the extent that establishing an independent ICANN is a desirable 
goal, improving transparency and accountability should be of foremost concern 
to ICANN. CDT was encouraged by ICANN's Oct. 16 announcement that it was 
developing a set of "Management Operating Principles" intended to establish 
baseline standards for transparency and accountability in ICANN. CDT welcomes 
the opportunity to participate in that process and to offer guidance on how to 
establish the procedures and structures necessary for ICANN to operate in a 
consistently transparent and accountable manner. 

CDT would urge ICANN not to rush this process. These are some of the oldest and 
most serious concerns facing ICANN. Fixing these problems and creating lasting 
structures for ensuring transparency and accountability will minimally require 
a serious top-to-bottom review of ICANN's decision-making process. That review 
could reveal a need to establish new processes and structures, or to 
systemically change existing ones. In short, this is not a set of problems that 
can be "solved" in time for ICANN's December meeting in Sao Paulo. CDT applauds 
ICANN for beginning this process and would encourage ICANN leaders to devote 
the appropriate time, energy and resources to see it through to a satisfactory 
conclusion. ICANN's Oct. 27 notice clarifying that it was seeking only 
"preliminary" comments by Oct. 31 struck an encouraging note. CDT remains 
somewhat concerned with a timeline that calls for the adoption of Management 
Operating Principles by next March, but looks forward to addressing those 
concerns in later comments. 

In the Oct. 16 request for comments, ICANN posed a series of questions relating 
to transparency and accountability. What follows are CDT's preliminary answers 
to those questions as well as recommendation on the timing and procedure for 
drafting Management Operating Principles. Given the very short timeframe for 
this request, these should be construed only as preliminary comments. CDT hopes 
to have the opportunity to submit full recommendations later.  

Question 1: How would you define "transparency" in the ICANN context?

ICANN is an institution that plays a central role in the management of an 
essential global resource. Although ICANN's nongovernmental status has been one 
of its greatest assets as a management body, the organization's unique 
authority over infrastructure that is a lynchpin of global communication and 
commerce gives it government-like powers in this space. As such, ICANN may want 
to look to the best practices of governments, rather than those of other 
corporations, as it seeks to build a model that fosters greater transparency. 
Internet stakeholders must be able to track policy decisions as they work their 
way through ICANN's bottom-up management structure on their way to board 

As a practical matter, this of course means that all of the entities officially 
involved in the ICANN decision-making process, from constituency committees, to 
supporting organizations, all the way up to the board itself, should examine 
closely their procedures for disclosing information to the public. To the 
greatest extent possible, meetings should be made public, and minimally, the 
public should have access to major documents and the minutes of key meetings. 
The ICANN Board itself should hold no secret meetings, particularly when 
discussing DNS policy. All significant decisions should be made at public 

But for all of those concerns, the greatest obstacle to ICANN transparency may 
lie with ICANN's non-appointed, non-elected staff. Although not an official 
part of the bottom-up structure, the staff has historically held great sway 
over the decision-making process. The staff's role must either be minimized or 
officially acknowledged, and thus subjected to the same transparency 
requirements that apply to other entities within ICANN.  

Question 2: What standards of transparency are appropriate in ICANN operations 
and activity?

ICANN is a unique organization and as such will require unique procedures for 
transparency, but again, CDT would urge ICANN to look toward best practices in 
government as it seeks to make its decision-making process more visible and 
accessible to the public. As ICANN moves deeper into this process it should err 
always on the side of greater transparency. The risks and difficulties 
associated with making ICANN's activities more transparent are far outweighed 
by the public good such changes would serve. 

There may be some strictly internal decisions that ICANN should be permitted to 
conduct outside of strict transparency requirements; but those decisions should 
be  strictly limited and clearly delineated in publicly available written 
rules. In general, the majority of ICANNÕs decision-making should be subject to 
rules that maximize transparency and shed as much daylight as possible on 
ICANN's activities. For decisions that affect the DNS, all deliberations should 
be public.

Question 3: How would you define "accountability" in the ICANN context?

For an organization that plays a key role in managing an important resource, 
accountability means that decisions affecting that resource are made and 
publicized in a clear and predictable manner, and that redress is available to 
stakeholders when proper procedures are not followed. There is no question that 
the first step toward greater accountability for ICANN is establishing greater 
transparency. Too often, Internet stakeholders have been mystified by ICANN 
Board decisions that appear to materialize from thin air in the days and hours 
leading up to major meetings. It is impossible to hold decision-makers 
accountable when it's unclear who, exactly, those decision-makers are. 

Questions 4 and 5: What standards of accountability are appropriate in ICANN 
operations and activity? and What specific processes and activities need to be 
included to ensure these standards are met?

These questions illustrate the challenges facing ICANN, and the difficulty of 
addressing them on an artificially limited timeline. It seems clear that a 
satisfactory solution to the problems of transparency and accountability will 
come only on the heels of a thorough examination of ICANN's existing 
structures. It is difficult to say -- absent a comprehensive review of ICANN's 
existing processes and procedures -- what new tools and structures may be 
needed. Since many of the improvements to ICANN's accountability will flow from 
increasing its transparency, it may make sense to tackle these two issues in 

Some commenters have already recommended the formation of a multi-stakeholder 
panel to review ICANN's processes for transparency and accountability and to 
propose needed changes. CDT would support such an approach. It would be a shame 
if ICANN's effort to establish processes for transparency and accountability 
was not itself conducted in a transparent and accountable manner. 

Question 6: Are there any innovative ideas on transparency and accountability 
that you believe have not yet been implemented that might apply to ICANN?

Although ICANN faces unique challenges due to its unique nature, it need not 
reinvent the wheel in its quest for greater transparency and accountability. 
Instead, ICANN should focus on cultivating an organizational culture that 
actively supports those goals. Once that cultural shift is affected, ICANN will 
find no shortage of real-world examples of effective processes for ensuring 
openness and accountability. One excellent resource for ICANN could be the U.S. 
Administrative Procedures Act, which establishes rules and timelines for 
agencies to follow when making policy. Some of those rules would not make sense 
for ICANN, but other could be lifted directly from the statute. Were ICANN, for 
instance, to establish a rule subjecting all major policy decisions to a 60-day 
notice and comment period, confusion such as that which surrounded this very 
inquiry could be avoided. 


It cannot be overstated how important it is to take a fresh look at developing 
accountability and transparency in ICANN. For many in the Internet community 
who have steadfastly supported ICANN, these concerns have been the sorest 
sticking point. If ICANN gets this right, it would take a major step toward 
attaining greater independence and realizing its potential as a truly open, 
bottom-up, nongovernmental management body. 

For all of these reasons it is worthwhile for ICANN to take a very deliberate 
approach to the problem. This comment period on this initial stage was very 
short.  CDT urges ICANN, as it formulates its plans, to issue them for public 
comment, with sufficient time for responses.  CDT also endorses the 
establishment of a multi-stakeholder panel to address the issue and offer 
recommendations. Minimally, ICANN must allow enough time for Internet 
stakeholders to make extensive, thoughtful recommendations for specific 
structures and processes to improve transparency and accountability. 

David McGuire
Center for Democracy & Technology 

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