Amid Growing Accountability Process Concerns, ICANN Constituencies Develop Letter

The draft cited “substantial questions and concerns” about ICANN’s accountability process and the absence of a public comment period upon its release. It’s “very unusual for the GAC to join with other ICANN constituencies” and involve itself in such a situation, said Phil Corwin, founding principal of e-commerce and intellectual property law consultancy Virtualaw, in an interview. “The real question is whether ICANN is going to stop in its tracks and back away” from the proposal, or if it will “impose a proposal against the community’s wishes,” he said.

ICANN’s accountability process is composed of three groups: The Cross-Community Group, Public Experts Group and the overarching Coordination Group, which will prioritize issues from the other groups and send a “final plan” of accountability recommendations to ICANN’s board for consideration, said a spokesman. Chehade selected four individuals to the Public Experts Group (http://bit.ly/1wyitq4), including NTIA Administrator Larry Strickling, to pick up to seven advisors. ICANN also released a list of responses to questions regarding the accountability process (http://bit.ly/1BZLs6z).

"Additional opportunity is needed to ensure understanding of the proposal and the ways in which it is responsive to the interests and working methods of the ICANN stakeholder groups,” said the ICANN constituency draft. “We commit to submitting to ICANN staff our list of clarifying questions and comments within seven days of this letter."

The ICANN board is the only relevant body in terms of accountability, even though it’s not listed on the infographic detailing the process, said Milton Mueller, Syracuse University information studies professor. He is one of three ICANN Generic Names Supporting Organization (GNSO) members on the Internet Assigned Numbers Authority (IANA) transition-related Coordination Group, which is charged with developing the IANA transition proposal (CD July 23 p11; July 8 p6; June 27 p7; June 24 p7). Of the three groups on the infographic, the accountability coordination group has “all the power,” he said. ICANN’s accountability process doesn’t reflect the wishes of the ICANN community because “ICANN’s management basically came up with this plan,” he said: It’s “trying to take all the responsibility for making itself accountable, by itself."

The issue of developing an external check for ICANN’s board and CEO is “exactly why ICANN is running this process,” said the spokesman. “There are no predetermined outcomes,” nor “preferred solutions by the CEO or the Board,” he said. “We expect the conversation to include discussion of issues such as what does ‘external’ mean,” he said. “ICANN cannot predict what kind of accountability recommendations the Cross Community Group will identify, nor will they have control over the recommendations of the Coordination Group,” which is “overwhelmingly community-driven,” he said. The board “will immediately and publicly post the final report, consider whether to adopt all or parts of it, and direct the CEO to implement those parts it has accepted once that decision is made,” he said. “ICANN’s goal is to have this work develop recommendations that are capable of implementation, and not solely to go through the exercise of a review."

The draft is a “very polite way of saying, ‘What are you doing here?'” said Corwin. If ICANN doesn’t allow public comment or alter its accountability process, there’s a chance the ICANN community might not participate, said Corwin. The ICANN constituencies wanted a “normal cross-constituency working group” for an accountability process, he said. No one was against having “experts” participate, but they should've been invited at the working group’s request, said Corwin. The accountability review is “lagging behind” the IANA transition proposal process, which could hinder the chances of executing a new IANA arrangement by the Sept. 30 deadline, he said. An IANA transition without ICANN accountability in place would be a “huge mistake,” Corwin said.

ICANN’s existing accountability structure is different from most nonprofits in that its stakeholders lack actionable methods of redress, said Lawrence White, New York University economics professor. ICANN’s accountability process relies on the “multistakeholder notion,” which is “better than nothing,” but not the same as outside parties having the ability to affect board membership, he said. White suggested an ICANN governance structure that would position domain registry, registrar and regional Internet registry operators on the ICANN board, at a Technology Policy Institute conference in Aspen, Colorado, last week. ICANN’s Crocker replied to an article (http://bit.ly/1q2vt2A) criticizing ICANN’s accountability process co-authored by White, in a TPI release Tuesday (http://bit.ly/VMjeLn). “The assertion that we're accountable only to ourselves with no meaningful external controls is unfounded and simply wrong,” said Crocker.

It’s a “good idea” for ICANN to pursue improved accountability, but “I'm still unclear as to what they mean by accountability,” said CEO Nao Matsukata of FairWinds Partners, a domain consultancy. On some issues, ICANN is “putting process ahead of the definition,” he said: The Founding Fathers “didn’t write the [U.S.] Constitution before the Declaration of Independence.”