IP Justice Comments on ICANN Accountability & Transparency Concerns: Lack of Accountability to Non-Commercial Users Remains Problematic for ICANN’s Promise to Protect the Public Interest

Submitted by Robin Gross, IP Justice Executive Director

14 July 2010

IP Justice appreciates this opportunity to provide comment to the ICANN Accountability and Transparency Review Team.  As a nonprofit public interest organization, IP Justice is concerned with the public interest aspects of ICANN policy and is a member of the Non-Commercial Users Stakeholders Group (NCSG).

IP Justice is deeply concerned that ICANN is insufficiently accountable to relevant non-commercial interests.  Certain interests, such as business interests (in particular the trademark and domain name industries) are over-represented at ICANN both in structure and in practice.  On the other hand, non-commercial interests and individual Internet users are not given the appropriate representation, although some improvements have been made in recent years.  There is a real worry that ICANN is an “industry organization” and works predominantly for trademark interests and the domain name industry.  Too often non-commercial concerns are ignored by ICANN; without any real “muscle” behind non-commercial interests, ICANN has little incentive to protect those interests in its policy development process.

Examples where ICANN insufficiently accounted for the concerns of non-commercial Internet users include the staff and board’s handling of the new NCSG formation and its refusal to accept the charter drafted by global civil society and ultimate disenfranchisement of non-commercial users of 3 of its 6 GNSO Counsel seats (see IGP comment for specifics on this NCSG issue).  Another example is the creation of the 1-sided IRT Team, consisting almost exclusively of large trademark owners, which instituted rules forbidding IRT members from discussing IRT policy provisions with the community they represent, and proposed a “trademark wish list” of policy recommendations (see Komaitis comment for details on this IRT issue).    It is also worth noting that despite NCSG and At-Large long standing opposition to the “morality and public order” objections to new gtlds, citing freedom of expression concerns, staff chose to make protecting trademarks an “over-arching issue” that needs addressing by an IRT, while ignoring the freedom of expression concerns expressed by NCSG and At-Large members.  Public comments submitted by parties lacking muscle seem to go straight into the trash bin at ICANN.  Civil society is not going to continue to participate in public comment periods where ICANN does not consider and respond to the substantive issues raised, as it is a complete waste of time and legitimizes an illegitimate system.  Unfortunately ICANN public comment periods seem to be little more than window-dressing and fodder for ICANN press releases.

Another example of ICANN not providing sufficient attention to the concerns of non-commercial users include the staff’s refusal to follow-up on its promise to provide key legal research reported to support the staff’s creation of legal standards for morality and public order objections to new domains.  Members of NCSG asked for this legal research a dozen times — and it was promised by staff — but the research never materialized — and the accuracy of staff’s supposed legal standards remain in wide dispute.   One cannot help but wonder if staff’s refusal to provide the promised research in dispute is a reflection of the lack of “muscle” in the ICANN community behind the party making the request.  There is no accountability mechanism – no check on the staff to actually respond to concerns from the community.   In the current environment, ICANN staff declares that “international law says x, y, and z”, but there is no way to dispute that claim or to view the info that led ICANN staff to reach that (faulty) conclusion.  Staff’s response of “just trust us” is not an acceptable form of accountability for a global governance organization charged with protecting the global public interest on matters of stability and security of the Internet.  Transparency also provides a *quality control check* that is often over-looked given the other important values transparency also serves, but is nonetheless important.

ICANN is run too much like a large corporation and not enough like a genuine public interest organization. Besides the “corporate culture”, the legal corporate governance structure of ICANN is a significant part of the problem in the organization’s lack of accountability and transparency.  California law requires the ICANN Board of Directors to be the ultimate decision makers for ICANN policy and governance matters.  This is inherently at adds with providing an independent mechanism to check that decision making process, which is required for good public governance.

Under California law, which governs ICANN, the organization’s board of directors is ultimately responsible and has the final say on decisions; but the reality is that the workload required to understand all the issues is unrealistic for a volunteer board.  The result is that staff “briefs” the board according to the staff’s desires, ultimately managing the process that an over-extended board cannot.  The problem of “staff capture” creates a significant and growing problem for ICANN’s accountability and transparency (particularly given the exploding budget and overpaid staff & consultants).  The staff’s practice of providing secret briefing papers to the board on matters of key policy or governance dramatically undermines their claims of transparency and openness.

There must also be more openness and transparency in viewing board deliberations at ICANN.  Board decisions are made in secret without the community having an understanding of the reasoning behind the policy decisions and the specific positions taken by those chosen to represent them. The board should be less concerned with demonstrating a unified public front on policy decisions – a practice that encourages secretly negotiating unanimous votes with no public airing of the various views of the board.  The board owes — and community needs to witness — a substantive dialectic at the board level on public policy issues.  Each board member’s individual vote should be recorded and published, as is done for legitimate public governance institutions in the interests of transparency and good governance.

Also, the GNSO’s policy development process that works via “consensus” encourages a constant “chipping away” of the rights of Internet users with no fundamental principles (privacy, free expression) that can’t be bargained away by the business interests at the negotiating table who vastly out-number non-commercial participants.   There seems to be a prevailing view that individual protections provided by public institutions in governance matters should not be extended at ICANN because ICANN is a “private corporation” (rather than a public institution or government actor).  Yet any “private” governance model that leaves “public” guarantees of civil liberties, due process rights, and other public interest concerns in the past is a deeply flawed step backwards that must be immediately challenged.

The lack of funds to support meaningful participation in the ICANN policy process remains one of the biggest hurdles for noncommercial participation and magnifies the under-representation of noncommercial users in ICANN policy decisions.   Empowering the At-Large structures and providing Internet users a real and direct election for their board representation and other leadership positions would be a significant step to increase accountability with respect to individual Internet users.  Members of At-Large structures should be treated on an equal footing with the Government Advisory Council members with appropriate consideration given to the view of individual Internet users as expressed through the At-Large structures.

Another problem for ICANN’s accountability is its current model for an “ombudsman”.  Having an independent, neutral, ethical, and competent “third-party” to oversee certain governance decisions is a fine idea in principle.  But to work in practice, it requires an ombudsman that is not *really* a member of the ICANN staff; that remains neutral on pending matters; doesn’t publicly take a position on a pending dispute and encourage the community to agree with that position on a public blog before the other side of the dispute has responded to the complaint, for example.  For an “ombudsman” to work, it would have to be a person who does not “pal around” with staff and come running to the defense of staff (or their agents) against the community every time a complaint is filed.  A real *outsider* with genuine independence and neutrality would have to exist for that model to provide meaningful accountability.  A credible ombudsman would not be found by a legal tribunal to be “uncredible” for manipulation of evidence in a dispute proceeding.  A respectable ombudsman would not launch into a moral crusade imposing a personal view of “civility” at ICANN, while demeaning “little people” in real life.   So there are troubling implementation issues regarding ICANN’s current ombudsman model that significantly undermines ICANN’s legitimacy and ability to serve the public interest.

In conclusion, while some improvements have been made in recent years, ICANN should do more to promote meaningful accountability and transparency.  In particular, it must support and maintain a vibrant and welcoming space for truly non-commercial participation.  ICANN must live up to its promise to promote the global public interest and be more than just an industry organization concerned primarily with negotiating policies that serve entrenched commercial players.

Respectfully submitted,

Robin Gross

IP Justice