Lack of Accountability to Non-Commercial Users Remains Problematic for ICANN's Promise to Protect the Public Interest

[Robin Gross]

FYI:  IP Justice comment submitted to ICANN Accountability and
Transparency Review Team

posted here:
   http://tiny.cc/ognid    and
   http://forum.icann.org/lists/atrt-questions-2010/msg00021.html

Begin forwarded message:

> From: Robin Gross <robin at ipjustice.org>
> Date: July 14, 2010 6:13:06 PM PDT
> To: atrt-questions-2010 at icann.org
> Subject: Lack of Accountability to Non-Commercial Users Remains
> Problematic for ICANN's Promise to Protect the Public Interest
>
> IP JUSTICE COMMENTS ON ACCOUNTABILITY AND TRANSPARENCY ISSUES AT ICANN
> 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
>
>
> IP JUSTICE
> Robin Gross, Executive Director
> 1192 Haight Street, San Francisco, CA  94117  USA
> p: +1-415-553-6261    f: +1-415-462-6451
> w: http://www.ipjustice.org     e: robin at ipjustice.org
>
>
>




IP JUSTICE
Robin Gross, Executive Director
1192 Haight Street, San Francisco, CA  94117  USA
p: +1-415-553-6261    f: +1-415-462-6451
w: http://www.ipjustice.org     e: robin at ipjustice.org



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