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

[Alex Gakuru]

 I hope James Wire could make it. We need East Africa Community
representation at ICANN at reinforced

On Thu, Jul 15, 2010 at 11:07 PM, Robin Gross <robin at ipjustice.org> wrote:
> 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
>
>
>