ICANN and Accountability
Over the years, accountability has been an issue at ICANN. Many of the concerns were discussed in the ICANN Affirmations of Commitments (AOC) Accountability and Transparency Review Team of 2013 (ATRT2) final report. As part of the solution, recommendation #9 of that report recommended the formation of a Special Community Group to explore restructuring ICANN’s current accountability mechanisms. This was an expression of the concern for accountability from inside the community.
With the start of the NTIA process to Transition its Stewardship responsibilities for the IANA function, the concerns over accountability have grown in the world beyond ICANN. In testimony of at Hearing on “Ensuring the Security, Stability, Resilience, and Freedom of the Global Internet” on April 02, 2014 Assistant Secretary Strickling said:
“the transition proposal must meet the needs and expectations of the global customers and partners of the IANA services. For example, mechanisms for the adherence to and development of customer service levels, including timeliness and reliability, should be clear, as should processes for transparency, accountability, and auditability. “
Stakeholders, in this case the members of the Generic Names Supporting Organization of ICANN (GNSO) have also started to demand action on accountability. The leaders of all GNSO Stakeholder groups stood in line together at the public forum of the ICANN50 meeting in London in June and made the following statement:
I’m Keith Drazek, Chair of the Registries Stakeholder Group, with me are the leaders of all of the GNSO’s Stakeholder Groups and Constituencies.
I’m happy to report that the GNSO community took up Fadi’s challenge from the Opening Ceremony to seek harmony this week in London. Instead of a song or two, the statement we’re about to read represents an unprecedented — yes unprecedented — event. It only took us 50 meetings, but I think the rarity of what you’re witnessing this afternoon sends a very strong message about our views. The GNSO community, with all our diversity and occasionally competing interests, has come together to unanimously support the following:
The entire GNSO joins together today calling for the Board to support community creation of an independent accountability mechanism that provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community.
This deserves the Board’s serious consideration – not only does it reflect an unprecedented level of consensus across the entire GNSO community, it is a necessary and integral element of the IANA stewardship transition.
True accountability does not mean ICANN is only accountable to itself, or to some vague definition of “the world.” It does not mean that governments should have the ultimate say over community policy without regard to the rule of law. Rather, the Board’s decisions must be open to challenge and the Board cannot be in a position of reviewing and certifying its own decisions.
We need an independent accountability structure that holds the ICANN Board, Staff, and various stakeholder groups accountable under ICANN’s governing documents, serves as an ultimate review of Board/Staff decisions, and through the creation of precedent, creates prospective guidance for the board, the staff, and the entire community.
As part of the IANA stewardship transition, the multi-stakeholder community has the opportunity and responsibility to propose meaningful accountability structures that go beyond just the IANA-specific accountability issues. We are committed to coming together and developing recommendations for creation of these mechanisms. We ask the ICANN Board and Staff to fulfill their obligations and support this community driven, multi-stakeholder initiative.”
Even members of Congress are insisting on ICANN accountability.
“We also strongly agree with many stakeholder that the “Enhancing ICANN Accountability” process must be completed – and have adopted meaningful reforms – prior to the proposed transition of the IANA functions.”
Now ICANN is initiating a discussion on enhancing ICANN accountability. While a comment period was held and a few draft proposals have been floated for discussion, the community is still waiting to see how the process on ICANN accountability will play out.
Review of Existing accountability mechanisms
ICANN is accountable to the global multistakeholder community through a bottom-up process. It is also accountable for its execution of the various IANA functions as specified in its contract with NTIA and Memoranda of Understanding (MOU) with other Internet organizations.
Accountability normally includes three major elements, oversight, transparency, and methods for redress (in the sense of “to make right”). ICANN has a well-developed form of internal soft oversight in the Affirmation of Commitments (AOC) between the NTIA and ICANN. It is a novel bottom-up oversight mechanism that calls for periodic review, by the multistakeholder participants within ICANN, of major aspects of ICANN’s work. Additionally a review of the Accountability and Transparency of the organization is also done every three years. The Accountability and Transparency Review Team (ATRT) is a soft oversight mechanism in that the ICANN Board is not bound by anything other than its respect for the process and concern about stakeholder reactions, to follow the recommendations of the review teams. Historically, the Board has responded favorably to the recommendations of the various review team. Occasionally, though, the recommendations have been followed as check-the- box activity rather than in the full spirit of the recommendation. An important aspect though, is that the periodic ATRT reviews do come back to review and verify the implementation of previous recommendations. A liability is that ICANN can decide to stop AOC reviews just by giving notice of its intent to abandon the AOC. The AOC provides good mechanisms, but it is a voluntary agreement between NTIA and ICANN. And when NTIA transitions its responsibilities for the IANA contract it has awarded ICANN, ICANN may no longer have a material interest in maintaining the reviews of the AOC.
Transparency in an organization is essential in order for there to be accountability. If the actions and other facts of an organization cannot be known, they cannot be learned from, mitigated, or redressed. Without sufficient transparency there can be no accountability. Definitions of transparency vary. For some it means that except for items that have been intentionally redacted, documents and meeting notes are available to the community. For others, it means that a carefully vetted set of rationales for decisions are published, but that the actual discussions and documents that went into the decision are not made available to the community. ICANN tends toward the later standard, though the recent Affirmation of Commitments (AOC) accountability review of the organization has recommended the organization adopt the more revelatory standard and made several recommendations in the recent ATRT2 report.
ICANN defines three redress mechanisms: reconsideration requests, the Independent Review Board and the Ombudsman. Reconsideration requests define a process where “any person or entity materially affected by an action (or inaction) of ICANN may request review or reconsideration of that action by the Board.” (Article IV, Section 2 of the Bylaws) For the most part, this means that the Board is asked to review its own decisions as well as Staff actions. The Independent Review Process is a non-binding “process for independent third-party review of Board actions (or inaction) alleged by an affected party to be inconsistent with ICANN’s Articles of Incorporation or Bylaws.” ( Article IV, Section 3 of the ICANN Bylaws ) The ICANN Ombudsman is an “independent and impartial neutral dispute resolution practitioner whose function is to provide an independent internal evaluation of complaints by members of the ICANN community” who “believe that the ICANN staff, Board or an ICANN constituent body has treated them unfairly” for “matters which have not otherwise become the subject of the Reconsideration Process or the Independent Review Process.” (Article V of the ICANN Bylaws)
ICANN community experience has shown that these measures do not work as well as they should. Since the Board reconsiders its own decisions for the most part, it would be a surprise if they were to overturn very many; they have done so at least once. The IRP can require a million dollar deposit as it is a ‘pay up front loser pays’ mechanism; some can afford it, most can’t. The Ombudsman works diligently to fix what he can fix, but he has no decision or enforcement powers and can’t help the community very much. It is this failure in the current mechanisms, discussed at length in the ATRT2 final report, that creates a necessity for accountability improvements. Many have also noted, that the only ‘binding’ external oversight of ICANN involves the granting of the IANA contract by NTIA. When the IANA Stewardship is transitioned, that will be gone.
The fact that the current accountability mechanisms don’t work as well as they should combined with the internal and external pressures have brought ICANN to the point were it appears ready to engage in a serious review and, hopefully, improvement of its accountability process. In order to meet the IANA transition schedule, this will need to happen during the next year. While the exact form of the accountability committees that will do the work is still in flux, it will certainly offer the opportunity for members of the dotgay-comunity to participate. One of the important jobs of ICANN is to provide regulatory oversight to the registries, such as .gay. If dotgay LLC secures .gay for the gay community, the community controlled .gay gTLD will be subject to ICANN oversight regarding the guarantees dotgay LLC is making to the community. In order for ICANN to insure the accountability of registries such as dotgay LLC, it first has to prove that it is as accountable as we need to be.
For those in the gay community, this will be an opportunity to help improve ICANN. There are many opportunities for improving ICANN, and for the most part, it is the community that makes the policies. Once the committee to improve accountability is announced and the volunteer call goes out, I will blog it on dotgay-community.org. I plan to stay involved and will keep the community informed as the work goes on.