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Was panel wrong to put .africa on ice or does ICANN have an accountability problem?

Kevin Murphy, May 13, 2014, Domain Policy

Did an Independent Review Process panel get it wrong when it accused ICANN of failing to implement proper accountability mechanisms, or did it actually highlight a more serious problem?

As we reported yesterday, an IRP panel has ordered ICANN to not delegate ZA Central Registry’s .africa gTLD until it’s heard an appeal by failed rival bidder DotConnectAfrica.

IRP is ICANN’s last avenue of appeal for organizations that believe they’ve been wronged by ICANN decisions. Due to the duration of the process and the need for legal representation, it’s extremely expensive.

The IRP panel in the .africa case based its decision largely on the fact that ICANN has failed to create a “standing panel” of would-be IRP panelists, something the panel said would have sped up the process.

A “standing panel” is supposed to be six to nine panelists-in-waiting — all respected jurists — from which three-person IRP panels could be selected when needed in future.

DCA would not have needed to file for an emergency injunction against .africa’s delegation had this standing panel been created, the panel said.

According to the IRP panel, the creation of a standing panel has been “required” by the ICANN bylaws since April 2013, and ICANN has “failed” to follow its own rules by not creating one. It wrote:

the Panel is of the view that this Independent Review Process could have been heard and finally decided without the need for interim relief, but for ICANN’s failure to follow its own Bylaws… which require the creation of a standing panel

But ICANN disagrees, getting in touch with us today to point out that the panel only partially quoted the ICANN bylaws.

This is the bit of the bylaws the panel quoted:

There shall be an omnibus standing panel of between six and nine members with a variety of expertise, including jurisprudence, judicial experience, alternative dispute resolution and knowledge of ICANN’s mission and work from which each specific IRP Panel shall be selected.

There seems to me to be little ambiguity in that paragraph; ICANN “shall” create a standing panel.

But ICANN reminds us that the IRP panel ignored a second bit of this paragraph, which states:

In the event that an omnibus standing panel: (i) is not in place when an IRP Panel must be convened for a given proceeding, the IRP proceeding will be considered by a one- or three-member panel comprised in accordance with the rules of the IRP Provider; or (ii) is in place but does not have the requisite diversity of skill and experience needed for a particular proceeding, the IRP Provider shall identify one or more panelists, as required, from outside the omnibus standing panel to augment the panel members for that proceeding.

Basically, the bit of the bylaws stating that ICANN “shall” create a standing panel is almost immediately negated by a bit that explains what is supposed to happen if ICANN does not create a standing panel.

It’s confusing.

Is ICANN “required” (the panel’s word) to create this standing panel or not? ICANN seems to think not, but the panel thinks otherwise.

I have no opinion because, luckily, I’m not a lawyer.

But I did a bit of digging into the public record to figure out why the bylaws are so confusing on this issue and what I found is slightly worrying if you’re concerned about ICANN accountability.

The bylaws paragraph in question was added in April 2013, but it has its roots in the findings of the first Accountability and Transparency Review Team, which is the key way ICANN’s accountability is reviewed under the 2009 Affirmation of Commitments with the US government.

The ATRT said in 2010 (pdf) that ICANN should “seek input from a committee of independent experts on the restructuring of the three review mechanisms” including the IRP.

ICANN did this, convening a three-person Accountability Structures Expert Panel, made up of widely respected corporate/legal brains Mervyn King, Graham McDonald and Richard Moran

It was this ASEP that came up with the idea for a standing panel, which it said would speed up IRP decisions and reduce costs.

Members of the standing panel would be paid an annual retainer even when not working on an IRP, but it would be cheaper because IRP complainants and ICANN wouldn’t have to repeatedly explain to a new panel of doddery old ex-judges what ICANN is and does.

The ASEP, in its report (pdf) did not specify what should happen if ICANN decided not to implement its recommendation on the standing panel.

I can’t know for sure, but from the public record it seems that the confusing second part of the bylaws amendment was the creation of the ICANN board, possibly based on a single comment from gTLD registries.

The provision about a standing panel was formally added to the bylaws with an April 2013 resolution of ICANN’s board of directors, which followed a December 2012 resolution that approved the change in principle.

The second part of the amendment, the bit about what happens if ICANN does not institute a standing panel, was added at some point between those two resolutions.

The April resolution sheds a little light on the reason for the addition, saying (with my added emphasis):

Whereas, as contemplated within the [December 2012] Board resolution, and as reflected in public comment, further minor revisions are needed to the Bylaws to provide flexibility in the composition of a standing panel for the Independent Review process (IRP).

Resolved (2013.04.11.06), the Bylaws revisions to Article IV, Section 2 (Reconsideration) and Article IV, Section 3 (Independent Review) as approved by the Board and subject to a minor amendment to address public comments regarding the composition of a standing panel for the IRP, shall be effective on 11 April 2013.

The notes to the resolution further explain (again with my emphasis):

The Bylaws as further revised also address a potential area of concern raised by the community during the public comments on this issue, regarding the ability for ICANN to maintain a standing panel for the Independent Review proceedings. If a standing panel cannot be comprised, or cannot remain comprised, the Bylaws now allow for Independent Review proceedings to go forward with individually selected panelists.

The “minor amendment” referred to in the resolution seems to have enabled ICANN to basically ignore the ASEP recommendations, which (remember) stem from the ATRT review, for the last 12 months.

The April 2013 resolution was on the consent agenda for the meeting, so there was no minuted discussion by the board, but it seems pretty clear that “public comments” are responsible for the second part of the bylaws amendment.

But whose public comments?

When the ASEP report was open for comment, only two people responded — the Registries Stakeholder Group and former ICANN director Alejandro Pisanty, apparently commenting in a personal capacity.

On the subject of the proposed standing panel, the RySG said it wasn’t happy:

We also are concerned with the concept of standing panels for the IRP. A key component of the IRP is that the review is “independent.” To keep this independence, we believe that service on an IRP tribunal should be open to all eligible panelists, not just those with previous experience with or knowledge of ICANN. Determining whether an organization has complied with its bylaws or articles of incorporation should not require historic knowledge of the organization itself, and we believe that any jurist generally qualified by the IRP provider should be more than capable of acting as a panelist for an IRP.

It wasn’t the RySG’s main concern, and it wasn’t given much space in its comment.

Pisanty, commenting during the comment-reply period, seemed to disagree with the RySG, saying that the ongoing institutional knowledge of a standing panel could be a boon to the IRP.

When the ASEP report was discussed at a lightly attended early-morning session of the ICANN Toronto meeting in October 2012, the only person to comment on the standing panel was Neustar lawyer Becky Burr, and she liked the idea (transcript).

It’s not what you’d call a groundswell of opposition to the standing panel idea. There were few opinions, those opinions were split, and if anything the balance of commentary favors the notion.

In any event, when ICANN compiled its usual compilation report on the public comments (pdf) its legal staffer said:

After review of the comments, no changes to the ASEP recommendations are recommended, and the report will be forwarded to the Board for consideration and action, along with the proposed Bylaws amendments.

ICANN staff, it seems, didn’t think the RySG’s (lone?) opposition to the standing panel concept was worth messing with the ASEP’s recommendations.

And yet the ICANN board added the text about what happens in the event of a standing panel not existing anyway.

I could be wrong, but it does look a little bit like the ICANN board giving itself a carte blanch to ignore the recommendations of the ASEP, and therefore, indirectly, the ATRT.

ICANN may well have a point about the .africa IRP panel inappropriately ignoring some key sentences in the ICANN bylaws, but I can’t help but wonder how those sentences got there in the first place.

NTIA calls for ICANN to “walk the walk”

Kevin Murphy, May 17, 2011, Domain Policy

A US National Telecommunications and Information Administration official today said ICANN needs to prove it can “walk the walk” when it comes to accountability and transparency.

Speaking on a panel at the inaugural Nominet .uk Policy Forum here in London today, NTIA associate administrator Fiona Alexander said it was time for ICANN to “up its game”

On a panel about regulatory systems for the internet, Alexander reiterated US support for the ICANN model, but said that ICANN board too often acts without the consensus of its stakeholders.

Quoting from speeches made by her boss, assistant secretary Larry Strickling, she said the US supports the December recommendations of ICANN’s Accountability and Transparency Review Team.

“The ICANN board has until June to implement these recommendations,” she said.

It wasn’t clear whether that was a slip of the tongue, or an indication that the NTIA plans to hold ICANN’s feet to the fire over its implementation timetable.

The Affirmation of Commitments calls for ICANN to “take action” on the ATRT report by June 30, but ICANN is planning a longer-term roll-out

It has some good reasons for tardiness. Adopting the ATRT-recommended changes to its relationship with the Governmental Advisory Committee, for example, will require more bandwidth than ICANN and the GAC have to offer before the June deadline.

“Governments are only going to want to get more involved, not less,” Alexander said.

The Obama administration has a lot of political capital tied up in the idea of “multistakeholderism” – it’s a model it proposes for other fora – but its would-be poster child, ICANN, has a habit of frequently looking more like a red-headed poster step-child.

“It’s time to up your game,” Alexander said of ICANN, “because this really is the model that we need to work.”

The price of ICANN transparency: $2.6m

Kevin Murphy, April 24, 2011, Domain Policy

ICANN has estimated that it will need an extra $2.6 million on its fiscal 2012 budget to cover the cost of becoming more transparent and accountable.

In March, the organization decided to implement the 27 recommendations of its Accountability and Transparency Review Team, and last week the board asked its finance committee to look into budgeting the project.

The cost is estimated at $2.6 million for fiscal 2012, which begins in July, according to the resolution passed by the board on Thursday.

That’s much more than the initial estimate of $965,000 mentioned in staff briefing documents (pdf) provided to the board before its meeting in March, which excluded the ATRT recommendation that ICANN’s directors receive compensation.

The extra cash is required to hire additional staff and pay for consulting services. Presumably some of it will now also be needed to pay the board.

ICANN advised against director salaries

Kevin Murphy, April 22, 2011, Domain Policy

ICANN’s legal staff advised its board of directors against rushing to grant themselves a pay packet, according to documents released today.

At its San Francisco meeting last month, ICANN’s board voted to adopt a package of 27 measures designed to improve the organization’s accountability and transparency.

One of the recommendations, provided by the Accountability and Transparency Review Team in December, asked the board to quickly implement a “compensation scheme” for ICANN’s voting directors.

Other than salaried president Rod Beckstrom, currently only the chairman, Peter Dengate Thrush, is paid for his work on the board.

But briefing documents provided to the board prior to the San Francisco vote, published today (pdf and pdf), reveal that ICANN staff recommended adopting only 26 of the 27 ATRT recommendation.

The original ATRT recommendation #5 reads:

The Board should expeditiously implement the compensation scheme for voting Directors as recommended by the Boston Consulting Group adjusted as necessary to address international payment issues, if any.

And the ICANN staff recommendation to the board reads:

Staff recommends that the Board not implement ATRT Recommendation #5 – a compensation scheme for voting Board Directors – at this time, but give adoption and implementation further consideration as detailed in the staff’s proposed implementation plan

Regardless, the board voted to adopt all 27 ATRT recommendations in San Francisco, including the board compensation plan idea. This was broadly welcomed by the community.

The precise reasoning behind the staff’s recommendation is not clear – the rationale has been redacted from the briefing documents – but director Bruce Tonkin gave a hint during remarks at the open board meeting in San Francisco, saying:

There are legal requirements for how a board could pass a motion to decide to compensate board members, which is one of the recommendations, and then there are obviously budget implications of doing that.

So just the legal steps that need to be followed will take a bit of time. Not years, but will take some months.

The ATRT report was fairly comprehensive, covering everything from how ICANN selects its board to how it interacts with its Governmental Advisory Committee, to what information it publishes on its web site.

The report also gave ICANN deadlines to hit on many recommendations, many of them June 2011.

But it appears from the just-published briefing documents that ICANN intends to miss those deadlines in several cases, due to the complexity of the work involved, by a few months to as much as a year or more.

In other, simpler, cases, ICANN has already met the recommendations. Many of ICANN’s policy-making processes are still due to get a shake-up, but some changes will take longer than expected.

ICANN given 27 New Year’s resolutions

Kevin Murphy, January 3, 2011, Domain Policy

There’s a pretty big shake-up coming to ICANN in 2011, following the publication late last week of a report outlining 27 ways it should reform its power structures.

The final recommendations of its Accountability and Transparency Review Team (pdf) notably direct the organization to figure out its “dysfunctional” relationship with governments once and for all.

ICANN will also have to revamp how it decides who sits on its board of directors, when its staff can make unilateral decisions, how the voices of stakeholders are heard, and how its decisions can be appealed.

The ATRT report was developed, independently, as one of ICANN’s obligations under its Affirmation of Commitments with the US government’s Department of Commerce.

As such, ICANN is pretty much bound to adopt its findings. But many are written in such a way to enable some flexibility in their implementation.

The report covers four broad areas of reform, arguably the most important of which is ICANN’s relationship with its Governmental Advisory Committee.

As I’ve previously noted, ICANN and the GAC have a major stumbling block when it comes to effective communication due mainly to the fact that they can’t agree on what GAC “advice” is.

This has led, most recently, to delays with the TLD program, and with ICM Registry’s application for .xxx.

The ATRT report tells ICANN and the GAC to define “advice” before March this year.

It also recommends the opening of more formalized communications channels, so ICANN can tell the GAC when it needs advice, and on what topics, and the GAC can respond accordingly.

The report stops short of telling ICANN to follow GAC advice on a “mandatory” basis, as had been suggested by at least one GAC member (France).

The ICANN will still be able to overrule the GAC, but it will do so in a more formalized way.

ICANN’s public comment forums also look set for a rethink.

The ATRT report recommends, among other things, separating comment periods into at least two flavors and two phases, giving different priorities to different stages of policy development.

It could also could break out comment periods into two segments, to give commentators the chance to, in a second phase, rebut the earlier comments of others.

The three ICANN appeals processes (its Ombudsman, the Reconsideration Request process and the Independent Review Process) are also set for review.

The ATRT group wants ICANN to, before June, hire “a committee of independent experts” to figure out whether these procedures can be make cheaper, quicker and more useful.

The IRP, for example, is pretty much a rich man’s appeals process. The Ombudsman is seen as too cozy with ICANN to be an effective avenue for complaints. And the Reconsideration Request process has too many strict prerequisites to make it a useful tool.

The report includes a recommendation that ICANN should, in the next six months, clarify under what circumstances its is able to make decisions without listening to bottom-up consensus first:

The Board should clarify, as soon as possible but no later than June 2011 the distinction between issues that are properly subject to ICANN’s policy development processes and those matters that are properly within the executive functions performed by the ICANN staff and Board

ICANN has also been told to address how it selects its directors, with emphasis on:

identifying the collective skill-set required by the ICANN Board including such skills as public policy, finance, strategic planning, corporate governance, negotiation, and dispute resolution.

Other the recommendations themselves, the ATRT spends part of its 200-page report moaning about how little time (about nine months) it had to carry out its work, and how little importance some ICANN senior staff seemed to give to the process.

All of the 27 recommendations are expected to be implemented over the next six months. The report is currently open for public comment here.