Conflicted? STFU under new ICANN rules

ICANN community members who refuse to disclose their conflicts of interest should keep their mouths shut during public meetings, according to a proposed new code of conduct now open for comment.

An updated Community Participant Code of Conduct Concerning SOIs was published this week, following an initial public comment period late last year, which saw some community members ask for more clarity on what the rules mean in practice.

A key change states that people who won’t disclose their potential conflicts shouldn’t even get up to the mic to express an opinion in public, even when they’re not directly participating in policy-making.

“When disclosure cannot be made, the participant must not participate in ICANN processes or make interventions at ICANN sessions on that issue,” the new draft states (changes in bold).

The change might lead to some community members staying in their seats or keeping their microphones muted during discussions at public ICANN meetings.

The policy is intended to improve the perceived legitimacy of ICANN’s processes and policies by forcing community volunteers to publish a statement of interest (SOI) naming who’s paying their wages.

The proposal has largely been championed by registries, registrars and governments, and opposed by lawyers in private practice, some of whom think they shouldn’t, or ethically can’t, name their clients.

The argument goes that if somebody is being paid by a company that wants to torpedo or delay the new gTLD program, or is working on a patent covering RDAP, you’d want to know if they were working on policies covering new gTLDs or RDAP.

The counter-argument goes that if an attorney is working on new gTLD policy on behalf of Coca-Cola, putting that information in an SOI would tip off Pepsi that a .coke gTLD application is in the works.

The updated policy draft clarifies what SOIs must disclose — it doesn’t just cover employers or clients — and provides lengthy guidance on specific scenarios where disclosures must be made.

The types of interests that should be disclosed are broad, and cover a variety of influences and relationships, both monetary and nonmonetary. These could include: familial relationships; employment relationships; agreements to represent a specific person, entity or group of entities; vendor or contracting relationships; stock/equity ownership (other than de minimis ownership); and all similar types of influences and relationships that impact the discloser’s participation within ICANN. Interests can be general or they can be issue-specific.

Working group chairs would get the right (though not, it seems, the obligation) to temporarily kick anyone found to be in violation of the rules. Complaints could also be escalated to the Ombuds, but she’s not getting any extra enforcement powers.

Lawyers have had their objections to the policy roundly rejected. The guidelines now state:

When an attorney is engaged to participate in ICANN on behalf of a client, while that attorney holds specific duties to their client, those duties do not override the need for others participating within ICANN to understand what other interests are advocating and participating within ICANN processes… when that attorney starts participating within processes, such as participating in mailing lists, making public comments, joining working groups, etc., on behalf of that client, the client’s and attorney’s obligations to the broader ICANN community emerge

The updated policy clarifies that governments enjoy some immunity — they don’t have to disclose who lobbied them on a particular issue they’re engaged with — with ICANN assuming their nations’ own transparency laws will cover that type of thing.

For the domain industry, volunteers will have to disclose all the roles their employer has. Nominet, for example, would have to disclose that it’s a ccTLD registry, a contracted gTLD registry, and a back-end registry services provider.

The policy now also provides guidance for trade groups, academics and IP owners.

The draft is now open for public comment until June 30. It’s possibly the last chance you’ll get to file a comment without disclosing your interests.

ICANN lawyers want to keep their clients secret

IP lawyers in the ICANN community have come out swinging against proposed rules that would require them to come clean about who they work for, rules that are supported by registrars and governments.

A proposed policy that would force lawyers to disclose the identities of their clients when they participate in policy-making would violate their clients’ human rights, according to the Intellectual Property Constituency.

The criticisms came in response to an ICANN public comment period on a draft Community Participant Code of Conduct Concerning Statements of Interest, which opened in October and closed this week.

The draft would close a loophole that allows ICANN policy makers to keep their potential conflicts of interest secret when “professional ethical obligations” prevent them from disclosing this information.

“When disclosure cannot be made, the participant must not participate in ICANN processes on that issue,” the draft states.

The changes are keenly supported by the Registrar Stakeholder Group as a whole and by GoDaddy and Tucows in particular. As far as the registrars are concerned, the main problem with the draft is the somewhat vague enforcement mechanisms.

GoDaddy, for example, said in its comments:

We recognize that there may be situations in which a party is unable to disclose their client(s), and in those rare cases, GoDaddy agrees with ICANN’s conclusion that the participant forfeits the ability to participate in associated processes.

It added, echoing the RrSG as a whole, that more clarity is needed on enforcement, where the buck seems to stop with the chair of the working group where the disclosure infraction is alleged to have taken place, with no escalation.

On the opposing side are the IPC, the Business Constituency, and the International Trademark Association, which all filed comments criticizing the proposed changes. The IPC said:

The often-argued response of having attorneys not participate if they fail to uphold their ethical duty to their clients effectively vitiates the human right of representation by counsel and is not for the public benefit. ICANN has agreed to uphold human rights and therefore counsel cannot be compelled to disclose client identity.

Two of the concerns from lawyers is that the policy could require their clients to divulge trade secrets, such as whether they intend to apply for a new gTLD in the forthcoming application round.

Perhaps anticipating the Governmental Advisory Committee’s expected support for the policy changes, which was no secret, the IPC also raises the specter of the policy being broad enough to apply to the governments themselves: should they all be compelled to reveal the names of all the lobbyists who knock on their doors?

This forcing of transparency of national interest would significantly inhibit GAC members from fulfilling their role. Imagine a GAC member from one country filing an SOI saying that their government was being lobbied by numerous parties to gain favor in the New gTLD Rounds?

The GAC’s response to the public comment period was in fact cautiously supportive of the rule changes, saying:

Prima facie, the proposal referring to Statements of Interests seems to be in the right direction, and to fulfil the expectations expressed by the GAC. At the same time, the GAC looks forward to the reactions from ICANN org to the views expressed during the public comment period

Like the registrars, the GAC is looking for more clarity on enforcement mechanisms.

The public comments will by summarized for publication mid-December and the ICANN board could take action on the proposals next year.

ICANN 79: anonymous trolls and undercover lawyers

Transparency, an ICANN watchword since day one, was a noticeable thematic undercurrent at the community’s 79th public meeting in Puerto Rico last week.

The problem of lawyers representing unnamed clients in policy-making groups was raised in several fora, while another section of the community seems to have separately been infiltrated by the same kind of anonymous trolls that plagued ICANN during its infancy.

Governments were especially keen that the GNSO clean house by tightening up its disclosure rules, following an abortive attempt at reform at the Hamburg meeting last October, and they found allies in the Contracted Parties House, which had killed off the reform after deciding it did not go far enough.

Under the current GNSO rules of engagement, everyone who volunteers to participate in policy-making has to file a Statement of Interest, disclosing information such as their employer, community group affiliations, and so on. Among other things, volunteers are asked:

Do you believe you are participating in the GNSO policy process as a representative of any individual or entity, whether paid or unpaid? Please answer “yes” or “no.” If the answer is “yes,” please provide the name of the represented individual or entity. If professional ethical obligations prevent you from disclosing this information, please so state.

The exemption is believed to be designed primarily for American lawyers in private practice, some of whom say they may sometimes be ethically prevented from disclosing the identity of their clients.

But this creates problems for community volunteers, and for the rest of us.

For policy-makers: sometimes, in a working group, you won’t know who you’re really arguing with. The guy opposite, in the expensive suit who keeps inexplicably rubbing her nostrils, could be a mouthpiece for almost any corporation, industry association, or government.

For the rest of us: we don’t know who is really making the policies that impact how domain names are sold, managed, and regulated. Those may seem trivial issues in the grand scheme of things, but they touch on issues such as free speech, data privacy, and how much money comes out of your pocket when you buy a domain.

An attempt last year by the GNSO to update its SOI rules was shot down by the Contracted Parties House because the proposed changes kept the lawyer disclosure exemption.

The Non-Contracted Parties House gave the changes their unanimous approval.

The GNSO Council Committee for Overseeing and Implementing Continuous Improvement, which came up with the changes, looked at 351 SOIs from two recent large policy working groups and found that “a maximum of 0.03% members were making use of the exemption.”

I think that means just one person.

But the scale of the issue is irrelevant compared to the principle, according to some.

Swiss GAC rep Jorge Cancio noted during a session with the CPH last week, “even if there’s a very small number of cases where people use some exceptions for not explaining whom they are working for, even if it’s just 10 people out of 1,000 participants, this already tarnishes the whole of the system”.

Registries Stakeholder Group chair Sam Demetriou concurred: “We believe in and we are strong supporters of the multistakeholder model, but in order for a model to be multistakeholder, you need to know who those stakeholders are. It is inherent in the entire system and the definition.”

The GAC’s position is that everyone participating in policy-making needs to be up-front about their interests, in accordance with global norms. In a session with the GNSO Council, UK rep and vice-chair Nigel Hickson urged the GNSO to sort out the SOI issue before ICANN meets again, set for Kigali this June, because ministers will be present, wanting answers.

Separately at ICANN 79 last week, there was a parallel debate going on about whether a group affiliated with ICANN should force its members to even file SOIs at all.

The Universal Acceptance Steering Group isn’t technically an ICANN body — a Supporting Organization or Advisory Committee — but it is funded and supported by ICANN and carries out ICANN work. It’s been around since 2015 but so far hasn’t required members to submit SOIs.

As anyone who attended or remotely lurked on the ICANN 79 Public Forum last week will know, the UASG came in for a lot of criticism, mostly from remote participants, some of whom have managed to pull off the near-miraculously impressive achievement of having a non-existent Google footprint.

I’m not of course suggesting that some of the people in the Public Forum chat room were trolls using pseudonyms, but… actually, yes, that is what I am suggesting.

These participants had beef with the UASG for imposing a new strict SOI requirement — rules coming into force right now give participants a few months to file their SOIs or get kicked off the UASG mailing list — and suggested UASG leadership had broken with ICANN rules by unilaterally imposing the requirement.

Said mailing list is notable for being lightly used, but with occasional traffic spikes, usually during discussions of anything related to elections or UASG leadership, from participants using free webmail addresses and often what appear to be joke names (Yisrael Memshelet, really?).

Sometimes, these participants have helped steer the mailing list discussion, and at least one question from an aforementioned Google-resistant remote participant was read out at last week’s Public Forum and responded to (kinda) by a board member. ICANN received so many remote UASG questions during the Public Forum that it said it would provide a consolidated written response after the meeting.

It seems ICANN is suffering from twin related transparency problems right now — lawyers who don’t want to reveal their clients, and trolls who don’t want to reveal their identities — neither of which is ideal for its legitimacy.