ICANN staff imposed Accountability Process receives a formal Reconsideration Request (RR) to the ICANN Board

As posted on CircleID by Philip S. Corwin, In a rapid follow-up to the unprecedented joint letter sent on August 26th by all members of the ICANN community questioning the proposed Accountability Process imposed by ICANN staff, three of the groups that signed that letter have now submitted a formal Reconsideration Request (RR) to the ICANN Board. The August 29th RR — submitted jointly by the Business Constituency, Registry Stakeholders Group, and Non-Commercial Stakeholders group — requests that ICANN “confer with the community as soon as possible to address these concerns and amend its plan in such a way that the community input is taken into account as the plan goes forward. Specifically, ICANN should make modifications and clarifications to its plan to reflect the widely shared concerns of the community that can reasonably be implemented.”

The RR process is one of three currently available accountability measures available to ICANN stakeholders. The others are an Independent Review Panel (IRP) and the filing of a complaint with the Ombudsman. ICANN’s Board has contended that the findings of an IRP are merely advisory and non-binding, and the Ombudsman has investigatory powers but no authority to make or change policy, administrative or Board decisions. The RR is thus the only means available for requesting that the Board intervene against arbitrary staff action that materially injures the ICANN community.

One of the ideas that have been floated for the evaluation of enhanced accountability measures recommended by the final Accountability Process is subjecting them to a hypothetical “stress test” to determine their likely efficacy. The manner in which ICANN’s Board handles this RR will constitute a real world stress test of the RR’s effectiveness as an accountability mechanism, and will inform the subsequent debate about necessary enhancements.

The RR contains multiple allegations of an extremely serious nature that add up to a searing critique of staff actions. Here is a sampling of the key charges, quoting directly from the RR:

• We have been materially and negatively affected by the staff’s decision to proceed with their proposed plan finalized in the 22-Aug-2014 ICANN announcement on Enhancing Accountability: Process and Next Steps. The staff-proposed plan did not properly take into account community concerns and did not provide a public comment period whereby the community could provide reaction to the staff plan. By taking this action, we have been materially harmed, as our questions, concerns, and ideas have not been adequately considered in the required multi-stakeholder process. Further, the community has no say in the appointment of the Public Experts Group (“PEG”) or the seven outside “expert” advisors to be appointed by the PEG. Yet, the seven advisors could steer consensus and outcome that will have a direct impact on the community….The staff-imposed plan is a top-down approach that calls into question the fairness of enhancing accountability process and the legitimacy of its decisions. It also creates a disturbing precedent that could embolden future actions by staff or the ICANN Board to circumvent and ignore the bottom-up, multi-stakeholder process.
• This plan, imposed on the community without transparency and without the opportunity for public comment, creates inconsistency, disregards proper ICANN procedure, injects unfairness into the process, and defeats the purpose of the entire accountability examination.
• The staff development and imposition of its accountability plan as described above failed to uphold ICANN’s stated core values, mission, and promises that the accountability plan would be community driven and based on the public interest as expressed through a bottom-up process.
• ICANN neither sought nor supported participation in the development of this plan, and specifically excluded the community from the drafting and decision-making opportunities behind the staff plan.
• The formulation of staff’s plan went on behind closed doors and excluded the opportunity for the community to influence the plan. The community was not provided with the rationale for the staff plan until after the plan had been posted as final and its implementation had begun.
• The decision to impose this plan, to which so many in the community were openly objecting, showed a lack of neutrality, integrity, objectivity, and fairness on the part of staff. Staff failed to follow any documented policy and created its own plan without addressing the concerns about its conflict of interest in the matter.
• Staff failed to include the input of those who are most affected by staff’s accountability plan: the community members who participate at ICANN in hopes of getting a fair opportunity to influence policy in a democratic, open, transparent process.
• Staff failed to integrate the input obtained from the initial public comment period in the formulation of its plan. Then staff did not provide any opportunity for public comment on its plan once it was finally published. ICANN has failed to be accountable to the Internet community.
• Staff failed to operate in an open, transparent or fair manner.
• The views, concerns, needs, and ideas of the community ICANN was established to serve were not adequately considered in the formulation of the staff plan. Nor were ICANN’s Bylaws and promises to operate in an open, transparent, and bottom-up manner followed in this process.

The business sector and civil society have been coalescing around core Principles for the IANA transition and accompanying enhancements of ICANN accountability. The U.S. Congress will be returning from recess next week and will undoubtedly be hearing from Internet-related businesses and public interest organizations in regard to the staff-imposed Accountability Process, which seems designed the type of sweeping reforms contained in those Principles. This may result in sharp questioning of the NTIA — which must sign off on any proposed transition plan, and has publicly stated that it must be accompanied by acceptable accountability measures — about why ICANN has violated its own multistakeholder process and commitment to transparency. Additional Congressional reaction is also possible. As ICANN’s own Governmental Advisory Committee signed the joint letter we expect that many other governments have and will continue to receive similar input.

Meanwhile, ICANN’s CEO and Board Chairman sent an August 28th response to the signers of the August 26th letter. While the tone of their letter is civil it does not commit to any reopening of or revisions to the staff-imposed Process.

Indeed, it appears to reiterate that the disgruntled parties should engage with the process as is:

We look forward to receiving your list of clarifying questions and concerns and we will respond in kind. As we have since this process began last spring, we appreciate all of the community comments received to date and encourage broad participation in the Cross Community Group — the key forum for generating the substantive issues this accountability process will address.
The process as outlined and complemented with the information in the FAQs enables the substantive dialogues to begin soon, to remain interrelated with the IANA Functions Stewardship Transition process well underway. (Emphasis added)

ICANN has also indicated its dedication to “full speed ahead” adoption and implementation of the staff-imposed Process through the August 28th publication of a “Call for Candidates: Seeking Advisors to the ICANN Accountability & Governance Coordination Group”. The notice sets a very near-term deadline of September 10th for the submission of nominations so that the Public Experts Group (PEG) — of which NTIA head Larry Strickling is one of four members — can complete the final selection of “advisors” before the final 2014 ICANN meeting scheduled for October 12th-16th in Los Angeles. As noted above, one of the allegations in the RR is that “the community has no say in the appointment of the Public Experts Group (“PEG”) or the seven outside “expert” advisors to be appointed by the PEG. Yet, the seven advisors could steer consensus and outcome”.

Further questions arise regarding the staff decree that the Advisors are supposed to “bring an external, independent voice to this process to assure that best practices are brought in from outside of the ICANN community”. An accompanying FAQ sheds no light on what it means to be from “outside” the ICANN community, but makes clear that the “Coordination Group should make recommendations based on consensus taking into account advice of the advisors” and that the “advisors are not limited to engaging with the Coordination Group”. So it appears that these Advisors are supposed to have considerable impact on the final report and recommendations, and will have wide latitude to engage with parties outside the Coordination group — including governments and the media — but are to have little or no actual real world experience with ICANN. Many would rightfully ask why individuals who are part of the ICANN community, understand its operations and internal dynamics, and have expertise in relevant areas should be automatically deemed ineligible to act in this advisory capacity? This staff decision seems designed to ensure that the selected Advisors operate in the world of theory rather than actual ICANN practice.

The final sign that ICANN leadership may be circling the wagons and doubling down on the staff plan is its August 29th announcement of a September 2nd “Enhancing ICANN Accountability and Governance Town Hall Meeting” taking place at the IGF meeting in Istanbul. It explains, “The Town Hall Meeting will provide an opportunity for an open dialogue to address and clarify any remaining questions about the Enhancing ICANN Accountability and Governance Process.” (Emphasis added)

It is worth recalling that ICANN’s rationale for separating the IANA transition from the enhanced accountability processes was that the first involved the global stakeholder community while the second was an internal ICANN matter and therefore should be discussed and determined solely within the ICANN community. That rationale was questionable given that ICANN is wide open to participation by anyone. Some suspected that it was adopted in anticipation of trying to push the transition through before any significant accountability improvements were decided, much less implemented. But it is the official rationale put out there by ICANN.

Now that every group within the ICANN community has signed a joint letter expressing concerns about the substance of the fait accompli Accountability Process promulgated by staff as a on August 14th — with that community letter promising additional detailed questions within seven days — that action has become the focus of intense disagreement between ICANN the corporation and its community. This dispute should be resolved internally.

While an ICANN session discussing and taking questions about the proposed Process during the IGF meeting seems unobjectionable, the notion that “all remaining questions” can be answered in a 90-minute session in Istanbul is preposterous. They cannot. There are too many questions to be answered in an environment that may be as much PR event as substantive dialogue. And this is a session at which many members of the ICANN community will not be present, while many in the audience will have little or no understanding of ICANN’s procedures and Bylaws and the events leading up to this impasse.

There can be little doubt that the attempt of ICANN staff to impose an Accountability Process over the objections of and without sufficient input from the ICANN community has introduced tremendous unnecessary stress into the entire relationship between the corporation and its community. How the Board handles this RR will determine whether that stress is relieved in a constructive manner or is further exacerbated. It will also be highly instructive on the questions of whether the present RR process provides any real accountability — and, if not, what should be developed to replace it.

The text of the RR follows here (Download PDF).

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm. He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman, and as Strategic Advisor to the ICANN Sherpa DNS-focused consultancy. The views expressed in this article are solely his own.