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Sent: 17 November 2006 16:32
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Cc: CDT Policy Posts
Subject: Policy Post 12.20: ICANN Seeks Input on Improving Transparency and
Accountability

A Briefing On Public Policy Issues Affecting Civil Liberties Online
from The Center For Democracy and Technology

(1) ICANN Seeks Input on Improving Transparency and Accountability
(2) Preliminary Recommendations Focus on Transparency
(3) Reform Process Must Not Be Rushed
______________________________________________

(1) ICANN Seeks Input on Improving Openness and Accountability

Last month, the Internet Corporation for Assigned Names and Numbers
(ICANN) asked the Internet community for input on how it could build
greater transparency and accountability into its decision-making
processes. CDT was among several groups that filed preliminary comments
with ICANN.

ICANN manages the global domain name system (DNS) under a memorandum of
understanding with the U.S. Government. In September, the Department of
Commerce announced that it had extended its MOU with ICANN. As part of
that extension, ICANN and the Department agreed to a new Joint Project
Agreement intended to help develop the structures and procedures
necessary to continue the transition of the DNS to full private-sector
oversight. The long-term goal of the Agreement is that ICANN will
eventually operate independently of any governmental control or oversight.

One of the most significant and recurring criticisms about ICANN since
its inception has been that the organization has failed to operate in a
transparent, accountable manner. Too much of the process by which ICANN
arrives at decisions remains inscrutable to outsiders and participants
alike, even though its "bottom-up" coordination process does represent a
range of Internet stakeholders and the organization has consistently
held open public meetings.

In comments to the Commerce Department earlier this year, CDT
highlighted some of the key concerns:

"Equally troubling is that ICANN has made little effort and even less
progress toward improving the transparency of its decision-making
processes. Too much deliberation on important issues still takes place
behind closed doors and on private phone calls. ICANN's non-appointed,
full-time staff is still perceived as wielding too much influence in
setting ICANN policy. Absent real representation, this lack of
transparency has dealt a serious blow to ICANN's efforts to establish a
truly bottom-up coordination structure. Most people outside the ICANN
structure and even some that are ostensibly participating in the
"bottom-up coordination" remain perplexed as to how ICANN reaches its
decisions and which stakeholder groups maintain the real influence with
decision makers."

It was a promising sign, therefore, when the Commerce Department and
ICANN identified strengthening transparency and accountability as a top
priority in the Joint Project Agreement. Equally promising was that
ICANN wasted little time initiating a procedure to develop "management
operating principles" to support greater openness and transparency. This
is a vital process and one that has potential -- if properly executed --
to greatly bolster ICANN's global legitimacy and set the DNS on a path
toward full-fledged nongovernmental oversight.

ICANN-Commerce Joint Project Agreement
http://www.ntia.doc.gov/ntiahome/domainname/agreements/jpa/ICANNJPA_09292006
.htm

ICANN request for public comments
http://www.icann.org/announcements/announcement-16oct06.htm
______________________________________________

(2) Preliminary Recommendations Focus on Transparency

In order to craft long-term, workable solutions to increase transparency
and accountability in the ICANN process, a comprehensive examination of
ICANN's existing structures will be needed. In preliminary comments to
ICANN, CDT suggested the possibility of empanelling a multi-stakeholder
body to study the problems and propose solutions to the ICANN board.
While that process will take time, there are some areas where ICANN can
make immediate improvements. In submitted comments, CDT identified some
of these areas.

The first, and most obvious step in addressing the
transparency/accountability issues is for all of the entities officially
involved in the ICANN decision-making process -- from constituency
committees, to supporting organizations, all the way up to the board
itself -- to examine their procedures for disclosing information to the
public. Where feasible, meetings should be made public, and at a
minimum, the public should have access to major documents and the
minutes of key meetings. The ICANN Board itself should hold no secret
meetings, particularly when addressing DNS policy.

There may be some wholly internal decisions that ICANN should be
permitted to conduct outside of strict transparency requirements, but in
general, those requirements should be designed to shed as much daylight
as possible on ICANN's activities. For decisions that affect the DNS,
all deliberations should be public.

As part of that process, ICANN must take a hard look at the role its
full-time, non-appointed staff plays in that process. Although not an
official part of the bottom-up structure, the staff has historically
held great sway over the decision-making process. CDT suggests the
staff's role must either be minimized or officially acknowledged, and
thus subjected to the same transparency requirements that apply to other
entities within ICANN.

CDT also recommended that ICANN not limit itself in drawing from
existing models for improving transparency and accountability. Although
ICANN's nongovernmental status has been one of its greatest assets as a
management body, the organization's unique authority over infrastructure
that is a lynchpin of global communication and commerce gives it
government-like powers in this space.

As such, ICANN may want to look to the best practices of governments,
rather than those of other corporations, as it seeks to build a model
that fosters greater transparency. For instance, one excellent resource
for ICANN could be the U.S. Administrative Procedures Act, which
establishes rules and timelines for government agencies to follow when
making policy. Some of those rules would not make sense for ICANN, but
other could be lifted directly from the statute. Were ICANN, for
instance, to establish a rule subjecting all major policy decisions to a
60-day notice and comment period, the quality and legitimacy of the
decision-making process would be greatly enhanced.

CDT Preliminary Comments to ICANN
http://www.cdt.org/standards/20061101icanncomments.pdf
______________________________________________

(3) Reform Process Must Not Be Rushed

ICANN has undertaken a vital process in drafting of transparency and
accountability "management operating principles," and should be duly
commended. Making this a priority is essential to allowing ICANN to
proceed to the next stage in its evolution. Still, one key concern has
already arisen at this early stage in the process: timing.

ICANN solicited comments from the public on October 16 and requested
that they be submitted on October 31, despite the fact that many leaders
in the Internet governance space were attending the first-ever global
Internet Governance Forum (IGF) in Athens during that two-week period.
In its first announcement, ICANN intimated that it was seeking to
resolve the issue at its December board meeting in Sao Paulo.

To suggest that the public would be able to submit meaningful guidance
for fixing one of ICANN's oldest problems on a two-week deadline, and
that ICANN would be able to implement those solutions less than two
months later, led many in the Internet community to question whether
ICANN had a clear understanding of the scope of the challenge facing it.

After considerable public outcry at the artificially short timeframe,
ICANN issued a notice clarifying that it was seeking only "preliminary"
comments by October 31, and announcing that it would plan to implement
policy changes at its meeting in Lisbon next March. Although ICANN
should be applauded for responding to public concerns, even a March 2007
deadline to implement solutions to the problem would not appear to allow
nearly enough time to address the problem in a comprehensive manner.

ICANN has begun an important process by addressing the deep-seated
issues surrounding its own transparency and accountability. It is vital
that ICANN devote the time, resources and attention needed to see that
process through to a satisfactory conclusion.
_______________________________________________

Detailed information about online civil liberties issues may be
found at http://www.cdt.org/.
This document may be redistributed freely in full or linked to
http://www.cdt.org/publications/policyposts/2006/20

Excerpts may be re-posted with prior permission of [log in to unmask]
Policy Post 12.20 Copyright 2006 Center for Democracy and Technology

_______________________________________________
http://www.cdt.org/mailman/listinfo/policy-posts

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