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Summary and Analysis of Responses to Request for Public Comments and Dialogue on ICANN's Performance

20 June 2007

On May 8 2007, as part of an ongoing interest in continuous improvement, ICANN sought community feedback about its performance.

Several areas of performance, drawn from the ICANN Strategic Plan, were of particular interest. Targeted questions were asked, in particular:

  • Is ICANN becoming more transparent, accessible and accountable? What improvements have been observed and what still needs to be done?
  • Has ICANN improved its operational performance? What improvements have been observed and what still needs to be done?
  • Has ICANN improved its performance in the development of Policy? What improvements have been observed and what still needs to be done?
  • Has ICANN increased international participation? What improvements have been observed and what still needs to be done?
  • Have there been improvements in participation and in efficiency of the ICANN multi-stakeholder model? What more needs to be done?
  • What plans and actions have been observed that position ICANN for more comprehensive transition of the technical coordination of the Internet’s system of unique identifiers. What more needs to be done?
  • What improvements have been made in dispute resolution and the application of fairness and equity in the management of complaints and other mechanisms of review that are available? These include the work of the reconsideration committee, the Ombudsman and independent review.

Comments were received at http://forum.icann.org/lists/performance-2007/ until June 5, 2007 and were posted at: performance-2007@icann.org.

A discussion took place on ICANN's Blog <http://blog.icann.org>.


The comments forum has now been closed. 14 responses were received.

The entire forum can be found at: http://forum.icann.org/lists/performance-2007/

Tim Ruiz of GoDaddy re-posted a document from October last year submitted for a request on the d accountability and transparency. A key comment is on the second page, where he asks for a mechanism to escalate review of a Board decision.

See: http://forum.icann.org/lists/performance-2007/msg00014.html

Edward Hasbrouck believes ICANN there has been no improvement in any area, and states that ICANN is in flagrant disregard of its Bylaws. A specific area of concern for him is the Reconsideration Committee and the Ombudsman.

See: http://forum.icann.org/lists/performance-2007/

The Internet Commerce Association (ICA) posted a lengthy letter that seems to have been developed as a specific response to the questions raised in an earlier request for comment. It specifically raises the issue of risks around .travel and their belief that ICANN has not taken action, including notifying registrants of potential risk. It says that ICANN needs to take the feedback of constituencies more seriously.

See: http://forum.icann.org/lists/performance-2007/msg00012.html

Jon Nevitt, of the registrar Network Solutions reposted a document from a previous RFC from Network Solutions. Key features include the need for better appeals for Board decisions, publishing monthly financial reports, having a budget oversight committee.

See: http://forum.icann.org/lists/performance-2007/msg00011.html

Dan Krimm questions the multi-stakeholder organization of ICANN, and says it is not bottom up, but top down. He believes that ICANN’s mission has ‘crept’ beyond one that is narrow and technical.

See: http://forum.icann.org/lists/performance-2007/msg00007.html

An unsigned comment from the Keyword Factory, a website development company, says that ICANN has made no progress in the last five years.

See: http://forum.icann.org/lists/performance-2007/msg00008.html

A letter from the President and CEO of the Canadian Internet Registration Authority (CIRA) raised concerns over the transparency and accountability of governance at ICANN including how it conducts its public consultations. It noted that CIRA had been encouraged by the steps ICANN has undertaken to increase transparency and it stated this opinion publicly at the ICANN Lisbon meeting. However it believed that this Request for Public Comment is a clear step backwards in ICANN's journey towards becoming a truly transparent and accountable organization.

See: http://forum.icann.org/lists/performance-2007/msg00005.html

Omar D. Al-Sahili believed that the appointment of ICANN’s Manager-Regional Relations for the Middle East, Baher Esmat was a positive development.

See http://forum.icann.org/lists/performance-2007/msg00006.html

In addition there were two comments about ICANN’s handling of the termination of RegisterFly as an accredited Registrar, and 3 items of spam.

The ICANN blog received 15 posts and 10 comments in response to postings from ICANN staff.

7 comments were about RegisterFly or the reform of the Registrar Accreditation Agreement. There was one comment saying ICANN had improved but that there was a need for better communications. There was a comment asking what had happened to a report on data escrow progress and there were 6 comments that were about domain name registration issues.

See http://blog.icann.org/

Analysis - Major Themes

If some of the contributors are to be believed ICANN has made no progress whatsoever over at least the last 5 years. This is obviously wrong.

There have clearly been changes in the organization that have occurred that are in direct response to community concern and interest. A new form of Board reporting is one key element. There has been concern that ICANN has not met the 5 day rule for posting of Board minutes laid out in the bylaws. ICANN now provides much more comprehensive minutes and a preliminary report of Board meetings is posted within 72 hours of meetings. There is a blog, a public participation site, a general manager public participation, a strategic plan, an operating plan, a budget which is consulted upon and scrutinised by the community, a better website, newsletters, an annual report, amongst other changes, the development of a an information disclosure policy. There will be more after the response to the One World Trust report.

There were a number of other key themes that have emerged and these are discussed below.

  • Consultation process

A consistent theme in the feedback was dissatisfaction with the consultation process itself. Respondents felt that not enough time was provided for serious comment. In addition, respondents suggested that there was insufficient background to allow the ICANN community to understand the reason for the consultation and the purpose for which the comments will be used. As a result, some respondents did not post a response to the questions posed and submitted material posted in a previous request for comment on ICANN’s accountability and transparency.

There are certainly lessons to be learned here. The context was clearly not explained well and respondents believe that ICANN was not genuine in its attempts at consultation. That is not true. This RFC was intended to be a form of quick assessment of changes made so far to assist transparency and accountability. Clearly the lack of context and preparation caused many to believe that this was supplanting more extensive consultations.

Since then ICANN has posted a response to the One World Trust Report on Accountability and Transparency ( http://www.icann.org/announcements/announcement-2-07jun07.htm).

In that posting it was explained that the June 3 RFC was only meant to be an opportunity to obtain feedback from the community about measures introduced so far to improve transparency and accountability. These include improved Board meeting reporting, the annual report, the introduction of the ICANN blog, correspondence posting, website improvements, the employment of a General Manager Public Participation and the public participation site. It was also clarified that feedback of this kind on the measures being initiated will be sought regularly. It was not intended to supplant a more extensive process of consultation.

  • Registrar Accreditation and Compliance

Many respondents mentioned recent events with RegisterFly and the associated compliance and accreditation issues. While there were comments that ICANN had handled some aspects of the RegisterFly incident well, most expressed the view that ICANN had not done enough for registrants and that there was a need for significant improvements in the monitoring of registrar compliance with the Registrar Accreditation Agreement (RAA). Some suggested that the RAA needed to be revised in the light of the Registerfly event. This is not surprising. ICANN agrees with the need for change and the President and CEO has posted public comments to that effect. A discussion took place at the ICANN Lisbon meeting. RegisterFly customers have had their domains transferred to the registrar GoDaddy in a commercial transaction negotiated between the two organizations. But ICANN’s pursuit of RegisterFly through the courts using the RAA obviously prompted RegisterFly to understand an outcome was required as ICANN was seeking its termination. A long dialogue about ICANN’s response on RegisterFly along with the initiatives ICANN took to assist registrants can be found at the ICANN blog.

Some respondents raised related, but more general issues about ICANN’s responsibilities in the event of registrar failure. One respondent expressed particular concern about the viability of the .travel STLD.

ICANN will be discussing changes to the RAA as well as an update on data escrow and registry failover at the San Juan meeting in a session devoted to the protection of registrants to be held at the public forum on Monday June 25, 2007.

  • Transparency of decision making generally

Many of the comments that were received about the need for improvement in the transparency of ICANN decision making processes were re-postings of material submitted in 2006, so it is not clear whether the respondents felt that progress had been made, and whether there were particular issues that were outstanding. Clearly there have been changes at ICANN since these postings. However the President and CEO of CIRA did point out in his letter that there had been improvements to transparency recently and that had been acknowledged at the ICANN Lisbon meeting in March 2007.

Substantial improvements have been made during the last six months in the format and timing of Board minutes. As described above, Board minutes are now more detailed and delivered in a more timely fashion. Historically this has been a major source of concern for many in the community. That change – along with the blog, the newsletters, the appointment of the general manager public participation, the improvements to the website amongst other things – makes it hard to understand how at least one respondent could argue that ‘nothing’ has changed. The review of ICANN’s accountability and transparency conducted by the One World Trust suggested that ICANN is now at best practice with regard to Board transparency:

…the overall level of transparency of the ICANN Board is high when benchmarked against other global organizations" Section 4.2, paragraph 38, page 15, Independent Review of ICANN’s Accountability and Transparency – Structures and Practices

One respondent in a reposting of material previously submitted suggested that all Board, Supporting Organization and Advisory Committee meetings should be taped and/ or transcribed.

From the Board perspective, whatever advantages may accrue from having Board meetings taped needs to be balanced against the impact that a taped meeting would have on the freedom of discussion of the Board. The Board minutes are very comprehensive accounts of discussions. Some discussions at Board level involve sensitive issues to do with the stability and security of the Internet and will not be taped. Most Boards don’t tape their meetings. Indeed, the One World Trust report says of ICANN:

"While ICANN strives for high levels of openness and transparency both at the Board level and among its supporting organisations and advisory committees, there are instances in each of these bodies where due to legal, contractual or security issues, certain discussions and information needs to remain confidential. This is entirely acceptable, as full transparency can at times be detrimental to an organisation’s decision-making processes or activities. For example, if the disclosure of information could potentially undermine the ability of the organisation to pursue its mission (in the case of ICANN the security and stability of the Internet’s system of unique identifiers), such information should not be made publicly available". (Section 4.1, paragraph 28, page 13, Independent Review of ICANN’s Accountability and Transparency – Structures and Practices ).

One strong message from the respondents (including those who made new submissions during this consultation period) was that feedback from the community needed to be acknowledged during the decision making process and that the Board needed to make specific reference to the way that consultation had been weighed in coming to a decision. ICANN agrees.

One respondent felt that this had not been done during the decision to renew the .biz, .org, .info contracts despite public comment to the contrary.

  • Budget

One respondent in a resubmission of material previously posted suggests that there needs to be greater oversight of the ICANN Budget. The ICANN planning process, including Strategic Planning, Operational Planning and Budgeting is already very consultative. The whole community is able to participate in the process and is able to comment at numerous stages. The Budget is translated into different languages. The Board applies its governance role through the Board Finance Committee which is closely involved in the preparation of the Budget. Registrars are also closely involved in the process. The registrar fee structure contained in the Budget must be approved by two-thirds of the gTLD Registrars using the methodology contained in the Registrar Accreditation Agreement.

The Audit Committee oversees the process and there is timely publication of independent audited reports annually. In short the process is comprehensive, and consultative.

  • Overall accountability

Several respondents raised issues about the overall accountability of the ICANN structure. One suggestion was that there needed to be checks and balances on the Board, perhaps by allowing a super majority vote of Supporting Organization and Advisory Committee Councils to override a vote of the Board. Another expressed concerns about the effect on accountability of a possible transition to a Private International Organization. Both of these issues are complex need to be raised in any review of the ICANN Board. Certainly individual members or liaisons can already be removed under the bylaws via a three fourths majority vote of the Board and the Board is accountable under the laws of the United States and California, where ICANN is incorporated.

There are extensive internal and external accountabilities on the Board that range from the incorporated status of the organization that requires it to abide by law, through to the bylaws and other forms of rule based scrutiny. These will be clearly outlined in the Operating Principles and frameworks on accountability and transparency to be released by the San Juan meeting.

  • Dispute resolution

Some respondents mentioned the need to improve ICANN’s dispute resolution processes, specifically the Reconsideration process and the Independent Review Process.

The One World Trust Report noted that ICANN’s processes were in accordance with best practice but that more consistent and better information was required. ICANN is committed to improving this including making the website clear about the Independent review process so that the existing link goes, to a specific explanation of how a member of the ICANN community might begin an independent review rather than to the Independent Review provider’s website.

  • Top down model versus bottom up organic model

One respondent suggested that a fundamental problem with ICANN governance was that it was a "top down" model. However, the current structure is based on organic development, with groups evolving over time. The GNSO constituencies are self organizing as are the ALAC Regional At Large Organizations. The Bylaws allow for new groups to apply to become constituencies within the GNSO. Consensus policy once developed from the bottom up, can only be changed by the Board via a two-thirds majority vote. Furthermore, ICANN is working with Supporting Organizations and Advisory Committees to improve ability to work on policy issues that cut across existing boundaries.

  • Third party reviews

Some respondents suggested that ICANN should engage in periodic reviews of its performance and procedures regarding transparency and accountability. ICANN commissioned the One World Trust to conduct such a review. The report suggests that ICANN is already a very accountable and transparent organization. The report is available at http://www.icann.org/announcements/announcement-4-29mar07.htm

  • Regional representation

There was positive feedback on the work of the Manager Regional Relations for the Middle East as it made ICANN more transparent as far as distributing information on its mission. This is helpful as outreach is an important part of explaining ICANN’s mission and encourages participation in ICANN.

Use of this Input

ICANN would like to thank all participants.

This request for comment was intended to get feedback as to whether there had been change for the better in relation to transparency and accountability at ICANN. As said above, the context of this RFC was less than adequately explained and it’s handling could have been better. Lessons have been learnt. ICANN’s approach to consultation has already been modified through this process as is evidenced by this response above and the commitment to OECD principles for consultation where feasible. ICANN is responding.

The information provided will be used to assess whether the changes that have been made in recent times have been useful to the community. They will guide executive management on whether more needs to be done. Community support and encouragement for these changes is vital to driving continued change. If the changes that have been made so far are not recognised as useful by the community then the momentum for change could be lost. Recognition of positive change is, frankly, one determinant in understanding what is working and what isn’t. There will be other consultations of this kind to measure community reaction to changes ICANN may make.

The issues surrounding Board accountability and its perception clearly need to be discussed more and a significant opportunity for that will occur at the ICANN San Juan meeting at which there will be a workshop on this issue. The workshop will be held from 4pm -5.30pm, Wednesday 27 June 2007 as advertised in the ICANN San Juan Agenda.