As part of the Joint Project Agreement between the U.S. Department of Commerce and ICANN, the ICANN Board of Directors approved an Affirmation of Responsibilities for ICANN's Private Sector Management. Points 2 and 3 of that document refer to ICANN's intention to continue to improve processes and procedures that encourage improved transparency and accountability. As part of this commitment to continuously improving transparency and accountability, ICANN sought input from the community on the development of a set of Management Operating Principles. These Operating Principles will set new standards for transparency and accountability for interactions within the ICANN community and between members of the community and staff. The first part of the consultation process sought responses to a series of questions:
- How would you define "transparency" in the ICANN context?
- What standards of transparency are appropriate in ICANN operations and activity?
- How would you define "accountability" in the ICANN context?
- What standards of accountability are appropriate in ICANN operations and activity?
- What specific processes and activities need to be included to ensure these standards are met?
- Are there any innovative ideas on transparency and accountability that you believe have not yet been implemented that might apply to ICANN?
Twenty four responses were received. A list of those who commented is included at the end of this paper. The following is a summary of those responses. Where possible, comments have been attributed to those who made them. Comments have been broken up into three headings: general comments, comments about the consultation process, and comments about transparency and accountability. There is also a section at the end of this paper that outlines the next steps in the process.
All respondents welcomed the opportunity to make comments about transparency and accountability in ICANN. Although many had issues with the details of the consultation process (see below), there was general acknowledgement that the ICANN community should be deeply involved in the development of the Management Operating Principles.
All respondents stressed the importance of improving transparency and accountability in ICANN. Comments included: "the most important area where we think there needs to be improvement"; "vital to retaining…stakeholder trust"; "these concerns have been the sorest sticking point".
Almost all respondents suggested that the initial timetable was too ambitious. Many requested that the deadline for comments be extended to 31 December. (The deadline was extended to that date.) For some, the plan to have the principles adopted at the Lisbon meeting in March was also unrealistic. They suggested that a more flexible timeline might enable more discussion and a better result for this important issue.
Some respondents suggested that ICANN should seek assistance from an independent consultant who could review current practices or consider the best practices of governments (McGuire) or telecom regulators (Archbold). In a similar vein, others suggested a multi-stakeholder taskforce could work on the issue (Younger), or that there could be a Policy Development Process for compliance with ICANN's Bylaws (Hasbrouck).
Transparency and accountability
The major focus for comments on transparency was the decision making process at the Board level. Most comments were critical of current levels of transparency, with some describing it as "opaque"(Corwin) and others suggesting that it was not in accordance with the bylaws (Hasbrouck), although there was also the realisation that there has been steady improvement (Sims).
Many of the comments described what the respondent believed was a better, more transparent decision process. There were significant similarities in these views, and the salient features were:
- Board agendas should be published in advance (NSI, GAC)
- When decisions are to be made, the issue should be clearly flagged and described so that interested parties can observe and make comments (Auerbach, Shaw)
- The decision makers need to be clearly identified (Auerbach, McGuire, Shaw, Halton)
- Wherever possible, background material (eg a discussion paper) should be made available so that stakeholders can understand the issue; (Ruiz, GAC)
- Sufficient notice periods should be given so that interested parties can ask questions and comment on issues. (Auerbach, Graham)
- The Board needs to provide adequate, publicly available minutes. (Graham, Shaw, NSI, GAC)
- When a decision has been made, the outcome should be clearly communicated (Graham, Shaw) and supported by a rationale (GAC) that clearly explains:
- the inputs that were received (including public consultation and other comments), (Auerbach, Graham, Ruiz)
- any analysis that was undertaken, (Graham, Ruiz)
- the criteria that were used to make the decision (Auerbach)
- (if relevant) any dissenting views, and
- in controversial cases, "the Board's reasons for accepting or rejecting comments and positions provided by interested parties". (GAC).
- Board members should be encouraged to submit statements explaining their final position on the issue. (Auerbach, Ruiz, Shaw)
- All meetings should be transcribed or recorded (Ruiz), with these recordings and transcriptions easily accessible to all stakeholders. These recordings and transcriptions should be archived for later access by interested parties.
- The Board should not hold closed or secret meetings (Shaw), with the exception of those issues covered under sections 5.2 and 5.3 of the bylaws (Ruiz). Others suggested that there may be some internal decisions that could be made outside this framework (Shaw), but these decisions should be limited and well defined by published rules (McGuire) and the reasons for non-disclosure communicated in the minutes (Shaw).
There was also the suggestion that this transparency process should be applied to all decisions "along the policy development chain", including contracts. (Shaw, NSI)
A number of respondents were supportive of a bottom up, consensus approach to decision making. (Hasbrouck, Shaw) However, another respondent commented that the Board has a "fiduciary legal duty to act in the best interests of the organization and if that requires acting before or contrary to someone's idea of consensus, so be it" (Sims)
Comments were also made about the staff and transparency. Some (but not all) respondents grouped the staff and Board together when suggesting that the current processes were not transparent (Auerbach, Ruiz). Some comments suggested that staff have too much influence is setting ICANN policy (McGuire, Halton), that policy decisions are made by staff fiat and that this influence needs to be minimized or recognized (McGuire). However, there was an opposing view that staff in any organization have influence on the actions of a body by nature of their role, and that this was best managed by employing good staff and setting clear policy boundaries for their actions. (Sims)
While most of the comments focused on the Board and to some extent the staff, some suggested that the principle of transparency also applies to Supporting Organizations and Advisory Committees, task forces and working groups, or to "all parts of ICANN" (gTLD RyC). There were a number of comments that these meetings should be open (or at least that recordings or transcriptions should be available) (Ruiz), and one respondent suggested that there should no closed meetings of any ICANN group (including Board retreats, workshops or dinners and the GAC (Hasbrouck)).
One respondent put forward the view that an important aspect of transparency was the proof of representativeness of constituencies and that "it should not be assumed that any group providing impact automatically represents a broader community of interests unless their input is accompanied by objective evidence of the level of representativeness". (gTLD RyC)
There was also the suggestion that "previously non-public ICANN operational records" should be reviewed and published (Hasbrouck).
Also, one respondent mentioned that the style of ICANN communication (particularly for those whose first language is not English) restricts transparency. (Halton)
The difficulty in navigating the ICANN website was mentioned as limiting transparency (Graham, Halton)
Clearer rules need to be established regarding what correspondence gets published and these rules should be adhered to. (Hill)
Many respondents combined ideas about transparency and accountability in their responses, with some suggesting that having clearly understood and transparent processes was the first step towards accountability. However, a number of specific suggestions were put forward about accountability.
One common theme was the need for the Board to be held accountable to the community, (Graham, Hasbrouck) although there were few concrete ideas on how this might be achieved. One suggestion was that this could be done by having the Board elected by the community (Auerbach), although this approach was seen as unworkable by others (Sims). Another proposal was that there should be checks and balances on Board decisions and that Board decisions could be vetoed by a super majority vote of the supporting organizations. (NSI)
An alternative view was that the current ICANN processes of having Board members elected from constituencies, using the Nominating Committee process to source independent Board members and having a regular turnover of Board members ensured a Board that was "as representative as the vast majority of non-profit organizations". (Sims)
Many respondents noted that a key aspect of accountability was the need for appeal and review processes for stakeholders who felt that due process had not been followed. (Ruiz, McGuire, Shaw) There was acknowledgement that these processes exist currently in the form of the Reconsideration Committee of the Board and the Independent Review process. However, difficulties with both processes were pointed out.(NSI) The reconsideration committee was perceived as "the Board reviewing itself" (although one comment suggested that this was a necessary first step (Ruiz)). Another suggestion was that the grounds for reconsideration should be changed to allow the admission of information not previously considered where this in the best interests of the Internet community. (Ruiz) One respondent suggested that there were outstanding issues that the Reconsideration Committee needed to deal with and that the Reconsideration Committee had never held a public meeting (Hasbrouck). With regard to Independent Review, some respondents suggested that there were practical difficulties in requesting Independent Review due to the design of the web process. (Ruiz, Shaw) These appeal processes were seen as very important and "every effort must be made to ensure that requests made via any of these mechanisms are seen to be taken seriously, and are dealt with in a timely manner". (GAC)
Another suggestion for improving accountability was to put in place a set of standards that behaviour and performance could be monitored against. An example of this is the Administrative Procedures Act in the US (McGuire); government departments in many countries have Customer Charters, as do many private organizations such as banks. However, there was the suggestion that ICANN was a unique organization and aligning too closely to a government model was inappropriate (Sims). Similarly, the idea was put forward that part of improving the accountability of ICANN will be the setting out of expectations or service levels at the level of specific processes and procedures (Corwin).
There was also the suggestion that there was a need for more accountability in the budget process (Shaw). This could include development of a budgetary oversight committee and more timely publication of audited financial reports. (NSI)
Effective compliance mechanisms for agreements (especially between ICANN and registries and registrars) were also seen as an important aspect of accountability. (NSI)
Some respondents suggested that the bylaws needed to be changed to mandate a periodic third party review of the ICANN's accountability frameworks. (Ruiz, Shaw, NSI) There was also a similar suggestion that ICANN should appoint a compliance officer to monitor accountability and transparency. (Archbold)
Some respondents gave details of specific cases which they felt were examples of shortcomings in transparency and accountability. These cases are not discussed here. Interested parties can review the individual comments for details.
These initial responses will be an important input into the drafting of Management Operating Principles for ICANN. It is anticipated that a draft of these will be available before the Lisbon meeting for discussion on the ICANN website and at that meeting.
ICANN has also engaged the One World Trust to benchmark ICANN's accountability and transparency against similar organizations and help develop a plan for addressing any issues identified. Terms of reference for this work are currently being drafted and will be posted for comment. An initial report will be available for the Lisbon meeting.
Work is also continuing on codifying relevant ICANN processes and procedures so that these can be published. This will allow all members of the community to understand how these processes work and how they can participate in issues that concern them.
Comments were received from the following:
Bernard Turcotte (Canadian Internet Registry Authority) (CIRA)
Chris Disspain (auDA)
Bill Graham (International Telecommunications policy Coordination, Canada)
Paul Szyndler (Australian GAC representative)
Tim Ruiz (GoDaddy)
Eric Ramage (European Communities Trade Mark Association) (ECTA)
David McGuire (Center for Democracy and Technology)
Phil Corwin (Internet Commerce Association) ( ICA)
Heather I Shaw ( United States Council for International Business)
Derek Conant (Domain Name System General Assembly)
Wolf Halton (Halton Technical Services)
Sharil Tarmizi (GAC)
Richard Hill (International Telecommunication Union)
David Archbold (Information and Communications Technology Authority and .ky Domain Manager)
Jonathon Nevett (Network Solutions)
gTLD Registry Constituency