Wednesday, 10 March 2010

What ICANN needs to do to clean up its act

Internet governing body ICANN is meeting this week in Nairobi following the decision last month by a panel of international arbitrators that ICANN had acted in bad faith and violated its own Bylaws.

I’m not optimistic that this will lead ICANN to take up my own request, now almost 5 years old, for an independent review of the process by which ICANN made its decision to approve the “.travel” top-level Internet domain, and to delegate control of .travel to a front for the airlines. Nor am I optimistic about getting my questions answered. But I haven’t given up, and made these comments (remotely) to today’s ICANN meeting:

When is ICANN going to act on the pending requests for independent review?

ICANN and ICM Registry mutually agreed to submit certain questions to arbitration. But that arbitration did not comply with ICANN’s bylaws for an independent review. ICANN’s bylaws require specific procedures for policy development and decision making. ICANN has not yet followed these procedures to properly approve an independent review provider and procedures for independent review.

ICM Registry chose to accept ICANN’s choices, made in secret, of arbitration provider and arbitration procedures. But that decision by ICM Registry is not binding on anyone else. ICANN still needs to properly select an independent review provider and develop procedures for independent review. ICANN also still needs to deal with the other independent review requests that it has been ignoring for many years, including those from myself, Karl Auerbach, and others. I urge you to schedule a public meeting, as soon as possible, with me and with the other people whose requests for independent review are pending, to begin this policy development process.

The arbitrators’ finding was not that ICANN had made the wrong decision on .XXX. The arbitrators’ finding was that ICANN had not acted in accordance with ICANN’s Bylaws. The decision was about ICANN’s process, not the substantive “yes or no” outcome of ICANN’s decision.

ICANN should reverse its decision on .XXX, but that will not be sufficient to rectify the procedural problem identified by the arbitrators. ICANN needs to admit that it acted in a manner contrary to its Bylaws, and think seriously about why and how it did so and what changes need to be made in ICANN’s decision-making process in order to bring that process into compliance with the Bylaws.

An organization that doesn’t follow its own rules is unlikely to be able to reform itself from within. If ICANN is serious about acting on the arbitrators’ findings, it should immediately open a public forum on the changes need to bring ICANN’s procedures into compliance with the Bylaws. The Board should schedule substantial time to consider these issues and community and outside input at its next meeting. And that meeting, and subsequent discussion of what to do to reform ICANN’s decision-making process, should be conducted in accordance with the Bylaws, with the maximum feasible extent of transparency, not by closed teleconference.

To begin that discussion, let me suggest some reasons why ICANN did not act in accordance with the procedural rules in its Bylaws.

First, ICANN’s organizational culture has not valued procedural due process. That needs to change.

Second, ICANN’s failure to comply with its transparency Bylaws has meant that many of the violations of other procedural rules and the bylaws have occurred in secret. This has prevented community members, outside watchdogs, and journalists such as myself from observing and reporting many of the violations of the Bylaws. This has delayed or prevented community and public knowledge and calls for accountability.

Third, ICANN’s staff and legal counsel have failed to monitor ICANN’s compliance with the procedural rules in ICANN’s Bylaws or to alert the Board when those procedural rules were not being followed. Staff responsible for this specific function need to be publicly designated and held accountable for fulfilling this responsibility.

Fourth, Board members have relied too much on the advice of the staff and legal counsel, and have failed to exercise due diligence not just with respect to the substance of decisions but with respect to compliance with the procedural rules in ICANN’s bylaws. Each Board member needs to take personal responsibility to read the Bylaws, maintain an ongoing awareness of their requirements, and object publicly when they are not followed.

Each of these problems within ICANN needs to be addressed in order for ICANN to bring its practices into compliance with the rules in its Bylaws. I urge you to make this happen.

[Follow-up: Transcripts of the public forum itself and of the simultaneous online chat . I’ve also made similar comments in the public forum on ICANN’s staff recommendations for action on the arbitrators’ finding about ICM Registry and .XXX.]

Link | Posted by Edward on Wednesday, 10 March 2010, 21:27 ( 9:27 PM)
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