Friday, 12 March 2010

ICANN's Board of Directors still doesn't get it

Last night while I was sleeping in San Francisco (Friday morning in Nairobi), ICANN’s Board of Directors held a pro forma public meeting at which it voted unanimously and without debate to declare that it had “has considered … throughout the week in Nairobi” the recent arbitration finding that ICANN did not act in accordance with the procedural rules in its own Bylaws when it made its decision to reject a “.XXX” top-level Internet domain name for “adult” content.

It’s hard to know what the Board meant by this statement. The only place that the arbitration decision appeared on the agenda for any of the meetings in Nairobi earlier in the week was at the public forum the day before. But that was merely an open mike. My questions about the arbitration were read out and (supposedly) entered into the record along with those from questioners in the room in Nairobi. The Board neither answered any of these questions nor conducted any public consideration of what to do. If there was any “consideration” of the arbitrator’s findings by the Board, it occurred during one of the many (improperly) closed meetings, or off the record entirely in some back room.

ICANN’s Board directed its CEO and General Counsel to “finalize a report of possible process options for further consideration” and post it for public comment and further “consideration” by the Board at its next public meeting in Brussels in June. No draft of such a report has been made public, and there’s been no public consideration of what those options might be, so it’s a mystery what is to be “finalized”.

What does all this mean for ICANN’s boasts of transparency and accountability?

Other observers and participants in ICANN’s meetings are already pointing out that ICANN’s Board has, despite the arbitrators’ clear findings, postponed any substantive action with respect to its previous improperly made decision on .XXX.

And ICANN’s Board has now declared that a forum at which ICANN gave no response to questions or comments and conducted no public debate or discussion — not even the slightest lip service — was sufficient (perhaps in conjunction with further improperly secret deliberation) to fulfill its obligation to “consider” the arbitrators’ findings.

It’s particularly hypocritical at this moment for ICANN to use the need to publish proposals and provide an opportunity for public comment as an excuse to postpone its substantive decision. ICANN’s last major policy decision, with far more sweeping implications, was its approval of a joint “Affirmation of Commitments” (AoC) with the USA Department of Commerce (DOC) in September 2009.

None of the proposals or drafts of the AoC were made public before or approved, nor was there any opportunity for public comment or input. ICANN’s Board voted to authorize the CEO to sign the AoC before it had even been finalized. The negotiations between the DOC and ICANN’s CEO and other staff were kept secret even from ICANN’s own Board of Directors. And the vote to authorize the CEO to finalize and sign the AoC was taken at a closed “meeting” during a Board retreat (which, it had been announced, was “not designated as a formal meeting”) and was kept secret until well after the signing had (with great fanfare) been announced.

Because the minutes were quietly posted weeks later, there’s been almost no notice of the remarkable statement inserted in the record by Board member Jean-Jacques Subrenat to explain why he alone abstained from the vote to pre-authorize signing of the not-yet-final AoC and to withhold notice of that vote from the public:

Jean- Jacques Subrenat asked that an explanation be included in the minutes. He noted that while he does appreciate the work that has been done, he was not happy with the way the Board was considered by various parties. He understands that matters can be confidential, but he objects to the Board being kept out of the confidential nature of the discussion, as he stated that the Board alone is held accountable. Not the CEO, the chair or individuals, but it is Board collectively, so he would have expected and asked for more detail back and forth with the Board.

It’s also disturbing that the DOC would sign the AoC with ICANN, knowing as the DOC did (or as it should have) that it hadn’t been approved by ICANN in accordance with the policy-development procedures in ICANN’s Bylaws.

These are additional problems at the level of process, as the arbitrators found and as I pointed out in my comments to the public forum. ICANN’s Board has not even pretended to have given any consideration whatsoever, even in a closed meeting, to the arbitrators’ finding that they had not followed their own Bylaws, what changes might be needed to bring ICANN’s procedures into compliance with its own bylaws, or how to accomplish those changes. That’s the elephant being left behind by ICANN in the lobby of the Kenya International Conference Center.

Link | Posted by Edward on Friday, 12 March 2010, 07:05 ( 7:05 AM)
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