No subject

ss for creating this plan, from posting a series of leading and somewhat ir=
relevant questions on which it would take public comment on accountability,=
 and then developing the plan 100% internally without an opportunity for th=
e community to provide meaningful input.  ICANN should have invited the com=
munity to make proposals for a plan based on the public comment, but ICANN =
senior management reserved the plan development right exclusively to itself.

No Bottom-up Proposal For Consideration, Only Top-Down Edict for Implementa=
tion

Nor is ICANN permitting a public comment period on its accountability plan,=
 which is odd given the importance of the issue, ICANN=92s inherent conflic=
t of interest in the underlying issue, and the stated regular practice of p=
roviding an opportunity for public comment on an ICANN proposal.  But in th=
is case, it isn=92t a proposal for the public to comment on, or which the c=
ommunity may influence; rather, it is ICANN=92s plan for what it intends do=
 (not much) and ICANN isn=92t taking input on it.  There is not the usual p=
retense of =93bottom-up=94 from senior staff about this ICANN plan.  Instea=
d ICANN senior staff fully admits its judgment supersedes the community=92s=
 judgment in ICANN=92s belated written explanation for its plan.

Irregular Delay of Publication of Qualities Recognized to be Built into Plan

Another irregular aspect of this process, which coincidentally disempowered=
 the community=92s ability to engage in the plan=92s development, was senio=
r management=92s decision to withhold its synthesis of the public comments =
until after staff developed and published its plan as a fait-de-complait.  =
And even then, the belated synthesis was framed as an argument in favor of =
staff=92s specific plan forward, rather than a neutral evaluation of the pu=
blic comments and inviting community discussion about the specific needs an=
d desired characteristics to build into the plan.=20=20

ICANN senior staff claims there was no time to entertain proposals from the=
 community.  The initial public comment period ended before the London ICAN=
N meeting in June, so ICANN could have invited proposals at any time over t=
he last 6-8 weeks of public delay but behind the scenes engineering.  Whate=
ver the intent was in delaying the release of this information to the publi=
c, it was inappropriate for staff to delay the sharing of its plan until it=
 was too far along in the process for the community to provide meaningful i=
nput.  That just isn=92t how =93bottom-up=94 policy is made, if we are bein=
g honest.=20

At best, ICANN senior staff=92s handling of the process was another half-ba=
ked and hurried mistake that breeds mistrust.  At worst, it demonstrates a =
troubling misuse of staff position in the process to engineer an outcome fa=
voring the organization at the expense of other legitimate interests.

ICANN Declares Itself Top Decision Maker

Despite ICANN senior management assurances in London when speaking to commu=
nity groups, that the community would primarily be making these key decisio=
ns, ICANN now openly claims it is in a position to over-rule the community =
and impose its own judgment over that of the community on these key decisio=
ns about how to hold the organization accountable for its actions.

Although ICANN senior management frequently claims the organization is =93b=
ottom up=94 and therefore legitimate in its authority, ICANN has not explai=
ned on what authority it may replace the bottom up community=92s judgment w=
ith its own in the formulation of this plan/edict.  It remains to be seen i=
f the community will quietly accept this ICANN power play and further usurp=
ation of the interest ultimately served by ICANN away from the public inter=
est.  What if the community actually calls ICANN on its flimsy and self-ser=
ving justifications?

II.  Substance of the ICANN Plan

Don=92t Get Too Excited

It should come as no surprise that a plan which was developed through a pro=
cess entirely controlled by ICANN senior management favors the organization=
 in its substance as well.  Bad process produces outcomes equally bad in su=
bstance.=20=20=20

In short, the plan will be largely ineffective about addressing ICANN=92s m=
ajor accountability problems, such as constant mission creep, top-down deci=
sion making, transparency shortcomings, failing to respect human rights in =
org policies, and meaningless internal redress measures when the board/staf=
f fail to follow the organization=92s bylaws or other stated processes.

Under its plan, ICANN is creating three new bodies to work under the banner=
 =93Enhancing ICANN Accountability and Governance=94.  The =93Coordination =
Group=94 prioritizes issues and makes decisions about final recommendations=
 and solutions on issues identified by the =93Cross Community Group=94.  IC=
ANN has also created the =93Public Experts Group=94 which is comprised of 4=
 individuals that ICANN has deemed =93respectable=94 to appoint 7 people on=
to the key decision making =93Coordination Group=94.

ICANN Board Will Exclusively Decide Which Improvements to Accept

All one really needs to know is that under ICANN=92s plan, its board may ad=
opt or reject any recommendation of this accountability effort at its own o=
ption.  So despite widespread calls for independent accountability measures=
 from the community, ICANN board will make all final decisions about what a=
ccountability improvements may actually be made.  Under ICANN=92s plan, rec=
ommendations that call for the board to operate in a more transparent manne=
r could be rejected by the board for example.  A plan for more self-policin=
g does not provide confidence that meaningful accountability reform will re=
sult from this effort, unfortunately.

ICANN Board Will Exclusively Develop Groups=92 Charters

Since the power to decide which of the groups=92 recommendations are implem=
ented was not enough control over this effort for ICANN=92s board, the plan=
 further provides for the board to be in total control of the development o=
f the charters under which the accountability groups will operate.   Not ex=
actly =93bottom up=94 operations.   Nothing gets in that the board doesn=92=
t want, and nothing coming out will be adopted that the board doesn=92t app=
rove.

Group Members Include Several Obliged to Protect ICANN

The Coordination Group, which is empowered with prioritizing issues and rec=
ommending solutions, is far too heavily stacked with individuals who are be=
holden to ICANN for their appointment or are a representatives of the organ=
ization and under a legal obligation to always act in the best interests of=
 the corporation.  Besides the stakeholders who represent communities ICANN=
 was established to serve, ICANN has installed a staff member, which manage=
ment confirmed would be one of ICANN=92s lawyers, onto the Coordination Gro=
up.  ICANN has also decided that a board member should additionally serve a=
s a liaison on the Coordination Group.  Both the ICANN board member and ICA=
NN staff lawyer are under strict legal obligations to protect the corporati=
on under California law by virtue of their fiduciary role with respect to t=
he organization and attending legal obligations.  So there are at least two=
 members of the Coordination Group with strong incentives to avoid finding =
any fault with the organization or need for serious improvement.  ICANN add=
itionally plans to appoint someone who is an =93expert on the ATRT process=
=94 (aka =93ICANN insider=94) to the Coordination Group.

What this process highlights is that the public=92s interest to rigorously =
pursue accountability improvements in a global governance organization clas=
hes with hard and cold corporate legal obligations to protect the corporati=
on.  ICANN=92s board, senior staff, and lawyers hold obligations under Cali=
fornia law to always act in the best interests of the corporation =96 not t=
he public interest.   This means they can=92t admit mistakes, and will be l=
egally obligated to mitigate ICANN=92s responsibility for any wrongdoing.  =
Board member and lawyer =93whistle blowers=94 are generally illegal in Cali=
fornia.   Given reports of disgruntled ex-ICANN board members receiving cea=
se and desist letters citing this legal obligation to keep quiet, there is =
little incentive for these group members to push for a thorough and rigorou=
s examination of ICANN=92s accountability shortcomings within the group.

Anti-Democratic: Comprised too Heavily of Non-Stakeholder =93Advisors=94

As a global public governance institution, ICANN has an obligation to aspir=
e to and operate in accordance with democratic principles for it to have an=
y legitimacy to govern.   Unfortunately this plan takes ICANN and its uniqu=
e model of multi-stakeholder governance several steps away from =93democrat=
ic=94, in which decisions are made by the stakeholders, those impacted by t=
he decisions -- and more towards a top-down corporate structure that operat=
es in the interest of the private organization, instead of the public inter=
est.

ICANN has installed (up to) 7 =93advisors=94 to additionally serve on the C=
oordination Group, who are not stakeholders, but should provide expertise o=
n specific issues related to accountability.  The two main problems with th=
is plan is that any external =93advisors=94 should be selected by a legitim=
ate bottom-up process, and should serve, in fact, in an =93advisory=94 role=
 -- and not in a decision making role.  The non-democratic =93advisors=94 i=
s another sign from ICANN that it doesn=92t actually trust bottom-up govern=
ance, but instead relies heavily on hand-picked =93experts=94 to temper the=
 will of the stakeholders =96 those who are subject to ICANN=92s policies. =
 No rationale was provided by ICANN for why it needs so many non-stakeholde=
r decision makers in proportion to actual stakeholders given democratic pri=
nciples of self-governance.=20=20

As noted, these non-stakeholder =93advisors=94 shall be appointed by 4 indi=
viduals that ICANN has deemed =93respectable=94 (which means not likely to =
cause any trouble for the organization), who together ICANN calls =93the Pu=
blic Experts Group=94.  Despite ICANN=92s attempt at slight-of-hand regardi=
ng the organization=92s unacceptable appointment of these =93advisors=94 (s=
hifting from board to staff appointment, but still ICANN-appointed), these =
appointments are not truly independent if they were selected by someone tha=
t ICANN senior management had to approve in the first place.  The source of=
 authority (the corporation, not the bottom-up public) is still the same in=
 both cases and illegitimate for being anti-democratic.  The community shou=
ld be making these appointments, especially given the organization=92s inhe=
rent conflict of interest in the underlying issue.

Decision Making Roles Mislabeled as Advisory Roles in ICANN Plan

Furthermore, they are not truly =93advisors=94 used for =93specific experti=
se=94, but rather are appointments empowered to make decisions about final =
recommendations.  Those are entirely different roles with different sources=
 of authority.  Democratic values require =93advisors=94 to in fact serve i=
n an =93advisory=94 role, and not in a decisional role, which is reserved f=
or stakeholders =96 those governed by the decisions this group makes.  Expe=
rts are certainly welcome and should be utilized in a true advisory role.  =
 It is simply dishonest for ICANN to label people =93advisors=94 while empo=
wering them to be key decision makers in the process.

ICANN Decided It is the Primary Interest to be Served by the ICANN Plan

It was a remarkable move for ICANN to so openly claim in its plan that its =
own corporate interest supersedes the interest of the Internet community th=
at the organization was established to serve.  ICANN boldly stated in its =
=93analysis of comments=94 that ICANN itself is a stakeholder in this proce=
ss as a holder of resources, and as such is entitled to be the predominant =
decisional point and interest served in this effort.

With this plan ICANN has officially usurped the authority of those stakehol=
ders that the organization is supposed to serve.  The public interest must =
yield to the organization=92s separate interest.   ICANN has become an =93e=
nd=94 in and of itself with a blank checkbook and unbounded ambition.

III.  Conclusion: Search For True ICANN Accountability Must Move Elsewhere

Despite the overwhelming call for the community creation of an independent =
accountability process, board-controlled toothless, self-policing is all IC=
ANN senior management will permit with this effort.  The community will hav=
e to come together and build a plan of its own in order to get the much nee=
ded accountability improvements that are necessary for the management of cr=
itical Internet resources.  Certainly some painless minor cosmetic type imp=
rovements could be achieved with ICANN=92s plan, but the painful efforts re=
quired to achieve meaningful accountability from ICANN will have to move to=
 another forum, outside of ICANN=92s control.

Addendum:  ICANN Accountability Discussion at IGF 2014

We can take a closer look at the ICANN accountability crisis at the United =
Nations Internet Governance Forum (IGF), which meets in Istanbul from 2-5 S=
eptember 2014 to explore Internet governance issues.  A panel discussion to=
 tackle the issue of ICANN accountability will be held on Wednesday, 3 Sept=
ember from 9:00 =96 10:30 a.m. in Istanbul (9:00am PDT), with online remote=
 participation available.=20

The IGF workshop panelists include Larry Strictling of the US NTIA, Pat Kan=
e of Verisign, ICANN Board Member Gonzalo Navarro, Carlos Afonso of CGI.br,=
 Avri Doria, Jordan Carter of InternetNZ, and ICANN Ombudsman Chris LaHatte=
.  The IGF workshop #23 entitled =93Accountability in the ICANN Multi-Stake=
holder Governance Regime=94 is moderated by Robin Gross and co-sponsored by=
 IP Justice, CGI.br, the Internet Governance Project, the Public Interest R=
egistry, the Internet Commerce Association, and InternetNZ.   David Cake of=
 Electronic Frontiers Australia is the remote participation moderator for t=
his IGF session, which will be held in the IGF venue room #2.

 More information on this IGF Workshop #23 is available here.

http://ipjustice.org/wp/2014/08/21/igf-2014-workshop-23-accountability-in-t=
he-icann-multi-stakeholder-governance-regime/

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<html><head></head><body style=3D"word-wrap: break-word; -webkit-nbsp-mode:=
 space; -webkit-line-break: after-white-space; "><p class=3D"MsoNormal" sty=
le=3D"font-size: 17px; "><span class=3D"Apple-style-span" style=3D"font-fam=
ily: 'Times New Roman'; font-size: 15px; ">Here's my evaluation of ICANN's =
recently announced plan to address the accountability crisis at the organiz=
ation.</span></p><div>Thanks,</div><div>Robin</div><p class=3D"MsoNormal" s=
tyle=3D"font-size: 15px; "><font class=3D"Apple-style-span" face=3D"'Times =
New Roman'"><a href=3D"http://ipjustice.org/wp/2014/08/21/quelle-suprise-ic=
ann%E2%80%99s-accountability-plan-gives-icann-board-total-control-icann-lim=
its-accountability-improvement-measures-to-toothless-self-policing/">http:/=
/ipjustice.org/wp/2014/08/21/quelle-suprise-icann=92s-accountability-plan-g=
ives-icann-board-total-control-icann-limits-accountability-improvement-meas=
ures-to-toothless-self-policing/</a></font></p><p class=3D"MsoNormal" style=
=3D"font-size: 17px; "><font class=3D"Apple-style-span" face=3D"'Times New =
Roman'"><b>Quelle Suprise!<span>  </span>ICANN=92s Accountability=
 Plan Gives ICANN Board Total Control</b></font></p><p class=3D"MsoNormal" =
style=3D"font-size: 17px; "><span><span><b><span style=3D"font-family: 'Tim=
es New Roman'; ">ICANN Limits Accountability Improvement Measures to Toothl=
ess Self-Policing<o:p></o:p></span></b></span></span></p><p class=3D"MsoNor=
mal" style=3D"font-size: 15px; "><span><span><span style=3D"font-family: 'T=
imes New Roman'; ">By Robin Gross</span></span></span></p><p class=3D"MsoNo=
rmal" style=3D"font-size: 15px; "><b><span style=3D"font-family: 'Times New=
 Roman'; ">I.<span>  </span>ICANN=92s So-Called =93Enhancing Acco=
untability=94 Process</span></b></p><p class=3D"MsoNormal" style=3D"font-si=
ze: 15px; "><span class=3D"Apple-style-span" style=3D"font-family: 'Times N=
ew Roman'; ">After a long wait, ICANN=92s senior management finally release=
d its plan for =93Enhancing Accountability=94 at the private California cor=
poration that makes global Internet domain name policy.</span><span class=
=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><span>&nbs=
p; </span></span><span class=3D"Apple-style-span" style=3D"font-family=
: 'Times New Roman'; ">Unfortunately, the accountability deficit crisis cre=
ated by ICANN=92s longstanding policy of purely =93self-policing=94 with no=
 meaningful external accountability mechanisms will not be solved by this w=
eak plan for more self-policing.</span><span class=3D"Apple-style-span" sty=
le=3D"font-family: 'Times New Roman'; "><span> </span></span></p><p cl=
ass=3D"MsoNormal" style=3D"font-size: 15px; "><span class=3D"Apple-style-sp=
an" style=3D"font-family: 'Times New Roman'; ">Perhaps telling was the orga=
nization=92s initial and consistent framing of the issue as <i>=93main=
taining=94</i> accountability beyond the end of the US Government=92s =
stewardship role, rather than acknowledging that this effort was in respons=
e to widespread community outcry expressing major dissatisfaction with ICAN=
N=92s inadequate existing accountability measures.</span></p><p class=3D"Ms=
oNormal" style=3D"font-size: 15px; "><b><span style=3D"font-family: 'Times =
New Roman'; ">Conflict of Interest Disregarded by ICANN in Formulation of P=
lan</span></b></p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><span =
class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">Many =
organizations and individuals commented online and during the London ICANN =
#50 meeting about the inherent conflict of interest with respect to an orga=
nization that proposes to manage the process that could reveal the organiza=
tion=92s accountability shortcomings and thus not always show the organizat=
ion in its best light if the process is rigorously pursued.<span> &nbs=
p;</span>Rather than heed the numerous cautions from the community regardin=
g ICANN=92s conflict of interest in attempting to design the process to hol=
d itself accountable, ICANN plans to be in charge of every key element of t=
he process.</span></p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><b=
><span style=3D"font-family: 'Times New Roman'; ">Irregular Process Employe=
d in Development of ICANN Plan</span></b></p><p class=3D"MsoNormal" style=
=3D"font-size: 15px; "><span class=3D"Apple-style-span" style=3D"font-famil=
y: 'Times New Roman'; ">From the beginning, ICANN=92s senior management has=
 driven the entire process for creating this plan, from posting a series of=
 leading and somewhat irrelevant questions on which it would take public co=
mment on accountability, and then developing the plan 100% internally witho=
ut an opportunity for the community to provide meaningful input.<span>&nbsp=
; </span>ICANN should have invited the community to make proposals for=
 a plan based on the public comment, but ICANN senior management reserved t=
he plan development right exclusively to itself.</span></p><p class=3D"MsoN=
ormal" style=3D"font-size: 15px; "><b><span style=3D"font-family: 'Times Ne=
w Roman'; ">No Bottom-up Proposal For Consideration, Only Top-Down Edict fo=
r Implementation</span></b></p><p class=3D"MsoNormal" style=3D"font-size: 1=
5px; "><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Ro=
man'; ">Nor is ICANN permitting a public comment period on its accountabili=
ty plan, which is odd given the importance of the issue, ICANN=92s inherent=
 conflict of interest in the underlying issue, and the stated regular pract=
ice of providing an opportunity for public comment on an ICANN proposal.<sp=
an>  </span>But in this case, it isn=92t a <i>proposal</i>&n=
bsp;for the public to comment on, or which the community may influence; rat=
her, it is ICANN=92s <i>plan</i> for what it intends do (not much=
) and ICANN isn=92t taking input on it.<span>  </span>There is no=
t the usual pretense of =93bottom-up=94 from senior staff about this ICANN =
plan.<span>  </span>Instead ICANN senior staff fully admits its j=
udgment supersedes the community=92s judgment in ICANN=92s belated written =
explanation for its plan.</span></p><p class=3D"MsoNormal" style=3D"font-si=
ze: 15px; "><b><span style=3D"font-family: 'Times New Roman'; ">Irregular D=
elay of Publication of Qualities Recognized to be Built into Plan</span></b=
></p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><span class=3D"Appl=
e-style-span" style=3D"font-family: 'Times New Roman'; ">Another irregular =
aspect of this process, which coincidentally disempowered the community=92s=
 ability to engage in the plan=92s development, was senior management=92s d=
ecision to withhold its synthesis of the public comments until after staff =
developed and published its plan as a fait-de-complait.</span><span class=
=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><span>&nbs=
p; </span></span><span class=3D"Apple-style-span" style=3D"font-family=
: 'Times New Roman'; ">And even then, the belated synthesis was framed as a=
n argument in favor of staff=92s specific plan forward, rather than a neutr=
al evaluation of the public comments and inviting community discussion abou=
t the specific needs and desired characteristics to build into the plan.&nb=
sp;</span><span class=3D"Apple-style-span" style=3D"font-family: 'Times New=
 Roman'; "><span> </span></span></p><p class=3D"MsoNormal" style=3D"fo=
nt-size: 15px; "><span class=3D"Apple-style-span" style=3D"font-family: 'Ti=
mes New Roman'; ">ICANN senior staff claims there was no time to entertain =
proposals from the community.</span><span class=3D"Apple-style-span" style=
=3D"font-family: 'Times New Roman'; "><span>  </span></span><span=
 class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">The =
initial public comment period ended before the London ICANN meeting in June=
, so ICANN could have invited proposals at any time over the last 6-8 weeks=
 of public delay but behind the scenes engineering.</span><span class=3D"Ap=
ple-style-span" style=3D"font-family: 'Times New Roman'; "><span> &nbs=
p;</span></span><span class=3D"Apple-style-span" style=3D"font-family: 'Tim=
es New Roman'; ">Whatever the intent was in delaying the release of this in=
formation to the public, it was inappropriate for staff to delay the sharin=
g of its plan until it was too far along in the process for the community t=
o provide meaningful input.</span><span class=3D"Apple-style-span" style=3D=
"font-family: 'Times New Roman'; "><span>  </span></span><span cl=
ass=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">That ju=
st isn=92t how =93bottom-up=94 policy is made, if we are being honest.</spa=
n><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman';=
 "><span> </span></span></p><p class=3D"MsoNormal" style=3D"font-size:=
 15px; "><span class=3D"Apple-style-span" style=3D"font-family: 'Times New =
Roman'; ">At best, ICANN senior staff=92s handling of the process was anoth=
er half-baked and hurried mistake that breeds mistrust.</span><span class=
=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><span>&nbs=
p; </span></span><span class=3D"Apple-style-span" style=3D"font-family=
: 'Times New Roman'; ">At worst, it demonstrates a troubling misuse of staf=
f position in the process to engineer an outcome favoring the organization =
at the expense of other legitimate interests.</span></p><p class=3D"MsoNorm=
al" style=3D"font-size: 15px; "><b><span style=3D"font-family: 'Times New R=
oman'; ">ICANN Declares Itself Top Decision Maker</span></b></p><p class=3D=
"MsoNormal" style=3D"font-size: 15px; "><span class=3D"Apple-style-span" st=
yle=3D"font-family: 'Times New Roman'; ">Despite ICANN senior management as=
surances in London when speaking to community groups, that the community wo=
uld primarily be making these key decisions, ICANN now openly claims it is =
in a position to over-rule the community and impose its own judgment over t=
hat of the community on these key decisions about how to hold the organizat=
ion accountable for its actions.</span></p><p class=3D"MsoNormal" style=3D"=
font-size: 15px; "><span class=3D"Apple-style-span" style=3D"font-family: '=
Times New Roman'; ">Although ICANN senior management frequently claims the =
organization is =93bottom up=94 and therefore legitimate in its authority, =
ICANN has not explained on what authority it may replace the bottom up comm=
unity=92s judgment with its own in the formulation of this plan/edict.</spa=
n><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman';=
 "><span>  </span></span><span class=3D"Apple-style-span" style=
=3D"font-family: 'Times New Roman'; ">It remains to be seen if the communit=
y will quietly accept this ICANN power play and further usurpation of the i=
nterest ultimately served by ICANN away from the public interest.</span><sp=
an class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><s=
pan>  </span></span><span class=3D"Apple-style-span" style=3D"fon=
t-family: 'Times New Roman'; ">What if the community actually calls ICANN o=
n its flimsy and self-serving justifications?</span></p><p class=3D"MsoNorm=
al" style=3D"font-size: 15px; "><b><span style=3D"font-family: 'Times New R=
oman'; ">II.<span>  </span>Substance of the ICANN Plan</span></b>=
</p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><b><span style=3D"fo=
nt-family: 'Times New Roman'; ">Don=92t Get Too Excited</span></b></p><p cl=
ass=3D"MsoNormal" style=3D"font-size: 15px; "><span class=3D"Apple-style-sp=
an" style=3D"font-family: 'Times New Roman'; ">It should come as no surpris=
e that a plan which was developed through a process entirely controlled by =
ICANN senior management favors the organization in its substance as well.</=
span><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roma=
n'; "><span>  </span></span><span class=3D"Apple-style-span" styl=
e=3D"font-family: 'Times New Roman'; ">Bad process produces outcomes equall=
y bad in substance.</span><span class=3D"Apple-style-span" style=3D"font-fa=
mily: 'Times New Roman'; "><b> <span>  </span></b></span></p=
><p class=3D"MsoNormal" style=3D"font-size: 15px; "><span class=3D"Apple-st=
yle-span" style=3D"font-family: 'Times New Roman'; ">In short, the plan wil=
l be largely ineffective about addressing ICANN=92s major accountability pr=
oblems, such as constant mission creep, top-down decision making, transpare=
ncy shortcomings, failing to respect human rights in org policies, and mean=
ingless internal redress measures when the board/staff fail to follow the o=
rganization=92s bylaws or other stated processes.</span></p><p class=3D"Mso=
Normal" style=3D"font-size: 15px; "><span class=3D"Apple-style-span" style=
=3D"font-family: 'Times New Roman'; ">Under its plan, ICANN is creating thr=
ee new bodies to work under the banner =93Enhancing ICANN Accountability an=
d Governance=94. </span><span class=3D"Apple-style-span" style=3D"font=
-family: 'Times New Roman'; "><span> </span></span><span class=3D"Appl=
e-style-span" style=3D"font-family: 'Times New Roman'; ">The =93Coordinatio=
n Group=94 prioritizes issues and makes decisions about final recommendatio=
ns and solutions on issues identified by the =93Cross Community Group=94.</=
span><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roma=
n'; "><span>  </span></span><span class=3D"Apple-style-span" styl=
e=3D"font-family: 'Times New Roman'; ">ICANN has also created the =93Public=
 Experts Group=94 which is comprised of 4 individuals that ICANN has deemed=
 =93respectable=94 to appoint 7 people onto the key decision making =93Coor=
dination Group=94.</span></p><p class=3D"MsoNormal" style=3D"font-size: 15p=
x; "><b><span style=3D"font-family: 'Times New Roman'; ">ICANN Board Will E=
xclusively Decide Which Improvements to Accept</span></b></p><p class=3D"Ms=
oNormal" style=3D"font-size: 15px; "><span class=3D"Apple-style-span" style=
=3D"font-family: 'Times New Roman'; ">All one really needs to know is that =
under ICANN=92s plan, its board may adopt or reject any recommendation of t=
his accountability effort at its own option.</span><span class=3D"Apple-sty=
le-span" style=3D"font-family: 'Times New Roman'; "><span>  </spa=
n></span><span class=3D"Apple-style-span" style=3D"font-family: 'Times New =
Roman'; ">So despite widespread calls for independent accountability measur=
es from the community, ICANN board will make all final decisions about what=
 accountability improvements may actually be made. </span><span class=
=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><span>&nbs=
p;</span></span><span class=3D"Apple-style-span" style=3D"font-family: 'Tim=
es New Roman'; ">Under ICANN=92s plan, recommendations that call for the bo=
ard to operate in a more transparent manner could be rejected by the board =
for example.</span><span class=3D"Apple-style-span" style=3D"font-family: '=
Times New Roman'; "><span>  </span></span><span class=3D"Apple-st=
yle-span" style=3D"font-family: 'Times New Roman'; ">A plan for more self-p=
olicing does not provide confidence that meaningful accountability reform w=
ill result from this effort, unfortunately.</span></p><p class=3D"MsoNormal=
" style=3D"font-size: 15px; "><b><span style=3D"font-family: 'Times New Rom=
an'; ">ICANN Board Will Exclusively Develop Groups=92 Charters</span></b></=
p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><span class=3D"Apple-s=
tyle-span" style=3D"font-family: 'Times New Roman'; ">Since the power to de=
cide which of the groups=92 recommendations are implemented was not enough =
control over this effort for ICANN=92s board, the plan further provides for=
 the board to be in total control of the development of the charters under =
which the accountability groups will operate. </span><span class=3D"Ap=
ple-style-span" style=3D"font-family: 'Times New Roman'; "><span> &nbs=
p;</span></span><span class=3D"Apple-style-span" style=3D"font-family: 'Tim=
es New Roman'; ">Not exactly =93bottom up=94 operations.</span><span class=
=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><span>&nbs=
p;  </span></span><span class=3D"Apple-style-span" style=3D"font-=
family: 'Times New Roman'; ">Nothing gets in that the board doesn=92t want,=
 and nothing coming out will be adopted that the board doesn=92t approve.</=
span></p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><b><span style=
=3D"font-family: 'Times New Roman'; ">Group Members Include Several Obliged=
 to Protect ICANN</span></b></p><p class=3D"MsoNormal" style=3D"font-size: =
15px; "><span class=3D"Apple-style-span" style=3D"font-family: 'Times New R=
oman'; ">The Coordination Group, which is empowered with prioritizing issue=
s and recommending solutions, is far too heavily stacked with individuals w=
ho are beholden to ICANN for their appointment or are a representatives of =
the organization and under a legal obligation to always act in the best int=
erests of the corporation.</span><span class=3D"Apple-style-span" style=3D"=
font-family: 'Times New Roman'; "><span>  </span></span><span cla=
ss=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">Besides =
the stakeholders who represent communities ICANN was established to serve, =
ICANN has installed a staff member, which management confirmed would be one=
 of ICANN=92s lawyers, onto the Coordination Group.</span><span class=3D"Ap=
ple-style-span" style=3D"font-family: 'Times New Roman'; "><span> &nbs=
p;</span></span><span class=3D"Apple-style-span" style=3D"font-family: 'Tim=
es New Roman'; ">ICANN has also decided that a board member should addition=
ally serve as a liaison on the Coordination Group.</span><span class=3D"App=
le-style-span" style=3D"font-family: 'Times New Roman'; "><span> &nbsp=
;</span></span><span class=3D"Apple-style-span" style=3D"font-family: 'Time=
s New Roman'; ">Both the ICANN board member and ICANN staff lawyer are unde=
r strict legal obligations to protect the corporation under California law =
by virtue of their fiduciary role with respect to the organization and atte=
nding legal obligations.</span><span class=3D"Apple-style-span" style=3D"fo=
nt-family: 'Times New Roman'; "><span>  </span></span><span class=
=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">So there a=
re at least two members of the Coordination Group with strong incentives to=
 avoid finding any fault with the organization or need for serious improvem=
ent.</span><span class=3D"Apple-style-span" style=3D"font-family: 'Times Ne=
w Roman'; "><span>  </span></span><span class=3D"Apple-style-span=
" style=3D"font-family: 'Times New Roman'; ">ICANN additionally plans to ap=
point someone who is an =93expert on the ATRT process=94 (aka =93ICANN insi=
der=94) to the Coordination Group.</span></p><p class=3D"MsoNormal" style=
=3D"font-size: 15px; "><span class=3D"Apple-style-span" style=3D"font-famil=
y: 'Times New Roman'; ">What this process highlights is that the public=92s=
 interest to rigorously pursue accountability improvements in a global gove=
rnance organization clashes with hard and cold corporate legal obligations =
to protect the corporation.</span><span class=3D"Apple-style-span" style=3D=
"font-family: 'Times New Roman'; "><span>  </span></span><span cl=
ass=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">ICANN=
=92s board, senior staff, and lawyers hold obligations under California law=
 to always act in the best interests of the corporation =96 not the public =
interest.</span><span class=3D"Apple-style-span" style=3D"font-family: 'Tim=
es New Roman'; "><span>   </span></span><span class=3D"Apple=
-style-span" style=3D"font-family: 'Times New Roman'; ">This means they can=
=92t admit mistakes, and will be legally obligated to mitigate ICANN=92s re=
sponsibility for any wrongdoing.</span><span class=3D"Apple-style-span" sty=
le=3D"font-family: 'Times New Roman'; "><span>  </span></span><sp=
an class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">Bo=
ard member and lawyer =93whistle blowers=94 are generally illegal in Califo=
rnia.</span><span class=3D"Apple-style-span" style=3D"font-family: 'Times N=
ew Roman'; "><span>   </span></span><span class=3D"Apple-sty=
le-span" style=3D"font-family: 'Times New Roman'; ">Given reports of disgru=
ntled ex-ICANN board members receiving cease and desist letters citing this=
 legal obligation to keep quiet, there is little incentive for these group =
members to push for a thorough and rigorous examination of ICANN=92s accoun=
tability shortcomings within the group.</span></p><p class=3D"MsoNormal" st=
yle=3D"font-size: 15px; "><b><span style=3D"font-family: 'Times New Roman';=
 ">Anti-Democratic: Comprised too Heavily of Non-Stakeholder =93Advisors=94=
</span></b></p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><span cla=
ss=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">As a glo=
bal public governance institution, ICANN has an obligation to aspire to and=
 operate in accordance with democratic principles for it to have any legiti=
macy to govern.</span><span class=3D"Apple-style-span" style=3D"font-family=
: 'Times New Roman'; "><span>   </span></span><span class=3D=
"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">Unfortunately=
 this plan takes ICANN and its unique model of multi-stakeholder governance=
 several steps away from =93democratic=94, in which decisions are made by t=
he stakeholders, those impacted by the decisions -- and more towards a top-=
down corporate structure that operates in the interest of the private organ=
ization, instead of the public interest.</span></p><p class=3D"MsoNormal" s=
tyle=3D"font-size: 15px; "><span class=3D"Apple-style-span" style=3D"font-f=
amily: 'Times New Roman'; ">ICANN has installed (up to) 7 =93advisors=94 to=
 additionally serve on the Coordination Group, who are not stakeholders, bu=
t should provide expertise on specific issues related to accountability.</s=
pan><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman=
'; "><span>  </span></span><span class=3D"Apple-style-span" style=
=3D"font-family: 'Times New Roman'; ">The two main problems with this plan =
is that any external =93advisors=94 should be selected by a legitimate bott=
om-up process, and should serve, in fact, in an =93advisory=94 role -- and =
not in a decision making role.</span><span class=3D"Apple-style-span" style=
=3D"font-family: 'Times New Roman'; "><span>  </span></span><span=
 class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">The =
non-democratic =93advisors=94 is another sign from ICANN that it doesn=92t =
actually trust bottom-up governance, but instead relies heavily on hand-pic=
ked =93experts=94 to temper the will of the stakeholders =96 those who are =
subject to ICANN=92s policies. </span><span class=3D"Apple-style-span"=
 style=3D"font-family: 'Times New Roman'; "><span> </span></span><span=
 class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">No r=
ationale was provided by ICANN for why it needs so many non-stakeholder dec=
ision makers in proportion to actual stakeholders given democratic principl=
es of self-governance. </span><span class=3D"Apple-style-span" style=
=3D"font-family: 'Times New Roman'; "><span> </span></span></p><p clas=
s=3D"MsoNormal" style=3D"font-size: 15px; "><span class=3D"Apple-style-span=
" style=3D"font-family: 'Times New Roman'; ">As noted, these non-stakeholde=
r =93advisors=94 shall be appointed by 4 individuals that ICANN has deemed =
=93respectable=94 (which means not likely to cause any trouble for the orga=
nization), who together ICANN calls =93the Public Experts Group=94.</span><=
span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">=
<span>  </span></span><span class=3D"Apple-style-span" style=3D"f=
ont-family: 'Times New Roman'; ">Despite ICANN=92s attempt at slight-of-han=
d regarding the organization=92s unacceptable appointment of these =93advis=
ors=94 (shifting from board to staff appointment, but still ICANN-appointed=
), these appointments are not truly independent if they were selected by so=
meone that ICANN senior management had to approve in the first place.</span=
><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; =
"><span>  </span></span><span class=3D"Apple-style-span" style=3D=
"font-family: 'Times New Roman'; ">The source of authority (the corporation=
, not the bottom-up public) is still the same in both cases and illegitimat=
e for being anti-democratic.</span><span class=3D"Apple-style-span" style=
=3D"font-family: 'Times New Roman'; "><span>  </span></span><span=
 class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">The =
community should be making these appointments, especially given the organiz=
ation=92s inherent conflict of interest in the underlying issue.</span></p>=
<p class=3D"MsoNormal" style=3D"font-size: 15px; "><b><span style=3D"font-f=
amily: 'Times New Roman'; ">Decision Making Roles Mislabeled as Advisory Ro=
les in ICANN Plan</span></b></p><p class=3D"MsoNormal" style=3D"font-size: =
15px; "><span class=3D"Apple-style-span" style=3D"font-family: 'Times New R=
oman'; ">Furthermore, they are not truly =93advisors=94 used for =93specifi=
c expertise=94, but rather are appointments </span><span class=3D"Appl=
e-style-span" style=3D"font-family: 'Times New Roman'; "><i>empowered to</i=
></span><span class=3D"Apple-style-span" style=3D"font-family: 'Times New R=
oman'; "> </span><span class=3D"Apple-style-span" style=3D"font-family=
: 'Times New Roman'; "><i>make decisions</i></span><span class=3D"Apple-sty=
le-span" style=3D"font-family: 'Times New Roman'; "> about final recom=
mendations.</span><span class=3D"Apple-style-span" style=3D"font-family: 'T=
imes New Roman'; "><span>  </span></span><span class=3D"Apple-sty=
le-span" style=3D"font-family: 'Times New Roman'; ">Those are entirely diff=
erent roles with different sources of authority.</span><span class=3D"Apple=
-style-span" style=3D"font-family: 'Times New Roman'; "><span>  <=
/span></span><span class=3D"Apple-style-span" style=3D"font-family: 'Times =
New Roman'; ">Democratic values require =93advisors=94 to in fact serve in =
an =93advisory=94 role, and not in a decisional role, which is reserved for=
 stakeholders =96 those governed by the decisions this group makes.</span><=
span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">=
<span>  </span></span><span class=3D"Apple-style-span" style=3D"f=
ont-family: 'Times New Roman'; ">Experts are certainly welcome and should b=
e utilized in a true advisory role.</span><span class=3D"Apple-style-span" =
style=3D"font-family: 'Times New Roman'; "><span>  </span></span>=
<span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "=
><span> </span></span><span class=3D"Apple-style-span" style=3D"font-f=
amily: 'Times New Roman'; ">It is simply dishonest for ICANN to label peopl=
e =93advisors=94 while empowering them to be key </span><span class=3D=
"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><i>decision m=
akers</i></span><span class=3D"Apple-style-span" style=3D"font-family: 'Tim=
es New Roman'; "> in the process.</span></p><p class=3D"MsoNormal" sty=
le=3D"font-size: 15px; "><b><span style=3D"font-family: 'Times New Roman'; =
">ICANN Decided It is the Primary Interest to be Served by the ICANN Plan</=
span></b></p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><span class=
=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">It was a r=
emarkable move for ICANN to so openly claim in its plan that its own corpor=
ate interest supersedes the interest of the Internet community that the org=
anization was established to serve.</span><span class=3D"Apple-style-span" =
style=3D"font-family: 'Times New Roman'; "><span>  </span></span>=
<span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "=
>ICANN boldly stated in its =93analysis of comments=94 that ICANN itself is=
 a stakeholder in this process as a holder of resources, and as such is ent=
itled to be the predominant decisional point and interest served in this ef=
fort.</span></p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><span cl=
ass=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">With th=
is plan ICANN has officially usurped the authority of those stakeholders th=
at the organization is supposed to serve.</span><span class=3D"Apple-style-=
span" style=3D"font-family: 'Times New Roman'; "><span>  </span><=
/span><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Rom=
an'; ">The public interest must yield to the organization=92s separate inte=
rest.</span><span class=3D"Apple-style-span" style=3D"font-family: 'Times N=
ew Roman'; "><span>  </span></span><span class=3D"Apple-style-spa=
n" style=3D"font-family: 'Times New Roman'; "><span> </span></span><sp=
an class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">IC=
ANN has become an =93end=94 in and of itself with a blank checkbook and unb=
ounded ambition.</span></p><p class=3D"MsoNormal" style=3D"font-size: 15px;=
 "><b><span style=3D"font-family: 'Times New Roman'; ">III.<span> &nbs=
p;</span>Conclusion: Search For True ICANN Accountability Must Move Elsewhe=
re</span></b></p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><span c=
lass=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">Despit=
e the overwhelming call for the community creation of an independent accoun=
tability process, board-controlled toothless, self-policing is all ICANN se=
nior management will permit with this effort.</span><span class=3D"Apple-st=
yle-span" style=3D"font-family: 'Times New Roman'; "><span>  </sp=
an></span><span class=3D"Apple-style-span" style=3D"font-family: 'Times New=
 Roman'; ">The community will have to come together and build a plan of its=
 own in order to get the much needed accountability improvements that are n=
ecessary for the management of critical Internet resources.</span><span cla=
ss=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><span>&n=
bsp; </span></span><span class=3D"Apple-style-span" style=3D"font-fami=
ly: 'Times New Roman'; ">Certainly some painless minor cosmetic type improv=
ements could be achieved with ICANN=92s plan, but the painful efforts requi=
red to achieve meaningful accountability from ICANN will have to move to an=
other forum, outside of ICANN=92s control.</span></p><p class=3D"MsoNormal"=
 style=3D"font-size: 15px; "><b><span style=3D"font-family: 'Times New Roma=
n'; ">Addendum:<span>  </span>ICANN Accountability Discussion at =
IGF 2014</span></b></p><p class=3D"MsoNormal" style=3D"font-size: 15px; "><=
span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; ">=
We can take a closer look at the ICANN accountability crisis at the United =
Nations Internet Governance Forum (IGF), which meets in Istanbul from 2-5 S=
eptember 2014 to explore Internet governance issues.</span><span class=3D"A=
pple-style-span" style=3D"font-family: 'Times New Roman'; "><span> &nb=
sp;</span></span><span class=3D"Apple-style-span" style=3D"font-family: 'Ti=
mes New Roman'; ">A panel discussion to tackle the issue of ICANN accountab=
ility will be held on Wednesday, 3 September from 9:00 =96 10:30 a.m. in Is=
tanbul (9:00am PDT), with online remote participation available.</span><spa=
n class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><sp=
an> </span></span></p><p class=3D"MsoNormal" style=3D"font-size: 15px;=
 "><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'=
; ">The IGF workshop panelists include Larry Strictling of the US NTIA, Pat=
 Kane of Verisign, ICANN Board Member Gonzalo Navarro, Carlos Afonso of&nbs=
p;<a href=3D"http://CGI.br/">CGI.br</a>, Avri Doria, Jordan Carter of Inter=
netNZ, and ICANN Ombudsman Chris LaHatte.</span><span class=3D"Apple-style-=
span" style=3D"font-family: 'Times New Roman'; "><span>  </span><=
/span><span class=3D"Apple-style-span" style=3D"font-family: 'Times New Rom=
an'; ">The IGF workshop #23 entitled </span><span class=3D"Apple-style=
-span" style=3D"font-family: 'Times New Roman'; "><b><i>=93Accountability i=
n the ICANN Multi-Stakeholder Governance Regime=94</i></b></span><span clas=
s=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "> is =
moderated by Robin Gross and co-sponsored by IP Justice, <a href=3D"ht=
tp://CGI.br/">CGI.br</a>, the Internet Governance Project, the Public Inter=
est Registry, the Internet Commerce Association, and InternetNZ.</span><spa=
n class=3D"Apple-style-span" style=3D"font-family: 'Times New Roman'; "><sp=
an>   </span></span><span class=3D"Apple-style-span" style=
=3D"font-family: 'Times New Roman'; ">David Cake of Electronic Frontiers Au=
stralia is the remote participation moderator for this IGF session, which w=
ill be held in the IGF venue room #2.</span></p><p class=3D"MsoNormal" styl=
e=3D"font-size: 15px; "><span><span><span style=3D"font-family: 'Times New =
Roman'; "><o:p> </o:p></span></span></span><span class=3D"Apple-style-=
span" style=3D"font-family: 'Times New Roman'; ">More information on this I=
GF Workshop #23 is available <a href=3D"http://ipjustice.org/wp/2014/0=
8/21/igf-2014-workshop-23-accountability-in-the-icann-multi-stakeholder-gov=
ernance-regime/">here</a>.</span></p><div><span class=3D"Apple-style-span" =
style=3D"font-family: 'Times New Roman'; "><span class=3D"Apple-style-span"=
 style=3D"font-family: Helvetica; line-height: 18px; "><a href=3D"http://ip=
justice.org/wp/2014/08/21/igf-2014-workshop-23-accountability-in-the-icann-=
multi-stakeholder-governance-regime/" style=3D"color: rgb(0, 0, 128); backg=
round-color: transparent; text-decoration: underline; font-size: 16px; "><s=
pan style=3D"font-size: smaller; "><span style=3D"font-family: 'Times New R=
oman'; ">http://ipjustice.org/wp/2014/08/21/igf-2014-workshop-23-accountabi=
lity-in-the-icann-multi-stakeholder-governance-regime/</span></span></a></s=
pan></span></div></body></html>=

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