[governance] APC Comment on proposed Bylaw Changes

Mon Sep 28 08:12:23 EDT 2009

Dear all

For your information, APC's comment on the proposed ICANN bylaws changes
compiled by Willie Currie, APC's policy manager.

Anriette

Comment on ICANN’s Proposed Bylaw Changes to Improve Accountability

Association for Progressive Communications (APC)

25 September 2009

Thank you for the opportunity to comment on ICANN’s Proposed Bylaw
Changes to Improve Accountability.

Problems with the proposed bylaws

There are two inter-related problems with the proposed bylaws:

1. While the provision for the ICANN community to request for the Board
to re-examine a decision is a step forward, there is still no democratic
sanction for the Board if the community fundamentally disagrees with a
Board decision even after it is re-examined by the Board. The community
still does not have the power to dismiss the Board. 

2. While the Independent Review Body and the expansion of its functions
is a step forward, it still does not address the problem that the Board
can ignore its findings and recommendations if the Board determines that
the recommendations 'are not in the best interests of ICANN'. 

Both bylaws ultimately depend on the disposition of the Board towards
the issue under re-examination or review. Certainly it would be an
unwise Board that completely ignores the expressed views of two-thirds
of the ICANN community or the reasoned recommendations of senior
jurists, but bylaws are not about dispositions, they are to do with fair
and reasonable conduct by those in authority. In the event that that is
lacking, there needs to be some ultimate sanction such as a power for
the ICANN community to dismiss the Board. The ICANN President's Strategy
Committee (PSC) recognised this in its recommendations on accountability
when it proposed the establishment of 'an extraordinary mechanism for
the community to remove and replace the Board in special circumstances'
in its recommendation 2.9. This is simple democracy and is a basic
feature of all democratic organisations. That it is missing from ICANN's
bylaws is a signifier of a lack of accountability and democratic
procedure that cannot be cured by the current proposed amendments.

It is also interesting to note that the EU in its recent communication
on internet governance was of the view that ’one element of an evolution
of the current governance system could be the completion of an
internal ICANN reform leading to full accountability and
transparency'.[1] Unfortunately, inasmuch as these two bylaw amendments
are intended to achieve 'full accountability', they fall short.

Recommendations

     1. APC supports the proposed bylaw to have a Community
        Re-examination Vote but the threshold of a two-thirds majority
        vote of two-thirds of the Councils of all Supporting
        Organizations and a two-thirds majority vote of each Advisory
        Committee is too high.  That threshold is appropriate for a
        process to remove the Board. For a vote to re-examine a Board
        decision a simple majority is more appropriate for the following
        reasons:

-         An accountability mechanism has to be meaningful, in the sense
that it should be capable of being exercised. In a multi-stakeholder
community like ICANN, setting the threshold too high for the community
to even get to first base will have the effect of discouraging the
exercise of this accountability mechanism and make it moot. This carries
the risk of the attempt to put in place accountability mechanisms itself
instilling little institutional confidence in ICANN and adding to the
frustrations of the community.

-         An accountability mechanism should act as a check on the Board
to be particularly mindful of the consequences of its decisions with
regard to fairness, fidelity and rationality. If the threshold is set
too high and the chances of the community ever exercising this option
are too remote, that diminishes the value of the accountability
mechanism as real check on the Board. This in turn will play back on the
issue of instilling institutional confidence and instead of full
accountability, stakeholders will see token accountability. 

2.     APC does not understand why recommendation 2.7 of the PSC has
been dropped. This recommendation is that ICANN should ‘seekadvice from
a committee of independent experts on the restructuring of the review
mechanisms to provide a set of mechanisms that will provide for improved
accountability in relation to individual rights and having regard to the
two proposed further mechanisms in RECOMMENDATIONS 2.8 and 2.9’.The
reason given in the table of the ICANN report "Improving Institutional
Confidence: The Way Forward", published on 31 May 2009 is that ‘These
measures alone are insufficient to address all community concerns’.
 Obviously getting advice is not going to address all community
concerns.  Independent advice is of value in breaking down the risk of
‘group think’ in the formulation of policy and bylaws by an institution.
Not getting advice when it is explicitly recommended by an august body
like the PSC which had the explicit mandate of making recommendations on
instilling institutional confidence then raises the question of why this
recommendation was dropped. This creates in stakeholders a perception
that ICANN does not take the issue seriously enough, especially when a
non- reason is offered as formal justification for not seeking advice.
 Accordingly APC recommends that ICANN does proceed to implement
recommendation 2.7 of the PSC and seek advice from a committee of
independent experts on the restructuring of review mechanisms.

3.     APC is of the view that proceeding to establish a new Independent
Review Body while an important case is underway before the existing
Independent Review Panel is problematic because the issue of the powers
of the Independent Review Panel are part of the process under review.
The views of ICANN with regard to the powers of the Independent Review
Panel are well canvassed in its submission in the ICM Registry, LLC v.
ICANN matter currently being heard before the Independent Review
Panel.[2] ICANN essentially argues that the results of the Independent
Review Process are not binding on the ICANN Board because ‘the plain
language of the IRP provisions, which are set forth in Article IV,
section 3 of ICANN’s Bylaws, provides that the Panel’s declaration is
advisory to the ICANN Board and is not binding.’[3] In its response,
ICANN further noted the views of its advisory committee that worked on
the development of an independent review process to the effect that ‘the
ICANN Board should retain ultimate authority over ICANN”s affairs –
after all, it is the Board, not the [independent review panel], that
will be chosen by (and is directly accountable to) the membership and
the supporting organizations’.[4] 

While APC supports the expansion of the proposed Independent Review
Body’s mandate to include fairness and rationality, we are concerned
that the Board can still ignore its findings and recommendations if the
Board determines that the recommendations 'are not in the best interests
of ICANN'. This is an issue that a committee of independent experts
could address. It would also be wise to see what the current Independent
Review Panel has to say on this issue in its finding and recommendations
on the ICM Registry, LLC v. ICANN matter, before establishing the
proposed Independent Review Body.

4.     APC recommends that the issue of the PSC recommendation 2.9 on an
extraordinary mechanism for the community to remove and replace the
Board in special circumstances be reconsidered by a committee of
independent experts. Without such a measure, ICANN cannot be considered
a democratic body, plain and simple.  ICANN’s  reasons advanced for
dropping this recommendation state that ‘this recommendation recently
drew much resistance and doubt from community members’ and that it is
held that it is ‘too difficult to invoke and would create unacceptable
and uncontrollable risks if it were invoked’ .  Mention is made of a
concern that ‘the focus on voting and majorities the mechanisms require
are far removed from ICANN’s consensus-based model.’[5]  These reasons
do not really spell out what these risks would be nor do they illuminate
why a predominantly consensus-based model could not have in place a
mechanism to be used in special circumstances, perhaps when the
consensus breaks down, for example.

In conclusion

APC commends ICANN for taking steps to improve accountability in the two
proposed bylaws. Unfortunately they do not go far enough in the
direction of full accountability.

Willie Currie

APC Communications and Information Policy Programme Manager 

________________________________________________________________________
[1] Commission of the European Communities: Internet Governance: the
next steps, 18 June 2009
http://ec.europa.eu/information_society/policy/internet_gov/docs/communication/comm2009_277_fin_en.pdf

[2]ICANN’s Response to Claimants Memorial on the Merits
http://www.icann.org/en/irp/icm-v-icann/icann-response-for-icm-memorial-on-merits-08may09-en.pdf

[3]ICANN’s Response to Claimants Memorial on the Merits, paragraph 78, p
29 

[4] ICANN’s Response to Claimants Memorial on the Merits, paragraph 89,
p34

[5]  ICANN: “Improving Institutional Confidence: The Way Forward",  31
May 2009

-- 
^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
anriette esterhuysen - executive director
association for progressive communications
p o box 29755 melville - south africa 2109
anriette at apc.org - tel/fax + 27 11 726 1692
http://www.apc.org

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