[governance] APC Comment on proposed Bylaw Changes

[Jeffrey A. Williams]

Anriette and all,

  Many of these proposed changes I believe INEGroup members could support,
but that is not yet known for certain at present.  One problem here in these
proposed bylaw changes is the refrence to ICANN as a "Community".  It is
not a "Community" in an of itself, it is a non-profit Calif. corporation that is
contracted to the UGG's DOC/NTIA.  So I would suggest that a wording change
of the "Internet Community" replace the "ICANN Community" accordingly in order
to eliminate any factual confusion.

-----Original Message-----
>From: Anriette Esterhuysen <anriette at apc.org>
>Sent: Sep 28, 2009 7:12 AM
>To: "governance at lists.cpsr.org" <governance at lists.cpsr.org>
>Subject: [governance] APC Comment on proposed Bylaw Changes
>
>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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Regards,

Jeffrey A. Williams
Spokesman for INEGroup LLA. - (Over 294k members/stakeholders strong!)
"Obedience of the law is the greatest freedom" -
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P: i.e., whether B is less than PL."
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