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 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.
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 ‘seek advice 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.
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.
APC Communications and Information Policy Programme Manager
 Commission of the European Communities: Internet Governance: the next steps, 18 June 2009 http://ec.europa.eu/information_society/policy/internet_gov/docs/communi...
 ICANN’s Response to Claimants Memorial on the Merits http://www.icann.org/en/irp/icm-v-icann/icann-response-for-icm-memorial-...
 ICANN’s Response to Claimants Memorial on the Merits, paragraph 78, p 29
 ICANN’s Response to Claimants Memorial on the Merits, paragraph 89, p 34
 ICANN: “Improving Institutional Confidence: The Way Forward”, 31 May 2009