[At-Large] ACCOUNTABILITY Restart - Was Re: ICANN Accountability Mechanisms
jeff at jjnsolutions.com
Mon Jan 3 22:27:33 UTC 2022
Ok, all this has been a great discussion on Internet Governance theory, but can we bring this back to the subject at hand with respect to accountability and what practical steps we can take to address the accountability issues.
What steps do we need to do to formally introduce this issue into the At-large and get addressed by the ALAC?
The two issues are as follows:
1. Urgent Requests for Reconsideration and closing unintended loopholes; and
2. Extending Whistleblowing Claims to allow community members to file claims (not just employees).
* URGENT RECONSIDERATION REQUESTS:
* With respect to #1, as Reconsideration Request 21-3 has shown, although there is a process for the Urgent Consideration of Reconsideration Requests in the Bylaws, that provision, which was not changed as a result of the IANA transition, is no longer fit for purpose.
Let me explain:
A) The ICANN Bylaws allow the filing of Reconsideration Requests as a result of either board action or inaction, or for Staff action or inaction. Prior to the transition, the Bylaws states that Reconsideration requests could be filed for ICANN action or inaction. The CCWG and Accountability teams in 2014-2016 believed that “ICANN action or inaction” meant either ICANN Board or ICANN staff action or inaction.
B). However, Although most of Reconsideration Request section in the Bylaws was heavily modified during the CCWG process, the community inadvertently never amended the process for Urgent Reconsideration Requests. Not sure why that was.
C). The CCWG wanted to make sure it was clear that Reconsideration Requests in general was not just for ICANN Board action or inaction, but also for ICANN Org’s action or inaction.
D). So although Reconsideration Requests now apply to staff actions/inactions, the Urgent Requests section (because the wording was not changed - or because ICANN staff deliberately did not want urgent requests to apply to it), Urgent Reconsideration requests now has been interpreted to apply only to Board Action or Inaction. I do NOT believe this was intended. But even if it were, it is time to change that.
So, in order to file an Urgent Request for Reconsideration, the Bylaws state that it must be filed within 2 days after a Board Resolution.
1. Because Staff action (or inaction) is generally not in response to an ICANN Board Resolution, because there is no ICANN Board resolution, you you cannot file an urgent request. [This is why Reconsideration Request 21-3 failed to be treated as “Urgent”]
2. In addition, it is also likely that Urgent Requests for Reconsideration for Board inaction will also not succeed. Think of the most common case where the community needed the Board to pass a resolution on something, but they failed to do so. If you wanted to challenge that on an urgent basis, you could not because the Board inaction is the failure to pass a resolution. And since there was no resolution, you cannot file an urgent request.
AND HERE IS WHERE IT GETS WORSE…..
After the transition was approved, in late 2016, the ICANN Board passed a resolution to approve a new delegation of authority policy (See https://www.icann.org/en/system/files/files/delegation-of-authority-guidelines-08nov16-en.pdf). That policy allows the ICANN Board to delegate certain responsibilities that it has to ICANN staff without the need for the Board to pass a resolution.
ICANN Org legitimately stated this was needed especially where now you have 1200+ TLDs, Registry Services requests, amendments, etc. If every modification required a Board Resolution this would be too much of a burden for the ICANN Board.
But under the law of unintended consequences, any decision the ICANN Board delegates to the ICANN staff may now never be the subject of an Urgent Request for Reconsideration. What if, for example, the ICANN Board states that once it passes the new gTLD Program for subsequent rounds, ICANN staff had the sole discretion (without Board approval) to implement every aspect of the program including setting the fees, and resolving any and all remaining items. And lets say ICANN staff (without a Board Resolution) states a few days before opening the window, that no entity may apply for a gTLD if it already has 10,000 names under management combined with respect to any TLDs for which it is a registry operator, back-end registry operator or DNS provider.
If this doers not require a Board Resolution, you cannot oppose this new policy via an Urgent Reconsideration Request because there was no resolution.
Between the inability to challenge staff action or inaction urgently, or even Board inaction urgently, combined with the ability of the Board to delegate important items to staff without a resolution, the Urgent Reconsideration Request has been gutted.
* Whisteblowing and Retaliation. My article in CircleID (https://circleid.com/posts/20211230-icannas-accountability-mechanisms-in-name-only) goes into some more detail on this, but in 2016 ICANN hired an outside firm to review its Whisteblower policies. That firm made a recommendation to ICANN that it consider revising its Whistleblowing policies to allow the filing of complaints by parties other than employees because they were worried about community members filing complaints against ICANN and having no protection from retaliation. This would of course disincentive anyone from raising issues if they saw that ICANN were violating its bylaws.
ICANN responded to that report by stating that the community would consider it as part of Work Stream 2….but somehow that never happened.
And now we have an example of a party filing a complaint against ICANN and being retaliated against for having done so. The community needs to take this issue up as was recommended by the outside group to reviewed ICANN’s Whistleblower policies
These are what need to be addressed.
Jeffrey J. Neuman
Founder & CEO
JJN Solutions, LLC
Jeff at JJNSolutions.com
From: At-Large <at-large-bounces at atlarge-lists.icann.org> on behalf of Evan Leibovitch via At-Large <at-large at atlarge-lists.icann.org>
Sent: Monday, January 3, 2022 11:08:25 AM
To: Javier Rua <javrua at gmail.com>
Cc: Olivier MJ Crépin-Leblond via At-Large <at-large at atlarge-lists.icann.org>
Subject: Re: [At-Large] ICANN Accountability Mechanisms
On Mon, 3 Jan 2022 at 07:15, Javier Rua via At-Large <at-large at atlarge-lists.icann.org<mailto:at-large at atlarge-lists.icann.org>> wrote:
Thx @OCL. I resolve to stop using the word “multistakeholderism”!
I will defend the term, and continue to use it based on my personal understanding which I believe is sensible and easily understandable.
To me, multistakeholderism ("m17m"*) is a political philosophy that all parties affected by a governance process ought to have a voice in that process, distinct from democracy in that it seeks a balance between populism and technical expertise.
There are multiple implementations of m17m, many here have experienced a few, I offer some examples:
* ICANN's of course
* American political town halls
* The Netmundial conference in São Paulo
* IETF, complete with humming-based decision-making
* ISO and many standards-making bodies
Some are better than others, and some (most?) only present a facade of broad participation layered over a real process controlled by insiders. But as an aspirational approach to governance, to me true m17m is worth pursuing.
(*) - I use m17m for "multistakeholderism" much like i18n<https://lingoport.com/what-is-i18n/> is used as an abbreviation for "internationalisation", and I'm lazy when I type. The abbreviation MSM (MultiStakeholder Model) to me means something different, the specific form of m17m used by ICANN which has essentially appropriated the term.
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