ICANN's New Commitment to Transparency Arrives Via Secret Process
Date: Wednesday September 30 2009, @07:59AM
Topic: USA Goverment Relations

ehasbrouck writes "ICANN has announced, with great fanfare, a new Affirmation of Commitments by the United States Department of Commerce and ICANN.

This "Affirmation" was signed by the CEO on behalf of ICANN and appears to make "commitments" about actions ICANN will take which would have a major impact on ICANN's policies and procedures. the "affirmation" was announced, apparently, just minutes or seconds after a Board telephone vote this morning. The outcome had obviously been expected (and the proposal could have been included with the agenda), and the announcement -- including comments from a select few who had apparently shown the proposal -- had obviously been prepared in advance,

But whatever deliberation occurred prior to the approval of this "affirmation of commitments" was entirely secret -- except for those favorite friends ICANN chose to invite into the smoke-filled room, or to whom the deliberations or decisions were leaked.

Was this a bottom-up process? No.

Was there any community consensus? No. There couldn't be, since the "community" had no idea what was being proposed or considered and there hadn't been any "consensus development" process.

Were the proposed commitments published for community review? No.

Was there any forum for community comment on the proposals? No.

Were they publicly debated by the Board? No.

Was there any notice that they were under consideration by the Board? No. (The closest the agenda for today's non-transparent closed telephone meeting of the Board comes is "JPA progress report". Report. Not new policy proposal. Not action.)

In fact, the completely secret, nontransparent and unaccountable way in which these "commitments" were adopted is clear and compelling evidence of ICANN's continuing *lack* of any actual commitment to these principles, or indeed to any transparency or accountability; its continuing commitment to lie -- as loudly and as prominently as it can -- about its lack of accountability and transparency; and the continuing need for *real* transparency and accountability.

As a reminder to the "community", these are the transparency and accountability rules in the Bylaws that ICANN is *supposed* to follow when considering policy proposals like these "commitments":

ARTICLE III: TRANSPARENCY

Section 1. PURPOSE

ICANN and its constituent bodies shall operate to the maximum extent feasible in an open and transparent manner and consistent with procedures designed to ensure fairness.

Section 2. WEBSITE

ICANN shall maintain a publicly-accessible Internet World Wide Web site (the "Website"), which may include, among other things, (i) a calendar of scheduled meetings of the Board, Supporting Organizations, and Advisory Committees; (ii) a docket of all pending policy development matters, including their schedule and current status;...

Section 4. MEETING NOTICES AND AGENDAS

At least seven days in advance of each Board meeting (or if not practicable, as far in advance as is practicable), a notice of such meeting and, to the extent known, an agenda for the meeting shall be posted.

Section 6. NOTICE AND COMMENT ON POLICY ACTIONS

1. With respect to any policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges, ICANN shall:

a. provide public notice on the Website explaining what policies are being considered for adoption and why, at least twenty-one days (and if practical, earlier) prior to any action by the Board;

b. provide a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments, prior to any action by the Board; and

c. in those cases where the policy action affects public policy concerns, to request the opinion of the Governmental Advisory Committee and take duly into account any advice timely presented by the Governmental Advisory Committee on its own initiative or at the Board's request.

2. Where both practically feasible and consistent with the relevant policy development process, an in-person public forum shall also be held for discussion of any proposed policies as described in Section 6(1)(b) of this Article, prior to any final Board action.

"

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Preliminary Report of Board meeting
by ehasbrouck on Monday October 12 2009, @01:07PM (#17004)
User #3130 Info | http://hasbrouck.org
The preliminary report [icann.org] of the 30 September 2009 closed teleconference of the Board has been posted. This raises even more questions about the process by which the AoC was approved. (1) Was the Board vote before or after the AoC was signed? According to the Preliminary Report:
"JPA Progress Report: The Board received an update from the CEO on the outcome of discussions with the Department of Commerce and the signing of the "Affirmations of Commitments" with the United States Department of Commerce, and a short outline of the work required to meet to the responsibilities set forth in the Affirmation document. The CEO also acknowledged the hard work done by all to reach the signing of the Affirmations. The Board then took the following actions:"

This use of the past tense in all the references to the approval and signing of the AoC in the Preliminary Report, and the clear indication of time sequence in the statement, "The Board then took the following actions", implies that the AoC was signed *before* the Board vote. If this was true, and the Board had not yet voted, who authorized Mr.Beckstrom to sign [doc.gov] the AoC? Does he believe that he has unilateral executive authority to set ICANN policy or bind ICANN to policy commitments? Did the CEO act (improperly) on his own without a Board vote? Or did the Board give him some (improper) secret advance authorization? What is the relationship of Board and CEO? Who is really in charge? Who is setting policy, and how?

(2) Did the Board ratify the AoC? According to the text of the resolution, the Board "acknowleges the completion of the Joint Project Agreement with the U.S. Department of Commerce, and applauds the signing of the new 'Affirmation of Commitments.'" The Resolution does *not* say that ICANN or the Board "approves", "authorizes the signing of", or "ratifies" the AoC. What is the relationship -- if any -- of the Board to the AoC?

(3) Why was the AoC considered in secret? The resolution makes clear that there were repeated discussions of the AoC at ICANN meetings that were not held with the maximum extent feasible of transparency, in violation of the Bylaws. Some were labeled as "retreats" and not meetings, with no publicly-disclosed agenda or report. Others were held in secret:

Whereas, the Board further discussed its approach to the conclusion of the JPA at a retreat in Austria in May 2009;... Whereas, at the ICANN International Meeting in Sydney, Australia, ICANN staff and the Chairman of the ICANN Board held discussions with the DoC and on 26 June 2009, at a private session of the ICANN Board, reported on the discussions with the DoC; Whereas, in confidence, the Board received further briefings on the progress of discussions with the DoC at its meetings on 30 July and 27 August 2009;... Whereas, the Board discussed and provided input on the draft Affirmation of Commitments at the Board's 11 September 2009 retreat in Los Angeles, California;...

Perhaps this is why the Preliminary Report was withheld until several days after the deadline in the Bylaws. Whatever the reasons the preliminary report was late, it casts additional severe doubt on whether the AoC was properly approved by ICANN in accordance with the procedural rules in the Bylaws.

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