ICANN Accountability in a Multistakeholder Governance Regime
03 September 2014 - A Workshop on in Istanbul,Turkey
The following is the output of the real‑time captioning taken during the IGF 2014 Istanbul, Turkey, meetings. Although it is largely accurate, in some cases it may be incomplete or inaccurate due to inaudible passages or transcription errors. It is posted as an aid to understanding the proceedings at the session, but should not be treated as an authoritative record.
>> ROBIN GROSS: Are folks ready to get started? Would you like to take your seats? Hello everyone and welcome. My name is Robin Gross with IP Justice. And I'm the organiser of this panel on ICANN accountability. A little background on this topic, ICANN as you all are well aware is a organization that manages some critical Internet resources with the Domain Name System. And it is also a private California corporation in terms of its legal entity. And in its bylaws and Articles of Incorporation it promises it will operate in the benefit of the public interest and that it will operate in a transparent and open and community driven manner.
So then the next question is well, how do we actually achieve that. What are the mechanisms to ensure that ICANN is accountable to these promises and commitments that the organisation lays out in its bylaws, Articles and operating procedures? Well, ICANN has a few different accountability mechanisms. The first would be the reconsideration request. So if a ‑‑ if somebody feels that a staff or board action or inaction was in violation of these bylaws and these commitments, they can file a reconsideration request to the board to ask the board to reconsider that idea, that decision. And then if they are still unsatisfied with the result of that process, the reconsideration request process, they could then file an independent review panel proceeding and ask that the matter be then taken to an independent review panel for a sort of like an arbitration, adjudication. And then that decision would go back to the ICANN board of directors and they can choose to adopt that decision or choose to ignore at their discretion. Another one of the ICANN accountability mechanisms is the Ombudsman. I will let Chris talk more about the Ombudsman role in ICANN accountability. This is sort of a lay of the land of what we are working with here.
What I would like to do with our discussion today is give each one of our panelists an opportunity for just a few minutes of brief opening remarks. And then I'd like to really open it up for discussion. And I have got some questions for the panelists but also for the audience. So I'm really hoping that people will take this opportunity to participate and get in the queue and join in the discussion as well.
So without further ado, let's ‑‑ I should also mention who the workshop cosponsors were to help make this happen today. CGI.BR and the Internet Governance project and the Public Interest Registry and the Internet Commerce Association and the InternetNZ are the cosponsors today. Our first speaker, we have got Larry Strickling with us here today. He is with the U.S. NTIA department. Larry, why don't you kick us off with this. Thank you.
>> LARRY STRICKLING: Thank you, Robin. We are heading in to a big and broad topic. I would like to start off with some observations with my experience with one of the accountability mechanisms of ICANN, the accountability and transparency review team. For those of you that aren't involved day‑to‑day with ICANN, back in 2009 the United States signed an Affirmation of Commitments with ICANN. They committed to undertaking every three years a review of its accountability and transparency. Now understand that this commitment was made on the heels of a whole series of accountability reviews that ICANN had done over the previous years. Yet there continue to be a sense that this was an area that might benefit from a true community evaluation. And as a result we've now had two of these accountability and transparency review teams, first one in 2010 and the second one last year. And many of the members of those teams are here.
Avri served on last year's team and I see Peter and Chris Disspain who were on the first team. And I am sure there are others here in the room that I am not picking out of the crowd as I sit here. I think those have both been very important functions in terms of bringing attention to accountability issues, giving the community a direct opportunity to have input in to the accountability process and to review and evaluate the conditions and the recommendations that came out of the teams. I think the first year the team proposed about 28, 29 recommendations, all of which were accepted by the board and all of which have been implemented at one level or another. And again our report last year provided an accounting of how well the board had implemented that first set of recommendations.
And last year we came back with yet another set of recommendations that the board is currently in the process of implementing along with ICANN staff. So I think the structure of the model of these review teams has been very gone. And it is one that I think needs to continue on and the aspects of it I want to particularly emphasize are the openness and the transparency of the process. Every meeting held the ATRT was open to the community. It was all the meetings were available to be monitored generally I think by listening. A lot of our work was by phone calls. We did a lot of ‑‑ we sought input from the community both in terms of identifying the issues that folks wanted to have addressed, and then after we developed recommendations. We put those out for public comment. So I think it is a good model of openness and transparency. And I think it has led to improved accountability at ICANN.
>> ROBIN GROSS: Thank you very much, Larry. Our next speaker this morning is Pat Kane, representative of Verisign.
>> PAT KANE: There we go. Thank you, Robin. Good morning. So I am Pat Kane. I am at Verisign and I have the responsibility at Verisign for two components, policy deployment process and my team also implements the result of that policy process. I am going to cover a little bit about how we see the process and how we believe that accountability can be improved in the future. So ICANN is a multi‑stakeholder governance model that develops policy from a bottom‑up. We like that because it allows to directly participate within the Consensus building process so that we can have our say in terms of what affects us and right now the thing is the who is process that is going on is a good thing. It is applied to all registry operators, but because we are affected we are also participating in the implementation review team. The whole process is working from the bottom‑up. It is however a messy and sometimes slow process. Who is has taken a long time to get to where it is today. In 2006 at the San Juan ICANN meeting in Puerto Rico and I met Wolfgang for the first time. And within ICANN today there is many more voices today than there were before. We had 3,000 people ‑‑ over 3,000 people at the London meeting. My belief is that Los Angeles will expand beyond that. I believe that ICANN staff allows this to be used as a reason to drive topdown processes in to the policy area or trying to address what amounts to policy questions.
I think it is inappropriate. Perhaps it is time to have a discussion about different models and different ways to introduce policy modifications. You know, some issues as it pertains to operational emergencies and viability of the organisation and strategic decisions the organisations can make themselves require outcomes that value speed are targeted to managing the future of that organisation but those items should not be determined in a random organisation serving manner.
Let me illustrate. November 2000 Verisign launched IDNs at the second level at dot com and dot net. As we moved forward we had a lot of policies put in front of us by ICANN staff that were not done throughout the normal process. It allowed ‑‑ it didn't allow us to achieve the results early on that we wanted to within IDNs. What evolved out of that was a bottom‑up process. That is a really great process that allows registries to determine and bring to market viable products and services that our customers or distribution partners, registrars are seeking to provide to their customers. Now today what we have got is that the ICANN staff is modifying that process in a manner that is changing. If we are operational efficiency because it doesn't work for them, so they can do things faster and presumably better to achieve operational excellence, but it is a bottom‑up policy that is being modified topdown. And bottom‑up should be reviewed.
Other examples of this going on today through the new gTLD process, the application guidebook was put together and modifications made post Consensus driven by the community. And the agreement between ICANN and the new gTLD operators had so many modifications that it actually became a negotiation process between ICANN staff and the registry community. So the people that had contributed within the GNSO were not a part of that process. There is probably some nonpolicy things that affect the community that should be topdown. It should be a predefined list, something ‑‑ things that the community addresses upon a list of executive powers and what the U.S. constitution we know has enumerated powers. Should that happen I don't think the accountability mechanisms that we have in place today will work for that process. But what sort of mechanisms should we have? 30 years ago I started out as a sophomore engineer working on processing Medicaid claims. We had things that were edits and things that were audits, making sure that that data was balanced in terms of what the whole Medicaid programme was supposed to do. I see that bottom‑up process very much like an edit and that we check things ahead of time before we ever send a policy to the board for approval. But the audit process is a real post.
So if you have a topdown process you have to take a look at what is the audit process. Larry referred to the AoC. I think the AoC is a tremendous tool that we can use with the ATRT, but we know that the AoC can be terminated six months after or six months notice from either party. Once the IANA transition happens we have to have an AoC that has more permanents or we find some way to pull those processes in to the accountability process today. Other things that we can look at and use are auditor generals. I think it is a well documented way to move forward. Essentially we have to have some processes in place, deliver reports to assess the performance of those that are entrusted with community resources. I think the Delanco stress tests is a good way to measure. If we should fail in those particular areas and the audits persistently show failure to adhere to the process we probably need additional processes on the back end to include censor and election of the leadership organisation and maybe a way to replace any member of the board or all the board, for example.
>> ROBIN GROSS: Thank you very much, Pat. Our next speaker this morning is Gonzalo Navarro from the ICANN board of directors. Gonzalo.
>> GONZALO NAVARRO: Thank you, Robin and good morning. I was thinking to deliver my statement in Spanish, but I think that's going to be complicated since you are not able to read the screen. Anyway, I am going to be really brief because I am interested to have a conversation engagement with the people in this table and with the remote participation. The accountability on transparency process is not really ICANN but I am happy to have the opportunity to bring this issue to IGF. I think it is important to expand the opportunity for people, not related with ICANN. To understand and to have more knowledge about what we are doing, how important this process for our community is and how they can be engaged and involved. Actually the accountability and transparency process which is related with the IANA functions work actually was born here in the IGF, I mean as a consequence of the WSIS process.
So it is interesting, you know, to have the opportunity to revisit this issue from this different perspective, perhaps with different actors. Having said that I think that this process is the most important process that ICANN has engaged with in the last ten years. It is comprehensive of all the things that we are representing and doing as a multi‑stakeholder organisation and is quite a unique opportunity to show to the world, you know, the way we work, how we work and the homestead that we have as an organisation and as a community. So having said that I think that it is important for us to engage in this kind of dialogue. I will be happy to take the answers and engage with you this morning about these important topics. Thank you.
>> ROBIN GROSS: Thank you. Our next speaker is Carlos Afonso from CGI.BR. Carlos.
>> CARLOS AFONSO: Thank you for the invitation, Robin. I am not a rigorous follower of the issue. When I hear there are 29 recommendations for accountability regarding ICANN, I would like to see those because it is an impressive number of recommendations for an issue. I understand it is an issue for all, what I would call the inner stakeholders of ICANN which are, of course, registers, registries, the noncommercial that were interested in IP addressing and domain name issues which are not all of them. There is a variety, minority of them. But if this is true, true multi‑stakeholder structure there is the need of a broad Consensus on this issue because it exists, I cannot say it is not. I have seen declarations from the staff which are really amazing. They come to one point to treat IANA has an entity and not as a function. It is a simple set of tasks. And these issues must be resolved by broad Consensus. There is not a single inner stakeholder of ICANN that is not complaining about this or that facet of accountability.
And another thing which I can gather is the role of staff vis‑a‑vi the board which is for me it seems a serious issue which has been objective, countless attrition and I think it is part of the accountability and transparency process that this has to be resolved. And well, I would like to also comment on how the idea of a new relationship to the IANA functions has already progressed in practice, but I will wait for other people to talk on that. I will come back to it.
>> ROBIN GROSS: Thank you, Carlos. Our next speaker is Avri Doria, a former member of the ATRT.
>> AVRI DORIA: Thank you, Robin. When I started looking at accountability, I started figuring out how it is I could actually tell if something was accountable or wasn't. And I find one criteria is that well, first of all, if a lot of people are talking about accountability then there may be an issue, because people rarely talk about accountability when something is properly accountable.
So you get in to a criteria that says well, in a multi‑stakeholder organisation is it the aggregate impression that more people think it is accountable and more people don't. Another way of looking at it is that we get in to sort of looking at particular aspects. Looking at details of, for example, do processes change without proper change control. Is there a way to audit as was mentioned. Are there mechanisms. I come out of a fairly analytic philosophical tradition. So I started basically stepping back and looking at it, what are some of the elements that make up accountability. And along what scales can these be measured because obviously the notion of perfect accountability probably doesn't exist, and the notion there is no accountability that pretty much does exist, but perhaps it doesn't because people can always rise up. And so at some point there is accountability, but in the middle there is a very big gray space. So when I look at it I see many elements but I see essentially three main elements that I start peering in to. There's certainly notions of oversight, whether it is hard oversight, soft oversight. Oversight that you must do what you are told versus oversight where you get a recommendation and you can do it or you can opt not to.
We have in the AoC I think a very brilliant form of soft oversight where we do have a community mostly done in a, you know, inclusive democratic so‑called bottom‑up fashion that we use to give recommendations to the board and the board may or may not accept them. And when they are implemented they may or may not be implemented genuinely or they may be implemented as checklist items, but because the AoC process cycles through you actually get to come back. And if it is done purely as a checklist, you get to come out. But then again six years have gone by. So, you know, that is a very good soft oversight, unenforceable. ICANN obviously has no hard oversight. You know, California may or may not prohibit that and it may rest on various features of the organisation. But by and large oversight is missing. Oversight also comes in scale. Is it prescriptive oversight that tells an organisation what to do or is it sort of exception‑based oversight where when something goes wrong there is something. And that goes in to sort of the next item I look for which is the notion of redress. And within ICANN again have been talked about the three possible methods of redress, the reconsideration, the independent review panels and the Ombudsman. The ‑‑ those three methods of redress are middling at best.
In terms of reconsideration it is really just a process reconsideration for the most part and it is being reconsidered by the same people who made the decision. So there's a certain element that makes it difficult to actually have strong faith in a reconsideration process. In terms of the independent review panel, it seems to be a very fine mechanism when you can afford to use it. It is not an accessible mechanism. And again it is also a voluntary ‑‑ it is a soft mechanism in that the board can or cannot decide to accept it. And now granted there is social pressure on the organisation to accept or to do something with it and then there is the Ombudsman which is a very fine mechanism. And, you know, we do have the Ombudsman here to speak who looks at the fairness of what goes on, yet has no enforcement capability. So again it is a good mechanism for identifying when something needs redress. It can suggest redress and such. But it cannot constrain in any sense. And then the final part of it that's sort of in some sense is the base of it all is the transparency of the mechanisms. And to that extent to what degree can we say that ICANN is transparent. Again I would sort of say it falls sort of in the middle of the scale. Some of the stuff is transparent. A lot of the stuff isn't.
Now the ATRT, too, has made recommendations that everything should be transparent except for those things that have a specific stated reason for not being able to do so. And the board has indeed agreed to that as something they will implement, but again it still remains to be seen to what extent that will happen, and what manner of it can be ‑‑ it can happen in a sense that everything is transparent and it is there for you to see. Or it can be implemented and well, if you ask in the right way with the right forms with the right procedures then it can be made visible. So even that is something. So all these things can be measured along scales. And if one really wants to be an analyst one can go much deeper in dividing the issues, but I tend to think that that's the kind of analysis that we need to be doing is looking at all these facets as opposed to most of us are in ‑‑ still in the aspect of yeah, I think it is accountable. Nope, I don't think it is accountable. And then picking a few things where, you know, we personally focus in on. So that's where I wanted to start. Thanks.
>> CARLOS AFONSO: I think another aspect of this discussion with accountability is ICANN as an institution which is one of the key institutions so far created for the governance of the Internet. It is the governance of the so‑called Critical Internet Resources. ICANN as a political entity, as a whole which is present and very active in political initiatives in the whole Internet Governance scenario, the NETmundial, which also we have some issues with and regarding accountability and transparency. So that's another theme of our discussion regarding the whole accountability issue.
>> ROBIN GROSS: Thank you. Our next speaker is Chris LaHatte, the ICANN Ombudsman.
>> CHRIS LAHATTE: Thank you, Robin. I am really meant to be the first place you go to if you have a difficulty with the organisation. The role is structured within the ICANN organisation. So in terms of governance and accountability I'm here for the community making recommendations to the board. And as Avri pointed out that can sometimes have the impact of a wet bus ticket. However, in the few times that I have had to make a recommendation they see ‑‑ the board has accepted what I have suggested.
The Ombudsman's office has been looked at rather carefully and more recently in the ATRT, too, and it is proposed that the scope of the office be increased somewhat because of a need for further accountability structures. I'm not sure it is entirely appropriate for me as the present holder of the office to advocate for changes which could conceivably be seen as some form of empire building, but I would be very interested to hear from the community as to specific ways in which the use of my office can enhance accountability.
Now there are a number of different aspects which have been suggested in ATRT, too. There have been some comments about it but not a great deal of debate. It is not the sort of issue where I really want to tell people what I think. I'm very interested in a bottom‑up movement for these are the sorts of things that I should be doing or doing in addition to what I'm already doing.
So while my principal role is expressed as dealing with issues of fairness and of delay, that has gradually come to encompass issues such as diversity, challenges, and that sort of thing as well. Increasingly issues such as privacy, the lack of it, or the protections around privacy have also started to be raised. Issues like access to documentation are also important and that's a mechanism, of course, for ensuring transparency and accountability within ICANN itself. As it happens under my bylaw I have access to everything. My bylaw says that if I request a document from any member of the community they should give it to me.
If they say no, I'm not quite sure what I would do then, but I would certainly make something of a fuss if I regarded that as critical. So my role really depends on the ability to persuade people. It has been described as moral persuasion rather than the ability to say ICANN, you should be doing this or you must do this.
And that's pretty typical for an Ombudsman. An Ombudsman has the power to tell people to do things. Even the national Ombudsman don't actually have the power to do much except generally the same sort of power that I have which is to order that information be provided. The rest of it is all recommendations.
So the range of what I do in the new era is something that I'd like the community to think about, is what I am doing a wide enough scope, should it be more narrow. And I'd like to hear from people because as Avri said accountability wasn't really discussed terribly much when I first started doing this. And it is really only in the last year and particularly more focused with the IANA contract issue that people have started to say well, how else do we ensure that there is somebody to answer to. So we are in a brave new world and with that I welcome contributions.
>> ROBIN GROSS: Thank you very much, Chris. Our final panelist this morning is Jordan Carter from InternetNZ.
>> JORDAN CARTER: Thanks, Robin. And good morning, everyone. This is going to stay bitsy because several people have said things that I wanted to say. InternetNZ is the Internet manager. I am speaking as a perspective as one of the core customers of the IANA functions which is an important part of what ICANN does. Why are we having this conversation particularly here? And I am glad we are. It is because ICANN's accountability is an issue for the whole Internet community. It isn't just an issue for the users of the IANA function and the direct users of the ICANN. And those functions are very important to the ongoing stability and security of the Internet's operation. And I think that creates a tension in all these accountability operations.
On the one hand there are customers like me who want the system to work and know that we are not going to be broken or damaged by actions of ICANN, but there is a broader global attention here. In the current discussion around ICANN accountability that's connected to the IANA stewardship transition I want to endorse something that Larry Strickling said yesterday morning, we can't overload that process. We can't say let's fix all of the concerns we might have on every asset of ICANN's accountability in this one process. But we have to deliver as part of the IANA stewardship transition an accountability settlement that all the key stakeholders can live up to and because there is contention around the real role or influence of the NTIA's existence and role in terms of accountability, we cannot draw a narrow scope about it. It isn't just saying replace the contracting functioning and you will be fine or replace the administrative verification function, you will be fine. So frustratingly for me who likes things to be precise we can't tie that scope very clearly in place.
The third point is that there is a lot of talk about ICANN accountability. And I want to say I think ICANN has got a cultural problem with accountability and that is around what is the nature of the public interest. And my conversations with ICANN board members and ICANN staff I sometimes form the impression that in some parts of the organisation there is a view that they know what the public interest is better than the Internet community does. Better than ICANN's customers do. Now that's an attitudinal problem that the board and the CEO of ICANN need to tackle head on and shift because the public interest is served by one coherent Internet. It is served by the effective operation of the functions that ICANN is responsible for and the people who know those best are the customers of those functions. So if the board and staff of ICANN ever get in to a situation where they think their community's interest is out of line with some abstract public interest, they are guaranteed to be wrong and they need to reconsider where they are coming from.
The last point I will really make, two points is ccTLDs are different in to other participants in this mix. We have legal relationships with our Governments and our Governments can get involved within the local Internet community to shape our evolution and stuff. And your priority is that ICANN does not come in and screw around with those relationships. We are not like the gTLDs which are the new ones. We are not like the numbering and protocol folks who have already got external relationships. And so the ccTLDs are deeply complicated, politically messy, scrappy situation that cannot be bundled with the G names and cannot be bundled as just another customer. The more you look at all of these and the more different they are. CcTLDs are going to be complicated in this whole process.
In terms of accountability there are lots of mechanisms and one of the risks they create overload for the community. But one of the things that has to be on the table is the way that ICANN is structured internally. And there is a bit of a boggy man out there around structural. Got experience separating our registry operator from our policy making function for my role in the organisation ss the overall steward of the DNS. This does not involve random contracting and does not involve cartels and run the system badly. Sometimes you need bright lines for accountability.
So one example of this in this evolving discussion would be that you created the IANA functions operator as having its own policy board. That had to check and validate the process had been followed before changes could be made to the various parameters, registries and so on that it controls. Another one might be to extract ccTLD policy making from being internal to the ICANN framework and making it external, but these structural options are on the table and aren't going to go away. Some of the tone of people particularly in the technical community in this debate has this is ours, get your hands off. You don't know what you are talking about culture.
I would like to finish by saying as we have this discussion not only here but in the ICANN community people have to be prepared to re‑evaluate where they are coming from. They have to be prepared to say yes, I have been involved with the system before it started, but the Internet has got a lot more users than it did in the late 1990s and is a lot more important to all of us. And it has got to be broad‑based conversation. That's all.
>> ROBIN GROSS: Thank you very much, Jordan and all our other panelists this morning for getting us started. I would like to kick us off with some dialogue amongst the table and panelists and also welcome the audience as well. Let me ask the first question, and it is kind of a big open‑ended question, but what is the biggest challenge that we are facing ‑‑ what is the biggest challenge that we are facing right now to improve ICANN accountability? Larry, I know you thought a lot and you worked a lot on ICANN accountability and the ATRT process. So I would expect you have some thoughts what are our biggest challenges on this.
>> LARRY STRICKLING: Well, I'd like to react in answering that question to some of the things that other folks have said. First off I think it is ‑‑ I am not the least bit concerned or worried about the fact that accountability is a very large topic of conversation at ICANN meetings. I think it is extremely healthy for the organisation. And I think that accountability is one of the Hallmarks of the multi‑stakeholder process. So nobody should be alarmed by the fact that people want to continue to explore ways to improve accountability. Having said that I think ICANN notwithstanding all of the issues people have mentioned is about the most accountable organisation to its community that I have ever been engaged with.
In no way does that excuse the community from continuing to find ways to improve processes, to continue to find ways to make the organisation work better and be more responsive to the community. But I think it is nothing but healthy that this is an important topic and people shouldn't be alarmed that there's always something we can find or that the community can find to improve ICANN's accountability. In fact, we should worry that the day might come when people would stop saying that because I think it would mean that the ‑‑ that the central nature of accountability is being important to the multi‑stakeholder process, might have lessened in importance and that would not be good for the organisation.
So in terms of immediate challenges, I do think that this process that ICANN is in the community needs to get underway to look at what does it mean for the United States to step away from its current role with respect to ICANN and how does that affect accountability. To the extent that people thought that the United States was the parent in the background who could step in and correct issues if they emerge, first off I am not even sure to what extent that is valid and true, but certainly I acknowledge the perception and I do think for the community to get its arms around defining that, and then determining what needs to be done to replace that value, whatever it was, will be a very, very important and difficult conversation to have just because it is hard to define exactly what it is that it meant to have ICANN operating under a contract from us that had no money exchange hands, that really had no direct oversight but which people perceived led to a certain amount of stability in the process that people are worried might be lost when the United States steps aside and allows the contract to expire. So I think that in the near term is probably the biggest accountability challenge facing the organisation.
>> AVRI DORIA: Thank you. And I think going beyond that I think when I look at it I think that on the scales the redress issue and what you do when something goes wrong and I think that the power that the NTIA contract had you always felt whether it actually happened or not, that there was always some final redress that was possible. That someone controlled the contract. That there was a place to go. And that someone could make a phone call and perhaps set things moving in a better direction. Now the degree to which that was true, not true used or not used is almost beside the point. It was an impression that many, many people had, but when you look at ICANN at the moment, in many things it is doing quite well. But when it comes to redress on issues that have gone wrong, there really is very little method of reliable redress. And so I think that going forward that really is one of the major things that needs to be fixed.
Now in terms of the IANA and ICANN and the IANA stewardship, we've made an assumption in doing all this that if ICANN is accountable enough, then the U.S. stepping aside and the contract allocation is okay. Of course, that presumes that indeed ICANN remains responsible for the IANA function. So one of the things we also have to look at is to what degree are there IANA accountability issues that are in any sense not necessarily separate in the sense that people are using the separability of operations from policy, but are there accountability issues that pertain to the IANA functions. Even if ICANN weren't the one that was or even if ICANN as an organisation were perfect in accountability, are there still issues that one would need to look at. So I think there's also that bit of differentiation that needs to be done.
>> GONZALO NAVARRO: Thank you. I was addressing some interesting points of why we need to engage in this process of accountability before to come to this panel. I was thinking well, why we are engaging in this process. What's important. Why it is important. Of course, I was asking this question to myself in my role of board member. And the thing is no matter how accountable is ICANN as an organisation vis‑a‑vi different organisations or Governments, there is always a need to improve what we are doing. I was taking some interesting points about what we need to do or what we need to think but what is most important is this process of how we are doing it. We need to engage our community in this process. They know very well, you know, what we need to do. How we need to do it. Where we are coming short in terms of solutions to express those ideas and to fix it in the future.
Going to your question, Robin, I think that this process is freely complex. It is really necessary but really complex. One of the complexities is that it is the same ‑‑ the very own nature of ICANN. ICANN is an organisation that is dealing with IANA functions but many other functions, too, and it is measured in different ways. For example, in the role of directors, you know, they have ‑‑ we have fiduciary duties. If you don't have training in American law you don't have a clue. You don't have extent. You don't know how to deal with this concept, for example. ICANN is dealing with international organisations and measured in that way. ICANN is dealing with the community and the community is quite diverse. You have business constituency with some ideas about what accountability means or transparency means. You have Human Rights defenders and they have a different opinion about what is the measure or what's the role we should apply in terms of accountability or how this discussant concept needs to evolve. And then you have the technical community with different standards. So dealing with these different areas at the same time with only one concept which is accountability it can be complex. And sometimes, you know, it is difficult, you know, to put yourself in the middle of this process and to realise about the many things that we are trying to cover.
So I think that that's perhaps the most complex issue on this process, but again I think that we have a really great opportunity to address this important issue. And the most important thing is to rely on the community because I think that they have the ideas that we need to apply in terms of improving this whole concept. Thank you.
>> ROBIN GROSS: Thank you. Did you want to join in?
>> PAT KANE: The only thing I wanted to add, two of the items that we talked about already are the Ombudsman and the ATRT. And two things in common there is no teeth. You don't have to do things for them. So the board gets the results of the ATRT and you can choose to accept them or not accept. Who is ICANN accountable to what and how does it get measured and what are the consequences for failure to be accountable. And it may stop at just what the IANA function, what the U.S. Government does with the IANA function, but that's going to include the relationship with the AoC which includes that ATRT. And the scope could get large and we try to focus and keep it something we can digest and pieces that we can get through. So it is a question of who and what and how do you measure.
>> CHRISTOPHER DISSPAIN: Thanks, everyone. Chris Disspain, just to be clear speaking personally and with something of a sore throat. I'd like us to think about consider asking a series of questions about the accountability piece. I acknowledge that there are massive areas that certain parts of the community or the community as a whole is uncomfortable with. Doesn't like ‑‑ I am uncomfortable with the way the JRS is structured. I think it makes it extremely hard to deal with. But that doesn't necessarily have anything to do with the U.S. transitioning out of their role. So the question I think we should be asking is when it comes to looking at accountability, does the U.S. transitioning out of its role have an affect on the pace. So if you think that the reconsideration request process doesn't work, that's fine. But does changing that, does the USG leaving stop you from changing that or have any affect on the way it currently works. And the answer is I would say no, it doesn't have any effect. Should it be changed? Yes. Should it be reviewed? Yes, but Larry taking his bag and crossing ‑‑ going outside the room and Pat made a good point of affirmation of commitment. That is front and center, something we should be talking about.
The ccTLD world has a thing with ICANN called an accountability framework. These are documents that the ccTLD manages and to assign with ICANN and they are cross documents, ICANN commits this, either ccTLD manager commit that. And think about that for a second. There are already Governments that are signing documents with ICANN and they are called accountability frameworks. So we've got mechanisms in place that we can start to use that deal with areas affected by the USG's transition. Everything else is incredibly important but it is going to be a problem whether they go or stay. I put that in a slightly different bucket and say that's going to need to be dealt with. Where stuff like the affirmation of commitment does need to be dealt with. It is an incredibly wide scope, but what needs to actually be dealt with for the transition is I think is narrower.
>> ROBIN GROSS: Thank you very much. Got Jordan and then Milton and then this gentleman, oh, my goodness, and Avri and Steve.
>> JORDAN CARTER: Thanks, Robin. I think there's a really important point in what Chris just said that does need to be teased out. I would like to agree with him that we should only focus on the accountability issues that are directly caused by the U.S. Government leaving, but the problem with that is the United States Government has said that the transition of NTIA stewardship is only going to happen if there is a proposal that has community buy‑in. There has to be some level of Consensus. So the real politic of the situation is enough accountability stuff has to be done, that enough of the community can buy in to the plan that it can go ahead. So if there are people who feel that accountability absent the USG is not dealt with adequately and that may or may not relate to the specific roles that the United States Government has compared to the overall, I think that Paul called it the political halo effect created by the contract's existence. So that's the messy situation I think we are actually in.
>> ROBIN GROSS: Thank you. Milton, you are next.
>> MILTON MUELLER: Hello. Milton Mueller, Syracuse University. I want to build on what Chris made ‑‑ I sort of agree with the distinctions that he is making but I think I have a slightly different angle on him. I do believe that when we talk about routine forms of corporate governance like the Ombudsman and the ATRT process in which the community gets together and says hey, ICANN, what are you doing right, what are you doing wrong and what needs to be tweaked, I don't think that should be the center of the conversation around accountability at the moment. I think we have to deal with fundamental, external forms of accountability. You know, in the business world the most important form of accountability is competition. If you do something badly, people can leave and go to another provider. ICANN doesn't have that. We believe that we need to have one route. And ICANN doesn't have a voting membership or a set of shareholders the way that a typical corporation has. And so again you have a very strange relationship. And the most important thing about the current IANA contract is simply that someone can take it away from ICANN.
And unless we are talking about a transition process that somehow gives the community the ability to take away the IANA contract and give it to somebody else, I don't think we have accountability or what I would call accountability. I don't think I would ever be satisfied with any kind of a new accountability arrangement for IANA that simply involves Committees looking at ICANN and making noises if they do something badly. I don't think that's real accountability. So I think that the discussion should be focused on how far you go with that. And that when we talk about the tweaking and the ongoing things Chris is absolutely right, a lot of this stuff could be done with or without IANA transition that's independent of the IANA transition. Other parts of it Jordan is right, if you have a better appeals process or what Avri calls redress, maybe the community would be more satisfied with certain kinds of IANA arrangements than they would be otherwise. Unless we are talking about, you know, somebody with the external authority to say yes, you get this or no, you don't, I don't think we have accountability.
>> ROBIN GROSS: Thank you. Okay. I think we've got ‑‑ oh, my goodness. I think you were up next and then I have got Avri and Steve and I saw Chuck. Oh, my gosh. Keep your hands up. Keep your hands up while he goes ahead.
>> AUDIENCE: Thank you. Good morning. My name is Karuse Aresteh. The issue of accountability during these decades in which Internet has been ‑‑
>> ROBIN GROSS: Speak in to the microphone.
>> ROBIN GROSS: Can you speak in to the microphone, please?
>> It is better? Yes. Okay. Yeah. Accountability during these years has been evolved on a piecemeal approach. Be at and put bits over the bits to find some piecemeal solutions for the issue. Accountability is not limited to what is currently on the board and that is the transition of the function, IANA function stewardship to the global community. It has some relations but the overall accountability is something that we have to deal with quite deeply.
What is accountability? Who is accountable to whom? And on what? There are some elements in the borders. There are some other elements in the affirmation of commitment, but there is no fully structured accountability starting from the policy itself, the policy making, and the policy implementing entities and the entities to which the accountability should be reported, measured, and reacted. We need to have an overall restructuring of the accountability, is not an issue that we do it in a day. But we have to have a plan, a programme and a structure, how to address this accountability. Accountability is one of the most, if not the first, most important elements in the entire process. There are in views of some people like myself and other elements which is outside the discussion of this group, but accountability, I think the way we are going to take and continue this piecemeal approach would not get us to something that we are expecting. We have to have that overall accountability process to look at, to have the structure to be established, to define who makes the policy, who implements the policy, and who is accountable to what and how we measure the accountability and how we address if there is anything going wrong to that process. These are the important issues that we need to look at the issue.
>> ROBIN GROSS: Thank you very much. Avri.
>> AVRI DORIA: Yeah, I wanted to build slightly on what Milton had said. And the notion of separability is ‑‑ and the renewal of a contract is sort of a lynch pin in there. And I agree but because so much of the accountability depends on AoC which depends in a sense on that lynch pin I don't see how anything can actually be excluded because we count on the notion that if ICANN accountability falls apart in any sense, then there is a contract that won't be renewed. Once that has been eliminated, then everything becomes ‑‑ basically goes up for grabs. So I understand what you are saying in terms of these are separate issues about ICANN. And I know that people will argue, but the contract doesn't ensure all those things but the point is and ‑‑ and if you looked at the last time the contract came up for renewal, ICANN put in a first bid. ICANN's response was not good enough. And basically it was not accepted. Now there were no other applicants of significance. So therefore it didn't move to someone else. But at least to the outside view it looked like it could be taken away.
And it could be taken away for any number of reasons. So one could look at the AoC and sort of say well, yes, you have had multiple AoCs. You have made multiple recommendations and all of these issues have not been dealt with. Therefore before we renew a contract what are you going to do about that. Once there is no contract, you know, then there really is no leverage left unless everything else has been dealt with satisfactorily and that's where the balance lies. There is a very strong tend inside of ICANN we are not going for that separability. We are going for the contract, basically eliminating the notion of the contract and the IANA function becomes something that ICANN does. If that becomes the case, which seems quite possible, then we have absolutely no leverage. And it all relies on hope and goodwill. And that's what's difficult to measure.
>> ROBIN GROSS: Thank you, Avri. Steve, you have the floor.
>> STEVE DELBIANCO: Thanks, Robin. Steve Delbianco with the business constituency. I would like to ask Larry Strickling to elaborate on the issue of scope of accountability as a result of transition and that came up yesterday. And Larry, you cited an example of budgeting issues. For instance, the business constituency, that the community, a permanent cross community Working Group might approve ICANN's annual budget. And Larry, you came back and said for instance, budgeting should be something that you handle in an affirmation review team. And many of you have pointed to the primacy of the reviews that are done as a result of the affirmation of commitments. And I couldn't agree more. Here we are at IGF where bilateral agreements and where one country has a unique position and they are typically ‑‑ I wholly support an agreement that is a bilateral agreement. It is between ICANN and one Government, the U.S. Government. ICANN can quit the affirmation with just a short notice and in many respects the affirmation itself is a little bit antiquated.
>> That's not true.
>> STEVE DELBIANCO: It could be done more. Great. What the affirmation ‑‑ what the business constituency recommended it should be in scope because it should be imported in to ICANN's bylaws and should be a bilateral agreement between U.S. and should become a permanent of the ICANN's DNA. As soon as we open the idea of the topics that are in scope for this transition it is hard to say something that can't be there. If we are looking to impose very rough accountability redress mechanisms, then the board will be inclined to say we are not interested. We would prefer tough measures like the community being able to split the board. We want those tough measures to be accepted by the board. And we need then to bring them in to the scope of this once and done discussion.
>> LARRY STRICKLING: So to be clear, I am not setting the scope of the second team. I simply gave my observation and it is much the same of what Chris formulated a minute ago. It seems the starting point of this discussion ought to be what are the accountability measures that are impacted by the expiration of the IANA functions contract and what does the community want to put in place to deal with that. Beyond that I'm not going to say anything more in terms of what's in or out of scope. The one example you given, the question I would ask is where was that proposal last year. That was a ‑‑ we spent a lot of time talking about budgeting and finance on ATRT last year. We went to every supporting organisation and advisory Committee and I don't think that anybody made the proposal that you are making now about who ought to be reviewing the budget of ICANN. And it is probably more appropriately handled in upcoming ATRT reviews. Having said that if the community wants to raise it and deal with it now, I am not in any position to say don't do it. But I am urging that the starting point really ought to be the focus on why there is an accountability workstream being put in place this year since we just spent an entire year on many of these issues last year. I think that answers your question.
>> STEVE DELBIANCO: Thank you very much. I think it is clear that the starting point might be those directly impacted, but that is not a limiting factor you are saying and I appreciate that answer.
>> LARRY STRICKLING: Yeah, and the comments on the Affirmation of Commitments, I do think that absolutely ought to ‑‑ would seem to be a topic that people want to talk about. How to make that more permanent, if it needs to be updated I think that sort of thing is fine. I think it has served the community and the organisation well to have these reviews. And it is something that I would certainly like to see continue on and I hope others in the community feel the same way.
>> ROBIN GROSS: Thank you. Next in our queue is Chuck.
>> CHUCK HOLMES: Chuck Holmes from Verisign. I will be really blunt about the connection between the IANA transition and the general accountability improvements. I fully agree that they can be totally separate, but as soon as we do that I personally believe that the chances of the board ever approving any external accountability go down to zero or very close. I hope I am wrong. I do hope I am wrong, but I have watched ICANN since its very beginning, very closely. And it has always been the case that protection of the corporation is the No. 1 priority. And the legal team does an excellent job of protecting that.
And I fully expect there to be a fight right down to the end before any significant changes in that governance model are to happen. And as soon as we do the IANA transition, I don't have any faith the significant changes will happen. I hope I am wrong but I said I would be blunt and that's what I am doing.
>> GONZALO NAVARRO: Thank you. Thank you, Chuck. Let me be blunt, too. I think that this is some ongoing process and nobody knows the future. Well ‑‑ so I think that we need to respect the process, how it is going on. And I am certain that there are board members that including myself, you know, that we are willing to think, rethink how things are going. How we need to go. How the process is. So I will not be really, really sure about what you are saying but let's see what happens in the future.
>> CHRISTOPHER DISSPAIN: Robin, can I very quickly respond to Chuck? I accept what you say, but if you truly believe that you should be advocating that we are not ready for the U.S. Government to leave, should be advocating that their subject be a transition. If you truly believe we are not mature enough to manage our own space without you, the community using as I think the word has been used is leverage of the need to have the USG out of the game, then you don't believe we are ready. And that's what you should be saying rather than no, no. We are going to use the ‑‑ we are going to use the USG packing its bag and leaving the room to make you do what you want. That is an unacceptable way forward.
>> AVRI DORIA: Just as a quick response to that. I think what we are talking about is what needs to be fixed in the current accountability model. I think the proof of the maturity is whether we can actually fix the things within the next year as opposed to whether there is a sufficient amount of trust today in the model as ‑‑
>> CHRISTOPHER DISSPAIN: We have processes for fixing things in the current accountability model. What we are setting up here is a process to deal with one event. We have processes that Larry sat on an ATRT tool for 12 months as did you. That's a process for fixing the accountability mechanisms. Why is what you are saying now, why is what the things you are asking for now not coming out of the function of ATRT, too? Why are they suddenly a desperate need because the USG is leaving? I don't understand that. I won't be told, I am not prepared to be told and I am now speaking entirely personally, I am not prepared to be told that what I will do as a board member you don't have any ‑‑ you don't know what I do as a board member or what goes on in the private or maybe you should and I acknowledge that would be a criticism. I said yesterday to several people what we should do is let everyone sit on the board list for a month. You might be surprised. Chuck, I am not going to sit here and let you tell us that you don't trust us ‑‑
>> CHUCK HOLMES: Chris, let me give you two examples why there is mistrust. Just days before the new gTLD process was ready to launch, ICANN staff assume at the approval of the board approved a significant change to a community process with regard to registry contracts. That didn't create any trust. Now more recently and unfortunately this week here at the IGF we've seen some movement. I can show you, and I won't do it right now, but I have the data with me, community comments in London, and in the 49 comments that were submitted with regard to accountability were largely ignored. I do not think that asking for public comments, picking the ones you like, I am not accusing you of this, you know that, picking the ones you like and ignoring the ones that you don't like, and then coming up with a plan, that in my mind, you can disagree, is not a multi‑stakeholder process. And none of this is meant as a personal criticism. But that's why there is mistrust. And that's why the community has never been so united in terms of making some changes. There are changes that we believe and I think you do, too, will make ICANN stronger and make ICANN ready to continue its role 10, 20 years down the road.
>> CHRISTOPHER DISSPAIN: I want to acknowledge I am not saying there is mistrust. I get that.
>> ROBIN GROSS: We need to move on. Let me go through the people I have got in the queue and we can say who I am missing. I have got Jonathan and Jennifer and then the gentleman who is behind Steve DelBianco and then Peter I believe you were in the queue. No. Okay. Carlos, yes the lady in the back, the other lady in the back there. David Cake, Jordan, Sebastian, this gentleman and who else am I missing? You are in. And Adam. Okay. Jonathan.
>> Jonathan: Thank you. Jonathan Zuc from the App Association. I want to follow on what Chuck and Chris and Avri said together and say in no one certain terms ICANN is not ready. If that's what needs to be said in order for the conversation to go forward, I am willing to say it. The question then becomes is can it be ready in the time frame that's been set out for us to bring about an IANA transition, but it is without question that ICANN is not ready for that transition to take place.
So I mean maybe that's not what anybody wants to hear or say but that's the fact. Accountability is not built in to the culture of ICANN. It is not built in to the processes with which ICANN operates. ICANN has worked very hard to build a culture of transparency and Consensus building and consider policy development, but there has been very little until very recently and even that's been relatively weak sauce to deal with the issue of fundamental cultural accountability within that organisation. So I certainly believe that this discussion about accountability should have started five years ago. No question. But it didn't. And events have led us to be on an accelerated time frame to talk about real accountability. And we need not shy away from because we feel like we are on an accelerated time frame. At this juncture ICANN is not ready for a transition. So the question we all have to ask ourselves can we get together and become ready, and in some ways it has been an inspiring process because there has been more Consensus from the Internet community in the ‑‑ since the announcement of the potential of an NTIA transition than there has been in the eight years that I have been involved with ICANN. I mean it is amazing to listen to the conversation inside the SOs and ACs, hey maybe it is more important to reach Consensus.
I think the community is partly to blame for the problem that's been created because we have used the board as Solomon to split the baby instead of doing the work that we need to build Consensus in the first place. And I think that's happened far too often where we have thrown the decision over the wall to the board and created a culture that is not accountable. It requires people to make comments that are measurable down the road and look at them later to see if they did what they said they were going to do and having teeth. So yes, the scope of this is very limited. Every other detail will work itself out if that one change is made. That's all that has to happen in order for there to be the environment that Chuck is speaking with to have, you know, the minutia and the cleanup culture that has to take place after the transition. But absent that one reform we are not ready.
>> ROBIN GROSS: Thank you. Yes, ma'am. I'm sorry, I am blanking on your name.
>> AUDIENCE: I am Olga, a team member of the ICANN board. I have been listening very carefully to all of the comments regarding the scope of accountability at hand and soon realised that, of course, we have two accountability dialogues going on simultaneously. That which is related narrowly to the IANA function, function underlined and the overall accountability of all parts of the organisation, including the GNSO, the board, all of the functioning parts of what comprises this wonderful melting pot of multi‑stakeholderism.
That is perfectly healthy co‑existence of dialogues. If you were to consider that every single piece of improvement of accountability has to occur, be final and occur simultaneously before there can be any evolution of the organisation either as a whole or a piece of it, then one would implode. It is very important to consider that accountability never ends. Improvements in accountability should never end. That should be an overall and ongoing process as long as the organisation as we know it today continues to exist.
When the U.S. Government and obviously Larry is here, I don't purport to speak for them, when the U.S. Government announced that the time had arrived with maturity, maturation of the organisation to the point that we can consider transitioning away from the IANA contract, then indeed it is very important to consider those pieces of accountability that relate directly to that IANA function, to make sure that accountability as an element of transition is happening correctly. But I have to agree with my colleagues, my colleagues on the board, which it is not often the case that we all agree on something, that it is very important to look at that issue in its narrow sense so that we do not implode in this very important process and consider that every piece of accountability that should be improving in to the future always has to happen, which it cannot by the way, before there can be the continuing transition of the organisation as a whole.
>> ROBIN GROSS: Thank you very much. Okay. Next in the queue is yes, the gentleman back there coming ‑‑ yes.
>> AUDIENCE: Good morning. My name is Pes Johnbeck. We have a web magazine and think tank on the digital society. And I would like to start by thanking the panel for such enlightening comments this morning. I would like to pick up on the point that Jordan Carter made in his opening remark about the public interest, and sorry if this runs the risk