[PC-NCSG] [NCSG-Discuss] Draft NCSG response to “Enhancing ICANN’s Accountability”-process.
Maria Farrell
maria.farrell
Fri Jun 6 12:07:32 EEST 2014
And just to confirm that the final version of the statement - which we will
submit today - is the current draft on Google drive, which I also copy
below for the record.
All the best, Maria
Comments of the Noncommercial Stakeholders Group (NCSG) on ?Enhancing
ICANN?s Accountability?
This comment, initially drafted by ARTICLE 19, is supported by and
submitted on behalf of the Non-Commercial Stakeholder Group (NCSG). NCSG is
the voice of civil society and nonprofit organizations in ICANN?s domain
name policy making organ, the Generic Names Supporting Organization. It is
composed of two constituencies, the Noncommercial Users Constituency (
http://ncuc.org) <about:blank> and the Not-for-Profit Operational Concerns
Constituency (http://www.npoc.org) <about:blank>, as well as a number of
unaffiliated individuals. The NCUC and NPOC, both constituencies under the
?NCSG umbrella?, consists of civil society members from 81 different
countries, including organizations and individuals.
The NCSG welcomes the opportunity to discuss the ways in which ICANN?s
accountability to the broader community should be enhanced. In this
submission, we respond more specifically to the questions asked by ICANN as
part of the present consultation process. Our responses are guided, among
other things, by our longstanding expertise in Internet governance and
human rights work.
-
What issues does the community identify as being core to strengthening
ICANN?s overall accountability in the absence of its historical contractual
relationship to the U.S. Government?
ICANN is in many ways a unique organisation due to its ?multi-stakeholder?
make-up. For this reason, traditional accountability mechanisms for
international organisations, private companies or public bodies are
ill-suited or, at any rate, extremely difficult to implement. The AOC
bottom-up mechanisms are an essential part of accountability at ICANN, but
they are far from sufficient to provide strong accountability. Indeed, the
lack of strong accountability mechanisms is a well-known shortfall within
ICANN.
Although efforts have been made to improve the organisation?s transparency
and accountability over the years, this does not go far enough. In our
view, ICANN must be made subject to external & independent oversight
mechanisms in order to ensure meaningful accountability of its decisions.
We suggest that this could be achieved by the creation of a new external,
multistakeholder and independent body that would review the Board?s
decisions & actions and respond to appeals subject to rules on standing and
applicable grounds for review to be defined in the upcoming process. One
important feature of such body would be that at a minimum no ICANN Board
member or staff should be able to sit on it, in order to safeguard its
independence. Whether that body should also include elected members of any
of its Advisory Committees or Supporting Organizations should be the
subject of further discussion.
-
What should be the guiding principles to ensure that the notion of
accountability is understood and accepted globally? What are the
consequences if the ICANN Board is not being accountable to the community?
Is there anything that should be added to the Working Group?s mandate?
Accountability is not simply a notion. It is a fundamental principle of
governance that ensures that those who make decisions or take action are
answerable for them. Transparency should be at the heart of any
accountability process. At the same time, for accountability to be
meaningful, anyone affected by those decisions or actions must be able to
challenge them, i.e. have a remedy, subject to rules on standing and
applicable grounds for review to be defined during the upcoming process.
Equally, such remedy must be accompanied by proportionate sanctions or
damages where appropriate. Accountability also requires clear rules,
transparent decision-making processes, the right to a remedy and appeals
processes which are independent from the initial decision-maker.
Lack of accountability breeds mistrust and inefficiency. If ICANN fails to
demonstrate its commitment to meaningful accountability, it may ultimately
lessen the weight of the Board?s decisions vis-a-vis ICANN?s constituents,
customers and other stakeholders when it makes controversial decisions. By
contrast, the very existence of stronger accountability mechanisms is more
likely to lead to better decision-making and therefore greater credibility
and legitimacy of the organisation as a whole.
-
Do the Affirmation of Commitments and the values expressed therein need
to evolve to support global acceptance of ICANN?s accountability and so,
how? How does the Affirmation of Commitments need to evolve to support
global acceptance of ICANN's accountability, and who should take part in
this AoC?
We believe that several values expressed in the Affirmation of Commitments
(AOC) should be maintained and supported. In particular, we support the
commitments to: (a) preserve the security, stability and resiliency of the
DNS; (b) promote competition, consumer trust, and consumer choice in the
DNS marketplace; and (c) facilitate international participation in DNS
technical coordination.
At the same time, we believe that the AOC should be amended to ensure that
ICANN?s decisions are fully consistent with human rights standards. In this
regard, ICANN should guarantee that decisions related to the global
technical coordination of the DNS are made in a transparent and accountable
manner and crucially, ?for the protection and advancement of human rights
and Internet freedoms? rather than ?in the public interest?, which is a
standard that lacks sufficient specificity in this context.
Other aspects of the By-Laws could be amended to reflect the need for the
organisation to evolve and provide stronger accountability mechanisms to
the wider community. For instance, the By-Laws should be amended to
prohibit ICANN from engaging in regulation of content or conduct in
violation of the rights to freedom of expression or privacy. The AOC would
need to review adherence to this prohibition.
Finally, we reiterate that whilst the AOC constitutes an important check on
ICANN?s decisions and actions, it is insufficient to provide the kind of
external accountability that the organisation sorely needs.
-
What are the means by which the Community is assured that ICANN is
meeting its accountability commitments?
To begin with, it is vital that the consultation process on ICANN?s
accountability is conducted in a transparent & inclusive manner in order to
give credibility to ICANN?s commitments. Secondly, the process whereby
reform proposals are accepted must be both clear and ensure meaningful
participation of all stakeholders concerned. Thirdly, as noted above, in
order to achieve true accountability, ICANN must accept some form of
external & independent check on its actions, including the Board.
Consultative processes on accountability should extend beyond the ICANN
community and into the broader Internet governance ecosystem.
In addition, existing accountability & transparency processes must be
strengthened on several levels. We identify below a number of ways in which
this could be achieved:
Transparency of Board decision-making processes
Accountability & Transparency Review Team 1 & 2 have both made a series of
recommendations, some of which have not been implemented yet, including:
-
The Board?s decision should be both publicised and duly reasoned. Where
decisions are not unanimous, the minority opinions should be documented and
attributed.
-
The Board should review redaction standards for Board documents,
Document Information Disclosure Policy (DIDP) and any other ICANN documents
to create a single published redaction policy. Equally, a process should be
put in place to regularly evaluate redacted material to determine if
redactions are still required and if not, ensure that redactions are
removed.
-
The Board should ensure the use of Transparency Metrics and Reporting.
We believe that these and other recommendations of the ATRT 1 & 2 teams are
vitally important and should be duly implemented. If the Board rejects or
fails to implement particular recommendations, it should be required to
give reasons for its decision or inaction.
Strengthening the role and powers of the Ombudsman
At present, the ombudsman?s jurisdiction is confined to complaints about
unfair treatment by ICANN, decisions, actions or inactions of ICANN's
supporting organisations as well as decisions, actions, or inactions by the
Board of Directors that may be inconsistent with the Articles of
Incorporation or the Bylaws. The Ombudsman has investigative powers but can
only use alternative dispute resolution mechanisms to resolve complaints.
It cannot reverse a decision of the Board, for instance, but may make a
recommendation to the Board where appropriate. The Ombudsman's jurisdiction
and powers are therefore extremely limited. In particular, the Ombudsman
does not have the power to make, change or set aside a policy,
administrative or Board decision, act, or omission.
In order to strengthen the powers of the Ombudsman, consideration should be
given to granting it powers to set Board?s decisions or policies aside. At
the same time, if an external oversight body with more significant powers
is put in place (e.g. with powers to set Board?s decisions aside), the
question arises whether the Ombudsman would still serve a useful purpose.
In any event, to the extent that Ombudspersons are a useful alternative
dispute resolution mechanisms before matters escalate further, one
possibility might be able to give the Ombudsman powers to refer a matter to
the external independent body.
The ombudsman should also have clear authority to investigate any complaint
brought by an employee that is related to ICANN accountability. As with all
Ombudsman investigations these investigations must maintain the
confidentiality of the employee source.
Strengthening the role and powers of the Independent Review of Process Panel
As stated in ICANN?s consultation document, the Reconsideration Process is
a mechanism to challenge staff action taken against ICANN policies, or
Board actions taken without consideration of material information or based
upon false or inaccurate information. In addition, the Independent Review
Process allows for claims that the ICANN Board acted in a manner
inconsistent with its Bylaws or Articles of Incorporation to be considered
by an independent panel of neutrals.
However, these mechanisms are in our view unsatisfactory, in particular:
-
Reconsideration by the Board Reviewing Committee is not independent of
the board.
-
The outcome of the Reviewing Process carried out by the IRPP is purely
declaratory. Moreover, its rules of procedure follow arbitration rules
which are well-known for their lack of transparency. It is also unclear
whether the IRPP gives reasons for its declarations.
-
The cost of the IRPP is prohibitive for most causes.
-
The current process is only effective in the event that malfeasance can
be established and thus the standard for winning an IRP is too high of a
burden to provide meaningful accountability.
Accordingly, we recommend that, at a minimum, the IRPP?s decisions should
be both binding and contain reasons, which should be made public as a
matter of principle. In addition, the full review process should accounts
for errors as well as ethical lapses.
More generally, we believe that mechanisms should be established in the
by-laws for dissolution of the Board in exceptional circumstances,
consistent with the President Strategy Committee?s Draft Implementation
Plan for Improving Institutional Confidence 2009.
-
Are there other mechanisms that would better ensure that ICANN lives up
to its commitments?
If ICANN?s status as a private organisation is to be retained,
consideration should be given to broadening the scope of the issues that
can be taken up before the local courts, in particular issues relating to
the right to freedom of expression, and the rights to privacy and personal
security. Another possibility would be to include a unilateral option
clause that would enable a choice between the local courts or arbitration
proceedings.
-
What additional comments would you like to share that could be of use to
the ICANN Accountability Working Group?
We note that the creation or improvement of strong accountability
mechanisms are inextricably linked to the IANA transition process. In fact,
as we stated in our response to the IANA transition consultation: ?Absent
the ability to openly discuss separation of policy and implementation,
completing the IANA transition proposal must be contingent on first
completing an acceptable proposal addressing ICANN accountability.?
Therefore, we very much hope that, at a minimum, the present contribution
will be taken into account as part of the IANA transition consultation.
Thank you for the opportunity to comment. The NCSG looks forward to further
contributing to the development of strong accountability mechanisms both
within and outside of ICANN.
On 6 June 2014 12:05, Maria Farrell <maria.farrell at gmail.com> wrote:
> Hi Gabrielle and Niels,
>
> Thank you for drafting this excellent statement. It is a really great
> piece of work.
>
> And thanks to everyone who contributed comments and input along the way.
>
> All the best, Maria
>
>
> On 6 June 2014 11:14, Rafik Dammak <rafik.dammak at gmail.com> wrote:
>
>> Hi Gabrielle,
>>
>> thank you very much for the work done and responding to the comments
>>
>> Rafik
>>
>>
>> 2014-06-06 5:08 GMT+09:00 Gabrielle Guillemin <gabrielle at article19.org>:
>>
>> Hi all,
>>>
>>> This should be the final document:
>>>
>>>
>>> https://docs.google.com/document/d/1xz9-BCYY8sMWgACs1OWxDypfQH_DXlzaqlCw-OqlAiY/edit?usp=sharing
>>>
>>> Please note that in most instances, we didn't make any further changes
>>> as there were no concrete language suggestions or the comments concerned
>>> the questions themselves.
>>>
>>> Changes have been made at: Q1, para. 2, last sentence and Q2, para.2,
>>> 2nd sentence.
>>>
>>> Please let me know if you would like the rationale for these or if there
>>> is anything else we can do.
>>>
>>> All the best,
>>>
>>> Gabrielle
>>>
>>>
>>>
>>>
>>>
>>>
>>>
>>> ________________________________
>>> From: Maria Farrell [maria.farrell at gmail.com]
>>> Sent: 03 June 2014 10:38
>>> To: Rafik Dammak
>>> Cc: NCSG-Policy; Niels ten Oever; Gabrielle Guillemin
>>> Subject: Re: [PC-NCSG] [NCSG-Discuss] Draft NCSG response to ?Enhancing
>>> ICANN?s Accountability?-process.
>>>
>>> Sorry, guys - I forgot Niels and Gabrielle weren't on the NCSG PC list.
>>> Thanks, Rafik!
>>>
>>> Rafik, with the timeline I proposed, I let the 5th be potentially a day
>>> to resolve any conflicting comments Niels and Gabrielle receive. So if they
>>> get things that are hard to reconcile, they may need that 24 hours to write
>>> them up. But if not, we should be able to submit on 5 June.
>>>
>>> cheers, m
>>>
>>>
>>> On 3 June 2014 10:34, Rafik Dammak <rafik.dammak at gmail.com<mailto:
>>> rafik.dammak at gmail.com>> wrote:
>>>
>>> Hi Maria,
>>>
>>> Thanks!adding niels and gabrielle in cc.
>>> With your proposed timeline I can submit by 5th june?
>>>
>>> Rafik
>>>
>>> On Jun 3, 2014 6:16 PM, "Maria Farrell" <maria.farrell at gmail.com<mailto:
>>> maria.farrell at gmail.com>> wrote:
>>> Hi all,
>>>
>>> Following the 1-week extension by ICANN to submission of comments, we
>>> now need to finalise and submit ours.
>>>
>>> Any final revisions need to be submitted by midnight GMT tomorrow, Weds,
>>> 4 June. The final version will be submitted to ICANN 24 hours after that.
>>>
>>> So 1) if you have final revisions, make them to this doc (and note your
>>> rationale), or send direct to Niels and Gabrielle.
>>>
>>> 2) Niels/Gabrielle, please send me the final version by midnight GMT,
>>> Thurs 5 June.
>>>
>>> All the best, Maria
>>>
>>>
>>> On 27 May 2014 13:05, Rafik Dammak <rafik.dammak at gmail.com<mailto:
>>> rafik.dammak at gmail.com>> wrote:
>>> Hi Maria,
>>>
>>> Niels and Gabrielle are going to work in the comments today to resolve
>>> the comments. I guess we can have clean version by tomorrow?
>>> I can confirm with them
>>>
>>> Rafik
>>>
>>>
>>> 2014-05-27 20:56 GMT+09:00 Maria Farrell <maria.farrell at gmail.com
>>> <mailto:maria.farrell at gmail.com>>:
>>>
>>> Hi all,
>>>
>>> Are Niels and Gabrielle happy with the current draft of the document at
>>> https://docs.google.com/document/d/1xz9-BCYY8sMWgACs1OWxDypfQH_DXlzaqlCw-OqlAiY/edit
>>> ?
>>>
>>> As Rafik has pointed out, we have another couple of days to finalise. So
>>> I'd just like to check if the interested people are still working on the
>>> draft / or satisfied with it?
>>>
>>> All the best, Maria
>>>
>>>
>>>
>>> On 26 May 2014 06:34, Rafik Dammak <rafik.dammak at gmail.com<mailto:
>>> rafik.dammak at gmail.com>> wrote:
>>>
>>> Hi Marilia,
>>>
>>> thanks for the review and commenting. the deadline to submit was Tuesday
>>> 23:59 UTC but checking the announcement, we get 3 additional days because
>>> the technical issuers with migration to new website (
>>> https://www.icann.org/public-comments/enhancing-accountability-2014-05-06-en
>>> ).
>>>
>>> Policy Committee should endorse asap. I think that Maria will handle the
>>> last call as PC chair. then having the green light I will submit before the
>>> deadline.
>>>
>>> there will be reply period after this and I think we can expand with
>>> another comment about missing parts or clarifying others, in addition to
>>> commenting the contributions of other groups.
>>>
>>> Niels and Gabrielle are working on resolving remaining questions in the
>>> document.
>>>
>>> Best Regards,
>>>
>>> Rafik
>>>
>>>
>>> 2014-05-26 8:03 GMT+09:00 Marilia Maciel <mariliamaciel at gmail.com
>>> <mailto:mariliamaciel at gmail.com>>:
>>>
>>> Thanks, Rafik. Made a few comments, mostly on top of others.
>>> Good contribution. Thanks to folks of Article 19 and others who worked
>>> on it.
>>> Best,
>>> Mar?lia
>>>
>>>
>>> On Fri, May 23, 2014 at 2:42 AM, Rafik Dammak <rafik.dammak at gmail.com
>>> <mailto:rafik.dammak at gmail.com>> wrote:
>>> Hi Avri,
>>>
>>> Niels and Gabrielle will answers comments soon. and yes we should
>>> lockdown on language soon. hope that next comments would propose some
>>> wording.
>>> I think we will be more efficient than ITU.. hopefully :)
>>>
>>> Best Regards,
>>>
>>> Rafik
>>>
>>> 2014-05-23 1:55 GMT+09:00 Avri Doria <avri at acm.org<mailto:avri at acm.org
>>> >>:
>>>
>>> hi,
>>>
>>> had already indicated it in comments. have now added words to Rafik's
>>> added words.
>>>
>>> added some other weasel words too in response to some of Milton's
>>> concerns.
>>>
>>> when do we get a lock down on the language and a removal of brackets.
>>>
>>> [we have become so ITU.]
>>>
>>> avri
>>>
>>>
>>> On 22-May-14 10:47, Maria Farrell wrote:
>>> > Hi guys,
>>> >
>>> > No final call has yet been made. Avri, would you mind marking up the
>>> > text with your suggestions and re-circulating?
>>> >
>>> > Many thanks, Maria
>>> >
>>> >
>>> > On 22 May 2014 13:22, Rafik Dammak <rafik.dammak at gmail.com<mailto:
>>> rafik.dammak at gmail.com>
>>> > <mailto:rafik.dammak at gmail.com<mailto:rafik.dammak at gmail.com>>> wrote:
>>> >
>>> > Hi Rudi,
>>> >
>>> > no, Niels shared the document two days ago and we are getting
>>> > comments now.
>>> >
>>> > Rafik
>>> >
>>> >
>>> > 2014-05-22 17:08 GMT+09:00 Rudi Vansnick <rudi.vansnick at isoc.be
>>> <mailto:rudi.vansnick at isoc.be>
>>> > <mailto:rudi.vansnick at isoc.be<mailto:rudi.vansnick at isoc.be>>>:
>>> >
>>> > If I?m not wrong we agreed on the content of the proposed
>>> > document (googledoc) a week ago.
>>> >
>>> > Maria, can you proceed ?
>>> >
>>> > Kind regards,
>>> >
>>> > Rudi Vansnick
>>> > NPOC chair Policy Committee
>>> > NPOC treasurer
>>> > rudi.vansnick at npoc.org<mailto:rudi.vansnick at npoc.org> <mailto:
>>> rudi.vansnick at npoc.org<mailto:rudi.vansnick at npoc.org>>
>>> > Tel : +32 (0)9 329 39 16<tel:%2B32%20%280%299%20329%2039%2016>
>>> <tel:%2B32%20%280%299%20329%2039%2016>
>>> > Mobile : +32 (0)475 28 16 32<tel:%2B32%20%280%29475%2028%2016%2032>
>>> <tel:%2B32%20%280%29475%2028%2016%2032>
>>> > www.npoc.org<http://www.npoc.org> <http://www.npoc.org>
>>> >
>>> > Op 20-mei-2014, om 13:06 heeft Rafik Dammak
>>> > <rafik.dammak at gmail.com<mailto:rafik.dammak at gmail.com>
>>> <mailto:rafik.dammak at gmail.com<mailto:rafik.dammak at gmail.com>>> het
>>> > volgende geschreven:
>>> >
>>> >> Hi everyone,
>>> >>
>>> >> We have this draft commenting ICANN accountability. The
>>> >> comment deadline is 27th may.
>>> >> I count on PC to act quickly.
>>> >>
>>> >> Best Regards,
>>> >>
>>> >> Rafik
>>> >>
>>> >> ---------- Forwarded message ----------
>>> >> From: "Niels ten Oever" <lists at digitaldissidents.org<mailto:
>>> lists at digitaldissidents.org>
>>> >> <mailto:lists at digitaldissidents.org<mailto:
>>> lists at digitaldissidents.org>>>
>>> >> Date: May 20, 2014 7:58 PM
>>> >> Subject: [NCSG-Discuss] Draft NCSG response to ?Enhancing
>>> >> ICANN?s Accountability?-process.
>>> >> To: <NCSG-DISCUSS at listserv.syr.edu<mailto:
>>> NCSG-DISCUSS at listserv.syr.edu>
>>> >> <mailto:NCSG-DISCUSS at listserv.syr.edu<mailto:
>>> NCSG-DISCUSS at listserv.syr.edu>>>
>>> >> Cc:
>>> >>
>>> >> Dear all,
>>> >>
>>> >> Gabrielle and I, with the great comments from Brenden and
>>> >> Avri, have
>>> >> drafted a potential NCSG response to the ?Enhancing ICANN?s
>>> >> Accountability?-process. You can find it and comment here:
>>> >>
>>> >>
>>> https://docs.google.com/document/d/1xz9-BCYY8sMWgACs1OWxDypfQH_DXlzaqlCw-OqlAiY/edit?usp=sharing
>>> >>
>>> >> The deadline is Tuesday next week, so it would be great if you
>>> >> could
>>> >> share your comments before Monday the 26th.
>>> >>
>>> >> Best,
>>> >>
>>> >> Niels
>>> >>
>>> >>
>>> >> Niels ten Oever
>>> >> Acting Head of Digital
>>> >>
>>> >> Article 19
>>> >> www.article19.org<http://www.article19.org> <
>>> http://www.article19.org/>
>>> >>
>>> >> PGP fingerprint = 8D9F C567 BEE4 A431 56C4 678B 08B5 A0F2 636D
>>> >> 68E9
>>> >>
>>> >> <signature.asc>_______________________________________________
>>> >> PC-NCSG mailing list
>>> >> PC-NCSG at ipjustice.org<mailto:PC-NCSG at ipjustice.org> <mailto:
>>> PC-NCSG at ipjustice.org<mailto:PC-NCSG at ipjustice.org>>
>>> >> http://mailman.ipjustice.org/listinfo/pc-ncsg
>>> >
>>> >
>>> >
>>> > _______________________________________________
>>> > PC-NCSG mailing list
>>> > PC-NCSG at ipjustice.org<mailto:PC-NCSG at ipjustice.org> <mailto:
>>> PC-NCSG at ipjustice.org<mailto:PC-NCSG at ipjustice.org>>
>>> > http://mailman.ipjustice.org/listinfo/pc-ncsg
>>> >
>>> >
>>> >
>>> >
>>> > _______________________________________________
>>> > PC-NCSG mailing list
>>> > PC-NCSG at ipjustice.org<mailto:PC-NCSG at ipjustice.org>
>>> > http://mailman.ipjustice.org/listinfo/pc-ncsg
>>> >
>>>
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>>>
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>>>
>>>
>>>
>>>
>>> --
>>> Mar?lia Maciel
>>> Pesquisadora Gestora - Centro de Tecnologia e Sociedade - FGV Direito Rio
>>> Researcher and Coordinator - Center for Technology & Society - FGV Law
>>> School
>>> http://direitorio.fgv.br/cts
>>>
>>> DiploFoundation associate - www.diplomacy.edu<http://www.diplomacy.edu>
>>> PoliTICs Magazine Advisory Committee - http://www.politics.org.br/
>>> Subscribe "Digital Rights: Latin America & the Caribbean" -
>>> http://www.digitalrightslac.net/en
>>>
>>>
>>>
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>>>
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>>>
>>>
>>
>
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