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ATRT and the Dog That Didn’t Bark

A favorite Sherlock Holmes story has the detective unraveling the mystery of a murdered horse trainer and the theft of a prized thoroughbred by concentrating on the fact that a dog didn’t bark in the night when the horse was stolen. This silence implied for Holmes that it was no stranger who entered the stall. From this he deduced that it was the trainer himself who had removed the horse to fix a race for his profit and that the horse had killed the trainer when he tried to cripple it.

ICANN 41 has been afflicted by a similarly curious silence. With all the excitement over new generic Top-Level Domains (gTLDs), there has been no serious discussion of exactly how the Final Recommendations of the Accountability and Transparency Review Team (“ATRT”) will be implemented.

The ICANN Board of Directors has a clear duty to act on the ATRT’s Final Recommendations. The Affirmation of Commitments states, “The Board will take action within six months of receipt of the recommendations.” The ATRT delivered its recommendations on December 31, 2010, and six months will elapse on or about July 1. Since receiving them the Board has endorsed every one of the ATRT’s 27 recommendations and found that they “may be implemented by ICANN following careful and transparent consideration, and with the necessary support and resources.”

Yet so far the Board has failed to “take action.” One would have thought, with the Affirmation deadline looming, that ICANN 41 in Singapore would have included a staff briefing on the latest state of the implementation plans with an opportunity for public comment. Instead, the only discussion of the ATRT occurred during a 30-minute segment of the public forum, about the same time devoted to the spurious problem of “volunteer fatigue.” Quite apart from the stingy portion of time allotted, the public forum is exactly the wrong venue for ICANN to communicate details of the ATRT’s numerous and at times complex recommendations. And it seems pointless to ask for public comments before ICANN releases enough information on ATRT implementation to respond intelligently.

All-in-all, this approach hardly qualifies as the “careful and transparent consideration” of the ATRT Final Recommendations promised when the Board passed its resolution in March.

At the heart of the multi-stakeholder ethos is the ideal of public decisions publicly arrived at. Favorable action by the Board on the ATRT’s Final Recommendations would be welcome, of course. Those recommendations would improve ICANN for the benefit of the entire community. But even favorable action will not resolve the mystery of why the ICANN Board has permitted the carrying out of its solemn obligations under the Affirmation to be covered in silence.

I wonder what Holmes would have made of it.

By R. Shawn Gunnarson, Attorney at Law, Kirton & McConkie

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