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Failing to Act on Accountability

More than a year has passed since the first organizational review team delivered its final report on ICANN’s accountability and transparency. Disappointingly, ICANN has done precious little to act on a key recommendation in that report. Its failure to act threatens to damage ICANN’s credibility, just as it enters one of the most critical periods in its history.

In December 2010, the Affirmation of Commitments Accountability and Transparency Review Team (ATRT) published its Final Recommendations. The ATRT urged that “the ICANN Board should ... seek input from a committee of independent experts on the restructuring of the three review mechanisms—the Independent Review Panel (IRP), the Reconsideration Process and the Office of the Ombudsman.” It explained that the committee should conduct “a broad, comprehensive assessment of the accountability and transparency of the three existing mechanisms and of their inter-relation, if any ...”

Timing was considered crucial. The ATRT assigned Recommendation 23 a “high priority” and specified that it was to be implemented “[a]s soon as possible, but no later than June 2011.” This urgency reflects the intrinsic importance of Board review mechanisms to ICANN’s accountability and the compromise behind referring that issue to an expert committee: the ATRT’s members were uniquely divided over whether ICANN needs a review procedure that entails binding authority over the Board.

Quite apart from the urgency expressed by the ATRT, ICANN promised in the Affirmation of Commitments to act on the recommendations of such organizational review teams within six months. Yet ICANN recently confirmed that it has so far failed to carry out the very first task in implementing Recommendation 23 by engaging a committee of independent experts. Not until November 2011 did the Board Governance Committee direct staff to draft a Request for Proposal. And still another two months have passed without that RFP being posted.

A new White Paper details ICANN’s inaction and its consequences, but even a high-level summary of the implications paints a troubling picture:

  • ICANN’s inaction is inconsistent with its obligations under the Affirmation.
  • Failure to act undermines the voluntary self-correction process prescribed by the Affirmation by casting doubt on whether organizational reviews can bring about needed institutional changes.
  • It substitutes top-down management for bottom-up consensus by interposing a management decision in place of the ATRT’s recommendation.
  • It frustrates the process of forming future bottom-up consensus by inhibiting, if not preventing, the ICANN community from having an open and fully-informed conversation about what standard of accountability the ICANN Board should adopt.
  • Finally, ICANN’s failure to implement the ATRT’s recommendation is a missed opportunity to show that ICANN is committed to honoring the Affirmation and the processes it agreed to there, regardless of where they lead.

With a multi-million dollar New gTLD Program now underway, ICANN’s accountability profoundly matters to stakeholders around the globe. One hopes that ICANN will offer them the reassurance that it stands behind its written commitments. To do that, it should implement ATRT Recommendation 23 promptly and completely.

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

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