[ga] Comments on ICANN Reform Recommendations

[DPF <david@farrar.com>]

As with my previous comments on the Lynn plan I'm trying to comment on
each part of the proposals separately before then commenting on the
overall effect.

1. 	THE ICANN MISSION

I was disappointed that the Committee dismisses call for a "thin"
ICANN with a statement saying everyone wants a thin ICANN so long as
it includes the specific functions that they are interested in.

This suggests an inability to apply sound judgement as to what is
appropriate and also dismisses that in the public comments made to
date there has been a clear similarity of views between many
stakeholders.

Recent GA discussions have shown that ICANN does believe it is
appropriate that it tries to impose global trademark policies on
ccTLDs for example.  The Committee's definition of ICANN mission is so
wide that it is difficult to think of a single possible activity it
would be precluded from getting into.

2.	BOARD COMPOSITION

The ex officio board members proposal is not all bad.  I actually
support reducing the board members appointed by the PSO and ASO as in
reality the Board deals with 95% domain name issues.

I fully support having the Chairs of the GNSO, ASO, CNSO, RSSAC and
TAC on the Board - so long as they are appointed bottom up by the
stakeholders in each area and not by the Board which would create even
more of an IOC style self perpetuating model.  They are all legitimate
stakeholders who should IMO have Board representation.

I do not support the CEO being on the Board - this can create a
conflict of interest.  I am unconvinced ICANN needs an SAC and believe
this could operate as part of the TAC.  

I am hesitant about taking the first step towards official government
representation on the Board as it may prove to be a mouse which grows
to an elephant.  But on balance there is a place for government
representation but I would prefer to have the ITU have a place on the
Board than the GAC which seems too much of a personal fiefdom for
certain people.

With ex officio members numbering 8 (ICANN proposal) or 6 (my
preference) I would balance this with the same number of member
elected directors.

Some ICANN insiders sneer at the idea and call it "global democracy
experiments" when in fact it is nothing of the sort.  What should
happen is as simple as what happens in millions of other organisations
- you allow people to become members and allow members to elect most
of their Board.  This is not an experiment - this is a model that is
absolutely normal throughout the world.

Even if there were some sort of membership input into the ICANN
Nominating Committee, this would be no substitute for the
accountability and responsiveness that direct membership elections
would bring.

The test of any organisation has to be "If the organisation is being
governed badly, can the governing board be held accountable and
replaced?".  This is not true with the current ICANN and looks to be
less true with the proposed ICANN.

3.	BOARD SELECTION

The Committee makes an assertion which is somewhat scary.  They
comment that the current selection process has produced good directors
but they are concerned that this is not "guaranteed"in the future.

Putting aside the huge variety of views of what makes a "good"
director I object to the assertion that the process should be
something which will guarantee good directors.  

I am unaware that for example the US constitution guarantees that only
good Presidents will be elected.  I am equally unaware that the ISOC
rules guarantee only good Chairpersons will be elected?  

The only way to "guarantee" a good director is to have the people who
define good to select the directors.  So the question is whether
"good" should be defined by a dozen individuals or by a much wider
group.

The last at large elections had a nominating committee but also had
the ability for at large members to make their own nominations which
they did and in two of the five regions (and the two with around 80%
of the world's internet activity) the unsanctioned nominees won.
ICANN's proposal will eliminate the possibility of this ever happening
again which one can only suspect is in fact the motivating factor for
the change.


4. 	NOMINATING COMMITTEE COMPOSITION AND RESPONSIBILITY

If ICANN does go down the nominating committee route the issue of its
composition is absolutely crucial.  I consider the committee failure
to come up with a specific recommendation a failure on their part.
Cynically one suspects this is to try and get agreement in principle
to the concept and then produce a specific committee composition that
will be highly unrepresentative.

The suggestion that former Board members would be a suitable members
will only further entrench a circle of unaccountability where the
Board appoint themselves and their former colleagues to the nominating
committee which in turns appoint themselves back to the Board.  It
would not be dis-similiar to how the Catholic Church elects a Pope but
without the divine guidance [unless JDRP has been promoted to
celestial status] :-)

At a very minimum such a nominating committee should include some
representatives from sectors such as free speech and individual
registrants.  This would reduce the anxiety somewhat about their
possible selections especially when one considers the comments that
the Nom Cmte should not just select much of the Board but be
responsible for soliciting nominations also.

The proposal that the Nom Cmte also elect members of SOs creates
another entrenched circle where the Nom Cmte elects members of SOs
which elect Board members which in turn elect the Nom Cmte.  

5.	POLICY DEVELOPMENT STRUCTURE

I agree that the SOs should be given staff support - in fact this has
been a major reason for the DNSO's failure to date.  I also agree that
inevitably policy decisions will be made at Board level because ICANN
already spends 95% of its time only on domain name issues.

The renaming of DNSO to GNSO is appropriate.  

The refusal to acknowledge that individual registrants should have a
constituency within the GNSO is disappointing but not unexpected.  

Having the Board appoint the GNSO Chair is contrary to the bottom up
principles most people support.  However I do support the GNSO Chair
being also the GA Chair - this would significantly enhance the role of
the GA.

I also support the GA returning to its role as a cross-constiuency
forum but if and only if there is a individual registrants
constituency.  To do so without having registrants represented will
cut off what for many is the only forum where they can currently have
their say in ICANN.  If ICANN does this it will look like trying to
silence critics.

Agree with keeping ASO and abolishing PSO.  

The proposal that the CNSO should include those with legitimate
interest in the global policy issues relating to ccTLDs is misguided.
Most ccTLDs (and I agree) assert that the only global policy issues
relating to ccTLDs should relate to narrow technical issues such as
name servers, backups etc.  IP lawyers should not be included in a
CNSO - they should participate at national level in each local ccTLD.

There could well be a role for Governments in a CNSO, especially in
areas of redelegations where they have legitimate interests.

The committee insists that any ccTLDs who participate in the CNSO must
agree to abide by any ICANN developed policies despite any restraint
on how intrusive or far reaching such policies could be.  Such
insistence will merely lead to probably less than a dozen ccTLDs
taking part as to do so would compromise their duty under RFC 1591 to
the internet community (which is not ICANN).

I do support creating a Technical Advisory Committee but feel the
security advisory committee should be incorporated into it - perhaps
as a sub-cmte.

6.	POLICY DEVELOPMENT PROCESS

I have read this section several times and as far as I can tell the
committee has come to the stunning conclusion that there should be a
process but that they have no idea what it is.

7.	PUBLIC OVERSIGHT AND PARTICIPATION MECHANISMS

The non binding arbitration proposal is a good one, even though it is
not a substitute for the independent review process.

The Ombudsman office is also a good proposal if it can have truly
independent management.  Rather than have the Board solely appoint the
person there should be a right of mutual veto by the Board and say key
stakeholder groups.  

The Manager of Public Participation I am less sure on.  The theory is
sound but the reality may be that it allows all consideration of
public input to be sidelined from the rest of ICANN into this
cubbyhole.

8.	FUNDING

My translation of this section is "We want more money and want ides on
how to get it from more people"

9.	GOVERNMENT PARTICIPATION IN ICANN

Having the GAC liaise directly with components of ICANN is a sensible
one.  

10.	UTILISATION OF OUTIDE RESOURCES

There is an interesting revelation that ICANN Board saw WIPO as an
expert adviser on the UDRP and hence adopted its recommendations in
full rather than recognise WIPO as a partisan player in trademark
issues and only one of a number of stakeholders who should be listened
to.

With that in mind the suggested further use of experts suggest to me
we may end up with selected lobby groups being commissioned as expert
advisers to back up the Board.

11.	INTERNAL ICANN STRUCTURE

It is pleasing to see acknowledgement that some current ICANN
functions could be given to other bodies and that a policy and
operations split is seen as desirable in principle.

12.	TRANSITION

No substance on key issues such as who will replace the nine Board
members who disappear this year as it is unlikely ICANN II will be in
place this year.


SUMMARY

This is effectively the Lynn plan in full with some minor variations -
some good and some bad.

Overall it falls massively short of suggesting that the new ICANN
would have any accountability at all.  At large directors are
abolished, the board effectively appoints itself in perpetuity and the
one place where individuals can have a say is to be amended to exclude
them.  Also all meaningful external controls are removed such as
independent review.

If ICANN decides to go down this path I would assert that ICANN would
be totally unsuitable to continue to perform the IANA role for the US
DOC and support any initiatives for a new body to be formed to take up
this role.

DPF
--
david@farrar.com
ICQ 29964527
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