[CCWG-ACCT] The big test of effective accountability

Sat Jan 31 03:37:17 UTC 2015

I agree Robin.  So then what is your view on a Bylaw amendment as a
commitment with teeth/inevitability?  Prior to this discussion, I was of the
view that changing the Bylaws was both a necessary and sufficient condition
to satisfy a WS1 requirement.  Now I see that we have at least one case
scenario where a Bylaw mandate has gone unexecuted for years, despite e.g.
the failure being called out in ATRT1 and ATRT2.    This makes me concerned
that one could, hypothetically, change the Bylaws to require our new
membership organization, or the redress mechanism that is my own focus, have
the Bylaw passed and written in stone and still not see the actual
membership or redress change take effect because ICANN as an institution
slow-walks the change.  This makes me want to consider strongly whether our
phrasing in WS1 of "implemented or committed to" is too loose and ought not
to be changed to "implemented" ..

Paul

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From: Robin Gross [mailto:robin at ipjustice.org] 
Sent: Friday, January 30, 2015 4:19 PM
To: Accountability Cross Community
Subject: Re: [CCWG-ACCT] The big test of effective accountability

I interpret WS1 as those items for which more than mere promises have been
made to implement, but rather items where commitments that have some teeth
(or inevitability) are in place, such that they couldn't be left lingering
indefinitely.

Robin

On Jan 30, 2015, at 12:39 PM, David W. Maher wrote:

+1

David W. Maher

Senior Vice President - Law & Policy

Public Interest Registry

312 375 4849 

From: Jonathan Zuck <JZuck at actonline.org <mailto:JZuck at actonline.org> >
Date: Friday, January 30, 2015 2:30 PM
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com
<mailto:paul.rosenzweig at redbranchconsulting.com> >, "'McAuley, David'"
<dmcauley at verisign.com>, 'Accountability Cross Community'
<accountability-cross-community at icann.org
<mailto:accountability-cross-community at icann.org> >
Subject: Re: [CCWG-ACCT] The big test of effective accountability

Indeed

Sent from my Windows Phone

  _____  

From: Paul Rosenzweig <mailto:paul.rosenzweig at redbranchconsulting.com> 
Sent: 1/30/2015 3:29 PM
To: 'McAuley, David' <mailto:dmcauley at verisign.com> ; 'Accountability Cross
Community' <mailto:accountability-cross-community at icann.org> 
Subject: Re: [CCWG-ACCT] The big test of effective accountability

Thank you David for that explanation.  To be candid it only heightens my
view that the accountability measures the community wants need to be both
committed to and actually implemented in place before the IANA transition
occurs.

Paul

**NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***

509 C St. NE

Washington, DC 20002

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

Skype: +1 (202) 738-1739 or paul.rosenzweig1066

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e&id=19&Itemid=9> Link to my PGP Key

From: McAuley, David [mailto:dmcauley at verisign.com] 
Sent: Friday, January 30, 2015 1:42 PM
To: Paul Rosenzweig; 'Accountability Cross Community'
Subject: RE: [CCWG-ACCT] The big test of effective accountability

That is how the DCA Trust IRP panel seemed to see it, Paul.

Bylaw Art. IV, Section 3.6 says this:

There shall be an omnibus standing panel of between six and nine members
with a variety of expertise, including jurisprudence, judicial experience,
alternative dispute resolution and knowledge of ICANN's mission and work
from which each specific IRP Panel shall be selected. The panelists shall
serve for terms that are staggered to allow for continued review of the size
of the panel and the range of expertise. A Chair of the standing panel shall
be appointed for a term not to exceed three years. Individuals holding an
official position or office within the ICANN structure are not eligible to
serve on the standing panel. In the event that an omnibus standing panel:
(i) is not in place when an IRP Panel must be convened for a given
proceeding, the IRP proceeding will be considered by a one- or three-member
panel comprised in accordance with the rules of the IRP Provider; or (ii) is
in place but does not have the requisite diversity of skill and experience
needed for a particular proceeding, the IRP Provider shall identify one or
more panelists, as required, from outside the omnibus standing panel to
augment the panel members for that proceeding.

It is open to some interpretation because it instructs how to choose a panel
if a standing panel is not in place. A reasonable (to me) interpretation of
the provision is that the alternative way of selecting a panel is for those
cases prior to a standing panel being stood up. But it has been years and
the introductory language to the bylaw is: "There shall be ." 

Here is the full paragraph of what the DCA Trust IRP panel said in the
procedural ruling in August:

114) The need for a compulsory remedy is concretely shown by ICANN's
longstanding failure to implement the provision of the Bylaws and
Supplementary Procedures requiring the creation of a standing panel. ICANN
has offered no explanation for this failure, which evidences that a
self-policing regime at ICANN is insufficient. The failure to create a
standing panel has consequences, as this case shows, delaying the processing
of DCA Trust's claim, and also prejudicing the interest of a competing
.AFRICA applicant.
(https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug
14-en.pdf)

To be fair, this was an interim ruling by a single panel and ICANN would
most assuredly not agree with this decision. 

To your question, regarding "failed to implement," I would say failed so
far. I think Avri's term "lingering" is a good one - this is lingering so
far. 

David

From: Paul Rosenzweig [mailto:paul.rosenzweig at redbranchconsulting.com] 
Sent: Friday, January 30, 2015 11:45 AM
To: McAuley, David; 'Accountability Cross Community'
Subject: RE: [CCWG-ACCT] The big test of effective accountability

David

Can you elaborate on this please?  This is the first instance I've read of
in which it is said that ICANN failed to implement a Bylaw mandate.  Is that
a fair description?  Because if it is, that suggests to me the possibility
that even a Bylaw change might not be adequate to satisfy accountability
requirements until the bylaw as actually implemented.

Or am I misreading what you are saying?

Paul

**NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***

509 C St. NE

Washington, DC 20002

Paul Rosenzweig

 <mailto:paul.rosenzweigesq at redbranchconsulting.com>
paul.rosenzweig at redbranchconsulting.com

O: +1 (202) 547-0660

M: +1 (202) 329-9650

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From: McAuley, David [mailto:dmcauley at verisign.com] 
Sent: Friday, January 30, 2015 9:26 AM
To: Accountability Cross Community
Subject: Re: [CCWG-ACCT] The big test of effective accountability

Another thing that ICANN has let linger (and which is not a recommendation
but a bylaw) is the creation of a standing IRP panel that would have "a
variety of expertise, including jurisprudence, judicial experience,
alternative dispute resolution and knowledge of ICANN's mission and work" to
populate panels on individual IRP cases. 

The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA)
Trust over the handling of the new .africa TLD recognized that the lack of a
standing panel had an impact
(https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug
14-en.pdf): 

"The failure to create a standing panel has consequences, as this case
shows, delaying the processing of DCA Trust's claim, and also prejudicing
the interest of a competing .AFRICA applicant."

David 

From:accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Avri
Doria
Sent: Thursday, January 29, 2015 6:27 PM
To: Accountability Cross Community
Subject: Re: [CCWG-ACCT] The big test of effective accountability

Hi,

And unfortunately they ignored the ASEP recommendations.  The ASEP was
recommended by ATRT1, and its recommendations have been recommend by ATRT2
for the committee working on Accountability it recommended - ie. us.

The fact that those recommendations lingered is indeed why we need the
binding bits.

So often we come close, yet at the last minute we let something go undone
and the work gets lost.

Stuff like this needs fixing.

avri

On 29-Jan-15 17:37, Kieren McCarthy wrote:

I don't like this line about the Reconsideration Committee not being
"understood", Chris. 

ICANN's staff and Board have developed the rules by which the committee acts
and the way in which it decides to apply those rules. Those rules have also
changed over time. 

This is part of the problem - ICANN corporate lives within its own world
half the time. I can recall several conversations I had with ICANN's general
counsel when on staff where he presented me with an entirely different
perspective on critical matters to the one that I and much of the community
felt existed. 

There is an internal body of belief that stands in stark contrast to the
outside view. And that body of belief is consciously shielded.

If ICANN wants the Reconsideration Committee to stop being misunderstood, it
should rename it the "Policy Process Double-checking Committee".

Or, alternatively, and preferably, changing the functioning of the committee
to actually "reconsider" decisions. And include people other than Board
members (one of the accountability recommendations made many years ago but
never implemented).

Kieren

On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo at auda.org.au
<mailto:ceo at auda.org.au> > wrote:

Agree Avri. And whilst the reconsideration request process is widely
pilloried it does, in fact, provide a level of accountability. It may not be
understood, it may not provide the sort of or level of accountability that
is desirable but, I for one, would want it to be improved/expanded rather
than see it disappear as in a [very] narrow band of cases it does work. 

Cheers,

Chris

On 30 Jan 2015, at 08:34 , Avri Doria <avri at acm.org <mailto:avri at acm.org> >
wrote:

Hi,

I think Zero is a wee bit hyperbolic.

I believe that the AOC does provide for accountability in the ATRT reviews.

We also vote on some Board seats and people have lost their seats.  
Too slow and not as good as a recall procedure, but accountabilty.

Nomcom also does not always renew terms, 
even if the people want them too.  
That is also accountability.

The IRT can also provide accountability. 
and does.

It is true none of these bind the board, 
and that needs fixing, 
but I strongly disagree with the statement that there is no accountability.

Sure, none are as stringent as taking out 
and executing at dawn (I've been catching up on  Marco Polo on Netflix) 
but they are accountability, 
though of a lesser degree.

avri

On 29-Jan-15 14:14, Jonathan Zuck wrote:

Kieren,

That hard truth here is that while we endeavor to list existing
"accountability" mechanisms, there are, in fact, none. It's a complete red
herring to explore them as part of this process. There are plenty of
opportunities to "vent" but there are, in fact, ZERO accountability
mechanisms in place, with the exception often cited but ridiculous "elect a
different board." No one wants to hear that but it's the truth. Our goal
here, in the near term is essentially to create ONE mechanism of
accountability in place, perhaps two. It is my sincere belief that the
presence of even a single accountability mechanism will go a long way to
change the culture inside ICANN because the net result will be to turn the
light back on the community to reach consensus. This is a GROSS
oversimplification, not meant to inspire nit picking but a return to the
task at hand which is to create a framework for reform which, if the
community remains motivated, will allow major cultural changes to take
place.

JZ

From: Kieren McCarthy [mailto:kierenmccarthy at gmail.com] 
Sent: Thursday, January 29, 2015 1:57 PM
To: McAuley, David
Cc: Jonathan Zuck; Accountability Cross Community
Subject: Re: [CCWG-ACCT] The big test of effective accountability

One more thing from me and then I'll shut up.

I'd be interested to hear from people that have actually gone through the
various accountability mechanisms what they thought of the experience. 

For example:

* Were you happy with the process?

* Were you happy with the outcome?

* Did you feel your points were understand and considered?

* What would have improved the process for you?

* If you lost, why did you not progress further in the appeal process?

This kind of feedback should be being done by ICANN itself but I'm willing
to bet it hasn't been. It's also not that hard to do: their names are
publicly available. ICANN has all their contact details. I bet many of them
would be happy to talk.

Kieren

On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley at verisign.com
<mailto:dmcauley at verisign.com> > wrote:

Hi Kieran,

Thank you for this human-element discussion, most interesting and helpful
for me. 

I differ with one remark you made in the last post: "yes, the Board can be
overruled but only on issues of process."

It's actually not all that positive, if I have things correctly concerning
accountability measures within the ICANN environment (not addressing courts
here).

At present the board can be overruled in reconsideration requests - but only
by the board itself on, as you say, process issues. This probably does not
meet any realistic, objective accountability standard. 

In IRP before independent panels, the board can take the panel's decision or
leave it - it is nothing more than a recommendation, again on process-based
issues.

The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could
bind ICANN in a procedural ruling this past year, but ICANN's subsequent
arguments before the same panel as well as other IRP panels indicate that it
does not accept that decision. It could be interesting to see what ICANN
does with the eventual final ruling in the case, depending on whether the
panel rules in DCA's favor. . 

David McAuley

From: accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>
[mailto:accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org> ] On Behalf Of
Kieren McCarthy
Sent: Thursday, January 29, 2015 11:17 AM
To: Jonathan Zuck

Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] The big test of effective accountability

Quick thoughts on this: 

Yes, what the staff and Board end up doing is partly the community's fault.

Where I do place fault is in both continuing to do so, and failing to make
changes despite clear signs that it is not working effectively and is even
damaging trust.

The Board seem confused and frustrated that they continue to be yelled at.
The community can't believe that the Board still hasn't heard them. I think
the gap is the lack of human judgement and the priority of process and legal
argument.

I am a big fan of solid changes over long discourse. But what I started to
see on this group was a tendency toward process solutions and legal-style
decision making.

Just one example: yes, the Board can be overruled but only on issues of
process. 

This just creates one more layer and process that ICANN will hold up as
accountability and the community will be completely dissatisfied with.

ICANN's staff will defend to the hilt the Board's initial decision, creating
a fight and tension, limiting discussion and sharing of information,
increasing distrust, reinforcing the barrier between Corporate and
community. 

And this is the big change we introduce this time around.

My fear is that unless we break that habit, there will be another 10 years
of dissatisfaction and another group like this one trying again to bring
'accountability' in 2025.

Kieren

-
[sent through phone]

On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck at actonline.org
<mailto:JZuck at actonline.org> > wrote:

I'm somewhat hesitant to speak up given Malcolm's excellent treatise but a
few things spring to mind. The first and simplest is that process still
provides a structure the re-humanization you seek. In a large organization
if there isn't a way to trigger the group "rethinking" an issue, it will
never happen.  I believe that while this conversation is emotionally
rewarding, we need to be very careful to stay inside our remit to come up
with some very specific recommendations for increasing accountability (in a
legal sense) to replace the somewhat "legal" accountability that exists
today so my first inclination is to table this discussion and get back to
work.

My second inclination is to dive in <g> and to come to the defense of the
board and ICANN staff a little bit. The buzzing in the back of my head for
the past year or so is that the "community" is partially to blame for the
environment in which we find ourselves.  ICANN is afraid of litigation
because we are litigious. The board does our job for us often because we
have failed to do it ourselves.

If the result of a policy development process is a failure to find
consensus, to compromise, to be "human" as you suggest  Kieren, the board is
faced with the unenviable task of playing Solomon because the community have
essentially abdicated our responsibility.  The boards entire job is supposed
to ONLY be about process and whether we've followed it. Instead, we present
the board with unfinished work, expect them to "rule" on it and threaten to
sue if we don't get our way. If the board is guilty of anything in this
context, it is their willingness to accept this challenge, which I suggest
is dehumanizing because, like Solomon, they are not in the best position to
find a solution and often create arbitrary compromise which is the number
one characteristic of an arbitration environment. More often than not, the
board should simply reject the unfinished work and send it back to the
community to get it done right. So I think there's a lot to Kieren's concern
but I think the community plays a significant role in the problem and must
therefore play a significant role in the solution and I'm ready for us to
tackle it.

All that said, it's not really relevant to the task at hand. Obviously this
whole situation has us "navel gazing
<http://en.wikipedia.org/wiki/Omphaloskepsis> ," and that's not all bad but
we do have a very specific task to accomplish in the here and now and we
would do well to focus on that alone, at least for the time being.

My two cents

Jonathan

From: accountability-cross-community-bounces at icann.org
<mailto:accountability-cross-community-bounces at icann.org>
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of
Kieren McCarthy
Sent: Thursday, January 29, 2015 9:39 AM
To: Malcolm Hutty
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] The big test of effective accountability

Like this. Excellent food for thought. 

Will dig out Steve's mission email - had completely missed it. You have the
email header handy?

Kieren

-
[sent through phone]

On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm at linx.net
<mailto:malcolm at linx.net> > wrote:

On 29/01/2015 11:45, Bruce Tonkin wrote: 
> In terms of reviewing the new gTLD program 

Kieren may correct me, but I read his essay as being about more than 
just the gTLD program alone, albeit that that was the example given. I 
read it as a general complaint that ICANN tends to be to formalistic, 
and loses sight of the substance of the issue, not only in gTLD 
applications, but often. And I think that he's far from alone in that 
view, especially amongst those who engage with ICANN peripherally rather 
than intensively. 

> I compare this to a jury process in the legal system. I don't think 
> you can just ask for another jury to hear the case when the first 
> jury finds against you. There needs to be some basis for the appeal 
> other than that you disagree with the initial finding. 
[...] 
> So careful work is needed to ensure that we have a process that 
> ensures independent reviews of decisions, and also appropriate 
> criteria to initiate a review of a decision. 

There I think you get to the heart of the matter. 

Kieren's complaint about formalism is interesting insofar as it goes, 
and I think it is a very useful contribution, but it is only identifies 
a problem, it doesn't analyse it or propose a solution. I would like to 
try to work from where Kieren left off. 

Kieren, you're a journalist. You live and breathe five-Ws and an H. 
Let's apply that here. 

WHAT's the problem? (Excessive legal formalism, resulting in loss of 
sight of the substance of the question). 

WHY do we have that problem? 

WHO caused it and who can address that? 

HOW should it be addressed? 

(OK, I'm leaving out "when". Cut me some slack.) 

WHY do we have the excessive legalistic formalism Kieren complains about? 

To some extent, this is characteristic of all large bureaucracies. They 
are instinctively defensive, and any individual within them wants to 
show that they discharged their own responsibilities properly even - 
perhaps especially - when they don't, as an individual, necessarily 
agree personally with the organisation position. 

But Kieren suggests that ICANN is particularly susceptible to this 
tendency, and I think I agree. An organisation with a highly empowered 
single leader (think Apple under Steve Jobs) can cut through process 
easily. I imagine an early conversation at Apple going like this: 

Product Manager: We assembled focus groups in all our major target 
markets to identify the key characteristics of a 
revolutionary, magical new phone. We planted the best 
UI theorists in those groups, to guide them towards 
characteristics and away from mere features. We then 
tested the output with surveys from the best polling 
companies, scientifically designed to ensure all user 
groups had balanced representation. Using their 
answers we ranked and prioritised development goals. 
We hired the best and brightest designers to deliver 
against that design brief, and I proudly present, 
the You-Phone. 

Steve Jobs: The user experience sucks and it feels like it was 
designed by a committee. Go back and start again. 

Would we want ICANN to work like this? No! We'd be rightly terrified of 
leaving that much power in one person's hands. We want ICANN to be run 
by the community, with the Board acting as an arm of the community 
conducting executive oversight, not ruled by any single Global King of DNS. 

So we create structures designed to ensure that everybody's voice is 
heard and that everybody's interests are taken into account, that 
competing positions are balanced as fairly as it is possible to be, and 
that decisions are demonstrably rationally arrived at on the basis of 
previously agreed consensus policy. And we create more structures to 
appeal cases to on the basis that any of those things failed in this 
instance. 

And we end up with the legalistic formalism of which Kieren speaks. 

Why? 

I suggest that it is because we have such a diverse community, and so 
the only thing we agree on is the process criteria. We agree that 
everybody should be heard. We agree that there should be periods of 
public comment, and then further periods of reply comment. We agree that 
policy should require consensus support. But we're so anxious that that 
might be the only thing we agree on that we stop there. And so when a 
decision looks bad, the only thing we have to fall back on is an appeal 
to process. 

And mostly the process was followed (at least in a narrow sense) so it's 
very hard to reverse the decision, even if you might like to (as Bruce 
has described). And the dissatisfied party becomes embroiled in an 
increasingly embittered proxy fight with an increasingly defensive 
bureaucracy, when everybody knows that the gravamen of the complaint 
isn't really about process at all, it is, as Kieren says, about the 
substance. 

Some would say this means we need to "unshackle" the Board, to give them 
a wide-ranging and broad discretion to "do the right thing", or 
sometimes "to take decision based in the public interest". Removing or 
reducing external constraints would enable "effective leadership" and 
give the Board "flexibility to respond to a changing world" without 
being "buried in legal challenges". 

I consider such an approach to be a trap. Those arguments are the same 
arguments one would make if an avowed enemy of community accountability. 
Following such recommendations will lead inevitably to a Board with a 
top-down, paternalistic view of governing the community at best, if not 
something even worse. 

Instead, let us look to other I* communities, which do not seem to have 
the same problem, to see how the IETF and the RIRs maintain genuine 
bottom-up community governance, and at the same time remain focused on 
the substance. 

Let me tell a story about how one of the RIRs recently dealt with a 
potentially difficult problem. 

Towards the end of last year, on the mailing list for the RIPE NCC, a 
Ukrainian who seemed to be a partisan of the government in Kiev, and an 
opponent of the regime in Crimea and Donetsk, raised a point about the 
rules. RIPE NCC rules say that organisations applying from IP addresses 
must supply government issued ID, he said. Why does the RIPE NCC 
continue to serve users in Crimea? Does the RIPE NCC accept the validity 
of the Donetsk regime? On what basis and with what justification? Surely 
the only proper course is for the RIPE NCC to cease to support 
organisations in Crimea until the legitimately recognised government of 
Ukraine is restored in the region (I am using his voice, you understand, 
not my own, but this is a paraphrase, not a direct quote). 

The RIPE community immediately saw this intervention for what it was in 
substance: an attempt to embroil the RIPE NCC in the ongoing regional 
conflict, on the side to which he was partisan. It was not really a 
genuine enquiry about the rules, it was an attempt to force a legalistic 
interpretation that would subvert their intended substance. 

And the RIPE community responded swiftly, vocally, and overwhelmingly of 
one view. The mission of RIPE NCC is to support users by helping to 
coordinate the distribution of IP addresses to those that need them. 
Networks in Crimea need IP addresses. This does not change because the 
legitimacy of the claimed government with effective control of the 
region is disputed. Many members of the RIPE Community had considerable 
sympathy with the Ukrainian partisan, and deep personal opposition to 
Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one 
thing: the geopolitics of the Ukraine is not the responsibility of the 
RIPE NCC. The rule requiring government issued ID is there to support 
RIPE NCC's mission to coordination IP address distribution so that 
networks are allocated the address space they require (so that RIPE NCC 
can identify the entities to which it has made allocations); to apply 
the same rule to prevent IP address block allocation would be to subvert 
the mission. While there is no universally recognised government in 
Eastern Ukraine, the RIPE NCC should accept such ID from entities in 
that area as they are reasonably able to provide. 

This story, I think, exemplifies the ability to cut to the substance of 
the issue that Kieren seeks. How is it arrived at? Not by the 
introduction of any strong central leader: the NCC staff and Board was 
almost silent while this discussion played out amongst the community. 
It was arrived at because the community had a strongly unified sense of 
its own limited mission (to support the distribution of IP addresses to 
those that need them, through coordinated allocation policies) and the 
members of that community were overwhelmingly willing to set aside their 
own views on a matter outside the scope of that mission when it was 
suggested that some other reasoning requires an effect fundamentally 
contrary to the mission. We will not have an argument about whether RIPE 
NCC should act to /limit/ the allocation of IP addresses to entities in 
Crimea, not even dressed in the coat of a rules interpretation. Maybe 
action should be taken against the regime in Crimea - but not by RIPE 
NCC. RIPE NCC will discharge its own mission, and leave the geopolitics 
to others. 

Is this not the same culture we want to inculcate in ICANN? 

I believe that story exemplifies the strength of the RIRs, and describes 
exactly what we want from ICANN too. 

And it is very far from the ICANN Kieren describes. 

WHO can bring this change about? 

Only us. 

When we look to Kieren's complaint, and see how far short ICANN falls of 
the strong culture shows by the RIRs and the IETF, the "fault" lies with 
us, the community. We don't *want* the Board, or the CEO, or the staff 
to come up with a dramatically developed version of the ICANN Mission 
that will then overrule existing processes and policies. 
The Mission must be developed by, and founded in, the community itself. 

What we need is for the community to develop a much clearer idea of the 
Mission, and an exposition of what that means and how it is to be 
applied. Then all the accountability structures we create, the Review 
Boards and Reconsideration Panels and Ombudsmen and the rest, they will 
have a proper standard for review. Not a sterile standard that looks 
only to bare process, but one that asks "Is this consistent with the 
fundamental mission?" 

Consider how this might work in practice. 

For .gay, there are many objections one might make. One might say the 
proposed registrar was not suitable - but that should only lead to the 
selection of an alternative, or the imposition of tighter control, not 
to refusal to delegate. If you're not confident in the registrar you 
might impose behavioural controls (e.g. to prevent limitation of supply) 
or structural controls (e.g. a shorter contract, to require renunciation 
of any presumption of renewal of the registry contract etc) or some 
combination of the two. There will be plenty of room for arguments about 
the best way to proceed. 

But arguments that resolve to (or are recognisable as a mere pretext 
for) the claim that .gay ought not to exist can be dismissed: ICANN's 
mission is to make domains available, not to prevent their availability. 

I promised a HOW. 

Here is HOW I think we should proceed. 

In our Frankfurt face-to-face we constructed, yet again, a map of 
possible new structures, and most of the focus went on that. But there 
was also a slot on it for the question of clarifying the mission, as the 
basis for review. A few weeks ago, on this list, Steve DelBianco made a 
very valuable start, suggesting a new codification of the mission. That 
contribution has passed almost without notice. 

I don't necessarily think Steve's formulation is perfect, but it's a lot 
better than anything else I've yet seen, and it has the virtue of being 
a contribution on this critical subject, almost alone. Let us work 
together on that, to build that common shared sense of Mission. 
Not an infinitely broad Mission, intended to allow any possible action 
in an unknowable future, but a narrow mission, intended to guide, to 
help make decisions which are choices, that can, as Bruce says, act as a 
meaningful criterion for review of decisions. 

Let us have the courage to believe we can build a strong consensus on a 
meaningfully limited mission, not merely on narrow questions of process. 
If we can succeed in that, we can succeed in creating an ICANN that is 
meaningfully accountable to the community on matters of essential 
substance, not merely failures of process. 

Kind Regards, 

Malcolm. 

-- 
Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> 
Head of Public Affairs | Read the LINX Public Affairs blog 
London Internet Exchange | http://publicaffairs.linx.net/ 

London Internet Exchange Ltd 
21-27 St Thomas Street, London SE1 9RY 

Company Registered in England No. 3137929 
Trinity Court, Trinity Street, Peterborough PE1 1DA 

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