This is a DRAFT ALAC statement on compliance, based on a comment made by Evan Leibovitch during the Public Forum during ICANN 44 in Prague.
Only minor modifications, to address the use of colloquial speech, have been made to what was said.
At-Large participants at this meeting have been extremely disappointed with the response we've received to our concerns about ICANN contractual breaches despite two meetings we've held this week. We've submitted numerous well-documented examples of identified breaches that have either been closed prematurely or improperly handled. The answers we received to these and other matters were incomplete, contradictory, and in some cases evasive. The engagement was less than satisfactory. Our concern is enhanced by the introduction of the many hundreds of gTLDs as candidates for oversight.
On the evidence it's extremely difficult to have confidence in ICANN's ability to enforce the new gTLD contracts when it's unable to adequately enforce those for the less than two dozen gTLDs that already exist.
This is not just about contract enforcement. Rather, it is a core matter of ICANN's accountability, transparency, and public trust.
Clause 3.7.8 of the RAA, even in its proposed new form, doesn't and cannot enable sufficient contract enforcement to serve the public interest. To this end, ALAC shall be proposing its own new wording for 3.7.8.
We hasten to caution that simply throwing more bodies at compliance will not bridge gaps in public trust, especially if ICANN continues to be seen as allowing bad actors to be conducting business as usual even after being called out.
Although ICANN is not formally a capital R regulator, it needs to exercise control over its contracts comparable to that of a first class effective small R regulator. There needs to be an explicit separation between ICANN's compliance and legal departments. ICANN's current posture does no service to its public interest and raises the issue of what the organization's function and identity is, most specifically in the area of contract management. More to the point, it undermines the value of the compliance department. This is a critical corporate governance and AoC issue and must be addressed.
We wish to make clear that this comment is not intended as personal attack or comment on the performance of any member of ICANN staff. This is not about the people in the department. It is a systematic problem that requires deeper investigation and more than superficial remedy.
