TG 4 Team:

SMEs: Avri Doria and Hong Xue (jointly)

Moderator: Holly Raiche

Assistant Moderator: Chester Soong

Reporter: Alan Greenberg

Staff Support: TBD

Abstract

ATRT Final Recommendation #9 generally reflects the community feedback on existing appeals mechanisms and includes a set of necessary improvements. Rec.9.2 is particularly important for accountability of decision-making process and reform of appeal mechanism. It's suggested to form a Stakeholder Group Committee to examine the options to restructure the current Board reconsideration process and the Independent Review Process (IRP).

However, it is unclear whether Board reconsideration process and the IRP  will remain the only or the  "final" appeal channel available for reviewing other appeals decisions, either from internal bodies or outside service providers, especially in the various gTLDs and ccTLDs processes. For example, will improved appeals mechanisms take into account  the processing of reconsideration requests and objections on decisions made in the new gTLD program by ICANN or its dispute resolution providers,  or will it apply to a review procedure for decisions made in IDN ccTLD program, for issues such as string similarity. 

In the long run, enhancement of accountability depends on the improvement and development of mechanisms in three correlated areas, namely (1) institutional transparency, particularly in the decision-making process; (2) check and balance through duly separation of powers, especially after the transition of stewardship of IANA function; and (3) effective and efficient appeal system, within or outside ICANN, including the external final appeal system to "judicially" supervise the decision of ICANN Board and its members, like the constitutional court. 

As we have not seen what the Board intends to do about recommendation 9.2  it is good to be cautious.  But if the Board and ICANN staff do honor the suggestion for a community wide discussion of ICANN accountability and appeals, then At-large needs a strategy for contributing to that and needs to begin substantive work on identifying the features required in a well formed ICANN appeals process.  In developing accountability and transparency mechanisms, from a At-Large perspective,  discussion needs to extend to all of the At-Large Structures (ALS) so that they can contribute from the diversity of global user experience on accountability and transparency and access to appeals mechanisms, that only At-Large can bring to ICANN.

Questions raised by the community:

  1. What sort of appeals mechanisms does ICANN need? Does ICANN need to a final appeal mechanism to supervise the Board and its (paid) members? 

  2. Is the soft bottom-up oversight offered by the AOC adequate or does ICANN need some other form of oversight, especially in this time of IANA stewardship transition?  

  3. How can the AOC process and current Accountability and Transparency measures be improved?

  4. Do you agree with Transparency by default for an organization like ICANN?  Should all issues that are not treated with full transparency be logged as such with a description of why Transparency was not appropriate treatment for the issue?  Should there be a time limit on items that are deemed secret? 

  5. Does ICANN need a yearly Transparency audit? Why or why not?

Questions raised by ICANN for enhancement of accountability:

  1.  What issues does the community identify as being core to strengthening ICANN's overall accountability in the absence of its historical contractual relationship to the U.S. Government?

  2.  What should be the guiding principles to ensure that the notion of accountability is understood and accepted globally? What are the consequences if the ICANN Board is not being accountable to the community?

  3.  Do the Affirmation of Commitments and the values expressed therein need to evolve to support global acceptance of ICANN's accountability and so, how?

  4.  What are the means by which the Community is assured that ICANN is  meeting its accountability commitments?

  5.  Are there other mechanisms that would better ensure that ICANN lives up to its commitments?

Reference Documents

Thematic Group 4 Document Store


Report

FINAL VERSION TO BE INCLUDED IN THE DECLARATION:

The final version to be included in the Declaration and endorsed by the ALAC will be placed here.



FINAL DRAFT VERSION TO BE ENDORSED BY THE ATLAS II PARTICIPANTS

The final draft version to be endorsed by the ATLAS II participants will be placed here.



FIRST DRAFT SUBMITTED

The first draft submitted will be placed here.


ICANN under its own Bylaws and the Affirmation of Commitments must ensure that decisions made related to the global technical coordination be made in the public interest and must be accountable and transparent. In making recommendations in the context of global acceptability, the ATLAS II Accountability and Transparency Thematic Group recognizes that there are two constituencies: the ICANN community and the larger global community of Internet users.

Definitions:

Accountability: The responsibility to answer for whether you have achieved what you committed to do.

Transparency: The openness and accessibility of decision-making processes and outcomes. All stakeholders, including users and governments, must be able to trace back how a particular decision has been reached. The default mode of operation within ICANN must be complete transparency.

Recommendation:

This group recognizes there are many areas for internal reform that were identified by the ATRT2 report and we support their implementation. Our recommendations relate to ICANN’s relationship to the wider global community.

Accessibility

Members of the general public should be able participate in ICANN on an issue-by-issue basis. Information on the ICANN website should, where practical, be in clear and non-technical language.

Public complaints

The roles and jurisdiction of the Ombudsman should be expanded. The website should provide a clear and simple way for the public to make complaints.

Identification of public issues

Both the areas of the Ombudsman and Compliance should report regularly on complaints received by category of complaints, issues being complained and their outcomes. Issues that are not resolved should have reports on how they will be addressed, .

Board oversight

There should be a mechanism to hold the board itself responsible for action or in-action:

 

  • Cross-community Standing Oversight Body that:
    • Must have access to all relevant information
    • Should have power to compel the ICANN Board to take remedial action
    • Membership that is independent of the ICANN Board


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37 Comments

  1. In the definition, what you commit to do occurs before the fact.  That's what I meant by pointing to accountability before the fact as a methodological component.  Statements of impact, or intentions before the fact define the elements or scale of measurement after the fact.  By being open and transparent, ICANN has a huge advantage in being accountable over organizations and institutions that are opaque.  It's commitment are very readily visible.  In that sense, accountability and transparency are rendered self referential, and the standards of measurement emerge organically out the issues and challenges themselves.

    1. Based on the Joint Discussion of GNSO and ccNSO, a draft cross-constituency statement on Creation of an Independent Accountability Mechanism was composed and circulated among the community. It's also been forwarded to At-large community for consideration.

      I assume the proposed mechanism is quite relevant to our TG4 proposal on "CC Standing Oversight Body" but with a broader coverage, which oversees not only the Board but also the staff and the parts of ICANN. The joint proposal means that the proposed accountability mechanism should be independent of the whole ICANN as well as the Board.

      The draft text is as below but under modification still.

      "The entire GNSO join together today calling for the Board to support community creation of an independent accountability mechanism that provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community.  This deserves the Board's serious consideration - not only does it reflect an unprecedented level of consensus across the entire ICANN community, it is a necessary and integral element of the IANA transition.  

       

      True accountability does not mean ICANN is only accountable to itself, or to some vague definition of “the world,” nor does it mean that governments should have the ultimate say over community policy subject to the rule of law.   Rather, the Board’s decisions must be open to challenge and the Board cannot be in a position of reviewing and certifying its own decisions.  We need an independent accountability structure that holds the ICANN Board, Staff, and various stakeholder groups accountable under ICANN’s governing documents, serves as an ultimate review of Board/Staff decisions, and through the creation of precedent, creates prospective guidance for the board, the staff, and the entire community.    

       

      As part of the IANA transition, the multi-stakeholder community has the opportunity and responsibility to propose meaningful accountability structures that go beyond just the IANA-specific accountability issues.  We are committed to coming together and developing recommendations for creation of these mechanisms.  We ask the ICANN Board and Staff to fulfill their obligations and support this community driven, multi-stakeholder initiative."

       

  2. Hong makes a raises an important issue. In light of this GNSO SG/Const statement which I suspect (based on early e-mails) the ALAC will support in whole or in concept), the TG4 statement needs to be harmonized.

     

    An easy fix would be to replace:

    Cross-community Standing Oversight Body that:

    with

    Oversight body, possible cross-community, or external to ICANN that:

  3. I am very uneasy with the definition of accountability.

    The responsibility to answer for whether you have achieved what you committed to do.

    It needs to be far more nuanced. As is, it excludes rationales WHY a decision or action is taken. The Board publishing such rationales was arguably one of the most important outcomes of ATRT1. Moreover, it ignores the case of a decision to do something stupid. Are we to give them good grades because they go on an actually carry it out?

     

    I suggest:

    The responsibility explain and justify all decisions and actions in light of ICANN’s responsibility to act in the public interest.

     

  4. I agree with the recommendations. For me two of them are key and may need to be expanded.

    "Public complaints

    The roles and jurisdiction of the Ombudsman should be expanded. The website should provide a clear and simple way for the public to make complaints.

    Identification of public issues

    Both the areas of the Ombudsman and Compliance should report regularly on complaints received by category of complaints, issues being complained and their outcomes. Issues that are not resolved should have reports on how they will be addressed, .'

     

    It should be clear that the Ombudsman and Compliance need to work together and pass information about complaints back and forth as needed. In cases where neither office is able to resolve the complaint this needs to feed upwards and outwards so policy can be developed to deal with these complaints.

    The other key for me is that any stakeholder that normally does not engage with ICANN should be able to easily engage when an issue that concerns them comes up. They need an easily explained process to register their issue or complaint and a process that follows up with them about how the issue was resolved or not and what sort of appeal process may be available to them.

  5. I agree with Alan. The current definition is confusing to me.

    Based on his suggestion, it could be defined as

    Accountability is to be "responsible for what has been committed to act in public interest".

    Well, seems a bit looping. Or, we could drop the definition. Mustn't we define it?

     

     

     

     

     

  6. My first comment is that the group did recommend a cross community oversight body.  And while we did consider making its mandate broader than just the Board, as Alan pointed out, there are mechanisms within ICANN Bylaws est for accoutability WITHIN ICANN institutions, so the remit of the oversight mechanism needs only to be of the Board itself. 

     

    I don't see that we need to change the language of our oversight body - since there isn't a lot of difference between what we recommended and anything that the ccNSO and GNSO recommended anyway. (and why should we adopt what they say - this is a reflection of what we said)

     

    I am not clear what changes Garth is suggesting from his comments so can't respond except to say nicely said.  And we do have the phrase about the suggestion that openness/transparency etc should be the default mode of operation.

     

    I am reasonably okay with Alan's definition (and yes, Hong, we should have a definition) with the addition of a word - so it reads   the responsibility TO explain...(Any objections?)

     

    Finally, I agree with Kerry - the recommended wording is not the best - but it is what we could agree on.  Kerry - if you can suggest some minor edits that reflect what the group agreed to?  Otherwise, we can live with admitedly imperfect language.

    1. I don't see that we need to change the language of our oversight body - since there isn't a lot of difference between what we recommended and anything that the ccNSO and GNSO recommended anyway. (and why should we adopt what they say - this is a reflection of what we said)

      My rationale was that it appeared that the ALAC might ratify something akin to the ccNSO/GNSO statements, and that it would be best if the ATLAS statement did not contradict it.

      1. I don't think the two are contradictory

  7. According to the consensus of the TG SMEs, Moderators and Reporters Meeting for Harmonization of the Reports and Compilation on Jun. 25 at 12:00, Christoph, Alan and Hong were tasked to propose the new text regarding the last paragraph of the TG 4 proposal, which is the "Board Oversight". Since Alan was at the GNSO meeting, Christoph and Hong composed the following text. 

    New Suggested Text

    • Cross-community Standing Oversight Body should:
      • have access to all relevant information;
      • have power to compel the ICANN Board to take remedial action;
      • be institutionally independent of ICANN; and,
      • consist of the members who observe the most strict rules of conflict of interest (e.g. observing 5-year grace period; preventing resolving door).

    Explanatory Notes:

    (1) The name of the Body remains.

    (2) The oversight scope is still limited to oversight of the Board.

    (3) It does not go into the details of the Body's members or membership, which should be specified by the relevant community.

    (4) Only the last bulletin point was redrafted and subject to the review of the TG 4 and the whole ATLAS II. 

     

     

    1. Isn't "Cross-community Standing Oversight Body" that is "institutionally independent of ICANN" a contradiction in terms?

      1. I'd be happy to adopt "Independent Accountability" Committee/Group/Body, like the International Court of Justice or International Criminal Court.

        We don't know whether we keep the original name very dear. 

  8. I am in agreement with Hong's changes.

    I would like to see th e following text changed

    "Both the areas of the Ombudsman and Compliance should report regularly on complaints received by category of complaints, issues being complained and their outcomes. Issues that are not resolved should have reports on how they will be addressed."

    to:

    Both the areas of the Ombudsman and Compliance should communicate and share information with each other. Both areas should publicly report on all points of contact with each other and all points of contact inside and outside of the ICANN community. Reports should respect privacy concerns if appropriate. Reports should include the outcomes of any contact regardless of if an issue is resolved or not. If there is no resolution to an issue this should be a special report that goes to the board and any oversight body that is in place.

    I apologize for not being present at the meeting when this text was finalized. If it is too late to get my input in now then I am happy with the text the group agreed on.

  9. For Kerry:

    I don't mind adding to the statement on the Ombudsman/Compliance but I have some concerns with what is proposed.  The concept was not that the two areas share information and contacts between each other.  The concept was that the areas provide regular visibility of the complaints they receive, outcomes of those complaints and what is done about those areas that are not resolved. And while privacy is always an issue, it doesn't deserve a separate sentence since we really aren't asking that full complaint data be shared. 

    So my proposal is a slight redraft - while trying to reflect what was discussed:

    Both the areas of the Ombudsman and Compliance should report regularly to the Board on the following:

    • number of complaints received
    • number of complaints resolved by the relevant area
    • number of complaints not resolved and the subject matters(s) of those complaints
    • actions taken to address the issues raised by unresolved complaints either by the relevant area or be reference of the issue(s) to other areas within ICANN
  10. Thank you Holly. That captures what I was thinking better than I did.

  11. Just to remind everyone that TG 4 should submit the "finalized" version of the document to the ATLAS II by 17:00, June 25. 

    It is not clear who is going to consolidate the modifications made.

    So far, 3 changes have been made by rough consensus (if silence taken as non-objection), respectively, on:

    1. Definition of accountability
    2. Board Oversight (naming unsettled still)
    3. Complaints
  12. Unless I hear otherwise, I will suggest the following as final

    Definition of Accountability:

    The responsibility to explain and justify all decisions and actions in light of ICANN’s responsibility to act in the public interest.

    Board oversight: I think what we mean is that the actual members do not have connections with Board members so the text could read:

    • Cross-community Standing Oversight Body should:
      • have access to all relevant information;
      • have power to compel the ICANN Board to take remedial action;
      • whose members are independent of ICANN, under strict rules of conflict of interest (e.g. observing 5-year grace period; preventing resolving door).

    Complaints - as what I suggested above

  13. Correction to the Oversight

    I meant whose members oare independent of the ICANN BOARD, under..

  14. I disagree to change into "whose members are independent of ICANN Board" and stick to my suggestion posted 3 hours ago.

  15. Alan pointed out the difficulty of your proposal - we are postulating a body with membership that is made of or at the least includes people from the various communities within ICANN - yet you are talking about using the phrase institutionally independent.  As Alan pointed out, that is a contradition and I don't think your additional suggestion solved that issue.

     

    Again - we are talking about a panel, or whatever, whose membership is independent of the Board and has the power to compel a response from the Board.

  16. There were discussions on why it is insufficient for the Oversight to be only independent of the Board at the meeting at 12:00. For example, these "members" should not be ICANN staff, contractors, etc. 

    I don't mind changing the name if that becomes inconsistent with the new proposal. 

     

    1. whose members are independent of ICANN, under strict rules of conflict of interest (e.g. observing 5-year grace period; preventing resolving door).


      So we can change the above to read:

      whose members are not ICANN staff, and are independent of ICANN.....

    2. I don't think anyone would abject to expanding "Board" to "Board and ICANN staff". Adding "contractors" would have to be very carefully worded to include contract employees but not what we generically call "contracted parties" which are very much part of the Community.

      1. I mean "independent contractors" like West Lake that has recently been chosen by the Board to do GNSO Review.

        I don't think it is feasible to have an exhaustive list to define of whom the Body is independent.

         

  17. The latest development on the cross-community statement.

    It's said that ALAC has agreed to it. ALAC is now in brackets. We should seriously consider keeping the TG4 proposal consistent with that, if ALAC has endorsed to that.

     

    Here is the draft text:

    All GNSO constituency chairs + ALAC will deliver the following statement in the public forum tomorrow:

    The entire GNSO [and ALAC] join together today calling for the Board to support community creation of an independent accountability mechanism that provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community.  This deserves the Board's serious consideration - not only does it reflect an unprecedented level of consensus across the entire ICANN community, it is a necessary and integral element of the IANA stewardship transition.  

     True accountability does not mean ICANN is only accountable to itself, or to some vague definition of "the world."  It does not mean that governments should have the ultimate say over community policy without regard to the rule of law.  Rather, the Board's decisions must be open to challenge and the Board cannot be in a position of reviewing and certifying its own decisions.  We need an independent accountability structure that holds the ICANN Board, Staff, and various stakeholder groups accountable under ICANN's governing documents, serves as an ultimate review of Board/Staff decisions, and through the creation of precedent, creates prospective guidance for the board, the staff, and the entire community.   

     As part of the IANA stewardship transition, the multi-stakeholder community has the opportunity and responsibility to propose meaningful accountability structures that go beyond just the IANA-specific accountability issues.  We are committed to coming together and developing recommendations for creation of these mechanisms.  We ask the ICANN Board and Staff to fulfill their obligations and support this community driven, multi-stakeholder initiative. 

     

    The ccNSO Council said something very similar:

    “[A]ccountability requires "mechanisms for independent checks and balances as well as for review and redress.”[1]   This agreed upon definition should be the foundation and reference of ICANN’s further work on Accountability. Accordingly, we propose that the goal of this process should be to ensure that a system of checks and balances is in place to guarantee that ICANN operates in accordance with an agreed upon set of principles, and that meaningful redress is available to those who are harmed by actions or inactions of ICANN in contravention of those principles.”   

    1. Our name in brackets means they HOPE we will ratify it, not that we have.

      1. Thanks Alan

         

        The final version that is in the Wiki is completely consistent with this.  Both call for a review mechanism - which is what we have done.  We have said it should be independent of the Board- which is also consistent.  So I am confortablel both with what we (finally) said and the statement

         

         

  18. Hong - our deadline has passed. I don't think we ever envisaged independent contractors and I am very reluctant to introduce the concept when we are beyond our deadline.  It really is way too late for any more changes.

     

  19. Just to make it clear that I did not introduce any new concept at such last drafting moment.

    At the TG 4 meetings, it had been raised repeatedly that the oversight should be independent of the "whole ICANN", not just ICANN board.  "institutionally independent" simply attempts to recap that. 

    It is fairly clear that having an exhaustive list to define of whom the Body is independent is impossible.

    1. Now I am puzzled.  We talked about cross-constituency.  And we talked about cross community.  And we talked about independence from the Board.  But I do not recall us ever saying that it meant noone on our 'panel' (or whatever it is called) would not be a member of the ICANN community.  What we didn't want was people who are so connected with ICANN that they would not be accepted as independent enough to be able to make decisions about the correctness or otherwise of the Board.

       

      I can't recall anyone talking about independent consultants.   And my question would be who would selet them, hire them and pay for them. So I see difficulties with that.

       

      So anyone - do we want an independent panel that is made up of consultants?  If so, then speak up.  But unless I hear from people that the Panel would be independent consultants of some description then I'd prefer that we leave the statement as independent from the Board.

       

       

  20. Independent contractor is merely an example to show that Oversight that is only independent of Board is insufficient. 

  21. And I am asking everyone whether we need to say independence OF ICANN.  If so, then I would like to understand how we can talk about a cross-constituency or cross community panel (or whatever name) that does not have any people who have participated in ICANN processes in it. (obviously, existing ICANN staff would not be eligible, and maybe there would need to be a period of grace before someone who was heavily involved in ICANN could be on the Panel

  22. I remember talking about an independent committee with no members with ties to ICANN but thought that was discarded as unworkable. The last thing I remember was that the committee should have both ICANN insiders and outsiders in some sort of balance and that the committee should have it's obligation to ICANN oversight and not to ICANN org. I also remember discussion about a period of grace from ICANN. I am happy with the text as is but would also be happy with a slight edit to clarify the above if some people think it needs clarification. Personally I think the current text conveys the spirit of what we were talking about.

  23. The final version will read:

     

    ICANN under its own Bylaws and the Affirmation of Commitments must ensure that decisions made related to the global technical coordination be made in the public interest and must be accountable and transparent. In making recommendations in the context of global acceptability, the ATLAS II Accountability and Transparency Thematic Group recognizes that there are two constituencies: the ICANN community and the larger global community of Internet users.

    Definitions:

    Accountability: The responsibility to explain and justify all decisions and actions in light of ICANN’s responsibility to act in the public interest.

    Transparency: The openness and accessibility of decision-making processes and outcomes. All stakeholders, including users and governments, must be able to trace back how a particular decision has been reached. The default mode of operation within ICANN must be complete transparency.

    Recommendation:

    This group recognizes there are many areas for internal reform that were identified by the ATRT2 report and we support their implementation. Our recommendations relate to ICANN’s relationship to the wider global community.

    Accessibility

    Members of the general public should be able participate in ICANN on an issue-by-issue basis. Information on the ICANN website should, where practical, be in clear and non-technical language.

    Public complaints

    The roles and jurisdiction of the Ombudsman should be expanded. The website should provide a clear and simple way for the public to make complaints.

    Identification of public issues

    Both the areas of the Ombudsman and Compliance should report regularly to the Board on the following:

    • number of complaints received
    • number of complaints resolved by the relevant area
    • number of complaints not resolved and the subject matters(s) of those complaints
    • actions taken to address the issues raised by unresolved complaints either by the relevant area or be reference of the issue(s) to other areas within ICANN

    Board oversight

    There should be a mechanism, a cross-community Standing Oversight Body, to hold the board itself responsible for its action or in-action: The Body should:

    • have access to all relevant information;
    • have power to compel the ICANN Board to take remedial action;
    • whose members are independent of ICANN, under strict rules of conflict of interest (e.g. observing 5-year grace period; preventing resolving door).

     


  24. Excellent work Holly. Thank you for for all the time and effort you put into this. I'm off to the gala.

     

    1. Thanks Kerry - and enjoy!

  25. I am completely fine to replace "Body" with "mechanism" in Rec. 4