Final Recommendations of the Accountability and Transparency Review Team


Executive Summary

Pursuant to the Affirmation of Commitments (AoC), the Accountability and Transparency Review Team (ATRT) submits these Final Recommendations and an accompanying Report to the Internet Corporation for Assigned Names and Numbers (ICANN) Board of Directors. The final recommendations were developed consistent with the provisions of the AoC and with a specific focus on paragraph 9.1.

A more detailed overview of the process followed by the ATRT as well as the ATRT’s “observations” concerning this first review under the AoC can be found in Appendix A and Appendix B, respectively. The Report of the Independent Expert, the Berkman Center for Internet and Society can be found in Appendix C.

The Final Recommendations have been arrived at after extensive interaction with the ICANN Board, the ICANN staff, Advisory Committees, Supporting Organizations and the community both on line and in face to face meetings in Brussels and Cartagena and after a review of public comments filed in response to the draft proposed recommendations. Given this level of interaction, the ATRT expects that the recommendations will be adopted and implemented by the ICANN Board. However, should the ICANN Board determine that the implementation of a recommendation would impose unreasonable costs or impose prohibitive resource constraints on ICANN, the Board should provide a thorough and detailed explanation of why the recommendation will not be implemented.

The ATRT is aware that paragraph 9.1 of the AoC provides that the Board “will take action within six months of receipt of the recommendations” and that this could be interpreted as giving the Board up to six months to take action on the recommendations. However, the AoC has been in effect since September 30, 2009 and ICANN should be, and in some cases already is, executing on its commitments. Certain recommendations reflect processes that, in the view of the ATRT, should have already been undertaken by ICANN and in those cases the ATRT has recommended immediate implementation.

For other recommendations, the ATRT has suggested specific start and/or completion dates. Those deemed to be of a priority nature have been assigned a start and/or completion date prior to June 2011. In addition to the start and/or completing dates provided by the ATRT, and for avoidance of confusion, the ATRT views Recommendations 7, 9, 10, 11, 15, 16, 17 and 23 to be of high priority. The ATRT asks the Board to provide a status report on all the recommendations at the March 2011 ICANN meeting in San Francisco. The Board should also provide a more formal report at the June 2011 ICANN meeting in Amman detailing:

  1. Which recommendation(s) have been fully implemented;
  2. The status and schedule for implementing the remaining recommendations; and
  3. The recommendations which the Board has concluded it cannot implement including a detailed explanation as to why the recommendation(s) cannot be implemented.

The ATRT created four Working Groups to organize its work with each group focusing its work on sub elements of paragraph 9.1. The Working Groups developed final recommendations that were reviewed and approved by the entire ATRT. The Working Groups addressed the following subjects, respectively:

Working Group #1 - ICANN Board of Directors (Board) governance, performance and composition;

Working Group #2 - The role and effectiveness of the GAC and its interaction with the Board;

Working Group #3 - Public input processes and the policy development process; and

Working Group #4 - Review mechanism(s) for Board decisions.

The following summary of the recommendations is provided for the reader’s ease of reference. However, the ATRT strongly suggests that the recommendations be read in the body of the Report as this provides the fact-finding and analysis undertaken by the ATRT and the Independent Expert as well as the public input that helped to shape the final recommendations.

The background and context provided by the Report are integral to understanding the intent of the ATRT and the purpose of the recommendations.

Final Recommendations


A. ICANN Board of Directors governance, performance and composition

  1. Recognizing the work of the Board Governance committee on Board training and skills building, pursuant to the advice of both the 2007 Nominating Committee Review and 2008 Board review, the Board should establish (in time to enable the integration of these recommendations into the Nominating Committee process commencing in late 2011) formal mechanisms for identifying the collective skill-set required by the ICANN Board including such skills as public policy, finance, strategic planning, corporate governance, negotiation, and dispute resolution. Emphasis should be placed upon ensuring the Board has the skills and experience to effectively provide oversight of ICANN operations consistent with the global public interest and deliver best practice in corporate governance. This should build upon the initial work undertaken in the independent reviews and involve:
    1. Benchmarking Board skill-sets against similar corporate and other governance structures;
    2. Tailoring the required skills to suit ICANN’s unique structure and mission, through an open consultation process, including direct consultation with the leadership of the SOs and ACs;
    3. Reviewing these requirements annually, delivering a formalised starting point for the NomCom each year; and
    4. From the Nominating Committee process commencing in late 2011, publishing the outcomes and requirements as part of the Nominating Committee’s call-for-nominations.
  2. The Board should reinforce and review on a regular basis, (but no less than every 3 years) the training and skills building programmes established pursuant to Recommendation #1.
  3. The Board and Nominating Committee should, subject to the caveat that all deliberations and decisions about candidates must remain confidential, as soon as possible but no later than the Nominating Committee process commencing in late 2011 increase the transparency of the Nominating Committee’s deliberations and decision making process by doing such things as clearly articulating the timeline and skill-set criteria at the earliest stage possible before the process starts and, once the process is complete, explain the choices made.
  4. Building on the work of the Board Governance Committee, the Board should continue to enhance Board performance and work practices.
  5. The Board should expeditiously implement the compensation scheme for voting Directors as recommended by the Boston Consulting Group adjusted as necessary to address international payment issues, if any.
  6. The Board should clarify, as soon as possible but no later than June 2011 the distinction between issues that are properly subject to ICANN’s policy development processes and those matters that are properly within the executive functions performed by the ICANN staff and Board and, as soon as practicable, develop Accountability and Transparency at ICANN: An Independent Review complementary mechanisms for consultation in appropriate circumstances with the relevant SOs and ACs on administrative and executive issues that will be addressed at Board level.
  7. In accordance with the Affirmation of Commitments:
    • 7.1 Commencing immediately, the Board should promptly publish all appropriate materials related to decision making processes – including preliminary announcements, briefing materials provided by staff and others, detailed Minutes, and where submitted, individual Directors’ statements relating to significant decisions. The redaction of materials should be kept to a minimum, limited to discussion of existing or threatened litigation, and staff issues such as appointments.
    • 7.2 Commencing immediately, the Board should publish “a thorough and reasoned explanation of decisions taken, the rationale thereof and the sources of data and information on which ICANN relied.” ICANN should also articulate that rationale for accepting or rejecting input received from public comments and the ICANN community, including Supporting Organizations and Advisory Committees.
  8. As soon as possible but no later than the start of the March 2011 ICANN meeting the Board should have a document produced and published that clearly defines the limited set of circumstances where materials may be redacted and that articulates the risks (if any) associated with publication of materials. These rules should be referred to by the Board, General Counsel and staff when assessing whether material should be redacted and cited when such a decision is taken.


B. The role and effectiveness of the GAC and its interaction with the Board

  1. The Board, acting through the GAC-Board joint working group, should clarify by March 2011 what constitutes GAC public policy “advice” under the Bylaws.
  2. Having established what constitutes “advice,” the Board, acting through the GAC-Board joint working group, should establish by March 2011 a more formal, documented process by which it notifies the GAC of matters that affect public policy concerns to request GAC advice. As a key element of this process, the Board should be proactive in requesting GAC advice in writing. In establishing a more formal process, ICANN should develop an on-line tool or data base in which each request to the GAC and advice received from the GAC is documented along with the Board’s consideration of and response to each advice.
  3. The Board and the GAC should work together to have the GAC advice provided and considered on a more timely basis. The Board, acting through the GAC-Board Accountability and Transparency at ICANN: An Independent Review joint working group, should establish by March 2011 a formal, documented process by which the Board responds to GAC advice. This process should set forth how and when the Board will inform the GAC, on a timely basis, whether it agrees or disagrees with the advice and will specify what details the Board will provide to the GAC in circumstances where it disagrees with the advice. This process should also set forth the procedures by which the GAC and the Board will then “try in good faith and in a timely efficient manner, to find a mutually acceptable solution.” This process must take into account the fact that the GAC meets face-to-face only three times a year and should consider establishing other mechanisms by which the Board and the GAC can satisfy the Bylaw provisions relating to GAC advice.
  4. The Board, acting through the GAC-Board joint working group, should develop and implement a process to engage the GAC earlier in the policy development process.
  5. The Board and the GAC should jointly develop and implement actions to ensure that the GAC is fully informed as to the policy agenda at ICANN and that ICANN policy staff is aware of and sensitive to GAC concerns. In doing so, the Board and the GAC may wish to consider creating/revising the role of ICANN staff support, including the appropriate skill sets necessary to provide effective communication with and support to the GAC, and whether the Board and the GAC would benefit from more frequent joint meetings.
  6. The Board should endeavor to increase the level of support and commitment of governments to the GAC process. First, the Board should encourage member countries and organizations to participate in GAC deliberations and should place a particular focus on engaging nations in the developing world, paying particular attention to the need to provide multilingual access to ICANN records. Second, the Board, working with the GAC, should establish a process to determine when and how ICANN engages senior government officials on public policy issues on a regular and collective basis to complement the existing GAC process.


C. Public input processes and the policy development process

  1. The Board should, as soon as possible but no later than June 2011, direct the adoption of and specify a timeline for the implementation of public notice and comment processes that are distinct with respect to purpose (e.g. Notice of Inquiry, Notice of Policy Making) and prioritized. Prioritization and stratification should be established based on coordinated community input and consultation with staff.
  2. Public notice and comment processes should provide for both a distinct “Comment” cycle and a “Reply Comment” cycle that allows community respondents to address and rebut arguments raised in opposing parties’ comments. Accountability and Transparency at ICANN: An Independent Review
  3. As part of implementing recommendations 15 and 16, timelines for public notice and comment should be reviewed and adjusted to provide adequate opportunity for meaningful and timely comment. Comment and Reply Comment periods should be of a fixed duration.
  4. The Board should ensure that access to and documentation within the policy development processes and the public input processes are, to the maximum extent feasible, provided in multi-lingual manner.
  5. Within 21 days of taking a decision, the ICANN Board should publish its translations (including the required rationale as outlined in other ATRT recommendations) in the languages called for in the ICANN Translation Policy.
  6. The Board should ensure that all necessary inputs that have been received in policy making processes are accounted for and included for consideration by the Board. To assist in this, the Board should as soon as possible adopt and make available to the community a mechanism such as a checklist or template to accompany documentation for Board decisions that certifies what inputs have been received and are included for consideration by the Board.
  7. The Board should request ICANN staff to work on a process for developing an annual work plan that forecasts matters that will require public input so as to facilitate timely and effective public input.
  8. The Board should ensure that ICANN’s senior staffing arrangements are appropriately multi-lingual, delivering optimal levels of transparency and accountability to the community.


D. Review mechanism(s) for Board decisions

  1. As soon as possible, but no later than June 2011, the ICANN Board should implement Recommendation 2.7 of the 2009 Draft Implementation Plan for Improving Institutional Confidence which calls on ICANN to 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. This should be a broad, comprehensive assessment of the accountability and transparency of the three existing mechanisms and of their inter-relation, if any (i.e., whether the three processes provide for a graduated review process), determining whether reducing costs, issuing timelier decisions, and covering a wider spectrum of issues would improve Board accountability. The committee of independent experts should also look at the mechanisms in Recommendation 2.8 and Recommendation 2.9 of the Draft Implementation Plan. Upon receipt of the final report of the independent experts, the Board should take actions on the recommendations as soon as practicable. Accountability and Transparency at ICANN: An Independent Review
  2. As soon as possible, but no later than the March 2011 ICANN meeting, the operations of the Office of Ombudsman and the relationship between the Office of the Ombudsman and the Board of Directors should be assessed and, to the extent they are not, should be brought into compliance with the relevant aspects of internationally recognized standards for: a) an Ombudsman function; and b) a Board supporting such a function under the Standards of Practice of the International Ombudsman Association.
  3. As soon as possible, but no later than October 2011, the standard for Reconsideration requests should be clarified with respect to how it is applied and whether the standard covers all appropriate grounds for using the Reconsideration mechanism.
  4. As soon as possible, but no later than October 2011 the ICANN Board, to improve transparency, should adopt a standard timeline and format for Reconsideration Requests and Board reconsideration outcomes that clearly identifies the status of deliberations and then, once decisions are made, articulates the rationale used to form those decisions.


Overarching Recommendation

  1. The Board should regularly evaluate progress against these recommendations and the accountability and transparency commitments in the AoC, and in general analyze the accountability and transparency performance of the whole organization so as to once a year report to the community on progress made and to prepare for the next ATRT review. All evaluations should be overseen by the Board.


Background, Structure and Methodology of the Review

The ATRT was established pursuant to the Affirmation of Commitments (AoC). Paragraph 9.1 states that a review of ICANN’s execution of its commitments will be performed by “volunteer community members and the review team will be constituted and published for public comment, and will include the following (or their designated nominees): the Chair of the GAC, the Chair of the Board of ICANN, the Assistant Secretary for Communications and Information of the DOC, representatives of the relevant ICANN Advisory Committees and Supporting Organizations and independent experts.”

The membership of this ATRT was selected by the Chair of the ICANN Board and the Chair of the GAC3 and initiated its review on April 12, 2010.

Under paragraph 9.1 of the AoC, ICANN committed to “maintain and improve robust mechanisms for public input, accountability, and transparency so as to ensure that the outcomes of its decision‐making will reflect the public interest and be accountable to all stakeholders by:

  1. Continually assessing and improving ICANN Board of Directors (Board) governance which shall include an ongoing evaluation of Board performance, the Board selection process, the extent to which Board composition meets ICANN's present and future needs, and the consideration of an appeal mechanism for Board decisions;
  2. Assessing the role and effectiveness of the GAC and its interaction with the Board and making recommendations for improvement to ensure effective consideration by ICANN of GAC input on the public policy aspects of the technical coordination of the DNS;
  3. Continually assessing and improving the processes by which ICANN receives public input (including adequate explanation of decisions taken and the rationale thereof);
  4. Continually assessing the extent to which ICANN's decisions are embraced, supported and accepted by the public and the Internet community; and
  5. Assessing the policy development process to facilitate enhanced cross community deliberations, and effective and timely policy development."

To organize its review, the ATRT established four (4) Working Groups comprised of ATRT members that were tasked with reviewing specific elements of paragraph 9.1 of the AoC.

The Working Groups have reviewed material relevant to their respective areas of review (e.g. ICANN bylaws, policies, procedures, review mechanisms, etc.), analyzed public comment and input from the community, conducted interviews, and analyzed other relevant data to draft Proposed Recommendations.

The ATRT also developed the following principles to guide its review:

  • Recommendations will be fact-based, far from impressions or personal opinions.
  • The team will be guided by a selected number of case-studies involving review of relevant events for each case study through 17 June 2010 (the day prior to the start date of the ICANN Brussels meeting).
  • The case-studies are based on cases which were suggested by the community during the ATRT meetings in Brussels, namely new gTLDs, .xxx (not including the application process) and DNS-CERT
  • The case studies will be used to identify processes and decision making that demonstrated ICANN’s accountability and transparency, as well as processes and decision making that could be modified to enhance ICANN’s accountability and transparency.
  • Recommendations would be future looking and would hence suggest improvements to the current process; recommendations are not for the purpose of altering any past decisions or influencing any ongoing processes.
  • Merits/Reasons behind each recommendation would be also made public.

The ATRT selected the Berkman Center for Internet & Society at Harvard Law School (Berkman) to act as the Independent Expert for the review.

The Berkman Center was asked by the ATRT to conduct the case studies referenced above and to conduct research that addresses the areas of review under paragraph 9.1 of the AoC consistent with the above principles.

Berkman commenced its work on August 5, 2010 and has provided the ATRT with a Final Report that includes case studies and consultation that support the draft proposed recommendations (See Appendix C).

The Berkman team has combined a number of qualitative research methodologies. These efforts include, among other things, primary research including various structured (questionnaire-based) interviews with experts and stakeholder representatives, and secondary research of extensive Web and database searches, an exploratory literature review (English language), and the drafting of case studies.

The case studies have played a particularly important role in the Berkman team’s work, given its mandate according to the services agreement.

The following methods have been applied in this specific context:

  • Review of materials: Following the multi-step methodological approach outlined in the services agreement, the draft case studies are structured as qualitative, exploratory case studies and based on an extensive review of a diverse range of publicly available materials, including public comments, ICANN documents, academic studies, media reports, and expert opinions. The review started with a mapping of public submissions from January 2008 to June 17, 2010 and included, among other things, extensive Web and database searches aimed at identifying case-specific materials from various sources, including ICANN’s website. Each case study provides detailed references to such specific materials in the footnotes.
  • Interviews: In addition to publicly available sources, the draft case studies are informed by observations by a selected, diverse group of stakeholders and experts who have been interviewed in the course of developing the case examples. These interviews provide an important supplementary factual basis because they convey observations regarding the perception and interpretation of ICANN decisions by the broader community. The statements of interviewees do not reflect the opinions or conclusions of the Berkman team. The interviews were conducted on the condition of confidentiality; in case of the questionnaires to GAC members, respondents were asked to specify whether they wished their answers to remain confidential. All ICANN staff interviews have been ICANN-internally coordinated and the responses to the questionnaires aggregated by ICANN's Advisor to the President, Denise Michel. ICANN's General Counsel, John Jeffrey, upon his request has attended the phone interviews with ICANN staff members.

The review of publicly available materials, case study analysis, and interviews have been supplemented by a series of internal memorandums written by faculty members looking into public participation mechanisms, transparency issues, Corporate Governance aspects and the Independent Review Panel mechanism. All materials (except the confidential interviews) have been collected on a wiki that will be made publicly available as a resource as of December 31, 2010 to support and encourage future research efforts in the field. Accountability and Transparency at ICANN: An Independent Review {10} Report of Working Group 1 Statement of Purpose WG 1 focused on analyzing ICANN’s efforts to meet its commitments, set out inter alia in paragraph 9.1 (a) of the AoC, to continually assess and improve ICANN Board of Directors (Board) governance including an ongoing evaluation of Board performance, the Board selection process and the extent to which the Board’s composition meets ICANN’s present and future needs. The purpose of ICANN committing to 9.1.(a) is set out in the opening to 9.1 which states “ICANN commits to maintain and improve robust mechanisms for public input, accountability, and transparency …to ensure the outcomes of its decision making will reflect the public interest and be accountable to all stakeholders….”9 WG1 took stock of community feedback received as part of the ATRT process to-date – most notably input from consultations at the ICANN Brussels meeting and responses from the public comments period opened on 9 July, and concluded that its purpose was best served by focusing its deliberations on two broad areas: 1. The composition of the Board, skill-set requirements for the Board and the roles of the SOs and ACs and the Nominating Committee in respect to Board composition and skill-set requirements (Area 1). 2. The transparency of the Board’s decision making process and the explanation of its decision to the ICANN community (Area 2). Area 1 Background research undertaken: Relevant bylaws: 1. Article VI (http://www.icann.org/en/general/bylaws.htm#VI) deals with the composition of the Board. Sections 2 and 3 are relevant: a. Section 2 requires the Nominating Committee to seek to ensure that the ICANN Board is composed of members who in the aggregate display diversity in geography, culture, skills, experience, and perspective, by applying the criteria in Section 3. b. Section 3 sets out the criteria for the selection of Directors (by Supporting Organisations and Advisory Committees as well as the Nominating Committee). Those criteria are: i. Accomplished persons of integrity, objectivity, and intelligence, with reputations for sound judgment and open 9 http://www.icann.org/en/documents/affirmation-of-commitments-30sep09-en.htm, para. 9.1. Accountability and Transparency at ICANN: An Independent Review {11} minds, and a demonstrated capacity for thoughtful group decision making; ii. Persons with an understanding of ICANN's mission and the potential impact of ICANN decisions on the global Internet community, and committed to the success of ICANN; iii. Persons who will produce the broadest cultural and geographic diversity on the Board consistent with meeting the other criteria in Section 3; iv. Persons who, in the aggregate, have personal familiarity with the operation of gTLD registries and registrars; with ccTLD registries; with IP address registries; with Internet technical standards and protocols; with policy-development procedures, legal traditions, and the public interest; and with the broad range of business, individual, academic, and non-commercial users of the Internet; v. Persons who are willing to serve as volunteers, without compensation other than the reimbursement of certain expenses; vi. Persons who are able to work and communicate in written and spoken English. 2. Article VII (http://www.icann.org/en/general/bylaws.htm#VII) establishes the Nominating Committee and deals with its structure. The only sections of Article VII relevant to its work in selecting Board members are Sections 5 and 7: a. Section 5 refers to the geographic diversity requirement expressed in Article I Section 2 Core Value 4 (http://www.icann.org/en/general/bylaws.htm#I-2) and somewhat confusingly, in the context of Board selection, also refers to the Section 4 of Article VII which actually deals with the selection of Nominating Committee members. b. Section 7 simply states that the Nominating Committee shall adopt such operating procedures as it deems necessary There do not appear to be any other relevant bylaws. Relevant Published Policies: There do not appear to be any relevant published policies. Accountability and Transparency at ICANN: An Independent Review {12} Relevant Published Procedures: The Nominating Committee commenced in 2003 and each year its documents are archived on the ICANN web site. The relevant document is generally referred to as “Nominating Committee Procedures”. 1. The 2003 Nominating Committee Procedures (http://nomcom.icann.org/procedures-10apr03.htm#B) contain 2 sections of relevance: a. Section B 1 deals with the committee’s role and objectives stating that “the objective of ICANNs new nominating process is to balance the Supporting Organization-based and constituency-based selection of Directors and individuals for other positions to ensure that ICANN can benefit from participants of the highest integrity and capability who place the public interest ahead of any particular interests, but who are nevertheless knowledgeable about the environment in which ICANN operates.” b. Section C 8 deals with selection criteria and states inter alia: i. the NomCom will apply the criteria for selection and terms of eligibility, defined in the applicable ICANN Bylaws, to identify a pool of qualified Candidates; ii. To select from this pool of qualified Candidates, NomCom will take into account additional considerations, related to the roles to be filled, that it finds important as progress in the selection process is made. 2. The 2004 Nominating Committee Procedures (http://nomcom.icann.org/procedures-18jun04.htm): a. Section B 1 now reads “NomCom is responsible for the selection of portions of the members of the ICANN Board of Directors, GNSO Council, Interim ALAC, and ccNSO Council, filling these leadership positions in a way that complements the selections made for such positions by the Supporting Organizations and Interim ALAC. The central rationale for using a nominating committee to select a portion of the ICANN leadership bodies is to balance those who can represent particular areas of knowledge and interests with those who place the broad public interest of the global Internet community ahead of any particular interests. NomCom’s role is to select Accountability and Transparency at ICANN: An Independent Review {13} individuals of the highest integrity and capability who place the broad public interest of the global Internet community ahead of any particular interests, and who are nevertheless knowledgeable about ICANN’s mission and environment”. b. Section C 8 has not materially changed. 3. The 2008 Nominating Committee Procedures (http://nomcom.icann.org/procedures-2008.html) are the most up to date available as the 2009 and 2010 procedures, although referred to on the relevant pages, are not linked: a. Section B 1 has not changed. b. Section B 8 has changed slightly and now states, inter alia (emphasis added): i. the NomCom will apply the criteria for selection and terms of eligibility, defined in the applicable ICANN Bylaws, to identify a strong pool of qualified Candidates; ii. To select from this pool of qualified Candidates, NomCom will take into account relevant and additional considerations, related to the roles to be filled, as the selection process progresses. Initial Community feedback to the ATRT: The ATRT received a large number of comments concerning the composition and skills of the Board. They can be grouped in three categories: a. Some comments raise concerns about the relative weight of the stakeholder groups in the Board, i.e. " broader business expertise is essential for the ICANN Board in meeting current and future challenges"10; "business interests (in particular the trademark and domain name industries) are over-represented at ICANN"11: b. Some criticize the NomCom for lack of transparency12 and some suggest it to be suppressed13; c. Some comments raise concerns about the skill set of the Board, suggesting that it "continue to work towards ensuring expertise, independence and diversity on the board of directors"14; others suggest 10 Comments of International Chamber of Commerce 11 Comments of IP Justice 12 Comments of CNNNIC and Milton Mueller 13 Comments of LFFS 14 Comments of CIRA Accountability and Transparency at ICANN: An Independent Review {14} that "more consideration be given to identifying and recruiting highly competent people"15 ICANN activities already underway that help to meet the AoC objectives: Staff has provided the ATRT with a matrix entitled Affirmation of Responsibilities Tracking and Brainstorming (ARTB).16 In respect to the Board selection process, the ARTB states that the ongoing implementation of the NomCom and Board review are activities underway to meet AoC objectives. In respect to the extent to which Board composition meets ICANN’s present and future needs, the ARTB states that all multi-stakeholders groups being involved in Board elections and NomCom delegate selections helps to meet the AoC objectives. Other Input The Nominating Committee Review: 1. In 2007, Interisle Consulting Group conducted an independent review of the Nominating Committee. Their Final Report was published on 23 October 2007 (the Report) (http://www.icann.org/en/reviews/nomcom/report-23oct07.pdf). It made a number of findings and recommendations that are relevant to the work of WG1. a. Findings: i. Finding 1 - The central purpose of the NomCom is to find genuinely independent and unaffiliated Board….members (page 15 of the Report); ii. Finding 25 - The NomCom lacks specific requirements for its annual Board…appointments and it is not clear how those requirements should be established (or by whom) (page 28 of the Report). b. Recommendations: i. Recommendation 3 – Recruit and select based on requirements. The Report suggests that a formal procedure is developed for discovering and understanding the requirements of the Board (page 36 of the Report); 15 Comments of Internet Society 16 http://www.icann.org/en/reviews/affirmation/activities-1-en.htm; the document can be found at “Documents submitted to the ATRT.” At the time of publication, the link to these documents was not working so a direct hyperlink was not available. Accountability and Transparency at ICANN: An Independent Review {15} 2. After a number of public and Board committee processes, the final report of the NomCom Review Finalisation Working Group was released in January 2010 (http://www.icann.org/en/reviews/nomcom/nomcom-review-finalization-wg-fin...). In respect to Recommendation 3 the working group states: “The WG remarks that similar recommendations are also contained in the report issued by the external reviewers of the Board of Directors which is presently under consideration by the Board Review WG. Even if not explicitly required by Bylaws, the most recent NomComs adopted the practice to consult informally with Members of the Board and Chairs of SO/ACs on skill gaps to be filled. Regarding the communication between the NomCom and the Board, the NomCom review finalization WG supports the recommendation of the Board review WG for a formal dialogue between the Nominating Committee and the Board about gaps and needs that have been identified in the Board’s skill-set. That dialogue could consist in a regular consultation between the respective chairs.”17 The Board Review 1. In 2008 Boston Consulting Group/Colin Carter & Associates conducted an independent review of the Board. Their Final Report was published in November 2008 (the Report) (http://www.icann.org/en/reviews/board/report-02nov08-en.pdf). The main finding of relevance to WG1 is Section C 4 ‘Broaden the Skills of the Board’ commencing on page 37 of the Report and the recommendation which states inter alia: a. Formally define the skill and experience and independence mix required for the board to operate effectively – in the short and longer terms; b. Form a view about the main gaps in skills that should be met; c. Formally define the participation of the ICANN chairman and the chairman of the Governance Committee as part of the Nominating Committee’s process for choosing new board directors; d. Develop a process for engaging the Supporting Organisations and Advisory Committee in a discussion about the mix of skills required. 18 17 Review of the ICANN Nominating Committee, Final Report of the NomCom Review Finalization Working Group, p. 6. 18 Independent Review of the Board of ICANN, Main Report, November 2008, p. 44. Accountability and Transparency at ICANN: An Independent Review {16} 2. After a number of public and Board committee processes, the final report of the Board review Working Group was released in January 2010 (http://www.icann.org/en/reviews/board/board-review-final-26jan10-en.pdf). In respect to the relevant parts of recommendation 4 the working group states: “This recommendation, and in particular the options 4a and 4b, is also being considered by the Board Governance Committee. With regard to 4c, the WG is of the view that it is appropriate and useful for the Chairman of the Board to have a formal meeting with the Chairman of the Nominating Committee to discuss the skill needs of the Board, and notes that informal contact already occurs.”19 A formal discussion between the Chairs should take place after a full Board discussion about necessary Board skills, and the Chairman of the Board should represent the Board position on this. If this process is followed, there is no need for the Chairman of the Board Governance Committee to meet with the Chair of the Nominating Committee. With regard to 4d, the WG recognizes the value in having input from the SOs and ACs into the Nominating Committee process. However, the WG sees little value in creating an extra formal process to capture this input. SOs and ACs are encouraged to develop proposals for ways in which their input might most effectively be incorporated into the considerations of the Nominating Committee. Any such proposals should be submitted to the BGC for consideration.” Public Comment on the Draft Recommendations: During the Cartagena meeting, the ATRT met separately with the Board and with the GAC and held an open session to receive input from the ICANN community. In addition, a number of comments were posted as part of the public comment period. Overall, there was strong consensus in favor of draft recommendations 1 to 4 of Working Group 1. A number of those who commented stressed the importance of the independence of the Nominating Committee and candidate confidentiality. The ATRT believes these critical issues are made clear in the Final Recommendations. Recommendation 5 was also widely supported but this has been slightly reworded to take into account comment received both from Board members and the community. 19 ICANN Board Working Group, Final Report, January 2010, p. 14. Accountability and Transparency at ICANN: An Independent Review {17} Questions for Review Do current mechanisms for determining ICANN Board composition ensure that, collectively, the Board possesses an appropriate, diverse set of skills and experience?  Would changes in selection, composition and compensation improve results?  Are the desired skills, background and experience adequately defined? o For representing constituency interests o For reflecting the public interest o For overseeing ICANN’s mission and operations o For best practice in governance  Could the collective skill-set of directors be improved? Are Board selection mechanisms sufficiently transparent and accessible to stakeholders? Findings Article VI of ICANN’s Bylaws20 provides for the selection of a Board of Directors that is both representative of the organisation’s stakeholder community – the Advisory Committees and Supporting Organisations – and diverse in geography, culture, skills, experience, and perspective. The Nominating Committee mechanism, initiated in 2003, was intended to further facilitate the diversification of the ICANN Board, to deliver additional transparency and accountability in the Board selection process and fill a majority of Board seats with Directors who are independent with respect to the interests and agendas of specific ICANN constituency groups. On the whole, the 2007 independent review found that there was merit in the NomCom process, that it had contributed positively to the composition of the ICANN Board, and that it had a relevant, continuing purpose in the ICANN structure. Wholesale changes, in the form of alternative selection models, were presented, considered and largely dismissed in favour of retaining current NomCom arrangements, with most of the review’s recommendations relating to refinements to the NomCom’s operations to allow it to more effectively execute its responsibilities. However, of greatest relevance to the current ATRT review process, was the independent recommendation for ICANN to recruit and select based upon clear skill- 20 http://www.icann.org/en/general/bylaws.htm#VI Accountability and Transparency at ICANN: An Independent Review {18} set requirements. This included the establishment of a formal procedure by which the NomCom would discover and understand the requirements of each body to which it makes appointments. This view was shared by the reviewers tasked with undertaking an independent assessment of the ICANN Board in 2008, who once again recommended the formalisation of mechanisms to define, and consult about, the collective skill-sets required by the Board. In short, two independent processes - one addressing improvements to the ICANN Board and the other the mechanisms for selecting a majority of the Board – made clear recommendations about improving Board skills. However, to date, there appears not to have been active adoption of the recommendations by the ICANN Board and staff, and this is reflected in the ongoing concerns expressed by community members in response to ATRT consultations. Despite receiving general support from the NomCom Review Finalization Working Group, the recommendation for clarification of Board skill-set requirements was largely deferred to the Board Governance Committee by the Board Review Working Group. Consecutive review processes have failed to find significant, structural failings with the way in which the ICANN Board is selected and the resultant composition of the Board. However, both noted that current mechanisms for identifying and responding to collective skill-set needs remain relatively informal and potentially unclear. As such, codifying the processes for identifying, defining and reviewing these skills requirements, as well as the mechanisms by which stakeholders are consulted, could assist in improving the Board’s overall performance. Compensation of directors is an issue closely associated with the theme of developing the ICANN Boards’ experience and collective skill-set and has been the subject of independent review, Board Governance Committee discussion and ongoing Board consideration. To date, only compensation for the Board Chair has been decided. In order to help guide and structure the future process for improving the Board’s operations, it is critical that the matter of remuneration be resolved promptly. On the issue of Board structure, it is important to note that a reduction in the ICANN Board’s size was a key recommendation of the 2008 Board Review process. However, this was rejected by the Board Review Working Group, citing the workload of the current Board, and the need for representational diversity. Furthermore, the Working Group recommended further consideration of Board restructure be deferred for three years. The size and structure of the Board is a key element in the consideration of all related issues – decision making effectiveness, representation Accountability and Transparency at ICANN: An Independent Review {19} and collective skill-set. The current ICANN Board and staff should resist the tendency to maintain structural arrangements and should accept the need for significant Board structure changes, should these be proven to deliver significantly improved performance. Recommendations 1. Recognizing the work of the Board Governance committee on Board training and skills building, pursuant to the advice of both the 2007 Nominating Committee Review and 2008 Board review, the Board should establish (in time to enable the integration of these recommendations into the Nominating Committee process commencing in late 2011) formal mechanisms for identifying the collective skill-set required by the ICANN Board including such skills as public policy, finance, strategic planning, corporate governance, negotiation, and dispute resolution. Emphasis should be placed upon ensuring the Board has the skills and experience to effectively provide oversight of ICANN operations consistent with the global public interest and deliver best practice in corporate governance. This should build upon the initial work undertaken in the independent reviews and involve: a. Benchmarking Board skill-sets against similar corporate and other governance structures; b. Tailoring the required skills to suit ICANN’s unique structure and mission, through an open consultation process, including direct consultation with the leadership of the SOs and ACs; c. Reviewing these requirements annually, delivering a formalised starting point for the NomCom each year; and d. From the Nominating Committee process commencing in late 2011, publishing the outcomes and requirements as part of the Nominating Committee’s call-for-nominations. 2. Reinforce and review on a regular basis, (but no less than every 3 years) the training and skills building programmes established pursuant to Recommendation #1. 3. The Board and the Nominating Committee should, subject to the caveat that all deliberations and decisions about candidates must remain confidential, as soon as possible but no later than the Nominating Committee process commencing in late 2011, increase the transparency of the Nominating Committee’s deliberations and decision making process by doing such things as clearly articulating the timeline and skill-set criteria at the earliest stage possible before the process starts and, once the process is complete, explain the choices made. Accountability and Transparency at ICANN: An Independent Review {20} 4. Building on the work of the Board Governance Committee, the Board should continue to enhance Board performance and work practices. 5. The Board should expeditiously implement the compensation scheme for voting Directors as recommended by the Boston Consulting Group adjusted as necessary to address international payment issues, if any. Area 2 Background research undertaken: Relevant bylaws: 1. Article I, Section 2 (http://www.icann.org/en/general/bylaws.htm#I) enshrines decision making transparency within a number of ICANN’s core values, with a focus on the informed participation of stakeholders: In performing its mission, the following core values should guide the decisions and actions of ICANN: 4. Seeking and supporting broad, informed participation reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision making. 7. Employing open and transparent policy development mechanisms that (i) promote well-informed decisions based on expert advice, and (ii) ensure that those entities most affected can assist in the policy development process. 8. Making decisions by applying documented policies neutrally and objectively, with integrity and fairness. 9. Acting with a speed that is responsive to the needs of the Internet while, as part of the decision making process, obtaining informed input from those entities most affected. 10. Remaining accountable to the Internet community through mechanisms that enhance ICANN’s effectiveness.21 2. Article III (http://www.icann.org/en/general/bylaws.htm#III) is dedicated to transparency and Section 6 specifically outlines mechanisms for solicitation of notice and comment on policy actions. 1. With respect to any policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges, ICANN shall: 21 http://www.icann.org/en/general/bylaws.htm#I Accountability and Transparency at ICANN: An Independent Review {21} a. provide public notice on the Website explaining what policies are being considered for adoption and why, at least twenty-one days (and if practical, earlier) prior to any action by the Board; b. provide a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments, prior to any action by the Board; and c. in those cases where the policy action affects public policy concerns, to request the opinion of the Governmental Advisory Committee and take duly into account any advice timely presented by the Governmental Advisory Committee on its own initiative or at the Board's request. 2. Where both practically feasible and consistent with the relevant policy development process, an in-person public forum shall also be held for discussion of any proposed policies as described in Section 6(1)(b) of this Article, prior to any final Board action. 3. After taking action on any policy subject to this Section, the Board shall publish in the meeting minutes the reasons for any action taken, the vote of each Director voting on the action, and the separate statement of any Director desiring publication of such a statement.22 There do not appear to be any other relevant bylaws. Relevant Published Policies: The ICANN Board’s Code of Conduct (http://www.icann.org/en/committees/board-governance/bod-code-of-conduct-...) makes a broad reference to public reporting: B. Integrity of Records and Public Reporting Board members should promote the accurate and reliable preparation and maintenance of ICANN’s financial and other records. Diligence in accurately preparing and maintaining ICANN’s records allows ICANN to fulfil its reporting obligations and to provide stakeholders, governmental authorities and the general public with full, fair, accurate, timely, understandable, open and transparent disclosure.23 There do not appear to be any other relevant published policies. 22 http://www.icann.org/en/general/bylaws.htm#III 23 Board of Directors’ Code of Conduct, Internet Corporation for Assigned Names and Numbers, p. 3. Accountability and Transparency at ICANN: An Independent Review {22} Relevant Published Procedures: According to its Charter (http://www.icann.org/en/committees/board-governance/charter.htm), ICANN’s Board Governance Committee is responsible for, among other things: A. Assisting the Board to enhance its performance; H. Recommending to the Board corporate governance guidelines applicable to ICANN as a global, private sector corporation serving in the public interest.24 Within its Scope of Responsibilities, the BGC can assist the Board to enhance its performance by encouraging the development of effective tools, strategies, and styles for the Board's discussions. The BGC will also review the existing corporate governance guidelines developed by ICANN staff, be attentive to developments in corporate governance in the global context, and bring ideas and recommendations for adjustments in these guidelines to the Board for its consideration. However, none of the publicly available Minutes of BGC meetings, dating back to 2008, record any discussion or decision regarding potential improvements to the transparency of Board decision making processes. Initial Community Feedback to the ATRT: The ATRT received a large number of comments concerning the decision making of the Board and the explanation of its decisions to the community. Most of these comments consider that “Board’s decisions should be better justified and explained to the community.”25 They consider that “ICANN could improve the process of analyzing the input it has received from the community and explaining the reasoning behind its decision making26”: a. Some comments raise concerns about the summary of public comments and the briefings produced by the staff: they suggest making transparent how the community inputs received are considered and publishing all briefing materials; some noted that “[o]n a few occasions when those reports have become known, they appeared to contain false statements”27. 24 Board Governance Committee Charter, approved 6 March 2009. 25 Comments of International Chamber of Commerce 26 Comments of ATT 27 Comments of Avri Doria Accountability and Transparency at ICANN: An Independent Review {23} b. Examples of occasions where the explanation of decisions was judged insufficient are the EOI process28 and re-delegation decisions29; c. Some ask for more transparency of the Board meetings: they suggest all meetings should be public30 or that transcripts and recordings be made available to the community31; d. Some recommend a more formalised decision making process and explanation of decisions: “ICANN should institutionalise transparency by establishing clear written guidelines for conducting its business…. These guidelines should include full ’Administrative Procedure Act’ notice and comment procedures for public consultation and decision making32”; and the Board “should provide an analytical component of its decisions that clearly explains how stakeholders, staff, and experts’ comments were taken into consideration, and how and why such inputs were or were not followed in a final decision”33. ICANN activities already underway that help to meet the AoC objectives: Staff has provided the ATRT with a matrix entitled Affirmation of Responsibilities Tracking and Brainstorming (ARTB).34 One of the core commitments (Section 3.a.) in the AoC is to transparency and openness of decision making: 3. This document affirms key commitments by DOC and ICANN, including commitments to: (a) ensure that decisions made related to the global technical coordination of the DNS are made in the public interest and are accountable and transparent; The ARTB document advises that changes to Board processes are being explored by the Board Governance Committee, however BGC meeting Minutes from 2010 do not record specific discussions or decisions on transparency of Board decision making. Some of the preliminary ideas being considered by staff include:  Provide Board statements with each vote on reasons for decisions and address 28 Comments made at the Brussels meeting with the Commercial Stakeholder Group of the GNSO 29 Comments made at the Brussels meeting with the ccNSO 30 Comments of Kieran McCarthy 31 Comments of CADNA and LFFS 32 Comments of ATT 33 Comments of Network Solutions 34 http://www.icann.org/en/reviews/affirmation/activities-1-en.htm; the document can be found at “Documents submitted to the ATRT.” At the time of publication, the link to those documents was not working so a direct hyperlink was not available. Accountability and Transparency at ICANN: An Independent Review {24} concerns raised by community.  Create metrics to track impact of Board & SO decisions on the public interest. Paragraph 4 of the AoC states: “To ensure that its decisions are in the public interest, and not just the interests of a particular set of stakeholders, ICANN commits to perform and publish analyses of the positive and negative effects of its decisions on the public, including any financial impact on the public, and the positive or negative impact (if any) on the systemic security, stability and resiliency of the DNS.”35 The ARTB document advises that only two of the ideas being considered by staff could broadly relate to Board decision making transparency:  Enhance public comment periods and translations on all PDPs and Board actions.  Provide statement of impact before and after Board decisions. In Paragraph 7 of the AoC ICANN commits to adhere to: “responsive consultation procedures that provide detailed explanations of the basis for decisions, including how comments have influenced the development of policy consideration. . . In addition, ICANN commits to provide a thorough and reasoned explanation of decisions taken, the rationale thereof and the sources of data and information on which ICANN relied.”36 The ARTB document advises that efforts underway include:  All Board, SO and AC statements and decisions are publicly posted.  Background currently is provided publicly on all decisions; several new gTLD processes considered a model by the community.  Background currently is provided publicly on all decisions. Ideas under consideration by staff include:  Consider publicly posting recordings of Board meetings.  Provide Board members with template explanation to complete for each decision, collate and publicly post.  Improvements to the web site to provide better access to posted information  Consider development of template or matrix on how comments have been considered and where / how these have influenced the final outcome. 35 http://www.icann.org/en/documents/affirmation-of-commitments-30sep09-en.htm, para. 4. 36 Id., para. 7. Accountability and Transparency at ICANN: An Independent Review {25}  Ensure comments are summarized in a timely fashion and note which influenced the development of a policy and how.  Consider Board statements to accompany each vote.  Develop indicators of success in each area that are qualitative, rather than quantitative, and publish evaluation regularly  Develop more metrics to track against bylaws, responsibilities, strategic and operating plans. In Paragraph 9.1 of the AoC ICANN commits: “to maintain and improve robust mechanisms for public input, accountability, and transparency so as to ensure that the outcomes of its decision making will reflect the public interest and be accountable to all stakeholders.”37 The ARTB document advises that efforts underway include:  Conducting bottom-up policy, planning, and budget efforts, and carrying out management actions with extensive public input and visibility.  Ongoing BGC work, with second Board performance assessment underway Other Input The Board Review: 3. In 2008 Boston Consulting Group/Colin Carter & Associates conducted an independent review of the Board. Their Final Report was published in November 2008 (the Report) (http://www.icann.org/en/reviews/board/report-02nov08-en.pdf). Despite the fact Recommendation #8 related to clarifying the Board’s accountability, no mention was made of procedures for transparency in decision making. 4. Building upon this independent advice, the Board Review Working Group released its own report in January 2010 (http://www.icann.org/en/reviews/board/board-review-final-26jan10-en.pdf). This document also does not address transparency of decision making. 5. However, one of the submissions to the BRWG, from the International Chamber of Commerce, addressed accountability procedures for the Board and specifically commented upon the need for methodical decision making processes: 37 Id., para. 9.1. Accountability and Transparency at ICANN: An Independent Review {26} The Board must continue efforts to enhance the transparency of its deliberations. These should include:  Transparency of the agendas and comprehensive minutes of the Board are important for the community. The comprehensive minutes should be maintained.  Board decisions should be based on methodical decision making processes in order to promote a sense of due process and fairness in Board actions. They should include an analytical component of decisions that explains how stakeholders’, staff’s, and experts’ comments were taken into consideration and how and why such inputs were or were not followed in a final decision.  The Board input documents [except for those dealing with personnel matters] should routinely be posted to the fuller ICANN community, including staff briefing materials.  Outputs and delegation of work or authority to different constituencies or groups in the community are essential.  Further discussion is needed in the context of the Improving Institutional Confidence consultation process on this matter as well. ICC urges ICANN to substantiate its commitment to transparency by incorporating all relevant changes within its Bylaws. Public Comment on the Draft Recommendations: During the Cartagena meeting, the ATRT met separately with the Board and with the GAC and held an open session to receive input from the ICANN community. In addition, a number of comments were posted as part of the public comment period. Overall, there was strong consensus in favor of draft recommendations 6 to 10 of Working Group 1. Feedback was received from a number of Board members that draft recommendations 6 and 7 lacked clarity and these have now been redrafted to form Final Recommendation 6. Draft recommendations 8 and 10 were positively endorsed by many. In discussions with the community it became clear that these could usefully be re-drafted for clarity and merged. They now form Final Recommendation 7. Draft recommendation 9 has become Final Recommendation 8. Accountability and Transparency at ICANN: An Independent Review {27} Questions for Review Do current ICANN processes deliver transparency and accountability with regard to:  How issues are chosen for Board consideration;  How decisions are taken, and on what grounds; and  How these decisions are communicated to stakeholders? Could stakeholder engagement and support be improved by the introduction of codified mechanisms for taking and communicating Board decisions such as:  The timely release of relevant, detailed Board materials: briefing documents, preparatory materials and transcripts of decisions;  Explanation of how community inputs are received and considered;  Published rationale for Board decisions, including the advice on which the decisions was based;  Formalised mechanisms (a section of the ICANN website, direct letters to relevant SOs/ACs, public announcements, public sessions at ICANN meetings) to communicate decisions and reasons to stakeholders. Findings As the peak decision making entity within ICANN, ultimate responsibility for ensuring the highest possible levels of transparency and accountability must necessarily reside with the Board. Not only must it set an example through its own consultation and decision making, but the Board must also ensure transparency is maintained throughout all parts of the organisation, including SOs and ACs, Board sub-committees, independent reviews and staff. ICANN’s Bylaws emphasise the need for transparency in the Board’s processes, stipulating the informed participation of stakeholders, neutrality, objectivity, responsiveness and evidence-based decision making. Similarly, the need for transparency and openness in the way the ICANN Board takes decisions is re-stated prominently in the Affirmation of Commitments. However, the Bylaws provide only broad guidance about the mechanisms ICANN must use in notifying stakeholders of pending policy actions and gathering subsequent feedback. These include the 21-day notice rule, the need to provide “reasonable” opportunity for comment and a requirement for due consideration of GAC advice on matters of public policy. With only a few exceptions, the vast majority of the Board’s deliberations are based upon organisational conventions. Significant policy issues are identified and Accountability and Transparency at ICANN: An Independent Review {28} determined based upon the practices established over time, not according to codified procedures or requirements. Perhaps as a direct result, a large proportion of comments received as part of the ATRT’s consultation process related to the way in which issues were identified for Board consideration, how and why particular decisions were taken and how these outcomes were conveyed to stakeholders. These comments reflect a sense of concern from across the breadth of ICANN’s stakeholder community. The absence of clear, codified guidelines, procedures or processes relating to Board decisions only serves to escalate stakeholders’ concerns and could lead to disenfranchisement and disengagement. Despite this sentiment, the recently-concluded independent review of the ICANN Board, and subsequent Board Review Working Group, did not address the issue of transparency in decision making. ICANN staff has indicated that, in response to the AoC, a large number of projects, related to improved decision making, are being considered. These include:  The provision of Board statements on each vote taken;  Statements-of-impact before and after decisions;  Improvements to how announcements are made and decisions promoted on the ICANN website; and  The development of a template to explain how community input has been factored and considered. These proposed improvements are an appropriate first step, though constitute only one part of a significant exercise in refining organisational practices. As such, this work should be coordinated under the auspices of dedicated actions, involving all stakeholders, with the single aim of delivering clear, published guidelines for ICANN’s decision making processes. Recommendations 6. The Board should clarify, as soon as possible but no later than June 2011, the distinction between issues that are properly subject to ICANN’s policy development processes and those matters that are properly within the executive functions performed by the ICANN staff and Board and, as soon as practicable, develop complementary mechanisms for consultation in appropriate circumstances with the relevant SOs and ACs on administrative and executive issues that will be addressed at Board level. 7. In accordance with the Affirmation of Commitments: Accountability and Transparency at ICANN: An Independent Review {29} 7.1 Commencing immediately, the Board should promptly publish all appropriate materials related to decision making processes – including preliminary announcements, briefing materials provided by staff and others, detailed Minutes, and where submitted, individual Directors’ statements relating to significant decisions. The redaction of materials should be kept to a minimum, limited to discussion of existing or threatened litigation, and staff issues such as appointments. 7.2 Commencing immediately, the Board should publish “a thorough and reasoned explanation of decisions taken, the rationale thereof and the sources of data and information on which ICANN relied.” ICANN should also articulate that rationale for accepting or rejecting input received from public comments and the ICANN community, including Supporting Organizations and Advisory Committees. 8. As soon as possible but no later than the start of the March 2011 ICANN meeting the Board should have a document produced and published that clearly defines the limited set of circumstances where materials may be redacted and that articulates the risks (if any) associated with publication of materials. These rules should be referred to by the Board, General Counsel and staff when assessing whether material should be redacted and cited when such a decision is taken. Report of Working Group 2 Statement of Purpose Working Group 2 (WG2) evaluated whether ICANN (i) is adequately assessing the role and effectiveness of the Governmental Advisory Committee (GAC) and its interaction with the Board and (ii) is “making recommendations for improvements to ensure effective consideration by ICANN of GAC input on the public policy aspects of the technical coordination of the DNS.”38As part of this evaluation, WG2 conducted an independent evaluation of the interaction between the GAC and the Board Background Statement Relevant Provisions of the Bylaws. Article XI, Section 2 of the ICANN bylaws establish the Governmental Advisory Committee whose role is to “consider and provide advice on the activities of ICANN as they relate to the concerns of governments, particularly matters where there may be an interaction between ICANN’s policies 38 Affirmation of Commitments, paragraph 9.1 (b). Accountability and Transparency at ICANN: An Independent Review {30} and various laws and international agreements or where they may affect public policy issues.”39 Membership in the GAC is open to all national governments. Each member country appoints one accredited representative to the GAC who must hold a formal official position in the member’s government. The GAC may “put issues to the Board, either by way of comment or prior advice, or by way of specifically recommending action or new policy development or revision to existing policies.”40 However, ICANN shall “request the opinion41 of the GAC” in any case where a policy action “affects public policy concerns.”42 In such cases, ICANN shall “take duly into account any advice timely presented by the GAC on its own initiative or at the Board’s request.”43 The notification is to be made by the Board to the Chair of the GAC “in a timely manner.”44 Specifically, if the ICANN Board determines to take an action that is not consistent with the GAC advice “it shall so inform the Committee and state the reasons why it decided not to follow that advice.”45 At that point, the GAC and the Board are obligated to “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.”46 If no such solution can be found, the ICANN Board “will state in its final decision the reasons why the GAC advice was not followed.”47 The Bylaws do not provide any definition or direction as to what is “advice” from the GAC. In practice, “GAC members have worked on the basis that any explicit advice, in any written form, constitutes the kind of advice foreseen in the bylaws.”48 The GAC adopts a communiqué when it meets in conjunction with the three yearly regular meetings of the ICANN Board. Intersessionally, the GAC Chair sends letters to the Board and/or ICANN staff, as needed. While the Board initiates periodic reviews of the Supporting Organizations, Advisory Committees and other ICANN structures, the Bylaws expressly exclude the Board from reviewing the performance and operation of the GAC. Instead, the GAC “shall provide its own review mechanisms.”49 39 ICANN Bylaws, Article XI, Section 2 (1) (a). 40 ICANN Bylaws, Article XI, Section 2 (1) (i). 41 ICANN Bylaws, Article III, Section 6 (1) (c). The Bylaws use the terms “opinion” and “advice” in referring to input from the GAC. For purposes of this report, the term “advice” will be used to refer to either advice or opinions submitted by the GAC which triggers the obligations on the Board set forth in Articles III and XI. 42 ICANN Bylaws, Article XI, Section 2 (1) (h). 43 ICANN Bylaws, Article III, Section 6 (1) (c). 44 ICANN Bylaws, Article XI, Section 2 (1) (h). 45 ICANN Bylaws, Article XI, Section 2 (1) (j). 46 ICANN Bylaws, Article XI, Section 2 (1) (j). 47 ICANN Bylaws, Article XI, Section 2 (1) (k). 48 ICANN/GAC JWG Draft Report, Objective 1 49 ICANN Bylaws, Article IV, Section 3 (2) Accountability and Transparency at ICANN: An Independent Review {31} GAC Operating Principles: The GAC has a set of Operating Principles which it periodically updates. The last amendment was made at the GAC Nairobi meeting in March 2010. At the GAC Brussels meeting in June 2010, the GAC established an ad hoc working group to review the Operating Principles. The Operating Principles do little to provide additional clarity or definition on the Bylaw provisions and in fact, seem to expand the concept of “advice” to a very broad concept. For example, the Principles do not require that GAC advice represent a consensus, stating that “where consensus is not possible, the Chair shall convey the full range of view*s+ expressed by Members to the ICANN Board.”50 Nor do the Principles limit what constitutes advice as they indicate that the “GAC may deliver advice on any other matter within the functions and responsibilities of ICANN, at the request of the ICANN Board or on its own initiative.”51 The Operating Principles do, however, stipulate that a quorum (defined as one third of the representatives of the current membership) is necessary for a meeting at which a decision (s) is made.52 Summary of GAC Activities: To date, the GAC has adopted 39 communiqués and has submitted 20 letters to the Board. In addition, the GAC has also adopted the following principles: GAC Principles Regarding gTLD Whois Services; GAC Principles Regarding new gTLDs; Principles and Guidelines for the Delegation and Administration of Country Code Top Level Domains; and GAC Operating Principles. Principles and letters generally represent consensus while the form and structure of the communiqués allow for differing GAC member view points, to the extent they exist, to be presented. There are instances where the GAC also adopts issues documents including interim issues documents.53 It is not uncommon for the GAC to offer advice in stages for the purpose of clarifying, revising or reiterating views as an ICANN policy development process unfolds.54 Summary of ICANN Outreach to GAC: ICANN, in the form of the Board Chair, management or staff, has to date sent 25 letters to the GAC on various topics. In only three specific instances has ICANN proactively, via correspondence, sought input from GAC related to the public policy aspects of an issue. The first instance, on December 1, 2004, sought GAC input on a multitude of issues and the second, on May 4, 2006, requested advice regarding the .xxx stld application. A third instance was on March 17, 2009 when ICANN staff sent a letter to the GAC identifying implementation issues associated with GAC advice related to the treatment of geographic names at the top-level. In addition, 13 other Board resolutions include 50 GAC Operating Principles, Principle 47 51 GAC Operating Principles, Principle 48 52 GAC Operating Principles, Principle 40 53 See Annex A of Nairobi Communiqué 'GAC Interim Principles on IDN ccTLDs' 54 ICANN/GAC JWG Draft Report, Objective 1 Accountability and Transparency at ICANN: An Independent Review {32} references to GAC input but generally in the context of GAC and other supporting organizations and advisory committees. Relevant Information from the Berkman Case Studies: The GAC plays a prominent role in two of the case studies undertaken by the Berkman Center: the expansion of generic top-level domain names (gTLDs) and the review of the .xxx top-level domain.55 In the new gTLD case study, Berkman lists multiple instances of advice provided by the GAC on this issue, including the 2007 GAC Principles on new gTLDs, the various letters the GAC sent to the Board as well as the multiple references in GAC communiqués. The GAC provided specific advice on the need to conduct appropriate economic studies; stability and security (i.e., root scaling); vertical integration; the expression of interest (EOI) proposal; trademark protection; and public order and morality. The case study also highlights the challenges the GAC has in providing timely advice on a topic given that each successive version of the draft applicant guidebook (DAG) was often released three weeks prior to a meeting, making it nearly impossible for GAC members to consult in advance and come with clear and approved positions. The cumulative result of this process has been that the GAC often attempts to provide comments intersessionally and/or is one cycle behind the rest of the ICANN community in discussions. The Berkman case study also points out the apparent failure of the ICANN Board and staff to respond to GAC advice, starting with the 2007 GAC Principles on new gTLDs. The .xxx case study developed by Berkman also provides insights into the GAC – Board relationship. It highlights the lack of timeliness on the part of the GAC at the outset in providing advice to the Board as the original request for input in December 2004 was not answered until April 2005. In addition, a number of governments sent letters directly to ICANN raising concerns with the ICM Registry application. While the Bylaws require the Board to explain why it does not accept the advice of the GAC, no such requirement exists for input or advice from individual governments or intergovernmental organizations. Board Action to Assess GAC Role and Effectiveness: On June 26, 2009, at the request of the GAC, the Board established a joint GAC-Board working group and directed it to perform the following activities:  Review the GAC’s role within ICANN;  Consider measures to enhance support of the GAC’s works, including interpretation of meetings, translation of documents, extension of travel 55 See Appendix C, “Accountability and Transparency at ICANN, An Independent Review,” The Berkman Center for Internet & Society, October 20, 2010, pp. 128-156 and 157-189. Accountability and Transparency at ICANN: An Independent Review {33} support for GAC members from the Least Developed Countries, and remote participation at GAC meetings; and,  Propose better ways for governments to be informed about ICANN and for enhanced opportunities for the GAC to meet with the ICANN Board and community. The working group is co-chaired by the GAC chair and by a Board member selected by the Board Governance Committee. The joint working group has met during all ICANN meetings, namely Seoul, Nairobi, Brussels and Cartagena since its formation and expects to conclude its work by the San Francisco meeting with the submission of its report to the Board. The JWG aims to finalize the report in San Francisco and further JWG discussion is anticipated on ways that the Bylaws could formally acknowledge methods for the ICANN constituencies, including the GAC, to provide inputs into the policy development process at an early stage and as the process develops.56 Initial Public Input to the ATRT on the GAC-Board Relationship During the Brussels meeting, the ATRT met with the GAC-Board working group as well as separately with the GAC and with the Board. The following issues were raised in these discussions:  The bylaws do not define what constitutes GAC “advice.” GAC submits a variety of documents to the ICANN Board, including communiqués and letters from the GAC chair. GAC believes all of these materials are “advice” triggering the Board’s obligation to adopt it or explain to the GAC why it does not accept the advice, but it is not clear that the Board agrees with this broad notion of what constitutes “advice.”  GAC first seeks to develop a consensus view of a particular issue. If it cannot do so, it will present the full ranges of views to the Board. GAC members are concerned that requiring a consensus view for all advice will impair its ability to provide advice in a timely manner, but Board members are equally concerned that the Board cannot follow “advice” that may be a compendium of competing and conflicting views of GAC members.  Although the bylaws require ICANN to request the advice of the GAC whenever the Board is considering an action for adoption that affects public policy concerns, there is no formal mechanism by which such requests are made or recorded. The GAC chair attends Board meetings as a non-voting liaison and it appears that the Board views that as putting the GAC on notice 56 http://gac.icann.org/system/files/Brussels-communique.pdf Accountability and Transparency at ICANN: An Independent Review {34} of every action the Board is considering whether or not it formally requests an opinion.57  GAC members expressed concern that the Board is not providing feedback to the GAC on the advice it does provide to the Board. One GAC member commented that the GAC regularly has to repeat its advice in subsequent communiqués because the Board does not supply any response to the GAC that it is taking the GAC advice into account in its decision making.  The bylaws set forth a formal process for the GAC to provide its input only at the Board level. However, given that policy frameworks are formulated at the level of the supporting organizations long before a matter reaches the Board for decision, some participants suggested that ICANN should make provision, including changing the bylaws, if necessary, to allow for GAC input at earlier stages of the policy development process. In the public comment process, the ATRT posed two questions to the public regarding the role of the GAC and the GAC-Board relationship:  What is your assessment of the role of the GAC and its interaction with the Board?  Are additional steps needed to ensure effective coordination by ICANN of GAC input on the public policy aspects of the technical coordination of the DNS? About ten of the comments submitted in the public input process responded to these questions. One commenter noted that the GAC “has consistently produced some of the best advice and input into ICANN processes.”58 However, others commented that the Board has not paid enough attention to the suggestions of the GAC and that there was no oversight mechanism to ensure the ICANN Board follows the GAC recommendations.59 Most commenters agreed that the GAC has a fundamental60 and important61 role to play on issues related to the public interest, but others opined that the GAC was not the “sole representative of the public interest”62 and that “all constituencies should have a role in representing the public interest.”63 57 Transcript from ATRT meeting with GAC in Brussels. See: http://brussels38.icann.org/node/12437 58 Comments of Kieran McCarthy. 59 Comments of CNNIC. Comments of the Coalition Against Domain Name Abuse (CADNA). 60 Comments of the European Telecommunications Network Operators Association (ETNO). 61 Comments of Leap of Faith Financial Services. 62 Comments of AT&T; Comments of ETNO. 63 Comments of the International Chamber of Commerce (ICC). Accountability and Transparency at ICANN: An Independent Review {35} Few commenters offered concrete suggestions as to additional steps that could be taken to improve effective coordination of GAC input by the Board. AT&T suggested that the “focus should be on improving coordination within the current advisory process as opposed to fundamentally changing the role or structure of the GAC.”64 Public Comment on the Draft Recommendations During the Cartagena meeting, the ATRT met separately with the Board and with the GAC. In addition, several parties filed comments on the draft recommendations. Overall, there was strong consensus that there is a compelling need to improve the relationship between the Board and the GAC and the process by which the Board received and considered public policy advice from the GAC. For example, Norway stated that it was “of the firm opinion that the present practice of communication between the GAC and the ICANN Board handling the GAC advice is not very good” and that there was an “urgent need for improvements.”65 On the specific question of the form by which the GAC should submit advice in recommendation 10, there was a lot of concern expressed about the recommendation that GAC advice should be “consensus” in order to trigger the Bylaw provisions obligating the Board to respond. GAC members indicated that it is the practice of the GAC to operate in consensus as reflected in its operating principles.66 Other commenters raised concerns that the ATRT was suggesting a new way of determining consensus, such as requiring unanimity or a majority vote.67 It was not the ATRT’s intent to suggest a change in the way the GAC reaches consensus on public policy issues. Accordingly, in response to these comments, we have dropped the language that the GAC “agree that only a ‘consensus’ view of its members constitutes an opinion that triggers *Board obligations+.” Instead it was agreed that this would be automatically taken care of as soon as the GAC and the Board agree on what constitutes GAC Advice (Recommendation 10 of Final Recommendations). This change is consistent with public comments that the GAC should “determine when input they file is advice *and is+ input the Board must act on according to the *Bylaws+.”68 France indicated its support for the idea that it should be “mandatory” for the Board to follow consensus GAC advice.69 To be clear, the Bylaws do not currently require the Board to follow the GAC advice without question and it is not the ATRT’s recommendation that it be mandatory for the Board to follow consensus GAC advice. 64 Comments of AT&T. 65 Comments of Norway; see also Coments of AT&T, CADNA, ETNO and ICC. 66 GAC Operating Principles, Principle 47 67 Comments of ICC; see also Comments of CADNA. 68 Comments of ICC; see also Comments of Gunnarson. 69 Comments of France. Accountability and Transparency at ICANN: An Independent Review {36} There was widespread support for recommendation 14 that urges the Board to “increase the level of support and commitment of governments to the GAC process.” Denmark noted that is it “paramount for ICANN’s global legitimacy as a public interest organization that ICANN seek to increase the level of support and commitment of governments to the GAC.”70 Some members of the GAC raised concerns that the draft proposal for ICANN to work more closely with senior government officials might interfere with the ongoing work of the GAC. To resolve any confusion, the ATRT has rewritten recommendation 14 to make clear that any engagement of ICANN with senior officials should be complementary of the existing GAC process and should not replace or interfere with the existing work of the GAC. Questions for Review Is ICANN adequately assessing the role and effectiveness of the GAC? Do the activities of the JWG constitute an adequate assessment of the role and effectiveness of the GAC on the part of ICANN? Is ICANN adequately making recommendations for improvement to ensure effective consideration by ICANN of GAC input on the public policy aspects of the technical coordination of the DNS? Would effective consideration of the public policy aspects of ICANN issues be improved by:  Defining more specifically what constitutes a GAC advice under the bylaws? Issues to be considered include what form such advice must take to trigger Board obligations to follow it or engage in mediation process whether to require a consensus, what obligations the Board has, if any, with respect to other forms of GAC “advice.”  Defining more specifically the process by which the Board seeks advice from the GAC on public policy issues? Issues to be considered include what form of notice the Board should give, whether the process is one-time or iterative, how the Board should track this process, either through a database or otherwise.  Defining more specifically how the Board considers and responds to GAC advice.  Facilitating the GAC, through bylaw changes or otherwise, to engage with supporting organizations and other constituencies early in the process to 70 Comments of Denmark; see also Comments of AT&T and ICC. Accountability and Transparency at ICANN: An Independent Review {37} ensure that public policy input is provided and considered in a manner to help shape the formulation of ICANN policies.  Having ICANN provide more support to the GAC. Issues to be considered include preserving the independence of the GAC and ensuring that ICANN policy staff is fully aware of GAC issues and concerns.  Enabling the GAC to work intersessionally in order to more quickly respond to public policy changes proposed by ICANN? Findings The current Board-GAC relationship is dysfunctional and has been so for several years. While the Bylaws limit the Board’s ability to evaluate the performance and operation of the GAC, the Board should have acted long before now to engage the GAC to resolve the ambiguities in the Bylaws and to build a more productive working relationship with the GAC. The joint GAC-Board working group established in 2009 offers an appropriate vehicle for these issues to be considered and recommendations developed. But for this process to produce a result that demonstrates that ICANN is adequately assessing the GAC, the Review Team strongly recommends that the following issues be resolved by the conclusion of the working group effort. First, both the Board and the GAC, need to clarify what constitutes GAC “advice” under the Bylaws and the Board needs to exercise more discipline in asking for GAC advice on public policy issues. The GAC notion that any communication it has with the Board constitutes GAC advice has proven to be unworkable as there has likely been confusion as to which pieces of Board input have triggered the Board’s obligations to follow GAC advice. Similarly, the Board position that it does not need to formally request a GAC opinion because the GAC is “on notice” as to all matters before the Board has also confused the process envisioned in the Bylaws by which the Board more formally solicits GAC advice. Second, both the Board and the GAC need to work together to have the GAC advice provided and considered on a more timely basis. Instituting a more formal process for requesting opinions should help in this regard by making it clearer when the Board is seeking a GAC opinion but given that the GAC meets face-to-face only three times a year, it will need to establish other mechanisms for preparing and reaching agreement on consensus opinions in a more timely manner. Third, the Board, working with the GAC, needs to develop and implement a process to engage the GAC earlier in the policy development process. All parties would benefit if the supporting organizations and other constituencies could receive public policy input as early in the policy development process as possible. Such a process Accountability and Transparency at ICANN: An Independent Review {38} would also reduce the delay associated with requesting GAC input only after an issue has been submitted to the Board for its consideration and approval and should reduce the back-and-forth between the Board and the GAC that has not served either party well in the specific cases of .xxx and gTLDs. As a related matter, the Board and the GAC should jointly develop and implement actions to ensure that the GAC is fully informed as to the policy agenda at ICANN and that ICANN policy staff is aware of and sensitive to GAC concerns Fourth, the Board should endeavor to increase the level of support and commitment of governments to the GAC process. Recommendations 9. The Board, acting through the GAC-Board joint working group, should clarify by March 2011 what constitutes GAC public policy “advice” under the Bylaws. 10. Having established what constitutes “advice,” the Board, acting through the GAC-Board joint working group, should establish by March 2011 a more formal, documented process by which it notifies the GAC of matters that affect public policy concerns to request GAC advice. As a key element of this process, the Board should be proactive in requesting GAC advice in writing. In establishing a more formal process, ICANN should develop an on-line tool or data base in which each request to the GAC and advice received from the GAC is documented along with the Board’s consideration of and response to each advice. 11. The Board and the GAC should work together to have the GAC advice provided and considered on a more timely basis. The Board, acting through the GAC-Board joint working group, should establish by March 2011 a formal, documented process by which the Board responds to GAC advice. This process should set forth how and when the Board will inform the GAC, on a timely basis, whether it agrees or disagrees with the advice and will specify what details the Board will provide to the GAC in circumstances where it disagrees with the advice. This process should also set forth the procedures by which the GAC and the Board will then “try in good faith and in a timely efficient manner, to find a mutually acceptable solution.” This process must take into account the fact that the GAC meets face-to-face only three times a year and should consider establishing other mechanisms by which the Board and the GAC can satisfy the Bylaw provisions relating to GAC advice. 12. The Board, acting through the GAC-Board joint working group, should develop and implement a process to engage the GAC earlier in the policy development process. Accountability and Transparency at ICANN: An Independent Review {39} 13. The Board and the GAC should jointly develop and implement actions to ensure that the GAC is fully informed as to the policy agenda at ICANN and that ICANN policy staff is aware of and sensitive to GAC concerns. In doing so, the Board and the GAC may wish to consider creating/revising the role of ICANN staff support, including the appropriate skill sets necessary to provide effective communication with and support to the GAC and whether the Board and the GAC would benefit from more frequent joint meetings. 14. The Board should endeavor to increase the level of support and commitment of governments to the GAC process. First, the Board should encourage member countries and organizations to participate in GAC deliberations and should place a particular focus on engaging nations in the developing world, paying particular attention to the need to provide multilingual access to ICANN records. Second, the Board, working with the GAC, should establish a process to determine when and how ICANN engages senior government officials on public policy issues on a regular and collective basis to complement the existing GAC process. Report of Working Group 3 Statement of Purpose Working Group 3 evaluated the processes by which ICANN receives public input (including adequate explanation of decisions taken and the rationale thereof); the extent to which ICANN's decisions are embraced, supported and accepted by the public and the Internet community; the policy development process to facilitate enhanced cross community deliberations and effective and timely policy development. Accountability and Transparency at ICANN: An Independent Review {40} Background Statement Relevant Provisions of the Bylaws. Article III, Section 6 of the ICANN bylaws requires ICANN to provide Notice and Comment “with respect to any policies that are being considered by the Board for adoption that substantially affect the operation of the Internet or third parties, including the imposition of any fees or charges.”71 The bylaws also state that, “*a+s appropriate and to the extent provided in the ICANN budget, ICANN shall facilitate the translation of final published documents into various appropriate languages.”72 Article III also contains provisions calling for the maintenance of a website by ICANN, a Manager of Public Participation, Meeting Notices and Agendas and Minutes and Preliminary Minutes of the meetings of the Board, Supporting Organizations and Councils thereof.73 The GNSO Policy Development Process (PDP) procedures (including Public Comment) are addressed in Annex A of the bylaws.74 The ccNSO Policy Development Process (PDP) procedures (including Public Comment) are addressed in Annex B of the bylaws.75 Recent Public Comment Periods and Policy Development Processes The Berkman Center conducted research on 3 separate Public Comment opportunities conducted by ICANN. Berkman reviewed, within the context of the newTLD round, Public Comment processes concerning the DAG, the Expression of Interest and the IRT. Berkman also reviewed the Public Comment process conducted by the ATRT. Board action to assess the process by which ICANN seeks to improve public participation and the manner in which it receives public input, including adequate explanation of decisions taken and the rationale thereof. - Board Public Participation Committee – much activity has taken place within and at the initiation of the Board Public Participation Committee (PPC). The PPC has developed a web page as well as short and long-term reports to improve public participation in ICANN and the conduct of ICANN meetings on a number of fronts. The PPC recommended the implementation of the requirement to post documents 15 days prior to ICANN meetings. The PPC asks ICANN Staff for 6 month and 12 month draft working plans to prepare for public participation needs. The PPC also solicits feedback from the ICANN community concerning 71 ICANN Bylaws, Article III, Section 6. 72 ICANN Bylaws, Article III, Section 7. 73 ICANN Bylaws, Article III, Sections 2, 3, 4 and 5. 74 ICANN Bylaws, Annex A. 75 ICANN Bylaws, Annex B. Accountability and Transparency at ICANN: An Independent Review {41} the organization of ICANN meetings to propose better, more efficient, more friendly, safer and more conversational meetings. The PPC introduced linguistic services and general policy for interpretation as well as expanded remote participation.76 Community action to improve the processes by which Policy Development Processes are conducted within ICANN. - New GNSO Policy Development Process - The PDP Work Team issued an Initial Report on May 31, 2010 with 45 recommendations and a number of considerations that are put forward to enhance community confidence in the new PDP processes.77 - Cross Community Deliberation – Recent examples of cross community deliberations that are contributory but not limited to formal PDP's within ICANN SO's are the Cross Community WG formed to discuss and make recommendations on the ccTLD IDN Fast Track process; the Recommendation 6 Cross Community Work Group that explored implementation recommendations regarding aspects of the new gTLD Application Guidelines; and the Joint DNS Security and Stability Analysis Working Group (DSSA-WG). In general, such cross community deliberations are Work Groups (or similar structures) that address matters of common interest to the participating Supporting Organisations (SOs), Advisory Committees (ACs), and others. Initial Public Comment to the ATRT on public input, the public and Internet community embrace of ICANN decisions, policy development process and cross community deliberations “There are at least three fundamental problems with ICANN’s public comment process. The first is the sheer volume of the comment periods. As of July 7, there were 20 open public comment periods. Public comment deadlines for eight of these were bunched between July 18 and July 27…. Second, there have been several instances in the past year in which ICANN has done no more than go through the motions of seeking public comment on issues on which it had already decided upon at least the next step in a course of action. Three of these instances were summarized in a comment filed by COA on February 9, 2010.” http://forum.icann.org/lists/affrev-draft-processes/msg00016.html “Third, as ATRT members heard from the participants in the Commercial Stakeholders Group (CSG) meeting in Brussels last month, it is common for public comments received by ICANN to be digested by it in an incomplete and sometimes misleading fashion. It seems very likely that no one at ICANN, other than a very restricted number of staff 76 http://www.icann.org/en/committees/participation/; interview with Jean Jacques Subrenat. 77 http://forum.icann.org/lists/gnso-ppsc-wg/pdfUwIxdLnA8H.pdf. Accountability and Transparency at ICANN: An Independent Review {42} charged with reviewing and summarizing public comments, ever reads more than a handful – if that many – of the actual comments submitted. Everyone else depends on the staff-generated summary to learn what the public had to say about a particular issue. This includes senior ICANN staff and Board members, to the extent that they are aware of the contents of submitted public comments at all, and most members of the public. Thus, concerns about problems with these summaries must be taken seriously.” Coalition for Online Accountability “ICC members are concerned that transparency in some cases is equated with the posting of voluminous materials and information. ICANN has made significant progress in transparency in decision making, and future strengthening efforts should focus on the link between information-posting transparency and how the community can be truly informed about decision making. First, in addition to the initial act of soliciting comments, it is critical to ensure an adequate amount of time for stakeholders to reply (30 or 60 days, depending on the complexity of the topic). Second, it is critical at the end of a consultation to summarize the range of substantive positions submitted and to provide the ICANN rationale for why certain views from constituencies were either accepted or rejected in determining ICANN’s decision. Third, it is also essential that an adequate range of input is in fact received from the community, which in several instances has not been the case, most likely because of the volume of parallel processes and work items.” International Chamber of Commerce “It's undeniable that ICANN has made a great deal more information available online in recent years, But (sic) one of the recurring criticisms leveled by community members is the opacity of how ICANN staff digests community comments and comes up with policy implementation plans. It is now impossible for stakeholders to learn whether and how their working group reports and comments were factored into staff reports and board decisions. In a bottom-up consensus body, the ability of stakeholders to track their promised impact on the process is critical. At the time of the JPA midterm review, this answer was not possible to know. Today, ICANN has yet to establish a mechanism to address this oft-voiced concern.” Net Choice "The ASO Policy Development Process is indeed complex, as a global policy must be submitted to all Regional Internet Registries and discussed at regional level, respecting all different PDPs. The process requires the proposer to attend all regional meetings worldwide. The proposed policy must be approved in the same terms by all regional bodies, before it can be endorsed by the ASO council, and then approved by the ICANN Board, after a public comment period at ICANN level. ETNO believes that the absence of a forum for discussion of such issues at ICANN level and the absence of cross community open discussion at that level lacks transparency and makes the process even more complex. While respecting the necessity to discuss Accountability and Transparency at ICANN: An Independent Review {43} such issues at regional level, ETNO believes that some improvement is needed as regards cross-community deliberations." ETNO Public Comment on the Draft Recommendations During its interactions at the Cartagena, Colombia ICANN meeting with the public, the GAC and the ICANN Board, and through the public comments filed, the ATRT received generally positive and supportive feedback on the proposed recommendations developed under Working Group 3. The Government of Denmark noted the importance of “clarification and prioritization of issues, publication of work programs and agendas along with clear timelines that provides the community adequate time for meaningful engagement.”78 Commenters also supported the recommendations that called for the availability of multilingual texts of ICANN’s PDP and public input documentation. ICC raised the issue of having one versus multiple texts that are “binding.”79 This issue should be addressed by ICANN as part of its implementation. Commenters supported the recommendation that ICANN’s senior staffing arrangements are appropriately multi-lingual, delivering optimal levels of transparency and accountability to the community.80 Questions for Review Is ICANN support for the policy development process adequate to ensure effective and timely policy development? Does the existing policy development process adequately facilitate enhanced cross community deliberations? Are the Policy Process Steering Committee-Policy Development Process and the Policy Process Steering Committee-Working Group efforts adequately addressing timely and effective policy development? 78 Comments of the Danish Ministry of Science, Technology and Innovation, November 23, 2010; see also Comments of ETNO, December 3, 2010; Comments of AT&T, December 3, 2010; Comments of the Coalition for Online Transparency, December 3, 2010; see also Comments of the At-Large Advisory Committee, December 6, 2010. At-Large Advisory Committee called for clearly defined channels for transmission of advice between all ACs and the Board as well as mechanisms to alert ICANN to issues of serious concern that have the ability to seriously affect government and public confidence in ICANN . 79 Comments of International Chamber of Commerce (ICC), November 18, 2010. 80 Comments of the French Ministry of Foreign and European Affairs, December 3, 2010. Accountability and Transparency at ICANN: An Independent Review {44} Does the level of multilingualism in the policy development process and Board decision making offer sufficient access and opportunity to participate for the global ICANN Community? Would public input be improved if ICANN’s Notice and Comment process had stratified categories? (e.g. Notice of Inquiry, Notice of Proposed Policy Making) Would cross community deliberations be improved through the establishment of procedures for cross community deliberations (e.g. normal and “fast track”) and the establishment of explicit mechanisms to trigger cross community deliberations? Would public and Internet community embrace of ICANN Board resolutions be improved if the resolutions articulated the rationale for the decision taken including the reasons various public input was accepted or rejected in reaching the decision? Findings The timeliness and effectiveness of policy making is a serious concern among participants in ICANN processes. The numerous changes in projected completion dates for newTLD round preparatory work were a source of concern that led to a specific proposal (i.e. the Expression of Interest) from some members in the community. An often cited concern is the sheer volume of open public comments. The ATRT takes into account the fact that the volume of open proceedings is affected by the actions of constituent bodies within ICANN and is not uniquely influenced by ICANN Staff or the Board. While efforts to prioritize policy making are underway and could assist in addressing some concerns, it appears that significant improvements could be made in both the nature and structure of the public input and policy making processes within ICANN. Article III, Section 6 of the Bylaws provides, in part, that ICANN should provide a reasonable opportunity for parties to comment on the adoption of the proposed policies, to see the comments of others, and to reply to those comments, prior to any action by the Board. Presently, the comment cycles are not structured to provide unique “reply” comment” cycles that could add efficiencies and value to the receipt of community input. Recommendations 15. The Board should, as soon as possible but no later than June 2011, direct the adoption of and specify a timeline for the implementation of public notice and comment processes that are distinct with respect to purpose (e.g. Notice of Inquiry, Notice of Policy Making) and prioritized. Prioritization and stratification should be established based on coordinated community input and consultation with staff. Accountability and Transparency at ICANN: An Independent Review {45} 16. Public notice and comment processes should provide for both a distinct “Comment” cycle and a “Reply Comment” cycle that allows community respondents to address and rebut arguments raised in opposing parties’ comments. 17. As part of implementing recommendations 15 and 16, timelines for public notice and comment should be reviewed and adjusted to provide adequate opportunity for meaningful and timely comment. Comment and Reply Comment periods should be of a fixed duration. 18. The Board should ensure that access to and documentation within the policy development processes and the public input processes are, to the maximum extent feasible, provided in multi-lingual manner. 19. Within 21 days of taking a decision, the ICANN Board should publish its translations (including the required rationale as outlined in other ATRT recommendations) in the languages called for in the ICANN Translation Policy. 20. The Board should ensure that all necessary inputs that have been received in policy making processes are accounted for and included for consideration by the Board. To assist in this, the Board should as soon as possible adopt and make available to the community a mechanism such as a checklist or template to accompany documentation for Board decisions that certifies what inputs have been received and are included for consideration by the Board. 21. The Board should request ICANN staff to work on a process for developing an annual work plan that forecasts matters that will require public input so as to facilitate timely and effective public input. 22. The Board should ensure that ICANN’s senior staffing arrangements are appropriately multi-lingual, delivering optimal levels of transparency and accountability to the community. Report of Working Group 4 Statement of Purpose Working Group 4 evaluated one element of Board Governance, specifically undertaking “the consideration of an appeal mechanism for Board decisions;”81 Background Statement 81 Affirmation of Commitments, Sec. 9.1(a): http://icann.org/en/documents/affirmation-of-commitments-30sep09-en.htm Accountability and Transparency at ICANN: An Independent Review {46} Relevant Provisions of the Bylaws: The ICANN Bylaws provide for three mechanisms that provide for the appeal of Board decisions. These are described in the bylaws as “creating processes for reconsideration and independent review of ICANN actions and periodic review of ICANN’s structure and procedures, are intended to reinforce the various accountability mechanisms otherwise set forth in these Bylaws, including the transparency provisions of Article III and the Board and other selection mechanisms.”82 The three mechanisms are: 1. Office of the Ombudsman: The Office of the Ombudsman acts as “a neutral dispute resolution practitioner for those matters for which the provisions of the Reconsideration policy set forth in Section 2 of Article IV or the Independent Review Policy set forth in Section 3 of Article IV have not been invoked. The principal function of the Ombudsman shall be to provide an independent internal evaluation of complaints by members of the ICANN community who believe that the ICANN staff, Board, or an ICANN constituent body has treated them unfairly.”83 2. Reconsideration: Reconsideration provides “a process by which any person or entity materially affected by an action of ICANN may request review or reconsideration of that action by the Board.”84 3. Independent Review of Board Actions: The Independent Review of Board Actions (IRP) provides “a separate process for independent third-party review of Board actions alleged by an affected party to be inconsistent with the Articles of Incorporation or Bylaws.”85 Uses of the Review Mechanisms: Each review mechanism has been employed at least once by members of the ICANN community to appeal Board decisions or actions. Some have been more frequently employed than others. The Independent Review mechanism has been invoked on only one occasion. Office of Ombudsman - The Office of the Ombudsman has been used frequently receiving over 2,000 complaints over the previous 5 years. A vast majority of those complaints were rejected on jurisdiction and the remainder were addressed through a variety of means including, but not limited to, resolution, referral, system improvement or self-help. 82 ICANN Bylaws, Article IV, Section 1: http://www.icann.org/en/general/bylaws.htm#IV 83 ICANN Bylaws, Article V, Section 2: http://www.icann.org/en/general/bylaws.htm#V 84 ICANN Bylaws, Article IV, Section 2.1: http://www.icann.org/en/general/bylaws.htm#IV 85 ICANN Bylaws, Article IV, Section 3.1: http://www.icann.org/en/general/bylaws.htm#IV Accountability and Transparency at ICANN: An Independent Review {47} Reconsideration - Since 1999, there have been 44 requests for Reconsideration raised to the BGC and its predecessor committee. Of these, 32 (72.7%) were rejected or denied, or recommended that the Board take no action. In two cases, the complainant withdrew the request, and one case was declared to be groundless. Nine cases (20.4%) were approved by the BGC and adopted by the Board. One request is currently pending. Several Reconsideration requests looked at by WG4 did not include sufficient published documentation for WG4 to determine whether or not the Board reconsidered them, requiring further investigation by ICANN Staff. IRP - The IRP has been used once by ICM Registry in the .xxx decision review. At the end of the process the Panel declared that “*f+irst, the panel determined that the holdings of the IRP are advisory in nature and, thus, do not constitute binding arbitral awards. Second, the IRP panel determined that ’the actions and decisions of the ICANN Board are not entitled to deference whether by application of the “business judgment rule” or otherwise; they are to be appraised not deferentially but objectively.’ Finally, the IRP Panel also determined that ‘the Board of ICANN in adopting its resolutions of June 1, 2005, found that the application of ICM Registry for the .xxx TLD met the required sponsorship criteria.’ The IRP noted that although there ‘is a measure of ambiguity in the pertinent provisions of the Bylaws,’ the use of the phrase ‘to declare whether an action or inaction of the Board was inconsistent’ supported an interpretation that IRP decisions were intended to be advisory, and not binding on the ICANN Board. In particular, the IRP likened this to a recommendation rather than a binding order.”86 Initial Community Feedback on Review Mechanisms The ATRT received numerous comments from the community during the Public Comment period and during the June 2010 ICANN meeting in Brussels.87 Many comments expressed concerns about the lack of an accountability mechanism that was sufficiently independent of the ICANN Board and that could issue binding decisions: “Establish a Board of Review with authority to adjudicate disputed decisions of the board of directors and to reverse them if repugnant to the charter or bylaws.” *S. Gunnerson] http://forum.icann.org/lists/atrt-questions-2010/msg00001.html 86 See Appendix C, “Accountability and Transparency at ICANN, An Independent Review, The Berkman Center for Internet & Society, October 20, 2010, p. 188. 87 Community Feedback for the AoC/ATRT: http://forum.icann.org/lists/atrt-questions-2010/ Accountability and Transparency at ICANN: An Independent Review {48} “It [External Accountability] consists of an oversight or appeals process conducted by an independent entity with the authority to reverse the organization’s decisions or impose sanctions on it for failure to comply with agreed rules.” *M. Mueller+ http://forum.icann.org/lists/atrt-questions-2010/msg00002.html “ICANN’s current accountability mechanisms, including the Ombudsman, Board reconsideration procedure, and the Independent Review Panel provide some level of accountability within ICANN and are each important tools. However, all are merely advisory and ICC believes that ICANN needs strengthened and independent accountability mechanisms.” *ICC+ http://forum.icann.org/lists/atrt-questions-2010/msg00004.html “…it is advised that ICANN set up a permanent establishment, which should be independent in ICANN and in collaboration with all present accountability mechanisms, to inspect the major works from all levels and to establish a comprehensive accountability framework.” *CNNIC+ http://forum.icann.org/lists/atrt-questions-2010/msg00005.html “ICANN should give serious consideration to adopting review mechanisms that occur prior to final decisions being taken, and should improve its organizational structure to adequately represent the interest of the public within its governance model.” *IPC+ http://forum.icann.org/lists/atrt-questions-2010/msg00019.html “The business community, in particular, requested that ICANN establish new mechanisms for redress where an ICANN Board decision adversely affected a company or industry. While ICANN has implemented and expanded some review processes, none of those processes provide any potential for relief outside of the Board deciding to reverse its own decision.” *NetChoice+ http://forum.icann.org/lists/atrt-questions-2010/msg00020.html Community Feedback on the Draft Recommendations The issue of independent review continued to draw significant attention from the Community. R. Shawn Gunnarson provided comments and a brief on the question of California law challenging ICANN staff’s interpretation citing the possibility of the creation of “members” and the possibility of arbitration with respect to registry contracts.88 The ICC urged that the assessment called for in the recommendations 88 Comments of R. Shawn Gunnerson, December 3, 2010. Accountability and Transparency at ICANN: An Independent Review {49} “should investigate the extent to which the IRP may have binding authority to overturn Board decisions in order to help ensure independence.”89 The Berkman Center Case Study of the IRP The Berkman Center undertook a case study of the IRP review of the .xxx matter. The case study observations concerning the IRP included the following: “Given the cost and lengthiness of the IRP proceedings, several interviewees questioned whether the IRP provides an accessible and widely applicable means for reviewing the ICANN Board’s decisions. Some interviewees stated that the high cost of the proceedings meant that it offers a venue for only the wealthiest of participants and is not a viable option for the vast majority of ICANN stakeholders. Others asserted that the cost, risk, and duration of the IRP will mean that no others will be likely to appeal ICANN decisions via this mechanism, even among those with the financial resources to do so. In addition to the questions raised about limits of the IRP as an accountability mechanism, others questioned how ICANN’s interpretation of the process reflects on ICANN’s commitment to accountability. Some interviewees expressed the belief that ICANN's interpretation of the IRP—that the process should not entail live testimony, that ICANN should be offered deference under the business judgment rule, and that the IRP’s decision should not be binding on the ICANN Board—was inconsistent with an organization with a mandate to ensure that it is accountable to its stakeholders. Perceptions also varied with regard to the ultimate effectiveness of the IRP as an accountability mechanism in this specific case. Some asserted that this process demonstrated accountability, given that an applicant for a new TLD was able to initiate the review process and argue their case on the merits before independent arbitrators, and in doing so compelled ICANN to defend the basis of its actions. Moreover, IRP’s decision appears to have convinced ICANN to reverse its decision. Other interviewees expressed the opinion that the absense [sic] of a binding resolution from the IRP is indicative of the fundamental lack of accountability at ICANN.”90 89 Comments of the International Chamber of Commerce, November 18, 2010; see also Comments of AT&T, December 3, 2010.. 90 See Appendix C, “Accountability and Transparency at ICANN, An Independent Review, The Berkman Center for Internet & Society, October 20, 2010, p. 189. Accountability and Transparency at ICANN: An Independent Review {50} Relevant Efforts to Address Independent Review ICANN’s President’s Strategic Committee (PSC) was formed in 2005 to provide observations and recommendations concerning strategic issues facing ICANN, and contributing to ICANN’s strategic planning process, which occurs in consultation with the community.91 The Improving Institutional Confidence (IIC) consultation was announced by ICANN's Chairman, Peter Dengate Thrush, on Thursday 28 February 2008 at the U.S. Government's Department of Commerce Midterm Review of the Joint Project Agreement (JPA) between it and ICANN. The Chairman asked the PSC to outline a plan for developing a transition framework. On 27 February 2009, the PSC published its draft Implementation Plan for Improving Institutional Confidence, which had gone through three public comment periods, to the global Internet community for information and discussion during ICANN's Mexico City meeting. Among the recommendations in the IIC draft Implementation Plan were the following: “Recommendation 2.7: Seek advice from a committee of independent experts on the restructuring of the review mechanisms to provide a set of mechanisms that will provide for improved accountability in relation to individual rights and having regard to the two proposed further mechanisms in RECOMMENDATIONS 2.8 and 2.9 immediately below. Recommendation 2.8: Establish an additional mechanism for the community to require the Board to re-examine a Board decision, invoked by a two-thirds majority vote of two thirds of the Councils of all the Supporting Organizations and two-thirds of members of all the Advisory Committees. For the Governmental Advisory Committee, a consensus statement from all the members present at a physical meeting shall suffice. Recommendation 2.9: Establish an extraordinary mechanism for the community to remove and replace the Board in special circumstances.”92 ATRT Request for Information (RFI) to ICANN Staff WG4 sent a request for information to ICANN staff concerning the IIC recommendations. The RFI stated the following: 91 http://www.icann.org/en/psc/ 92 Draft Implementation Plan for Improving Institutional Confidence, p.7. http://www.icann.org/en/jpa/iic/draft-iic-implementation-26feb09-en.pdf Accountability and Transparency at ICANN: An Independent Review {51} “The 2009 report entitled ’Improving Institutional Confidence: The Way Forward’ proposed two new methods of accountability for the ICANN Board. These include a Community Re-Examination Vote and the formation of a standing Independent Review Body. The ATRT requests that ICANN provide an update on the status of these recommendations, including: (a) Were the recommendations adopted? (b) If so, were they adopted in the state proposed in the report, or were modifications made? (c) If adopted, what is the procedure and time frame to implement these recommendations? (d) If adopted, how will ICANN communicate these changes to the larger community? (e) If the recommendations were not adopted, what is the reasoning that led to ICANN disregarding these recommendations?” ICANN Staff replied to the WG4 RFI as follows: “In July 2009, ICANN posted for public comment proposed Bylaws amendments setting out the Community Re-Examination Vote and the modification of the Independent Review Process to create a standing Independent Review Body. See http://www.icann.org/en/public-comment/public-comment-200909.html#iic-by.... Both of these Bylaws changes were proposed through the Improving Institutional Confidence (IIC) report. To allow for community input on the formation of the recommendations, the public comment period remained open for four months. ICANN’s Summary of Comments received is available at http://forum.icann.org/lists/iic-proposed-bylaws/msg00020.html. Most commenters were opposed to ICANN proceeding with the implementation of the new accountability mechanisms as drafted. There were various concerns raised, including a consensus that alterations of the current Independent Review Process would be premature prior to the resolution of the then-pending ICM Independent Review Proceeding, and an opportunity to evaluate the lessons to be learned from the inaugural use of the Independent Review mechanism. For the Community Re-Examination Vote, commenters raised multiple concerns, such as the binding nature of the process as well as the required thresholds for calls for Re-Examination. As noted in the Summary, no commenters were in support of the adoption of the proposed Bylaws as written. Because of the strong community opposition to the proposals as drafted, staff recommended that no further implementation action be taken on the two accountability mechanisms until the recommendations and the processes to reach Accountability and Transparency at ICANN: An Independent Review {52} those recommendations could be revised. One of the intervening events – the action based on the Independent Review Panel’s Declaration in the ICM IRP – is still ongoing. Further, since the July 2009 posting of the proposed Bylaws, the Affirmation of Commitments was signed, and this review team was empanelled to review community engagement and inputs, among other topics. In light of the ATRT’s work, this review team may assist in identifying what additions or modifications to accountability mechanisms may be most beneficial and appropriate for the community. ICANN strived for accountability to the community in not implementing the mechanisms that were clearly identified as deficient and lacking in transparency in process. ICANN has not ’disregarded’ the recommendations, but is instead listening to the community in terms of the proper consideration of these new accountability mechanisms.”93 Overarching Issue – Binding Appeal as the Standard for Accountability In addressing the question regarding the possibility that independent review mechanism of ICANN Board decisions could issue binding decisions, WG4 queried ICANN about California law governing ICANN and any implications for a possible recommendation from the ATRT. ICANN staff provided the following response: “Limitations on Third Party Review of Corporate Board Actions under California Law - California law requires that the activities and affairs of a corporation shall be conducted and all corporate powers shall be exercised by or under the direction of the board of directors. See Cal. Corp. Code § 5210. - The board may delegate the management of the activities of the corporation to any person or persons, management company, or committee however composed, provided that all corporate powers shall be exercised under the ultimate direction of the board. Id. - Although the board is broadly empowered to delegate certain management functions to officers, employees, committees and other third parties, the board cannot empower any entity to overturn decisions or actions of the board because that would result in that entity indirectly controlling the activities and affairs of the corporation and thus usurping the legal duties of the board. 93 http://www.icann.org/en/reviews/affirmation/activities-1-en.htm; the document can be found at “Documents submitted to the ATRT.” At the time of publication, the link to those documents was not working so a direct hyperlink was not available. Accountability and Transparency at ICANN: An Independent Review {53} - In order to exercise its fiduciary duties to the corporation under California law, the board may not abdicate its ultimate authority to exercise all corporate powers. - Entering into binding arbitration clauses for certain actions within contractual agreements would be acceptable, but cannot be used as a catch-all waiver of a California corporation board’s legal rights and obligations to have final responsibility for actions of the organization.”94 Questions for Review Are the three existing accountability review mechanisms in ICANN (i.e. Office of the Ombudsman, Reconsideration, and the IRP) and there inter-relationship, in some cases, clear and well understood? Are the processes and decisions (or recommended actions) of the three existing accountability review mechanisms adequately publicized? Has ICANN sufficiently reviewed and assessed the three existing accountability review mechanisms and potentially new accountability review mechanisms as called for in the IIC draft Implementation Report? Would the Office of the Ombudsman be improved if its framework were reviewed vis-à-vis internationally accepted standards? Would the Reconsideration mechanism be improved by reviewing publication practices of the Reconsideration process? Findings While there was concern from the Community and, in part, from the Berkman Case Studies, over the fact that none of the three accountability mechanisms can review and potentially reverse ICANN Board decisions with binding authority, the ATRT did not reach consensus on whether binding authority was the standard upon which to judge ICANN’s accountability. The ATRT also discussed the possible scope and application of California law and focused on the nature of the various decisions that the ICANN Board is obligated to make under the law. The ATRT discussed both the question of desirability of a binding third-party review and ICANN’s recitation of 94 ICANN Memorandum: “Limitations on Third-Party Review of Corporate Board Actions under California Law,” http://icann.org/en/reviews/affirmation/third-party-review-of-board-acti... Accountability and Transparency at ICANN: An Independent Review {54} California law with the Berkman Center during its face-to-face meetings in Boston, in order to better understand the merits and demerits of such an approach, its scope and possible application in the context of a possible independent review mechanism. It has taken into account the respective considerations and recommendations as summarized in the Berkman final report. In the course of broad consultations, ATRT received feedback to the effect that ICANN could enter into agreements with parties that called for binding arbitration without running afoul of California law. While this latitude could apply in a contractual context, it is less clear and deserves further legal analysis as to what extent and through what mechanisms ICANN could agree to enter into binding arbitration more generally. To the extent that this might limit the availability of such a mechanism to contracting parties, the ATRT recognized the possibility that such a mechanism could have limited utility from a community point-of-view. In summary, while some members of the ATRT believe that having a binding appeals process is critical to ensure accountability to the community and the long term viability of the multi-stakeholder ICANN model, other members of the ATRT raised concerns that such a standard would create a new set of accountability and transparency issues by assigning to some new, unnamed set of individuals the power to overturn Board decisions. The ATRT did agree, however, that ensuring existing review mechanisms were either sufficiently independent of the Board or adequately structured was critical to ensuring accountability. The ATRT noted that work by ICANN and the community to address recommendations of the IIC was underway. Public Comment had been received on proposed bylaw changes, but implementation work did not advance for reasons stated in ICANN staff’s response to WG4’s Request for Information. The ATRT recognizes that exploration by ICANN staff and the community of revised, new mechanisms under Recommendation 2.8 and Recommendation 2.9 of the IIC, may continue. With respect to the AoC review, the ATRT identified specific issues with respect to the three existing review mechanisms that should be addressed by ICANN in conjunction with a committee of independent experts. With regard to the Office of the Ombudsman, the ATRT received community feedback regarding the effectiveness of the Office of the Ombudsman, and conducted two interviews with the Ombudsman. The Ombudsman is not perceived by the community to be a fully independent accountability mechanism for accountability of the ICANN Board. Questions have been raised about inconsistencies between the structure and operation of ICANN’s Office of the Ombudsman and internationally accepted standards for Ombudsman. The ATRT also asks the ICANN Board to explain the metrics used to determine the Ombudsman’s bonus and to consider this as well as broader compensation issues in context of the review of the Office of the Ombudsman under recommendation 24. Accountability and Transparency at ICANN: An Independent Review {55} The ICANN bylaws charge the Board Governance Committee (BGC) with the management of Reconsideration requests. Because the BGC is comprised exclusively of existing Board members, it is therefore not independent. With regard to Reconsideration requests, the grounds that must be satisfied to sustain a Reconsideration request is seen by some as constraining the ability of the community to use this process. Additionally, the history of Reconsideration request resolution and the publication of the proceedings and decisions do not reflect sufficient clarity and consistency to satisfy transparency expectations. Last, the IRP is viewed as potentially costly and too long in duration to provide a broad based and timely review mechanism for the broader ICANN community. Some members of the ATRT concluded that the IRP was inaccessible to most segments of the community and is not necessarily an attractive alternative to courts as a review mechanism. Recommendations 23. As soon as possible, but no later than June 2011, the ICANN Board should implement Recommendation 2.7 of the 2009 Draft Implementation Plan for Improving Institutional Confidence which calls on ICANN to 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. This should be a broad, comprehensive assessment of the accountability and transparency of the three existing mechanisms and of their inter-relation, if any (i.e., whether the three processes provide for a graduated review process), determining whether reducing costs, issuing timelier decisions, and covering a wider spectrum of issues would improve Board accountability. The committee of independent experts should also look at the mechanisms in Recommendation 2.8 and Recommendation 2.9 of the Draft Implementation Plan. Upon receipt of the final report of the independent experts, the Board should take actions on the recommendations as soon as practicable. 24. As soon as possible but no later than the March 2011 ICANN meeting, the operations of the Office of Ombudsman and the relationship between the Office of the Ombudsman and the Board of Directors should be assessed and, to the extent they are not, should be brought into compliance with the relevant aspects of internationally recognized standards for: a) an Ombudsman function; and b) a Board supporting such a function under the Standards of Practice of the International Ombudsman Association. 25. As soon as possible, but no later than October 2011, the standard for Reconsideration requests should be clarified with respect to how it is applied and Accountability and Transparency at ICANN: An Independent Review {56} whether the standard covers all appropriate grounds for using the Reconsideration mechanism. 26. As soon as possible, but no later than October 2011 the ICANN Board, to improve transparency, should adopt a standard timeline and format for Reconsideration Requests and Board reconsideration outcomes that clearly identifies the status of deliberations and then, once decisions are made, articulates the rationale used to form those decisions. Overarching Recommendation 27. The Board should regularly evaluate the progress: against these recommendations; against the accountability and transparency commitments under the AoC; and in general analyze the accountability and transparency performance of the whole organization so as to report to the annually to the community on progress made and to prepare for the next ATRT review. All evaluations should be overseen by the Board. Accountability and Transparency at ICANN: An Independent Review {57}


APPENDIX A OVERVIEW OF THE ACCOUNTABILITY AND TRANSPARENCY REVIEW TEAM PROCESS

The ATRT held its initial meeting on April 12, 2010 and conducted its work through a series of conference calls and face-to-face meetings. The ATRT initiated two requests for public comment and engaged in direct interaction with ICANN, the ICANN Board, the Government Advisory Committee (GAC), the Advisory Committees (ACs), Supporting Organizations (SOs) and the public over the course of the review. Review Team Meetings The ATRT conducted a total of 16 conference calls and five face-to-face meetings. All calls and meetings were designated as “open” unless a party to the meeting (including an ATRT member) requested that the meeting be closed for confidentiality reasons. The ATRT’s five face-to-face meetings over the course of 6 months were held in Marina del Rey, California; Brussels, Belgium; Beijing, China; Boston, Massachusetts and Cartagena, Colombia. The face-to-face meetings were important to progress the ATRT’s work and facilitated information exchanges with all the entities mentioned above including the Independent Expert, the Berkman Center for Internet and Society. The ATRT originally planned to conduct face-to-face meetings on all continents and to engage in proactive interaction with the local community at the meeting sites. In short, at the outset, the ATRT adopted the ICANN model for meetings as its model for planning ATRT meetings. The ATRT quickly realized that the ICANN meeting model was not necessary to undertake the work of the ATRT. The ATRT was also conscious of the costs associated with conducting meetings around the globe strictly for the purpose of geographic balance. The ATRT also noted little interaction with the local Internet community and so abandoned the earlier approach for one which would best facilitate the management and completion of the ATRT’s work. Thus, the ATRT held two meetings in North America: one for the purpose of interacting directly with ICANN staff and one for the purpose of interacting directly with the Berkman Center during the drafting of proposed recommendations. The meetings were still designated as “open” and both conference call and online participation platforms were made available for members of the public to follow the work of the ATRT in detail. The ATRT received criticism that it did not interact with the local communities at face-to-face meetings effectively and, in the case of the Boston meeting, had not adequately published the street address of the meeting. The ATRT Accountability and Transparency at ICANN: An Independent Review {58} notes that community interaction is critical to the effective work of a review team but that an approach to face-to-face meetings that places this value above the value of effectively progressing the work of the review team is not optimal. In order to facilitate open access to the ATRT’s work and public participation, the ICANN staff provided the following support: ATRT Meetings (open) Streaming for public observers Recording Transcripts Adobe room + chat Remote participation Support for Chatham house rule meetings (rarely invoked) Conference Calls (open) Streaming for public observers Recording Transcripts Preliminary notes Adobe room + chat Support for Chatham house rule meetings (never invoked) Web site support (located within the ICANN website) (open) Maintenance of AoC site on ICANN web page Wiki site Interactions with the public ATRT question to the community Requests for public comment (draft proposed recommendations) Email input mechanism for inputs outside of the public comment periods (public list + private list) Interviews Interaction with constituencies and community Members during ICANN Meetings AoC website postings: Working documents Adobe chats Agendas Email archives Meeting notes Transcripts Conference call schedule Accountability and Transparency at ICANN: An Independent Review {59} Selection of an Independent Expert The AoC allows for the use of Independent Experts by review teams. The ATRT determined that the participation of an Independent Expert would provide important substantive inputs to the review process. The ATRT developed a scope of work for the Independent Expert which included case studies of specific ICANN processes. The ATRT developed a Request for Proposal (RFP), published the RFP, selected a group of candidates and heard proposals from the candidates. The ATRT developed a scoring system, ranked candidates, selected a winner and engaged in contract negotiations with the winner. The ATRT wishes to thank Urs Gasser and all the members of the Berkman Center for Internet and Society, as well as members of the Harvard faculty, who provided invaluable assistance as an Independent Expert to the ATRT. The ATRT commends the Berkman Center for the significant amount of research and analysis that it undertook and completed in a very limited time frame. Creation of Working Groups The ATRT recognized that the creation of Working Groups that addressed different subject matter areas in paragraph 9.1 of the AoC would be the most efficient way to conduct the review. Four Working Groups were established; each focused on a specific subject matter, and was open to volunteers from the ATRT. Each Working Group conducted its own conference calls as well as fact finding, interviews and analysis. Each Working Group produced a report that was reviewed by the entire ATRT and integrated into a single report of the ATRT. Management of Requests for Public Comment The ATRT conducted two calls for public comment: one call for public comment seeking feedback from the community to “Initial Questions from the ATRT” that opened on May 18, 2010 and closed on July 14, 2010.; and a second call for public comment with respect to the ATRT’s draft proposed recommendations that opened on November 3, 2010 and closed on December 3, 2010. The ATRT endeavored to consider all the public comments received (as well as the public inputs received through a static email address that was accessible during most of the review process). To manage the intake and integration of public comment into its analysis and work product, the ATRT did the following: - Created a “grid” of public comments received that organized each of the comments in relation to the subject matter of the four ATRT Working Accountability and Transparency at ICANN: An Independent Review {60} Groups. The grid allowed Working Group members to read the public comments that were specific to their respective subject matter; - Used public comment “summaries” prepared by ICANN staff that provided key points raised in each of the public comments; - Read all the public comments submitted in response to the ATRT request for public comment; - Maintained a public input mechanism (an email link on the ATRT site) to allow the public to provide input to the ATRT outside the confines of the public comment processes. The ATRT also provided the opportunity to provide anonymous input; - Cited specific public comment in its draft proposed recommendations that supported the proposed recommendations; and, - Identified certain public comments that the ATRT did not act on or integrate into its Final Recommendations and articulated the rationale for rejecting the proposals of certain public comments . The ATRT endeavored in its Final Recommendations and Report to attribute public comment that supported the ATRT conclusions and to identify public comment with which the ATRT disagreed and to explain the reasons for its disagreement. The ATRT does not view its efforts in this regard as a “model” for the recommendation to the ICANN Board under Working Group 3. During its meetings in Boston, the ATRT reviewed the text of a decision from the United States Federal Communications Commission (FCC) as providing a model for explaining the basis for adopting a rule and for identifying public comment and explaining in sufficient details the rationale for accepting or rejecting public comment in the rulemaking proceeding. Interaction w/ACs & SOs and the public The ATRT met with the ACs and SOs and held a public comment sessions at the Brussels, Belgium ICANN meeting from June 20, 2010 to June 25, 2010. The ATRT met with the GAC, at the request of the GAC, and held a public session at the Cartagena, Colombia meeting from December 5, 2010 to December 10, 2010. The ATRT believed that direct interaction with the ACs/SOs and the public was critical to its data collection exercise and to provide an open information exchange between the ATRT and those entities. The ATRT established mailing lists to facilitate its work. The main discussion list was open for subscription by the ATRT members, support staff of the ATRT members, Accountability and Transparency at ICANN: An Independent Review {61} ICANN support staff, and the Independent Expert team members. Many members of the ATRT understood early in the process that, for our own accountability and transparency, our mailing list archive should be made publicly readable, and that this should be done while our work is ongoing rather than at its conclusion. We finalized our agreement in this matter at our first face-to-face meeting, and made the appropriate configuration changes shortly thereafter. We believe that this can be improved upon with respect to accountability and transparency. The ATRT suggests that future RT lists that are to be publicly readable are made open to anyone who wishes to subscribe to them. Subscribers who are not RT members, RT support staff, ICANN support staff, nor contracted independent experts would be automatically moderated. In this way, transparency is promoted for members of the public who wish to follow the email discussion in real-time. However, these observers must be notified (e.g., via the list welcome message) that contribution from observers should be sent via means established by each RT. Interaction with ICANN Staff The ATRT interacted with ICANN staff at its first face-to-face meeting in Marina del Rey for the purpose of explaining to ICANN staff the ATRT’s scope of work and work methodology. ICANN’s CEO appointed Denise Michel the Advisor to the CEO for Accountability and Transparency as the main point-of-contact between the ATRT and ICANN staff. Doug Brent and Marco Lorenzoni provided early inputs to the ATRT and the ATRT along with the Berkman Center interacted with ICANN General Counsel to address issues surrounding the Berkman Center’s data gathering and proposed interviews with ICANN staff. The ATRT was also supported in its day-to-day activities by Alice Jansen, Olof Nordling. Cory Schruth provided primary technical support for ATRT meetings. ICANN staff did a commendable job in supporting the work of the ATRT. The ATRT wishes to pay particular thanks to Ms. Jansen who provided extraordinary support in coordinating the activities of the ATRT. Interaction with ICANN Board The ATRT interacted with the ICANN Board at the meetings in Brussels, Belgium and in Cartagena, Colombia. The ATRT Working Groups conducted interviews with certain Directors whose responsibilities and/or experience corresponded with the Working Groups’ respective subject matter areas. Off the record interviews were conducted and the ATRT is grateful to the Directors for their cooperation and candor. The ATRT thanks the Directors for their open, public exchanges with the ATRT and, in particular, their feedback on the draft proposed recommendations. Accountability and Transparency at ICANN: An Independent Review {62} Replacement of ATRT members On two occasions, ATRT members stepped down from their positions on the ATRT. The AoC did not provide specific instruction on how the replacement of ATRT members should be managed. The selection of original ATRT members was conducted according to the requirements of the AoC. In this selection process, the ACs and SOs put forward candidates for consideration of the Chairman of the Board of ICANN and the Chairman of the GAC who were charged by the AoC with the responsibility of selecting the ATRT members. In some instances, ACs and SOs put forward a slate of more than one candidate from their respective organizations. When the ATRT was confronted with the need to replace a member, the ATRT determined that the ACs and SOs should be afforded the latitude to replace the ATRT member at their discretion in lieu of having the Chairman of ICANN and the Chairman of the GAC selecting from the original slate of candidates. The ATRT believed that this approach provided the ACs and SOs the greatest autonomy with respect to the review team member selection process. Definition of “Public Interest” The ATRT did not establish a definition of “public interest” in conducting its review. The ATRT did not view itself, as a body, to have the requisite skills or subject matter expertise to establish a definition of “public interest’ that should govern ICANN’s decision making and policy development processes. The ATRT did address public interest in the context of establishing a framework for “accountability” and offered a process framework wherein the public interest can be served: “The RT also believes that the public interest is served, ultimately, by creating an environment in which all stakeholders can be assured that the rules will be (i) debated; (ii) refined to reflect relevant input from the community, including the community of governments participating in the ICANN process; and (iii) honored.” ATRT Terms of Reference and Methodology, p. 2. Commenters noted that the ATRT did not establish a definition of public interest and cited the AoC which states: “*t+o ensure that its decisions are in the public interest, and not just the interests of a particular set of stakeholders, ICANN commits to perform and publish analyses of the positive and negative effects of its decisions on the public, including any financial impact on the public, and the positive or negative impact (if any) on the systemic security, stability and resiliency of the DNS.”95 NetChoice noted that “by allowing ‘public interest’ to mean anything and everything to anyone, it has become a catch phrase that means nothing at all.”96 NetChoice 95 Affirmation of Commitments, para. 4 96 NetChoice comments, December 3, 2010. Accountability and Transparency at ICANN: An Independent Review {63} offered that a definition of “public interest” could focus on the elements of “availability” and “integrity” of the DNS. 97 Paragraph 4 of the AoC focuses on process issues that, if adequately addressed by ICANN, can operate to ensure that the public interest of all stakeholders is being served. The ATRT made specific recommendations with respect to the process elements articulated in paragraph 4 of the AoC that are designed to improve ICANN’s management of the processes. The ATRT notes that “public interest” is a concept that is strongly associated with governments whose direct responsibility in their respective jurisdictions is to serve and protect the public interest. Hence, public interest is a concept that varies depending on the respective juridical, cultural and social norms of a given country. The ATRT notes that the AoC does not use the term “global public interest,” a term for which there does not appear to be a commonly agreed definition for that term. It is clear that ICANN is expected to act in, or at a minimum, consistent with the public interest for all stakeholders in its role as the technical coordinator for the DNS. For ICANN, a not-for-profit U.S. based private corporation, to establish a definition of “public interest” that would be commonly agreed would require the broad engagement of all stakeholders and an exercise that is far beyond the ken of the ATRT. That being said, the ATRT believes that continued discussion of this issue, or perhaps an appropriately structured undertaking to develop such a definition (regardless of the ultimate outcome), could have positive impacts on ICANN’s execution of its commitments under the AoC. Metrics The ATRT has not recommended specific metrics that ICANN should adopt to provide measurable results in its decision making and policy-making processes. The ATRT did not believe that it should select the specific metrics for ICANN as an organization to apply to its operations and processes. However, the ATRT discussed the importance of performance indicators and identified examples of widely accepted metrics that should be considered by ICANN and the community. For example: “SMART Metrics” - Elements of Performance indicators that are defined as: Specific Measurable Achievable Relevant Time-Bound 97 NetChoice comments, January 13, 2010. Accountability and Transparency at ICANN: An Independent Review {64} SMART metrics are one example of performance indicators that can be applied in both quantitative and qualitative contexts. In its initial exchange, the ATRT asked ICANN about the use of metrics by the organization and ICANN staff identified its “Dashboard” for performance indicators as an example of ICANN applying metrics to its operations and processes. Commenters stated that the ATRT did not go far enough in recommending specific metric for ICANN to adopt as a critical component of improving ICANN’s accountability and transparency to all stakeholders. The Association for Competitive Technology (ACT) stated that ICANN will never “be truly accountable or transparent without established, public performance metric for its various initiatives and departments.”98 ACT’s comments went on to state that “*w+hile it makes sense that ICANN staff proposes actual target values for various metrics, it seems completely appropriate that the ATRT suggest a framework of measurable objectives. A good start might be the ATRT recommendations themselves. An initial metric might be a timeline for the implementation of recommendations.” 99 The ATRT included in a number of its recommendations, dates by which ICANN is expected to start and/or complete specific tasks under those recommendations. At a minimum, the subsequent Accountability and Transparency Review Team, as called for by the AoC, will need to be able to measure ICANN’s progress and execution of the ATRT’s recommendations as part of its review and the dates should provide a form of measurement. The ATRT believes that quantitative and qualitative measurement is important to improving accountability and transparency in ICANN and encourages ICANN and the community to agree on operational and process metrics that will advance that goal. 98 Association for Competitive Technology comments, December 4, 2010. 99 Association for Competitive Technology comments, December 4, 2010.


APPENDIX B: Observations of the ATRT on the Review Process


The ATRT provides these observations concerning the ATRT Review Process to the ICANN Board with a view toward improving the administration and operation of subsequent review teams under the Affirmation of Commitments (AoC).

The AoC calls for review teams that are composed of volunteer community members from the Advisory Committees and Supporting Organizations. The AoC allows for the participation of Independent Experts in the case of the ATRT, the SSR and CCTCT review teams and for privacy and law enforcement experts in the WHOIS Review Team.


The Importance of Autonomy and Objectivity

Volunteers who come from the ACs/SOs represent diverse and specific interest groups in the ICANN community. The participation of representatives from ACs/SOs raises a question about whether those participants can pursue the objectives of the AoC review and sublimate, as necessary, the distinct interests of their respective AC/SO.

The Chairman of the Board and CEO of ICANN represent the interests of ICANN. The participation of the ICANN Chair (in the case of the ATRT) and CEO (in the case of the other review teams) raises questions about whether they can participate in an objective fashion and whether the review team can be sufficiently autonomous from the organization it is tasked to review.

The ability of the review teams to operate with sufficient autonomy and objectivity is critical in order to produce recommendations that can be viewed by the community, the ICANN Staff and the ICANN Board as the product of objective, reasoned and 'independent' analysis.

Review teams need to explicitly recognize this inherent tension and use of mechanisms designed to lessen the risk that the review process will be “captured” by either community member self-interests, on the one hand, or ICANN’s self-interest on the other.

In this regard, a conflict-of-interest policy should be adopted and adhered to by the review team throughout the review. Additionally, the review team should maintain an active awareness of these risk factors as it conducts its work.

In this respect, the transparency of the review team’s activities is critical to allow the community, the Staff and the Board the ability to likewise monitor these risks. Thus, a policy and modus operandi of maximum transparency of the review team is recommended. A default policy of “open” meetings, unless a closed meeting is necessary, is also recommended.

The AoC allows the use of Independent Experts and the ATRT believes that Independent Experts play an important role in ensuring the overall quality of recommendations. The ability of the review teams to determine for themselves whether to obtain the services of an Independent Expert and to procure the services of an Independent Expert is important.

The ATRT notes that the Independent Expert for the SSR and WHOIS review team was selected prior to the establishment of that review team. The SSR and WHOIS review teams apparently did not have the opportunity to select for itself the expert(s) supporting its work. This could raise questions concerning the autonomy of the SSR and WHOIS review teams.


The ATRT Review Process -- Areas of Concern

  • ICANN staff created a proposal for Affirmation reviews suggesting approaches to implementation of reviews under the AoC. The proposal covered a number of topics including review methodology, budget identification, timelines, draft terms of reference etc.

    The ATRT reviewed the proposal and determined that, in order to operate under maximum autonomy and independence, it would develop its own framework for conducting its review and did not adopt elements of the proposal by ICANN staff.

  • Even though the AoC was signed on September 30,2009, the ATRT was not selected by the Chairman of the Government Advisory Committee (GAC) and the Chairman of the ICANN Board until April 2, 2010.

    The ATRT conducted its first telephonic conference on April 12, 2010.

  • The ATRT lost 101 working days at the beginning of 2010 due to the late start of the Review Process. The ATRT had less than 9 months to complete its work. Given the scope of the ATRT’s review and a deadline to deliver recommendations by December 31, 2010, ICANN created unnecessary time constraints and pressure on the ATRT’s work.

    Given the fact that the ATRT was the first review called for under the AoC, and the fact that the AoC represented an enhanced commitment to accountability and transparency by ICANN to the global Internet community, the delay in establishing the review process created a sense in the ATRT that the review process was not a priority for ICANN.

    In this regard, ICANN was not accountable in its oversight and administration of this important process.

  • The ATRT was initially informed by ICANN’s CEO that he would not join the first face-to-face meeting of the ATRT in Marina del Rey, California which had been arranged to facilitate an interaction between the ATRT and ICANN staff at the outset of the review process.

    While the ICANN CEO changed his plans and did join the ATRT/ICANN staff meeting, his initial response raised concerns in the ATRT about the seriousness with which ICANN’s senior staff was taking the review process.

  • At the ICANN meeting in Brussels, after selecting the Berkman Center for Internet & Society to act as an independent expert, the ATRT received private feedback from ICANN staff noting their concerns about the ATRT’s selection of Berkman.
  • On June 21, 2010, at the ICANN meeting in Brussels, the ICANN CEO made public remarks with respect to the objectivity of the ATRT which members of the ATRT consider were disparaging.

    The ICANN CEO's remarks necessitated a public response from the ATRT noting the ATRT’s concern about having the objectivity of its work being questioned even as it was just beginning its substantive work.

  • The three previously referenced events reinforced the sense of the ATRT that the ICANN staff was laboring under an attitude of inordinate defensiveness and distrust of the review team and the review process.
  • The ATRT presented its proposed budget, including the Berkman Center’s costs, to the ICANN Board on July 11, 2010. An ad hoc committee of Board members reviewed the proposed budget and held a conference call with the ATRT Chair.

    In the course of the budget review call, Directors suggested that the ATRT had not properly scoped its work and offered an alternative scope of work for the ATRT to consider. This suggestion was made despite the fact that the ATRT had scoped its work through a deliberative, iterative process that included the participation of a signatory to the AoC and the Chairman of the Board of the other signatory to the AoC.

    Directors also asked if the Berkman budget or Berkman resources could be reduced. While the ATRT appreciates the Board’s responsibility to administer the review process and to manage costs, there did not appear to be sensitivity by Directors to the implications of attempting to narrow the scope of work and to reduce the budget of the ATRT. The ATRT Chair stated that the ATRT was comfortable with its established scope of the work and requested approval of the budget, as presented.

  • 18 days after presentation of the ATRT budget, the Board approved the ATRT budget. A contract between ICANN and the Berkman Center was executed 7 days later.

    (The ATRT wishes to commend Amy Stathos of ICANN legal staff for her work in executing the contract with Berkman with all due speed.)

  • Due to the time taken for review and approval of the ATRT budget, the Berkman Center did not commence its work until August 5, 2010.

    As a result, and compounded by the late commencement of the ATRT review itself, the Berkman Center had roughly two months time to conduct its exhaustive independent research. Accountability and Transparency at ICANN: An Independent Review

  • The ATRT posted proposed draft recommendations to the public for comment on November 3, 2010 after receipt of the Independent Experts Final Report and a face-to-face meeting on October 11-13, 2010. The ATRT allowed 30 days for public comment period which ended just prior to the ICANN Annual General meeting in order to provide sufficient time for the ATRT to consider public comments received and to integrate them into final recommendations.

    This time frame was less than ideal to allow the public an opportunity to provide meaningful comment on the proposed recommendations and this shortcoming was a direct result of the compressed time frame that the ATRT had to work within. Accountability and Transparency at ICANN: An Independent Review

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