Accountable and transparent – but only when it suits us

The real measure of accountability is not when an organization provides you with information it has no concerns over, but rather when it doesn’t wish to provide the information but feels obligated to do so.

Here are some facts:

  • On Thursday 11 August 2011, the ICANN Board met in full and in secret to decide the future of its current CEO.
  • The CEO’s contract was up for renewal, and he had made it clear, both publicly and privately, that he wished to stay in the job.
  • The Board organized a teleconference independently of ICANN staff because it wanted to be able to be candid and felt they could not do that with either ICANN staff or the CEO on the line.
  • The Board took a poll at the end of call and a majority decided they did not wish to renew the CEO’s contract.
  • ICANN’s chairman relayed the results of that discussion to CEO Rod Beckstrom on Monday 15 August.
  • Beckstrom told his inner circle and had his communications chief, Barbara Ann Clay, draw up a press release and a list of his achievements in the job.
  • On Tuesday 16 August, Beckstrom tweeted (at 4.20pm) that he had "decided to wrap up my service". One hour later a press release, accompanied by a three-page "notable accomplishments" handout was published on the ICANN website.
  • Subsequent to this announcement Beckstrom told ICANN staff that the decision to leave was his, and it was due to his refusal to accept an unspecified clause in a new contract.

We wrote a story about the exit on 16 August where we highlighted the fact that there had long been concerns about Beckstrom’s performance and noted that it was not a voluntary exit.

  • On 20 August, when information about the 11 August Board meeting – or even its existence – still had not appeared on the ICANN website, we used ICANN’s Documentary Information Disclosure Policy (DIDP) to ask for details of it.
  • On 25 August, at a regular Board meeting, CEO Beckstrom used his report to the Board to complain about reports he had been fired and promised to "focus on getting accurate information to the public on his decision and communications with staff".
  • In Executive Session i.e. without ICANN staff present, at the end of the meeting, the Board specifically discussed our article and DIDP request for information and agreed not to acknowledge the secret meeting it had held two weeks earlier.

Since the 11 August ICANN Board meeting, .Nxt has filed four DIDP requests to see whether ICANN is willing to live up to its claims of greater accountability and transparency.

Our contention is this:

If ICANN is serious about maturing from a secretive, insider organization into an accountable and transparent one, it should be prepared to provide information that may be politically inconvenient at the time but which demonstrates a greater commitment to openness for the organization.

After three months of requests, an unequivocal answer has come back: ICANN is accountable and transparent – but only when it suits us.

Over the course of the four DIDP requests we have filed, ICANN has grown increasingly dismissive and defensive, refusing in the final response to provide any information at all, simply listing a series of legalistic clauses for why it wouldn’t answer our questions.

You can read the full DIDP requests yourself, but in summary this is what we have discovered:

  • ICANN will only provide information that has already been compiled.
  • ICANN will not provide you with the raw material to compile it yourself.
  • Even if it has compiled the information you have specifically requested, ICANN will not provide it to you if it does not wish to
  • ICANN will not tell you whether it has actually compiled the information you’ve requested
  • ICANN will not tell you why it can’t tell you if it has the information you requested
  • ICANN will not tell you how it decides whether to tell you about the existence of information that it won’t provide you with


Cartoon: Alexei Talimonov

Our requests

Initially we requested [pdf] any information regarding Board meetings between 29 July and 16 August. We were provided (after the maximum 30 days) with a list of three public Board and Board Committee meetings and a link to the Board meeting minutes page.

So we asked [pdf] how staff had compiled the list and whether they had spoken to or requested any information from Board members. We received a legalistic response about what designated a Board meeting and a note that the DIDP could not be used for "the creation or compilation of information".

In response, we noted that the question about whether Board members had been asked about any other meetings had not been answered. Additionally, we asked [pdf] whether emails sent through an "icann.org" email address was within the bounds of the DIDP (it is) and if so, to provide any emails relating to meeting of the Board held between 8-12 August that were sent between 28 July and 12 August.

We were told that our question about whether Board members had been asked about other meetings has not been answered because we had not asked for documentary information.

And so we asked for documentary information. And we were told that that information was confidential.

Kafkaesque

As to the emails sent through icann.org between 28 July and 12 August relating to a meeting of the Board between 8-12 August, that request was, apparently, "broad and undefined" (we would argue it is clearly neither), not in the public interest (we would argue it clearly is), and internal information. So we couldn’t have any of it.

And so we requested [pdf] any documentary information about the processes used to make DIDP determinations – in particular that a very precise request was "undefined" and that a decision about the future CEO of the organization that has in its bylaws that it acts in the public interest was not in the public interest.

We also asked an even more refined question: any emails sent through an icann.org address between 1 and 11 August concerning a meeting of the ICANN Board held on 11 August.

The answer? All of that information is confidential, subject to attorney privilege, internal information and/or in draft form.

In other words: we don’t want to tell you we held a secret meeting; we don’t want to tell you that we decided not to disclose that fact, even when asked about it; we don’t want to tell you that we do not have a due process for deciding DIDP requests; and there is nothing you can do to make us.

There is no appeals system for the DIDP.

The need for change

It comes as no surprise that ICANN would not provide any information it does not wish to. The DIDP system was drawn up by ICANN’s legal department, is run by ICANN’s legal department, and it is beholden to no-one but ICANN’s legal department.

The brothers of the DIDP are the three accountability measures introduced by ICANN several years ago when it was last under sustained criticism for its failure to be open, accountable and transparent.

Those three measures (Ombudsman, Reconsideration Committee, and Independent Review Process) were each drawn up by ICANN’s legal department and each has come under considerable criticism for failing to do what it was designed to do.

All three have been designed to give the appearance of accountability without ever being in a position to force ICANN to act. The Ombudsman has fewer powers than any comparable Ombudsman; the Reconsideration Committee is made up a subset of Board members tasked with reviewing their own decisions; and the Independent Review Process has written into it that it is not binding.

In 2009, an in-depth review of ICANN’s accountability and transparency called "Improving Institutional Confidence" recommended (recommendation 2.7) that ICANN put together an independent team of experts to restructure the three review mechanisms. It was ignored.

A second independent review into ICANN’s accountability and transparency (ATRT) last year again singled out these three accountability measures as requiring a major overhaul and made no less than four recommendations (23-26) under its own heading: "Review mechanism(s) for Board decisions", on them.

That review process has, according to the Board at its most recent meeting in Dakar, now begun (we have filed a DIDP asking for more information).

What the ATRT failed to notice was that the DIDP process – the system by which the Internet community can request information from the organization - is similarly flawed and reflective of an outdated internal culture.

When an organization can draw up its own systems, run and implement those systems, and has to report to no one but itself, it is hardly surprising that it ends up not fit for purpose.

Currently, even when faced with the facts, ICANN denies them.