This weekend ICANN launched a new public comment period on enhancing its accountability and governance. However, its approach to the issue has come under fire, with questions raised over the lack of community input into the current process.
In June, World Trademark Review reported on a call from the Generic Names Supporting Organisation’s (GNSO) various stakeholder groups for the creation of an independent accountability mechanism that “provides meaningful review and adequate redress for those harmed by ICANN action or inaction in contravention of an agreed upon compact with the community”. The call was, at the time, notable as a rare instance of consensus amongst the GNSO stakeholder groups. However, over the past few weeks such consensus is becoming the norm.
On August 14 ICANN published ‘Enhancing ICANN Accountability and Governance – Process and Next Steps’, a document that described the process to examine how ICANN’s accountability mechanisms should be strengthened to address the absence of its historical relationship with the US government. In response, the GNSO various stakeholder groups teamed up with other ICANN stakeholders, including the Governmental Advisory Committee, Country Code Names Supporting Organisation and the At-Large Advisory Committee, to warn of “substantial questions and concerns” with the process and informing ICANN that it was putting together a list of clarifying comments and questions.
In a letter published by ICANN on Friday, 20 questions were duly submitted. The first centred on the concern that “the staff proposal appears to allow the board to reject the outcome put forward by the community”. Noting that the board’s institutional interest in the outcome of such process may be at odds with the community’s interests and consensus recommendations, it asks ICANN to clarify the standards under which it believes it would be appropriate to reject an output developed by the community through the proposed process and to outline the appeals process in such instances. The groups also take issue with the notion that “ICANN itself is a stakeholder in this process”, asking how it intends to “handle the inherent conflict of interest with developing its own accountability plan”.
Elsewhere, the document questions why ICANN did not involve the community in the drafting of the staff plan and whether it had a response to the call for an independent accountability mechanism made in London. Finally it urges a public comment period to seek and accept input from the community.
In response, on Saturday ICANN opened a comment period on the accountability and governance process, albeit focused specifically on the process posted on August 14, the question at issue being: “Are there any final modifications or improvements needed to the ‘enhancing ICANN accountability process’ design to allow for this discussion to proceed?”
The scope of the public comment period has itself come under fire. Writing on Circle ID, Philip S Corwin, founding principal of Virtualaw LLC, argues that “ICANN staff apparently cannot resist asserting some form of top-down control” by asserting that “the staff-designed plan should be the starting point for comments focused on ‘modifications and improvements’ to it”. He therefore urges the stakeholders who have been active on this issue to instead build consensus on the accountability process they want, and to “ignore ICANN staff attempts to impose any artificial deadlines or limitations on the scope, or the substance and timing, of the process.”
Tomorrow’s ICANN’s board meeting will discuss planning for future gTLD application rounds. As of yet the timing of any second round is still up in the air – speaking at the Internet Governance Forum, held in Istanbul last week, Steve Crocker, chair of ICANN’s board, stated:
“We keep being asked what about the next round. I think there are only two things we can say for sure. Yes, there will be one and no, we don’t know when it will be. We have a number of steps to go through, including some very important steps of evaluating how well this round turned out and what issues there were.”
For many trademark counsel, mired in the day to day pressures of protecting and exploiting their brands, the wider framework in which ICANN operates is low on the agenda. However, if predictions of a second round bump in terms of ‘.brand’ applications come true, more corporate teams will inevitably move into ICANN’s orbit – meaning that issues such as the organisation’s accountability will demand more attention. By that time, however, it may be too late to have your say.