ICANN Accountability, What Is The Global Public Interest (GPI)?

A dispute is brewing between the ICANN Board of Directors and the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability)--which is part of the IANA Stewardship Transition process--over the definition of, or application of, the term "global public interest" (GPI) as it applies to the CCWG-Accountability proposal.

The term global public interest is used in ICANN's Articles of Incorporation as set out by Board Member Bruce Tonkin in his response below to the question recently asked by the CCWG-Accountability:

CCWG-Accountability Question: "What are the legal basis and criteria  by which the Board considers a given Recommendation to be contrary to the Global Public Interest? Clarification would really be useful to help our group, but also the Chartering Organizations, to check our own recommendations."

Response from the Board Liaison (Bruce Tonkin): "Coming to an agreed definition of the global public interest is part of ICANN’s strategic plan. It is the 5th of five strategic initiatives: “Develop and implement a global public interest framework bounded by ICANN’s mission.” Until this is done, the Board is guided by the global public interest as set out in our Articles of Incorporation: "... in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, ICANN shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by

(i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet;

(ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space;

(iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system;

(iv) overseeing operation of the authoritative Internet DNS root server system;

and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv)."

By inference therefore any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board."

One Comment, of several, in Reply by one CCWG-Accountability participant:

"With respect Bruce, that is not responsive.  Your last statement that " any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board" is a truism -- but there are many things that might limit your ability (lack of funding say) that are not in any way connected to the global public interest.  You cannot possibly mean that if the Board thinks it limits ICANN it is, by definition, not in the GPI -- or if you do mean that then the Board has a very, very inflated sense of itself and the relative importance of its mission.

"Likewise there are many things in the global public interest that would improve (or at least not diminish) ICANN's ability to deliver the services it is tasked with delivering.   You can't possibly be saying that things which are affirmatively in the global interest (greater diversity, for example) are not in ICANN's definition of GPI if they can be judged by ICANN to interfere with its operations.   That, in effect, gives the Board a veto to say that it if adversely effects us, it can't be in the GPI -- even when the broader definition of GPI clearly suggests that it is.

"The Board's objection to enhanced transparency (in its comments on the Third Proposal) is a perfect example of this latter case -- the Board substituting its own judgement of what is good for ICANN for a judgment of what is in the GPI.  I am more than willing to agree that greater transparency might impose greater process restrictions on Board activity and thus, in some perverse sense, be read to "limit ICANN's ability to deliver" its services -- by putting in more restrictions on what the Board can do.  But for the Board to equate that with a restriction that is contrary to the GPI is to mistake ICANN for the globe and ICANN's interests for those of the people it serves.

"I continue to be dismayed at this type of response from the Board which reflects a lack of understanding of what the accountability project is all about."

See also on Domain Mondo: ICANN, Domain Industry, Special Interests, and the Global Public Interest - excerpt:

... The Institute of Chartered Accountants in England and Wales argues that applying a detailed definition [of "Public Interest"] is likely to result in unintended consequences .... Meaning of public interest | ALRC | Australian Law Reform Commission: "... Should public interest be defined? 8.35 ‘Public interest’ should not be defined, but a list of public interest matters could be set out ..." (emphasis added)

Also note the public interest is a term used in the Affirmation of Commitments (AoC) agreement between ICANN and the U.S. government (NTIA) dated September 30, 2009 (to be incorporated into ICANN's bylaws in accordance with the latest draft proposal):

".... 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; (b) preserve the security, stability and resiliency of the DNS; (c) promote competition, consumer trust, and consumer choice in the DNS marketplace; and (d) facilitate international participation in DNS technical coordination. 4. DOC affirms its commitment to a multi-stakeholder, private sector led, bottom-up policy development model for DNS technical coordination that acts for the benefit of global Internet users. A private coordinating process, the outcomes of which reflect the public interest, is best able to flexibly meet the changing needs of the Internet and of Internet users. ICANN and DOC recognize that there is a group of participants that engage in ICANN's processes to a greater extent than Internet users generally. 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 .... 9.1 Ensuring accountability, transparency and the interests of global Internet users: 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...."

See also on Domain Mondo: 

• IANA Transition: ICANN Accountability CCWG Timeline Going Forward
• Caveat ICANN: FIFA Bans Blatter and Platini For Conflict of Interest (video)
• What ICANN CEO Chehade Has Been Up To: WSIS, Wuzhen Initiative

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DISCLAIMER

ICANN dot AFRICA IRP: WHO Redacted WHAT In the Final Declaration?

UPDATE June 16, 2016: New gTLD AFRICA Litigation: Defendant ZACR Dismissed as a Party.

UPDATE August 14, 2015: see DotConnectAfrica Trust Response to John Jeffrey's ICANN Legal Blog Posting: "... DCA Trust remains convinced that the entire IRP outcome should remain transparent, since no third-parties would be harmed by doing so ... we think that ICANN continues to violate and trample upon DCA Trust's rights as a participant under the new gTLD Program ..."

UPDATE August 1, 2015:.AFRICA IRP Declaration – Clearing Up Some Facts - ICANN - July 31, 2015: One can read the full blog post at the foregoing link by John Jeffrey, ICANN's General Counsel & Secretary, but here are the salient points (excerpts) going forward:

1. "In retrospect, we could have, and should have, noted on the posted document and on website that it contained redactions and explained the reasons for the redactions."
2. "The most recent version of the Declaration that we are publishing is a result of our efforts to remove those redactions. There are still some redactions and we have indicated the reasons why they still exist in the revised version."
3. "This [IRP] decision does not remove the ZA Central Registry from the New gTLD Program, nor is there any part of the Declaration that calls for that result. The impact on ZA Central Registry is that ICANN "will refrain from delegating .AFRICA" pending the outcome of the evaluation process on DCA's application."
4. "As called for in the [ICANN] Board resolution, ICANN has "resume[d] the evaluation of DCA's application for .AFRICA. The evaluations will be performed in accordance with processes laid out in the Applicant Guidebook."
5. "To summarize, ICANN's actions in redacting parts of the IRP Declaration at the outset were motivated by our obligation to the community to post the document quickly and the competing, yet mandatory obligation, to respect confidential information while being as transparent as possible." (emphasis added)

----------End of August 1, 2015, Update--------

"20. The IRP Panel may, in its discretion, grant a party's request to keep certain information confidential, such as trade secrets."--ICANN Bylaws, Art. IV, Sec. 3 

"Well I have only seen the redacted version.   I had assumed that the panel had redacted information that was provided to them under confidentiality provisions. I have since learnt it was redacted as part of the staff process for posting.   I am expecting the staff to provide a public explanation shortly as to the process that is being followed here."--Bruce Tonkin, ICANN Board Member (July 16, 2015, emphasis added)

On the verge of the next CCWG-Accountability face-to-face meeting in Paris, controversy and confusion abound about WHO, WHAT, WHEN, HOW and WHY was the DCA Trust IRP Final Declaration published by ICANN on its website so heavily redacted? Even an ICANN Board member (see above) expressed surprise at yesterday's revelation that it was not the IRP Panel, but ICANN staff (or ICANN's attorney) who had redacted any and everything possibly deemed "confidential" without any accompanying disclosure by ICANN, its officers, or staff, to the public reading the "published" Final Declaration that it was not the IRP Panel who had done the "editing and deleting." Unfortunately for ICANN, its officers and staff, a former ICANN staff member,  Kieren McCarthy, obtained an "unredacted" copy of the Final Declaration which became the subject of two articles he wrote for The Register: see Unredacted: ICANN's hidden role in fierce battle over .Africa rights • The Register and Having been slammed and embarrassed, ICANN tells the world: We've done nowt wrong • The Register. Note: see July 26th UPDATE in the last paragraph below.

Finally, ICANN staff attorney Samantha Eisner posted the "public explanation" yesterday on the CCWG-Accountability mail list:

Dear CCWG,
As noted by Bruce [Tonkin], here is a discussion of the redaction process for the IRP declaration. Best, Sam [Samantha Eisner, ICANN staff attorney]

"The Bylaws governing the Independent Review Process allow for the IRP Panel to agree that certain information can be held as confidential. (Bylaws, Art. IV, Section 3.20.) As is a normal part of ICANN’s Independent Review Process (IRP), ICANN and DotConnectAfrica Trust (DCA) entered into a confidentiality agreement during the IRP. The IRP Panel approved and agreed to that confidentiality agreement. Pursuant to the agreement, the parties exchanged information that was to be maintained as confidential for purposes of the IRP. The IRP Panel’s order confirming that agreement states: Documents exchanged by the Parties may not be used for any purpose other than participating in the IRP; (2) documents exchanged by the Parties may not be publicly posted or disclosed in any manner; (3) reference to such documents or information from such documents in the Parties’ written submissions must be redacted prior to public posting. The above agreement, however, does not in any way hinder the Panel’s ability in this IRP to refer to or cite any document and information it finds relevant and/or necessary for its determinations and declarations. The Parties themselves will ensure that any confidential information or document referred to or cited by the Panel in its determinations and declarations are appropriately redacted where necessary. (Procedural Order No. 4, Paragraph 2, at https://www.icann.org/en/system/files/files/procedural-order-4-25sep14-en.pdf.) ICANN is complying with the terms of that confidentiality agreement. In addition, because our transparency obligations dictated that we post the Declaration as quickly as possible (which we did the next day following receipt), all non-public information provided by either party under the confidentiality agreement was initially redacted by ICANN’s Counsel so that ICANN could publish it. ICANN’s counsel immediately began diligently reviewing all ICANN materials exchanged in the proceeding to ensure that we publicly share as much information as we can quickly as possible. ICANN will post a revised Declaration and transcript reflecting the removed redactions. We have requested that information previously marked as confidential from DCA and other parties who are impacted be released publicly to complete the public record. Those parties impacted are not obligated to make those documents public. At the conclusion of that process, ICANN will again publish a further revised Declaration and transcript. Information contained in the materials produced in the IRP that is currently redacted include some of each of the following types of documents: 1) confidential internal GAC emails and information, 2) DCA’s documents, 3) ICANN confidential correspondence with third parties (including other applicants), and 4) ICANN internal correspondence. As has been the case throughout the New gTLD Program, correspondence or documentation regarding application specific information has been typically treated as confidential. This includes all letters of support or non-objection submitted with applications or in response to clarifying questions from the GNP to the applicants. Accordingly, all such information relating to ZACR’s application for .AFRICA was appropriately identified and subject to confidentiality in the IRP, and therefore initially redacted in the final IRP Declaration. As noted above, we are evaluating the confidential treatment of this information in this matter, and may release some, or all, such information currently redacted." (emphasis added)

The problem is that the above disclosure should have been made at the time ICANN staff published its own "redacted" and "self-edited" version 1.0, rather than leaving everyone with the misleading impression that the IRP Panel had itself decided to "redact" sections so marked in the "edited" version ICANN staff published. 

Who now believes ICANN would have made the above "confession" but for Kieren McCarthy obtaining and disclosing the "unredacted" contents? UPDATE (July 26, 2015): Kieren McCarthy has written a 3rd article that answers that question: ICANN further implicated in .Africa controversy • The Register: "... on 15 July at 0700 PT, we published our story outlining what was contained in the unredacted version of the panel's report. Six hours after our story hit the web, ICANN's lawyers sent a two-paragraph letter to DCA saying it wished to review the redactions it has made to the final report. "ICANN now wishes to un-redact these materials and requests your agreement to do so, which ICANN will do so long as any other affected parties also agree," it read. The next day, ICANN's Eisner seemed to hint that the redaction-review process had started much earlier ..." (emphasis added).

See also on Domain Mondo: DCA Trust IRP Decision: ICANN Failed the Global Internet Community

Caveat Emptor!

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