I’ve been around ICANN-land a long time, so I’m not sure why I continue to be surprised when it engages in theatre around its own governance. As many of you know, the National Telecommunications & Information Administration (NTIA), with no instructions on the matter from Congress to do so, is moving swiftly to give up oversight of ICANN. When NTIA first made its announcement, the ICANN community came together and insisted on accountability reforms prior to any transition. The accountability reforms, which became enshrined in the CCWG-Accountability plan, are supposed to put ICANN on the right path toward treating its stakeholders with an adequate level of transparency and accountability. When the community was asked to vote on the accountability plan, which contained several open items including the actual drafting of bylaws, the community was assured that the drafting team would stay faithful to the plan and there would be plenty of opportunity for community vigilance over the implementation work.
Naturally, the opposite has occurred. The draft bylaws include provisions not included in the CCWG-Accountability plan, having been made up whole cloth by the drafting team. Yet, there seemed to be a small glimmer of hope in that ICANN opened a 30-day public comment period for the draft bylaws. The community scrambled, reading through hundreds of pages of draft bylaws and comparing them to the accountability plan. Over 30 comments were submitted, some of them quite detailed. However, the ICANN Board has now set a date, only six days after the close of public comment, to vote to adopt the bylaws. Six days to read all of the comments, balance them, draft and thoroughly consider the implications of any changes, and take an informed vote. This, of course, is an impossible task and any claim that it can be done within six days is fiction. Also, and importantly, the six-day mad-dash plan does not allow the community to see – prior to adoption – whether or not the bylaws drafting team made the needed changes set forth in the public comments and whether or not the drafting team created even more unintended consequences or strayed further from the accountability plan. As a result, there is a very real possibility that there will be items in the bylaws that have sweeping effect that originated with a drafting team and not the community. Due to the ICANN Board’s rush plan, there will be no means to stop implementation by the ICANN Board if there are flaws, since there will be no public comment period prior to adoption. This is the very sort of non-accountability that led to cries for accountability in the first place.
The ICANN Board needs to slow down, take their time to fully understand the changes that are needed, insist the drafting team make those changes, vet the bylaws for unintended consequences, and repost the bylaws for a reasonable public comment period to ensure that the community agrees that the work has been completed correctly and by the right members of the community. Absent that, the only conclusion that makes sense is that the entire public comment process on these bylaws has been theatre.