ICANN and a Conflict of Interest policy

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As I thought, the issue of ICANN’s lack of a robust conflict of interest policy is a hot topic here at the ICANN meeting in Dakar. On my way here, I was working on the following blog post. Now that I’m here, there are a few quick points I’d like to make.

A strong conflict of interest policy would address two very different things. A Board member must declare a conflict and recuse themselves from voting. This is in the current ICANN COI policy, as was clearly stated by Ray Plzak at the ccNSO ICANN meeting on Tuesday. This provision covers the ‘now’, as in “If I am influencing something right now that I will benefit from then I will step aside.” The other important issue (in my opinion and in light of recent events THE most important issue) is that of the serious lack of any kind of revolving door policy – what happens when a Board or staff member leave the organization.

What’s the difference? While it’s important to declare a conflict when one exists, it is critical that mechanisms be put in place to protect from a board or senior staff member from benefiting in the future from decisions made now.

The time to act is now. There are some big decisions coming up around the new gTLDs, and ICANN’s Bruce Tonkin stated at the ccNSO ICANN Board meeting that a new policy will not be in place before January 12 (the launch date for the new gTLDs). With the implementation of the new gTLDs, ICANN is being watched.

I’d also like to note that I like what Steve Crocker, the current ICANN Chair, has been saying this week, so I am certainly encouraged by what I am hearing. Let’s just do this right and get a robust COI policy in place before the year end, at the latest, and take this issue off the table.

That said, here is the original post I was working on:

Since the departure of Peter Dengate Thrush as chairperson of ICANN, and his subsequent appointment with Top Level Domain Holdings, there has been a fair amount of criticism of ICANN for its lack of a robust conflict of interest, and particularly a “revolving door” policy. Fact remains, Dengate Thrush did not break a single ICANN rule by taking a position at Top Level Domain Holdings. Why? Because, as quite a few of us blogged, at this time, there isn’t a rule regarding post-employment at ICANN to break.

ICANN is an organization that hasn’t gotten a lot of mainstream press in the past. This is changing, in part because of recent decisions from the ICANN board on new gTLDs and .XXX, and also in part to – or maybe because of? – broadened interest in Internet governance.

As an entity that succeeds because of its agreements (here and here) with the U.S. government, and one that is increasingly in the public eye, it is more important than ever that ICANN put in place policies and procedures to protect itself and its employees – just like every other major organization.

To this end, I’m pleased to see that one of the topics up for discussion at the ICANN meeting in Dakar is Ethics and Conflict of Interest. In fact, ICANN has gone so far as to set up a ‘work party’ to revise the current ICANN policy and develop an “Ethics Regime,” and have engaged an external party to advise “on ethical issues, to advise and help develop an ICANN Ethics Regime or set of Guidelines for the Board, the staff and the community.”

But let’s face it – ICANN is not like any other organization. It is the force that, like it or not, guides the development of the Internet – an entity where borders don’t exist. Add to that the fact that it is a not-for-profit corporation, governing one of the greatest economic drivers of the post-industrial revolution world, and you have a very unique organization.   Further, as an added complexity, it is a stakeholder-driven organization.  This means that the folks who work at ICANN, and those that volunteer for Board positions typically come from – and have to go back to – the Internet industry.

Clearly, ICANN, and more specifically the ICANN Board, is in a position to make decisions that can make people and organizations a lot of money. Couple that with the fact that the Internet space is a highly mobile one, with industry influencers moving freely between organizations, and you have the recipe for real and perceived conflict.  An appropriate balance has to be drawn between preventing real and apparent conflict, with people’s right to continue on making a living in the Internet industry post-ICANN involvement.

So what would a conflict of interest policy for ICANN look like?

Fundamentally, it would establish trust that the directors and employees of the organization are doing their job in the best interest of ICANN. It also protects directors and employees for being put in harm’s way leading to undue temptation, and practically eliminates the potential for perceived conflict.

Apart from the obvious components, such as disclosure of gifts, abstaining from voting on an issue when a conflict of interest exists, the critical part will be around post departure rules and ensuring that people cannot directly benefit from rules or policy they have recently been involved in making while at ICANN.  This will be no easy challenge, as many industry actors participate actively, positively and constructively  in various ICANN roles.  A delicate balance will need to be drawn..

I’d like to see a provision regarding post-service rules for employees and directors. Lots of organizations have them; I called for one at ICANN in a recent blog post .

It’s important to remember that I’m not in any way implying that past, current or future ICANN employees and directors have or will engage in nefarious activities. What I am saying is that ICANN is an organization that is increasingly in the public eye and under scrutiny from a number of corners. Even a perception of wrongdoing can and will seriously damage the organization, and the implementation of a robust conflict of interest and revolving door policy will go a long way in protecting both the organization and its people.

The Model is the Message

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In 1964, Marshall McLuhan (a Canadian, by the way) famously wrote, “The medium is the message.” This phrase popped into my head last week as I listened to the opening speakers at the Internet Governance Forum in Nairobi.

McLuhan meant that the form in which a message is delivered – the medium – embeds itself in the meaning of the message. The medium influences how the message is perceived and understood and is therefore inseparable from the message itself.

What does this have to do with the Internet?

The bottom-up, multi-stakeholder governance model that currently governs the Internet enables decisions to be made at ‘Internet speed’, and has allowed it to thrive. Any other governance model would NOT have resulted in the Internet becoming the incredible economic and social force it has become. The success of the Internet is inextricably linked to the way in which it is run.

The organic mix of public and private entities at the regional, national and international levels that are at the heart of governing the Internet is the reason why the Internet became a success – it ensures that those who have a stake in the success of the Internet are the ones making decisions about its future. The model also ensures that those decisions are made in a manner that is in keeping with the dynamic nature of the Internet.

This model for governing the Internet is also behind its democratising power, and its ability to promote innovation, human rights and social and economic development.  On the other hand, countries in which the Internet is blocked, controlled or shut down by governments often have poor human rights records and their populations cannot benefit fully from what the Internet has to offer.

Therefore, I am disheartened by the thought of what the Internet, and indeed the world’s economic and social situation, would look like if a different model, for example, a multi-lateral model – such as is employed at many United Nations agencies like the International Telecommunication Union (ITU) – were used. That model has worked well in the past for different industries. Case in point, the ITU (which has been around for more than a century), has ensured a robust and functional telecommunications network globally.

However, what would the Internet be like if a multi-lateral body were in charge? As history shows, it is often not the issues of the day that influence the discussions at these institutions. Rather, multi-lateral treaty-based organizations are typically hierarchical, top-down bodies that exist in a hyper-political environment. As such, they are susceptible to political intervention, influence and trade-offs, are slow-moving, and involve decision-makers so far removed from the implications of their choices that discussions, and resulting policies, can be very challenging. This is demonstrated with Dr. Hamadoun Touré’s comments at ITU’s Plenipotentiary last year.

As numerous nations and multi-lateral bodies continue to push their agendas, Internet governance has been the subject of quite a few media stories lately, and not just by the core Internet-focused bloggers.  While it concerns me to hear about the push by some to move the Internet away from its current model, it is important that these issues be discussed and debated openly.

These discussions should take place not only in the media, but in fora like the Internet Governance Forum, where certain states like India, Brazil and South Africa were openly questioned last week about their proposal (.PDF) to create a new body (within the UN structure) to oversee the Internet.

Their proposal received cross constituency, real-time feedback from the stakeholders and experts at the multi-stakeholder IGF. In essence, feedback was provided on a major proposal in a timely manner by the very organizations, nations and experts that the proposal affected. This is the multi-stakeholder model at its best.

The irony was not lost on many of us that the very model the group set to dismantle was the model that proved its power in this discussion. Such a fulsome and timely debate would likely not have happened in a multi-lateral treaty-based environment.

With apologies to McLuhan, with regard to Internet governance, the model IS the message.

Don’t get me wrong. I am not arguing that one governance model is better than any other. What I am saying is that each model has its place, and the model that suits the Internet is the multi-stakeholder one. There is room for both models, and each has its role to play – let’s just make sure we put the right model in the right place.

Regional and National Internet Governance Forums

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Last week, I was in Nairobi for the United Nations coordinated Internet Governance Forum (IGF).  The IGF brings together governments, private sector, academia, and civil society in an informal, democratic and transparent structure. There are no mechanisms at the IGF to make binding decisions; its objectives are simply to facilitate dialogue and find solutions to policy issues, to foster the sustainability and robustness of the Internet, and to facilitate development. That said, it’s much more than a talk shop. It is an appropriate venue to discuss, in an “apolitical,” multistakeholder environment, issues confronting the Internet.

The IGF provides numerous opportunities to discuss and debate many different issues.  It’s also a venue for national and regional Internet governance forums to present their local concerns and issues.

I participated in a panel to discuss how regional and national governance fora related to the global IGF, and presented the process and findings from the 2011 Canadian Internet Forum, a CIRA-led initiative where we engaged Canadians in dialogue on issues related to Internet governance. The CIF was incredibly successful, and we will be launching the second CIF in a few short weeks.

It was very interesting to hear the experiences of the other panellists, some of whom were presenting on behalf of regional IGFs (for example, West  Africa, Asia-Pacific) and others on behalf of national IGFs (such as United Kingdom and  Japan). Depending on the region, very different processes and themes emerged.  While IGF-USA engages in scenario exercises, where they considerer different Internet governance models, East Africa’s IGF looks at ways of improving access and infrastructure. While some national IGFs last for one or more days, others take on a year-long project format.

Though there are very real fundamental differences between national and regional IGFs, there are some surprising similarities. For example, improving digital literacy and access to the Internet, two major themes that emerged at the CIF, were also top-of-mind at most regional and national IGFs. As well, while the global IGF is a discussion forum with no decision-making ability or concrete outcomes necessary, the opposite is often true for regional and national IGFs. Concrete, practical policy recommendations are common.

Local discussion of Internet issues are fed up to the global community. The debate and best practice sharing this amazing dialogue produces makes the global IGF experience rich, rewarding, and crucial to maintaining the multi-stakeholder governance model we currently enjoy.

As I mentioned, we’re planning the launch of Canada’s next Internet forum in a few weeks. We’re looking forward to hearing about the issues Canadians  raise and how we can contribute to continuing the success of the Internet. Keep your eyes and ears open – we’ll be making an announcement very soon about how we are going to engage  you in this dialogue.

CIRA’s Election Results

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Yesterday, we announced the names of the successful candidates in CIRA’s Board of Directors’ election.

Congratulations to Kerry Brown (who is a returning Director), Bill St. Arnaud, Susan Mehinagic, and Andrew Escobar. I look forward to working with them over the next year.

A full list of all the candidates and their vote count is available here.

I would like to acknowledge the hard work of all of the candidates. This was one of the hardest fought elections I have seen since my involvement with CIRA. The issues were debated in the candidates’ forum, in social media and face-to-face at networking events like CIRA’s AGM.

I’m also very proud to say that we had a 22 per cent increase in voter participation over last year. I think our message of the importance of getting engaged in the discussions that affect the Internet in Canada is resonating with our Members.

I would also like to thank the Directors who are departing the CIRA Board: Lynne Mackan-Roy, Ross Rader and Tom Williams. Thank you for your dedication to CIRA and good luck.