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.

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