2008 Accountability and Transparency Frameworks and Principles
Contents and Overview
ICANN's Accountability and Transparency Frameworks and Principles were approved by the Board on 15 February 2008.
The full frameworks and principles are also available in PDF format:
ICANN’s core mission is to coordinate, at the overall level, the global Internet’s systems of unique identifiers, and in particular to ensure the stable and secure operation of the Internet’s unique identifiers.
This is mainly a technical coordination function but is fundamentally important to the stable and interoperable character of the Internet.
ICANN operates on a multi-stakeholder model that brings all interested parties together to discuss policy issues that fall within ICANN’s areas of responsibility. It follows a bottom-up model of policy development and relies on consensus from its stakeholders. For this model to operate effectively, ICANN needs to encourage participation, instill trust, make information accessible, and have sound dispute and review mechanisms.
ICANN believes that transparency and accountability are the foundations that support these elements in its operating model.
At this stage of ICANN’s development, it is important to bring together in one place the frameworks and mechanisms for accountability and transparency that underpin ICANN operations. These frameworks and mechanisms for accountability and transparency were built by design into the ICANN structure and model itself, providing the organization with an inherent form of checks and balances through which stakeholders also participate. They have been built upon and improved over time through community input. ICANN wants to ensure that its ongoing development is underpinned by a set of permanent, clear operating principles and frameworks that will inform the development of all future measures designed to build transparency and accountability. The development of these principles and the communication of existing mechanisms and frameworks will build trust and will, in turn, create confidence that the organization is accountable. It is the creation of a virtuous cycle.
ICANN is a unique model and therefore ICANN accountability structures do not fit into any one traditional definition.
ICANN is an internationally organized, non-profit corporation and as such has accountability as a corporation but also through its purpose which is similar to a public trust.
Within ICANN's structure, governments and international treaty organizations work in partnership with businesses, organizations, and skilled individuals involved in building and sustaining the global Internet. ICANN is perhaps the foremost example of collaboration by the various constituents of the Internet community. Each of these groups has their own experience and expectations of accountability.
ICANN develops policy appropriate to its mission through bottom-up, consensus-based processes and in its governance, should be accountable to the community who contribute to the ICANN process.
The development of the framework of ICANN’s accountability detailed in this document is the result of extensive consultation with the ICANN community, and in particular reflects definitions of accountability provided by the Governmental Advisory Committee (GAC) in November 2007.
ICANN is accountable in three ways:
- Public sphere accountability which deals with mechanisms for assuring stakeholders that ICANN has behaved responsibly ;
- Corporate and legal accountability which covers the obligations that ICANN has through the legal system and under its bylaws; and
- Participating community accountability that ensures that the Board and executive perform functions in line with the wishes and expectations of the ICANN community.
These three types of accountability provide a useful framework for setting out the many aspects of ICANN accountability. However, before moving to the details of each of these types of accountability, it is important to note that there are inherent tensions that exist between the three types. An effective set of accountability mechanisms requires careful navigation through these points of tension.
Tension between corporate and legal accountability and accountability to the participating community
Many of the points of tension exist between the corporate and legal accountabilities and the accountabilities to the participating community.
The first point of tension concerns membership. ICANN is accountable to the global community, however the nature of ICANN’s unique mission does not permit “members” of the organization that could exert undue influence and control over ICANN’s activities. Thus by not having any statutory members, ICANN is accountable to the public at-large rather than to any specific member or group of members. This construct helps eliminate the specter of antitrust violations by allowing ICANN to operate in the best interests of the public at large rather than in the individual interests of certain members. This construct also allows ICANN to work collaboratively, rather than compete, with the various constituents of the Internet community.
The second point of tension is that between the responsibilities of elected Board members to the group that elected them and their responsibilities as Board members. Under ICANN’s corporate structure, Supporting Organizations and other bodies within ICANN representing certain sectors of the participating community are entitled to elect directors to ICANN’s Board. These directors, in turn, owe all of the duties of a director to ICANN in their roles as members of the Board. These duties for a director of care, inquiry, loyalty and prudent investment to the corporation and its constituencies take supremacy over the interests of the electing organization. Each member of ICANN’s board is accountable to the participating community as a whole through his or her fiduciary duties and is required to make decisions that are in the best interests of the corporation and community at large.
The third and perhaps most critical point of tension is between the accountability to the participating community to perform functions in keeping with the expectations of the community and the corporate and legal responsibilities of the Board to meet its fiduciary obligations. The ultimate legal accountability of the organization lies with the Board, not with the individuals and entities that make up the ICANN community. Under California corporate law, ICANN’s Board of Directors is charged with overall responsibility for the management of the business and affairs of the corporation. The general legal duties of an ICANN director are owed to the corporation itself, and the public at large, not to individual interests within the ICANN community. The Directors may therefore on occasion have to make decisions that run counter to the interests of individuals or groups in the community in order to properly address the Directors’ broader fiduciary duties or to comply with other legal obligations.
Tension between public trust accountability and corporate and legal accountability
The tension between public trust accountability and corporate and legal accountability is most obvious in the area of disclosure of information. To meet its obligations under public trust accountability, ICANN seeks to “operate to the maximum extent feasible in an open and transparent manner” (ICANN Bylaws, Article III, Section 1). At the same time, ICANN’s Directors have legal and fiduciary obligations that require that some types of information not be made public. That tension is addressed in the ICANN Documentary Disclosure Policy included in these Management Operating Principles. That policy sets out the wide range of material that is made public and also the conditions under which information will not be made public.
The following sections set out in detail the ways in which ICANN implements the three types of accountability within its operations and deals with the tensions described above.
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