ICANN? Trying to be less transparent? Surely not!
The Org has been accused by some of its community members of trying to shirk its transparency obligations with proposed changes to its Documentary Information Disclosure Policy.
The changes would give ICANN “superpowers” to deny DIDP requests, and to deny them without explanation, according to inputs to a recently closed public comment period.
The DIDP is ICANN’s equivalent of a Freedom of Information Act, allowing community members to request documentation that would not be published during the normal course of business.
It’s often used, though certainly not exclusively so, by lawyers as a form of discovery before they escalate their beefs to ICANN accountability mechanisms or litigation.
It already contains broad carve-outs that enable ICANN to refuse disclosure if it considers the requested info too sensitive for the public’s eyes. These are the Defined Conditions for Nondisclosure, and they are used frequently enough that most DIDPs don’t reveal any new information.
The proposed new DIDP broadens these nondisclosure conditions further, to the extent that some commentators believe it would allow ICANN to deny basically any request for information. New text allows ICANN to refuse a request for:
Materials, including but not limited to, trade secrets, commercial and financial information, confidential business information, and internal policies and procedures, the disclosure of which could materially harm ICANN’s financial or business interests or the commercial interests of its stakeholders who have those interests.
The Registries Stakeholder Group noted that this is “broader” than the current DIDP, while the At-Large Advisory Committee said (pdf) it “essentially grants ICANN the right to refuse any and all requests”.
ALAC wrote that “rejecting a request because it includes commercial or financial information or documents an internal policy makes a mockery of this DIDP policy”.
Jeff Reberry of drop-catch registrar TurnCommerce concurred (pdf), accusing ICANN of trying to grant itself “superpowers” and stating:
Extremely generic terms such as “confidential business information” and “commercial information” were added. Frankly, this could mean anything and everything! Thus, ICANN has now inserted a catch-all provision allowing it to disclose nothing.
Other comments noted that the proposed changes dilute ICANN’s responsibility to explain itself when it refuses to release information.
Text requiring ICANN to “provide a written statement to the requestor identifying the reasons for the denial” has been deleted from the proposed new policy.
A collection of six lawyers, all prolific DIDP users, put their names to a comment (pdf) stating that “the change results in less transparency than the current DIDP”.
The lawyers point out that requests that are denied without explanation would likely lead to confusion and consequently increased use of ICANN’s accountability mechanisms, such as Requests for Reconsideration. They wrote:
Simply stated, the Revised Policy allows ICANN to obscure its decision-making and will ultimately cause disputes between ICANN and the Internet community — the complete opposite of the “accountable and transparent” and “open and transparent processes” required by ICANN’s Bylaws.
One change that didn’t get much attention in the public comments, but which certainly leapt out to me, concerns the turnaround time for DIDP responses.
Currently, the DIDP states that ICANN “will provide a response to the DIDP request within 30 calendar days from receipt of the request.”
In practice, ICANN treats this obligation like one might treat a tax return or a college essay — it almost provides its response exactly 30 days after it receives a request, at the last possible moment.
The revised DIDP gives ICANN the new ability to extend this deadline for another 30 days, and I don’t think it’s unreasonable to assume, given past behavior, that ICANN will try to exploit this power whenever it’s advantageous to do so:
In the event that ICANN org cannot complete its response within that 30-calendar-day time frame, ICANN org will inform the requestor by email as to when a response will be provided, which shall not be longer than an additional 30 calendar days, and explain the reasons necessary for the extension of time to respond.
The predictably Orwellian irony of all of the above proposed changes is that they come in response to a community review called the Cross-Community Working Group on Enhancing ICANN Accountability Work Stream 2 (WS2), which produced recommendations designed to enhance accountability and transparency.
Whether they are adopted as-is or further revised to address community concerns is up to the ICANN board of directors, which is of course advised by the staff lawyers who drafted the proposed revisions.
ICANN staff’s summary of the seven comments submitted during the public comment period is due next week.
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