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ICANN selects its wardens

But are they sufficient to keep net body in check?

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The Internet Coporation for Assigned Names and Numbers (ICANN) has selected the two independent wardens of its activites after a two-year delay.

The role of Ombudsman has been filled by Canadian Frank Fowlie, and the Independent Review Panel will be run by the International Centre for Dispute Resolution (ICDR), a division of the American Arbitration Association.

The two roles are vital to ICANN's future as it seeks to become an autonomous body in charge of the Internet. In 2006, its remit to act as the Net's overseer will end, and others will seek to take over the worldwide medium.

Independent review is the biggest stumbling block facing ICANN in its quest to be accepted as the world authority over the Internet. Since its inception in 1999, the organisation has been dogged by accusations of closed-doors decision-making and self-seeking behaviour. ICANN was eventually pressed into including an Ombudsman and Independent Review Panel into its bylaws in December 2002.

Since then, critics have been infuriated to see ICANN failing to fill the posts, claiming whenever challenged that it was still seeking the appropriate candidate. Two years later, we finally have them.

Frank Fowlie has, according to ICANN CEO Paul Twomey, "a long career as an Ombudsman and dispute resolution expert at several layers of agencies in the Canadian government, and also with the United Nations." He "comes with a lot of experience." Meanwhile, the ICDR is, according to its remit, "an international arbitration provider with an understanding of applicable international laws and California not-for-profit corporation law".

Independence fray

The big question though is: are they independent enough, knowledgeable enough and strong enough to provide the sort of overview that is essential if ICANN is to be handed the reins of the world's most powerful medium?

Twomey was keen to press home that the Ombudsman has independent offices, reports directly to the ICANN Board and requires a 75 percent Board vote against him to be dismissed. Written into the bylaws is also the fact that no Board member of ICANN staffer is entitled to hinder his investigation and is obliged to help him out with any investigation.

Which is all well and good until you look at the other side of the coin. Fowlie only has a two-year tenure and the Board will vote on whether to extend that. So immediately there is room for pressure to be brought to bear.

The Ombudsman submits his own budget to the Board and that is included "in its entirety and without change" into the general ICANN budget. However, the president is entitled to "offer separate views" on any aspect of this budget and the Board, in the end, approves or refuses it.

The Ombudsman reports directly to the Board. However, the Board is not under any obligation to act on his reports or any recommendations contained within them. He also does not have the right to publish that information, so a crucial safety measure preventing the Board from dismissing the Ombudsman's conclusions - that of public exposure - is lost.

The Ombudsman is also not allowed to start, join or support any legal actions against ICANN, whether that be its structure, processes, procedures or conduct. So a last resort option in the case of irrevocable differences is also denied him.

In short, the position of Ombudsman has rubber teeth and its effectiveness relies almost entirely on the Board and precedents set within ICANN. We can only wait and see if Fowlie is up to the task of confronting a secretive culture without allowing it to undermine his position.

A question of CV

According to Twomey, Fowlie is highly experienced in dispute resolution. ICANN has not provided a full CV for Mr Fowlie, saying only that he "brings 20 years of experience to the position as an Ombudsman and conflict resolution specialist, having operated in various agencies of the Canadian government and the United Nations".

In January 2000, Fowlie was posted to East Timor as a UN political affairs officer, and was swiftly made Deputy Administrator of the capital Dilli. He left in August 2001 to take up a post at the new Financial Consumer Agency of Canada (FCAC), in Canada, as a senior advisor. The FCAC deals with complaints made by consumers against banks and insurance companies.

Fowlie's job was to put in place the dispute resolution processes used by the staff in dealing with complaints. He stayed with the FCAC until only last month, and last year was still working towards a masters degree in Conflict Analysis and Management.

Fowlie is still an unknown quantity, although he is due to publish a public paper for discussion on the role and framework of Ombudsman that should shed some light on his approach. Two matters concern us, however. One, he has yet to establish himself as an independent voice, despite having at least a month to prepare for his new role. And two, he appears to have very little knowledge with regard to the Internet and IT.

As such, with the role of Ombudsman added to the ever expanding list of "wait and see, you can trust us" promises put forward by ICANN, we are still left wanting a solid demonstration of New ICANN's approach.

Independent Review what?

That demonstration won't come with the Independent Review Panel (IRP) either. Again, written into ICANN's bylaws in December 2002, the actual decision by the Board in April this year that the International Centre for Dispute Resolution (ICDR) had been chosen to act as the IRP passed us by.

And, so it would seem, the ICDR itself. It happily lists 59 other organisations it has relationships with, and gives special room to the China International Economic and Trade Arbitration Commission. But a search for ICANN on its site provides but one webpage - and that only points out that someone that occasionally works for the ICDR has worked with ICANN dispute rules in the past. Not what you would call an important, significant relationship.

If you review the ICANN Board's resolutions, the ICDR hasn't been requested to oversee ICANN. In fact, it is ICANN itself which decides when and if to hire the ICDR. Not only that but the resolutions state that ICANN will also continue "soliciting and negotiating with additional independent arbitration service providers".

And so the ICDR also has no firm footing with which to disagree with ICANN - which is its entire purpose as an Independent Review Panel. When asked about it earlier this week ICANN chairman Vint Cerf said he was "not sure where we are with it". Paul Twomey corrected that the details about who it was could be found on the ICANN website. For such an important task, the IRP remains disturbingly low-key.

So in response to the question: are the Ombudsman and IRP independent enough, knowledgeable enough and strong enough to provide the sort of overview that is essential if ICANN is to be handed the reins of the world's most powerful medium? The answer is a clear "No".

Habits died hard it would seem, and ICANN is not going to hand over any real power voluntarily. So the real question is: who is going to make ICANN more accountable? You? ®

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