Revolving doors?

An article in the Washington Post reminds us that ICANN's governance needs work.

In commenting on the aftermath of ICANN's announcement of an 'open slather' gTLD policy (characterised elsewhere as an expression of regulatory capture and more acutely by Nicholas Weston as the 'Full Employment Act For Domain Name Practitioners'), the Post states that

Today’s decision will usher in a new Internet age,’’ said Peter Dengate Thrush, chairman of the Internet Corp. for Assigned Names and Numbers, after leading the June 20 vote.

Four days later, Dengate Thrush finished his term as ICANN chairman and within a month joined a London company called Top Level Domain Holdings that plans to buy Web suffixes created by the plan and offer Internet registry services.

Dengate Thrush’s move and that of another former ICANN employee have drawn criticism from government watchdogs. The U.S. government is considering adding a conflict-of-interest provision to the contract for domain-name system support performed by ICANN since 1998.

"Given how quickly these two individuals sped through the revolving door, one can’t help but wonder if thinking about their next career move influenced their policy decisions", said Sheila Krumholz, executive director of the Washington-based Center for Responsive Politics.

ICANN doesn’t restrict what employees, executives or directors do after they leave, though they are subject to confidentiality agreements, said John Jeffrey, the group’s general counsel.

"There are no ethical or contractual prohibitions on moving from ICANN to work in the industry, and, in fact, that’s what many people have done", Dengate Thrush said. "Most people at ICANN are there because they’re in the industry to start with."

One response might be that just because something is common does not mean that it is right or that it is best practice, the latter being something to which ICANN aspires.

The Post states that

Dengate Thrush, a 55-year-old intellectual property lawyer from New Zealand, had served as an ICANN director since 2005 and took over as chairman in November 2007. He said he was approached by Top Level Domain Holdings on June 24, the day his term as chairman ended.

Negotiations proceeded "very rapidly", and he signed a contract July 15, he said. In a July 17 statement, the company announced his hiring as executive chairman and said Dengate Thrush would be an "outstanding asset."

"Peter championed successfully the approval of the new gTLD programme at the highest levels, and with Peter on board I have every confidence we will achieve the same success," said Antony Van Couvering, chief executive of TLDH, said in the statement.

Craig Schwartz, a former ICANN employee, last month joined the Financial Services Roundtable, a Washington-based lobbying group whose members include Bank of America and J.P. Morgan Chase.

Schwartz, who was chief gTLD registry liaison at ICANN, said he accepted a job offer from the Roundtable in May and stayed through ICANN’s June 20 vote. He left ICANN June 30 and started his new job July 11.

The business group is considering creating a vehicle with the Washington-based American Bankers Association to acquire top-level domains such as dot-bank and dot-insure for use by financial institutions, said Leigh Williams, president of technology policy for the Roundtable.

"The financial community will benefit greatly from Craig’s firsthand knowledge of ICANN’s domain program," Williams said in a July 11 statement announcing Schwartz’s hiring and noting his involvement in the domain-name expansion.

Schwartz said he’s not aware of any restrictions for departing ICANN staff and declined to disclose his compensation at ICANN and at the Financial Services Roundtable.

Given the importance of exemplary governance ICANN might move quickly to develop, publicise and implement meaningful restrictions. The Post notes that -

ICANN’s bylaws state that no directors "shall vote on any matter in which he or she has a material and direct financial interest that would be affected by the outcome of the vote."

"There’s been no evidence supplied to me or the board to show" that Dengate Thrush "violated our conflicts of interest policy," said Jeffrey, ICANN’s general counsel. "Should such information be made available, that would considered."

The governance committee of ICANN’s board has been looking at whether "post-service" policies are needed, he said.

One issue here is whether the bylaws are adequate. Should Directors and executives be restrained once they leave the organisation, rather than merely while they make policy and management decisions within ICANN?

The National Telecommunications & Information Administration (the US Commerce Department agency overseeing ICANN contract) is reviewing public comments on whether the terms of the contract between ICANN and the US Government should be amended, with the contract expiring in March 2012

"The conflict of interest issue was raised to NTIA in public comments" on the coming contract, Assistant Secretary of Commerce Lawrence Strickling, who advises President Obama on telecommunications policy, said in an e-mail. "Based on that input, we will consider whether the contract should contain additional provisions to guard against conflicts of interest by whomever is chosen to perform the work." ...

"Since ICANN is operating as a quasi-governmental agency, the revolving-door restrictions ought to apply, but they just don’t in this case and that’s just very unfortunate", Craig Holman, legislative representative for Public Citizen, a Washington consumer advocacy group.

Rogan Kersh, an associate dean at New York University’s Wagner School who does research on lobbying, said the ICANN departures created "the perception of questionable behavior."

“The fact that they have the power to reshape the Internet so extensively, a vital aspect of our social and economic existence,” Kersh said, "suggests there should be heightened ethical scrutiny for the acts they perform."

Quite so