Technical Liaison Group Review

The Technical Liaison Group Review took place in 2010 and 2011, although the conversations spurred by the review process extended into 2012.

Background

Article 4.4 of the ICANN Bylaws requires periodic review of all supporting organizations and advisory committees, as well as the Nominating Committee. The bylaws state three objectives for the review:

1. to determine whether that organization, council or committee has a continuing purpose in the ICANN structure;
2. if so, whether any change in structure or operations is desirable to improve its effectiveness; and
3. whether that organization, council or committee is accountable to its constituencies, stakeholder groups, organizations and other stakeholders.

Organizational reviews are conducted by independent examiners, selected through a competitive bidding process. The independent examiner works in consultation with a working group assembled by the board, who will act as implementation shepherds once the final report of the independent examiner is submitted. The review parameters are set by the ICANN Board, and those parameters as well as other avenues of inquiry are typically included in the request for proposals (RFP) for independent examiners. Reviews can take anywhere from three to five years to complete. The full review process includes seven phases, including the implementation of recommendations from the review. Reviews must be conducted at least every five years, measuring from the date that the final report of the previous review was accepted by the ICANN Board.

As with the Article 4-style ICANN Board Review, the board determined during the first round of organizational reviews that it would be beneficial if the Technical Liaison Group engaged in an organizational review process. The review was initiated by the board at ICANN 37 in Nairobi in March 2010, and continued through 2011.

Independent Examiner

In August 2010, JAS Communications was selected as the independent examiner. JAS utilized partially structured interviews to gather information from community members, as well as sending email requests for context and feedback to ICANN organizations, current and former TLG members, and other individuals identified or referred during the interview process. The timeline of the information-gathering phase did not provide JAS with an opportunity to attend an ICANN Meeting.

Draft Final Report

The draft final report of the independent examiner was based on information gathered from fourteen sources, either through interviews or email communications. In its executive summary, JAS advocated for the abolition of the TLG:

In summary, JAS found that the TLG is an antiquated structure of limited utility in the ICANN of today. The TLG: (1) does not and never did function as intended; (2) grants significant governance privileges to organizations with no reciprocity; and (3) places individuals on the Board for only a one‐year term making it nearly impossible for them to be effective contributors. Moreover, the continued existence of the TLG poses some risk to ICANN due to the lack of role clarity and the very real opportunity for questions of loyalty and conflicts of interest to arise in the Boardroom. As such, JAS recommends that ICANN disband the TLG and replace the inter‐organizational liaison function with other more typical non‐bylaws level constructs.

Public comment on the draft report was divided between strong agreement and strong objections to the recommendations of the report. JAS continued to conduct interviews and receive correspondence from its initial queries, as well as in response to the draft report. The additional information and feedback was factored into the final report.

Final Report

The final report still advocated the abolition of the TLG, but refined both its recommendations and the structure of its recommendations. The final report contained only three recommendations:

1. Dismantle the TLG
2. Utilize non‐Bylaws constructs such as Memoranda of Understanding (MoU) to negotiate and formally memorialize institutional relationships on a bilateral basis.
3. Reaffirm the Nominating Committee’s present obligations under Article VI Section 3 [of the ICANN Bylaws] to monitor the skill set mix of Directors and appoint technically qualified Directors as necessary.

In combination with these recommendations, JAS offered four "Alternative Considerations" (previously recommendations in the draft report) in the event that the TLG was not dismantled:

1. consider rebuilding the TLG membership pursuant to criteria and objectives set by the ICANN Board with the full range of global, technically oriented organizations presently in existence considered for membership;
2. consider making reciprocity a condition of participation for TLG organizations;
3. allow the TLG organizations to collectively elect their Board liaison for a term of three years; and
4. address the issue of role clarity for the TLG liaison (or for all liaison roles). Clearly specify a duty of loyalty to ICANN for the Board member liaisons, or move liaisons off of the full Board into a non‐fiduciary advisory capacity.

Public comment on the Final Report was minimal. ETSI, through Julian Pritchard, complimented the improvements to the report, but remained skeptical of the need for "reciprocity" of representation, particularly at board level. ETSI's was the only comment received.

Board Response to IE Report

The Structural Improvements Committee (SIC) (as it was then known) deliberated on the IE Report in its November 2010 meeting, anticipating next steps and proposing to exchange potential proposals to the board via email. Further discussion was planned for the SIC meeting in December 2010, but the TLG review was not on the agenda for that meeting. The SIC next addressed the TLG Review at ICANN 40 in March 2011, where it drafted the board resolutions and actions that would be adopted later in the week.

On March 18, 2011, at its meeting at ICANN 40, the board made several resolutions relating to the IE's final report:

• thanking the IE, ICANN staff, and SIC members for their work on the review;
• establishing the Board Technical Relations Working Group (TR-WG) "to consider measures to enhance the coordination and cooperation between ICANN and other members of the Internet technical community with the intent of, among other things, dissolving the TLG by the 2011 Annual Meeting;"
• charging the working group to engage in a "fully consultative process" with the ICANN community to establish how ICANN should coordinate and cooperate with other members of the Internet technical community;
• instructing the Board Governance Committee (BGC) to nominate five members to the BTRWG, including a designated chair; and
• instructing the SIC to draft a charter for the working group (the last two resolutions to be completed in time for the board to act on the proposed nominees and charter at its regular meeting in April)

At its meeting on April 21, 2011, the board approved the nominations from the BGC (Gonzalo Navarro, Chair; Thomas Narten; Thomas Roessler; Reinhard Scholl; and Jonne Soininen), and approved the charter provided by the SIC, with the addition of a step for an internal review process prior to release of the BTRWG report for public comment.

TR-WG Final Report

The TR-WG's lifespan was relatively brief - from April 2011 to August 2011, when it presented its final report to the board. The working group's charter defined a specific and narrow set of responsibilities for the TR-WG in preparing the ground for the board to disband the TLG at its Annual Meeting in October 2011: a. Identify the types of entities, or entities, in the Internet technical community with which ICANN should establish relationship [sic] for cooperation and coordination, stating the reasons why such cooperation and coordination would be beneficial. b. Identify modalities and measures for cooperation and coordination with the types of entities, or entities, identified in (a) above, stating the advantages and drawbacks associated with each measure. c. Perform outreach to entities identified in (a) to assess feasibility of the alternative measures identified in (b). d. Summarize the findings from steps (a-c) above and recommend actions to be taken in a draft report for public comment. e. Evaluate public comments received, adapt the draft report findings as appropriate in preparing a final report, for consideration and decision by the ICANN Board.

The charter does not contemplate a "fully consultative" process that the ICANN 40 board resolutions called for, nor does it appear that much consultation was attempted before the submission of the final report. The TR-WG, for example, held no public sessions at ICANN 41 in Singapore. No TR-WG wiki or meeting archive exists - only a page under ICANN's "Committees" category on its website.

The TR-WG's final report was submitted on August 22, 2011. The report argued against dismantling the TLG until such time that a viable replacement - whether multiple one-to-one agreements, or a different method of interacting with technical organizations collectively - was established:

Within the Board Technical Relations WG as currently chartered, ICANN must address [two] topics at once:

1. What should ICANN's relationships with the TLG's constituent organizations be? Which of these organizations should be vested with Board-level or other special representation? What are appropriate reciprocity arrangements?

2. How can ICANN best obtain timely and relevant technical advice?

The working group disagreed with the charter's mandate to engage in strategic discussions with TLG constituents and other technical organizations on ICANN's behalf - "The BTRWG believes that such actions are beyond of the scope of its responsibilities and should be performed by the Board of ICANN or ICANN Senior Staff as appropriate." Instead, it provided the following recommendations to the board:

1. ICANN should consult with the TLG's constituent bodies individually about what relationship and involvement in governance mechanisms is appropriate for the respective organization. This consultation should be undertaken by the ICANN Board or senior staff.
2. ICANN should not disband the TLG before it has substantially concluded these consultations. We believe that a time frame of six months should be sufficient to substantially conclude these consultations.
3. ICANN should work to strengthen and better institutionalize the mechanisms for obtaining technical advice and input, including at the Board level. It is the recommendation of this Working Group that, given the ICANN Board’s current mode of operation, the organization continues to need technical advice and expertise within the Board's deliberations, such as the

expertise and advice that has been provided by liaisons appointed by the TLG. A decision to disband the TLG should be made only in conjunction with simultaneously addressing this issue.

1. The Nominating Committee is designed for broad participation. The TLG provides for participants in the Nominating Committee who are connected to the broader technical community. ICANN should maintain this connection, and should continue the TLG’s role of fulfilling it.

Board Action on the Working Group Final Report

The board accepted the working group's report at its meeting on August 25, 2011, and referred it to the SIC for futher analysis and recommendations regarding a course of action. At it meeting in September, the SIC considered the current relationship with the TLG and proposed to continue discussion at ICANN 42 in Dakar after committee members have had a chance to forumulate and exchange proposals for strengthening ICANN's relationship with TLG component organizations. In Dakar, the SIC's meeting resulted only in a recommendation to the Board that the TR-WG's final report be posted for public comment. During the time allocated for committee reports to the board, however, Ray Plzak (chair of the SIC) did provide some information regarding the SIC's discussion of the TLG review:

Part of the discussion coming out of the TLG review and the need for ICANN to get advice has also caused the committee to look at the broader scope of how does ICANN Board get the advice that it needs, not only on technical matters but on a number of other matters. The New gTLD program is going to cause -- it has caused the board to receive advice and need advice in areas that it hadn't necessarily needed detailed advice before. So we're going to look at the advisory committee structure. And we don't know where that discussion is going to go. But the thing is that it's something that needs to be done. Because in the end it's the ability of the board to get good advice when it needs it that's important.

At the board meeting later that day, the board passed a resolution directing that the working group's report be posted for public comment.

Public Comment

The public comment period ran from November 16 to December 30, 2011, and elicited only two comments. ETSI expressed agreement with the report's recommendations. Marilyn Cade submitted a comment in the new year, noting her objection to scheduling a public comment period to close on the week between Christmas and New Year's Eve. "I did not post my comments during that period because we must be reasonable, and respectful of the true priorities of the community – not only the ICANN internal processes." Cade argued strongly for reform, both within the TLG and in the broader issues facing the ICANN board's access to expertise:

My comments propose a different approach for the TLG, and of more significance, propose a major change in the role of all technical advisors/liaisons overall, focused initially on the TLG. Technical advisors/liaisons should be treated as independent experts, and afforded the critical, but limited role that this would entail. An exception is appropriate for the GAC Chair and possibly for the Root Server Advisory Group.
ICANN’s Board [and community] deserve independent experts – whether in economic studies, where ICANN has not yet distinguished itself; legal advice, where ICANN’s Board needs a truly independent advisor on what its role is in acting in the public interest, and in technical areas that it 'affects' in its decisions. The Board is not a surrogate for retained, independent, accountable expertise. That should become a standard. The Board is not a surrogate for understanding the issues of the SOs/ACs/SGS, but should have routine and substantial access to the leadership from such organizations.

"Provision of Advice" Discussion and Dwindling Efforts in the SIC

As foreshadowed by Ray Plzak's comments in Dakar, the next mention of the TLG Review in a SIC meeting was presented in terms of "a discussion, arising out of the TLG Review, of how does ICANN get the advice that it needs when it needs it..." Perhaps in a nod to Marilyn Cade's comment on the TR-WG final report, the SIC "briefly discussed each of the advisory committees within ICANN and the Board-liaison functions, as well as staff advisory roles and ad hoc advice seeking mechanism" and set an action item for "SIC members to continue consideration of discussion as framed." This conversation continued in June 2012, but to little effect and with an intention to more properly stage the conversation for the next SIC meeting.

At the next meeting in September 2012, "the SIC discussed how to bring the TLG Review to a close and take some action, in preparation for a more fulsome discussion at its next meeting." In October, the SIC instructed staff to "draft a proposed resolution for Board consideration regarding the formation of more structured relationships with the component entities of the TLG (which may include provision of liaisons) and the identification of a date by which the TLG is expected to conclude." At its meeting in December 2012, the proposed resolution was punted to the SIC's April 2013 meeting.

In April 2013, both the TLG Review and the "Advice Provision" discussion were tabled until "a future agenda" and "a future date given the current priorities of the BGC and the need to coordinate with the BGC on this item," respectively. In September 2013, SIC Chair Ray Plzak "noted that the action following on from the review of the TLG is moving forward with oversight from the Board and the Board Chairman instead of the SIC." In November, as the TLG Review was now under the stewardship of the Board and the Board Chairman, the committee agreed to close out its open action item regarding the review.

Board Action and Bylaws Revisions

In September 2013, the ICANN Board made two resolutions affecting the future of the TLG. The first was to initiate communications (per the recommendation of the TR-WG) with the TLG component organizations regarding the refocusing of the TLG into an advising body, aiming "to initiate work to develop the group of eight experts that the Bylaws anticipate will be available to provide advice to the Board." The second resolution proposed an amendment to the ICANN Bylaws that made two major changes:

After the communications take place regarding the improvement of provision of advice, the Board is approving that proposed Bylaws changes to be posted for public comment. The effect of these revisions, and the issue that is likely to be before the Board after the close of comments, is to consider the removal of the TLG's appointing a liaison to the Board, as well as the removal of the TLG's appointment of a voting member to the ICANN Nominating Committee. The removal of these appointment obligations is anticipated to allow the entities of the TLG to focus their attention on the provision of advice to ICANN, as opposed to the appointment of singular liaisons that are not authorized to represent the panoply of views within the TLG.

The ALAC submitted the sole public comment on the proposed Bylaws amendment. Citing the TR-WG final report, the ALAC objected to the "cart before the horse" method of removing the TLG liaison from the board and then continuing to develop a new method that ensured access to advice. The ALAC also objected to the removal of the TLG delegate to the NomCom. In its summary analysis of the public comment period, ICANN Staff noted that the component organizations of the TLG remained committed to their recruitment efforts on behalf of ICANN and the NomCom:

With respect to the concern regarding outreach to the technical communities, each of the four organizations that make up the TLG are engaged in ongoing community outreach efforts. The removal of a TLG delegate from the NomCom does not prevent these organizations from continuing with their efforts and they are encouraged to continue those efforts.

In February 2014, the Board approved the amendments to the Bylaws as proposed, with two clerical corrections that did not alter the substance of the amendments. That resolution concluded the TLG Review, although the development of methods for the board to receive advice continued.