Lawyer ban coming to ICANN

Tell us who you’re working for, or get out.

That’s the message, mainly targeting lawyers in private practice, underpinning a proposed change to the rules governing participating in ICANN policy-making proceedings.

The Org has published a new “discussion draft” of a Community Participant Code of Conduct Concerning Statements of Interest, which proposes closing a loophole that currently allows lawyers to keep their clients’ identities secret.

Today, everyone who participates in policy-making has to file a Statement of Interest, disclosing among other things their employers and/or clients, so their fellow volunteers know who they’re dealing with.

But there’s an exemption where “professional ethical obligations prevent you from disclosing this information”.

The new proposals would remove this exemption. The text (pdf) reads:

withholding relevant information about the interests involved in the deliberations could impair the legitimacy of ICANN’s processes. When disclosure cannot be made, the participant must not participate in ICANN processes on that issue.

This rule would also apply, for example, to participants from companies that are secretly working on technology patents relevant to the area of policy work, ICANN said.

Imagine an employee of a Big Domains firm pushing hard for a change to Whois policy while their employer is covertly intending to patent elements of the technology that would be needed to implement that policy.

The other example I’ve been given is of a lawyer in private practice who’s representing a company that intends to apply to ICANN for a new gTLD in the Next Round, where disclosing the desired string might be unwise.

If Pepsi is planning to apply for .pepsi, thinking it will give it a competitive advantage over Coca-Cola, having its outside counsel essentially announce that fact to the world could tip off its rival to start working on its .coke application.

In both those situations, the proposed new SOI policy would ask the would-be volunteer to either disclose or recuse. If discovered to have lied about their interests, they could be banned from all future ICANN policy-making work.

The proposals also target those working for trade groups who keep their member lists private. The document states:

If participants are participating on behalf of a trade association, consortium, or similar organization, those participants are urged to identify where other participants within ICANN can locate pertinent information about the membership or funding of that organization.

The proposals appear to have originated with ICANN Org after community efforts to reach consensus on SOIs failed.

A GNSO working group called CCOICI, for Council Committee for Overseeing and Implementing Continuous Improvement, after internal disagreements last year recommended keeping the lawyer loophole.

But when it came to a GNSO Council vote almost exactly a year ago, the Contracted Parties House (registries and registrars) unanimously rejected the CCOICI recommendations, precisely because of the loophole.

The Non-Contracted Parties House gave the changes their unanimous approval.

CPH members’ interests are of course generally known by virtue of the fact that they’re CPH members, representing their employers.

As I reported back in March, the CPH continues to think the SOI rules need strengthening, and that position is shared by members of the influential Governmental Advisory Committee.

The proposals are open for public comment until December 2.

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Tagged: gnso, ICANN, soi, transparency