Reflecting on ICANN 56

By Gangesh Varma**

The ‘control-of-the-Internet’ rhetoric never lost its appeal. The domestic politics in United States, particularly the opposition from Republican Senators, is not a new obstacle to the IANA Transition. The Republican Party Platform for 2016 captures the key policy positions of the Republican Party for the Presidential elections and includes a section on “Protecting Internet Freedom”. It has been suggested that the individual efforts of some Senators has now been consolidated into an official party position. The Congress had earlier succeeded in blocking the NTIA from using any funds for executing the transition. Some fear that this delay tactic may arise as an issue in the form of a rider in a bill around this September when the NTIA’s contract with ICANN is set to expire. Waiting for the consequences of these blocking efforts to unravel provides an opportune moment to reflect on the 56th Public Meeting of ICANN, held in Helsinki, Finland from 27-30 June, 2016.

ICANN 56 was a meeting of many firsts: it was the first B-meeting format as per the new ICANN Meeting Strategy. It was also the first meeting after the NTIA approved and endorsed the IANA Transition Proposal and happens to be the first meeting since Göran Marby officially took over as CEO. As per the B-Meeting format, ICANN 56 was a policy forum. This meant that the meeting would focus purely on policy development and outreach. Stripping down the ICANN meeting to a much leaner format without the public forums, public board meetings, or exhibition areas provided a short but intense four days focussed on policy discussions. At the heart of the meeting were the three active Policy Development Processes (PDPs):

New gTLD Subsequent Procedures PDP

The New gTLD Subsequent Procedures PDP looks at the experiences of the New gTLD Program so far, and is tasked with making recommendations for changes and improvements, if any. During ICANN 56, the Working Group provided a recap of the discussions so far, and also engaged with the GAC in a session detailing the work pending and done so far. The Cross community session also saw interesting debates on multiple themes including use of country and territory names, geographic names, and public interest commitments. The PDP has been organized into four key work tracks. More details on this PDP can be found here.

The Next Generation Registration Directory Services (RDS) PDP

The Next Generation RDS PDP looks at the new service that is to replace the WHOIS, which provides the registration data of domain name registrants. At ICANN 56, this PDP was the site of extensive debates on privacy. Some argued for the need for more information from a domain name registrant, and more data on the directory service. Others argued the opposite and sought for collection of lesser information, and greater protection for a registrant’s privacy. The concerns of various stakeholders ranged from the need for reliable information for law enforcement to the protection of whistle-blowers. More details on this PDP are available here.

Rights Protection Mechanisms PDP

The Rights Protection Mechanism PDP is a large over-arching PDP that covers all rights protection mechanisms in all gTLDs. This PDP is split into two phases. Currently in its first phase, the working group is reviewing all the rights protection mechanisms developed for the New gTLD program. The second phase will review the Uniform Dispute Resolution Process. During ICANN 56, the working group discussions looked at community feedback on some of the RPMs to be reviewed in phase one, such as the Trademark Clearinghouse etc. More details on this PDP are available here.

IANA Transition related sessions

While the PDPs received significant amount of attention, some interesting sessions such as those on updates regarding implementation phase of the IANA Transition, never made it to the official schedule.  The sessions relating to the IANA Transition were rather muted in comparison to ICANN 55 at Marrakech. This could be because of two things. First, the transition proposal has already been approved, and endorsed by the NTIA. Whereas, at ICANN 55 the proposal was still being debated, and awaited the endorsement of the chartering organizations. Second, after the NTIA has approved the proposal, and asked ICANN to provide an update on the status of implementation by August 10, 2016. This implies that the ball is now in ICANN’s court to simply carry out the plan. Except that this illusion of the transition moving ahead without hurdles falls apart with the Republican efforts and possible requirement of approval from the US Congress.

The GAC, on the other hand, had a colourful discussion on its role in the post transition Empowered Community. The session saw reignited debates on the role of governments and had countries reinterpreting the ICANN 55 Communique. The ICANN 56 GAC Communique held no surprises nor was it as eagerly anticipated as the ICANN 55 GAC Communique. Members of the GAC also expressed the need for more time and formal work sessions particularly the need for more time to draft the communique.

Outside the Official Schedule

While the new meeting format can be appreciated for it unflinching focus on policy development, its ability to encourage all avenues of policy discussion is limited. For example, the Cross Community Working Party on Human Rights was not allotted a formal working session. It however had a joint session with the GAC Working Group on Human Rights and International Law where it discussed the progress of work so far, in addition to plans for future work.

Joining others that did not feature in the official schedule, the CCWG on Internet Governance had a session with ICANN Board Working Group on Internet Governance and ICANN CEO. This session discussed the role of ICANN in the larger internet governance ecosystem. With the formation of the Board Working Group on Internet Governance led by Markus Kummer, it is imperative that the CCWG on Internet Governance introspects its scope and function. With the bottom-up policy mantra that ICANN and its CEO ardently espoused, it is essential that ICANN’s role in the larger internet governance arena be developed with inputs from all stakeholders in the ICANN community. This is something the CCWG on IG can and should facilitate.

In some ways, ICANN 56 reflected the transformation ICANN is undergoing. Stakeholders were required to imagine their new roles and responsibilities in the post transition ICANN yet remain grounded in its current structure and policy making framework. ICANN is going about its work quietly, maintaining what some might call a low profile, until the domestic US political disturbances are settled. While the transition is yet to happen, the pre-requisite implementation work is almost complete. The impact of the IANA transition, if it does happen, will not only be felt within ICANN and its community, but will be a testament to multistakeholder processes and institutions in the internet governance ecosystem.

**The author is grateful for having been provided the Non-Commercial User Constituency (NCUC) Travel Support Funding for attending ICANN 56.

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Russia, India and China: Perspectives on Internet Governance

By Gangesh Varma

Last week, on 18th April, 2016, a Joint Communique of the 14th Meeting of the Foreign Ministers of Russia, India and China (RIC) raised a few eyebrows. The subject of discussion is paragraph 12 of the Communique which deals with the use of Information & Communication Technologies (ICTs) including the internet and its governance.

Four Key Aspects of Paragraph 12

There are four key aspects that can be gleaned from the text of this paragraph. First, the abuse of ICTs (including the internet) in violation of United Nations Charter and international law, “for terrorism and other criminal purposes”. Second, the need for countering such abuse by strengthening cooperation, and developing an international treaty for addressing such use of ICT for criminal purposes. Third, the adherence to universally recognized principles of international law in the use of ICTs. Fourth, the development of the Internet, and its governance regime.

The first issue is common to all countries, and does not have polarizing responses. The abuse of ICTs and the internet for organized crime, terrorist activities etc. are concerns that required more international cooperation. While the second issue on the need for an international treaty to address cyber-crimes or use of ICTs for criminal purposes is one that has been subject to extensive debate. While Europe has the Budapest Convention addressing this issue, most other countries have to manoeuvre through bilateral Mutual Legal Assistance Treaties (MLAT). There has been a long-standing demand for a universal treaty to address cybercrime ever since the regional Budapest Convention materialised.

The third aspect, in the text of the Communique is reference to adherence of universally recognized principles of international law in the use of ICTs such as:

“… the principles of political independence, territorial integrity and sovereign equality of states, respect for state sovereignty, non-intervention into the internal affairs of other states”.

These principles are focused on the state, however the Communique does not ignore the rights of a citizen. It also specifically refers to “respect for human rights and fundamental freedoms” and considers it of “paramount importance”

Internet Governance in the Communique

The fourth and most interesting issue covered in paragraph 12 of the Communique is that of Internet governance. It considers the Internet a “global resource”. This is language that has been previously used in the Ufa Declaration at the 7th BRICS Summit. It is also not far from the language of the WSIS+10 Review Outcome Document which uses language from the Tunis Agenda and provides for the management of the “Internet as a global facility”. Further borrowing from the WSIS documents, the Communique goes on to refer to participation of all states on “equal footing”. It emphasizes the need for Internet governance to be based “on multilateralism, democracy, transparency with multi-stakeholders in their respective roles and responsibilities” (emphasis supplied). The paragraph concludes with the need for further internationalization of Internet governance and “to enhance in this regard the role of International Telecommunication Union”.  

India’s approach

Some see this text in the Communique as a step forward – as a measure that creates a middle ground between countries with polar opposite positions on internet governance. While others worry this is an exclusionary road to multilateralism, one that can lead to back to an oscillating ambivalence of India’s position on internet governance. However, this text is not far from India’s position on multistakeholderism. While being vocal about India’s support for multistakeholderism in internet governance, the Minister for Communications and IT has also emphasised one condition. That is, government will have supreme right and control on matters of national security. On examining the internet governance related text of the Communique, the heavy focus on security concerns of the countries is evident.

In many ways, this can be seen as a pit-stop before Brazil and South Africa join the discussion at the BRICS Summit later this year. In a post earlier this year, I argued the possibility of a BRICS Bridge for Dialogue on Internet governance. India will host the 8th BRICS Summit, in Goa from 15th to 16th October, 2016. Now could be an opportune moment to take the reins of internet governance debates and steer towards a constructive path.

 

Global Public Interest and ICANN

By Gangesh Varma

Global Public Interest is a difficult term to define. Any attempt to define it has always been met with resistance, or dissatisfaction. Yet, it features prominently in ICANN’s universe – through its bylaws, documents and contracts. In this post, I recapitulate the discussions surrounding global public interest within ICANN’s remit, the subject of a high interest session at ICANN 55 earlier this month.

Debates surrounding the term were revived during deliberations of the Cross-Community Working Group on Enhancing ICANN’s Accountability (CCWG-Acct). It was among the most difficult issues discussed due to diverging perspectives from various stakeholders. One of the recommendations of the CCWG-Acct is to embed the concept in the core values of ICANN’s bylaws as follows:

“Seeking and supporting broad informed participation and reflecting the functional, geographic, and cultural diversity of the Internet at all levels of policy development and decision making to ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent.”[1] [Emphasis added]

ICANN’s struggle with global public interest is not new or isolated to the transition process. In 2013-14, a Strategic Panel led by Nii Quanyor examined this topic. The Report of the Panel attempted a broad definition of global public interest as follows:

“ICANN defines the global public interest in relation to the Internet as ensuring the Internet becomes, and continues to be, stable, inclusive, and accessible across the globe so that all may enjoy the benefits of a single and open Internet. In addressing its public responsibility, ICANN must build trust in the Internet and its governance ecosystem.”[2]

This broad and aspirational definition formulated by the Strategy Panel, did not receive complete support from the Community. However, it was not entirely rejected. This was the basis of further effort to source an understanding of the concept from the various departments within ICANN. The Development and Public Responsibility Programs Department at ICANN conducted a survey across the organization. It compiled resources and research on this subject to facilitate a discussion within ICANN’s multistakeholder Community i.e. the Supporting Organizations (SOs) and Advisory Committees (ACs).

Following this stock-taking, the session at Marrakech also updated the Community on a workshop organised on this subject at the Internet Governance Forum last year. The workshop discussed the idea of global public interest with reference to critical internet resources[3].  It highlighted the various traditional understandings of “in public interest” that is usually associated with developing regulation. It also focussed on the linkages between public interest and human rights including concepts like social justice, equal access, cultural diversity etc. It highlighted the regional perceptions of public interest and its possible contribution to conceptualizing ‘global public interest’. One of the key takeaways from the IGF workshop that resonated at the session in Marrakech was the idea that public interest is an aspirational goal, and cannot be fully achieved.

The diverging views are broadly in two categories. First, public interest as a concept that has a specific definition that can be articulated and achieved in each case. Second, is a broader perception of public interest. Here, it is perceived to be a purely aspirational goal, which must not be defined because it varies with context and is easily susceptible to exceed ICANN’s limited mission. While fears of such ‘mission creep’ are not unfounded, it must be noted that public interest appears not only in ICANN’s bylaws, but also as a criteria in some of its contracts. This compels a clearer and more tangible definition of the concept.

ICANN can take a two-prong approach to this challenge. First, is to pursue a definition for the broad aspirational goal that can be applied across its operations. As suggested during the session at Marrakech, the starting point could be definition of the Strategy Panel. This can be further refined and developed with the support of principles from the NETmundial meeting that were achieved through a global multistakeholder process. The Report titled “The Public Core of the Internet” is a resource that can help create the idea of critical internet resources as a global public good. This would protect the core infrastructure of the internet from unwarranted interventions by states or other stakeholders. Inspiration can be drawn from similar concepts in international environmental law, particularly that of the ‘common heritage of mankind’.  The second prong, would focus on key instances of specific use of public interest criteria in ICANN’s contracts and operations. Here, developing a tangible and functional definition using the inventory created is necessary. Lessons can be drawn from conceptualization of public interest in disciplines like international investment laws.

Currently, ICANN has turned to its SOs and ACs to consider this arduous task of defining global public interest. The idea of setting a Cross Community Working Group has been suggested, and a mailing list for discussions has been set up.The Wiki page  made is an invaluable resource for anyone to begin their engagement in this discussion.

[1] See page 5, and 19 of Annex 05

[2] See Page 4 of Report of Strategy Panel on the Public Responsibility Framework available here

[3] During the WSIS Process, the United Nations Working Group on Internet Governance described critical Internet resources as including the administration of the Domain Name System, the Internet Protocol addresses, administration of the root server system, technical standards, peering, and interconnection, as well as telecommunication infrastructure, including innovative and convergent technologies.

On the Road to Marrakech, Part 7

By Gangesh Varma

Recommendation #5:

The next post in our series tracking the development of the CCWG Accountability Proposal is on Recommendation #5: Changing Aspects of ICANN’s Mission, Commitment and Core Values.  The CCWG Accountability through Recommendation 5, proposed changes to the ICANN bylaws to ensure that the ICANN Bylaws reflect the measures proposed in the recommendations of the CCWG Accountability under Work Stream 1.

ICANN’s bylaws currently include its mission statement, a statement of core values and a non-discriminatory treatment provision. The comments from the community indicated that bylaws as it stands would need to be strengthened and enhanced. This was a necessary step to improve ICANN’s accountability to the global internet community and its stakeholders, a criteria set by the NTIA and a requirement of the ICG proposal.

Based on the comments and inputs from the community, the CCWG Accountability found that these existing provisions in the bylaws are weak and could lead to excessive discretion by decision makers within ICANN. It also noted that the current bylaws do not reflect the key elements of the Affirmation of Commitments. The CCWG Accountability recommended that ICANN’s mission statement be clarified to define its limited scope. It further observed that these changes once made to the bylaws should not be easily amended by the Board. Thus, the CCWG Accountability through Recommendation 5 proposed to modify ICANN’s mission statement, and to divide the Core Values into Commitments and Core Values. This Recommendation addresses numerous changes and each of these was extensively discussed and debated. Some of the key discussions on changes were around the following themes:

On Competition and Consumer Trust:

There was considerable interest in including consumer trust as part of the core values which can be illustrated through the comments of the ALAC (at pg.4) and the USCIB (at pg.5). The concept in the ICANN universe has its origins in the preamble of the AoC as a description of ICANN’s role and as a review commitment with respect to expansion of TLDs. Given this context of a limited application in its origin, the key consideration was whether this could be expanded into a generalised consumer trust obligation on ICANN. In order to understand the intention of the drafters of the AoC, the group sought clarifications from the NTIA. In response, it clarified that the reference to consumer trust in the AoC was limited to the expansion of new gTLDs. It was finally decided that the language of the 3rd Draft proposal will be retained, where core values will not refer to consumer trust but it will be included as part of the AOC reviews.[1]

On GAC Advice and Scope of ICANN’s agreements with contracted parties – Public Interest Commitments and Contract Provisions:

Comments from some governments and the GAC focussed on the effect that changes made under this recommendation will have on the Board’s ability to accept and implement GAC advice on aspects that affect public policy.[2] To address the concern of GAC members, the Commitments as envisaged under the Proposal provides  that ICANN shall employ open, transparent and bottom-up, multistakeholder policy development processes “while duly taking into account the public policy advice of governments and public authorities”.[3]  

The Board in its comments highlighted that while it would support the recommendations on core values and commitments, it would support modifying the Mission statement only with emphasis on clear and concise language. The Board’s concerns with the Mission statement were twofold. One, ICANN’s operational and policy role and second, contractual enforcement. The Board argued that the Mission Statement did not adequately reflect the operational role of ICANN, and focussed only on its policy development role. On the issue of contractual enforcement, the Board contended that the “grandfathering approach” and discussions relating to it resulted in text proposals that lacked clarity. While conceding that ICANN is not a regulator and should not regulate content, many comments also pointed out that the issues identified in the Registrar and Registry Agreements (the “picket-fence”) must be considered within the scope of ICANN’s Mission. This was reflected in the final proposal as part of the ‘note to drafters’.[4] Many comments expressed concern that the restrictive scope of ICANN’s Mission should not affect ICANN’s ability to negotiate, enter into and enforce agreements including public interest commitments (PICs) with contracted parties. In order to address concerns regarding Public Interest Commitments and other contract provisions in RAAs, etc. the CCWG clarified with a note on a ‘grandfathering approach’ to drafters. It also clarifies that grandfathered terms and conditions (including PICs) can be renewed until the expiration date of any such contract following ICANN’s approval of new/substitute form of Registry Agreement or RAA.

Global public interest was also among the many contested topics during the discussions. Addressing the myriad concerns that were raised, the CCWG proposal specifically provides that ensuring that a bottom-up, multistakeholder policy development process is used to ascertain the global public interest is one of ICANN’s core values. ICANN 55 has a special session on exploring the “public interest” within ICANN’s remit. This recommendation saw the amalgamation of some of the most crucial debates surrounding ICANN,and the transition. Recommendation #5 will be the foundation of ICANN’s future as it designs a legal framework within which the institution will operate.

[1] See transcripts of call #78. Discussions from pg. 54-61.

[2] See comments submitted by GAC, and most government comments to the 3rd Draft Proposal such as Denmark, New Zealand

[3] See the final text of Section2.5 of Commitments as provided in details of Recommendation 5 under Annex 05 at pg.11.

[4] As noted in Annex 05, the language proposed in this recommendation are conceptual in nature at this stage. The final language revising the Articles of Incorporation and Bylaws will be drafted by the ICANN Legal Team and external legal counsel.

On the Road to Marrakech: ICANN Accountability in Transition Blog Series

As ICANN 55 approaches, the spotlight returns to the IANA Transition. The Cross-Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) has finalised its proposal and awaits endorsements from the chartering organizations.

My colleague Aarti Bhavana, and I at the Centre for Communication Governance have begun a blog series tracking the developments of the CCWG Accountability Proposal. This series will recap key discussions and comments on each of the Recommendations from the CCWG Accountability proposal, and trace its development since the close of the public comment period in December 2015.  

Below is an index to all the posts in this series:

Part 1: Recommendations 1 & 2

Part 2: Recommendations 6 & 12

Part 3: Recommendation 4

Part 4: Recommendations 3 & 10

Part 5: Recommendation 7

Part 6: Recommendation 11

Part 7: Recommendation 5

Part 8: Recommendations 8 & 9

*These posts have been grouped on primarily two factors. First, the time or order in which the recommendations were finalised, and second the thematic combinations (for example 6 and 12 were combined because of the importance of the human rights component in Recommendation 12).

CCWG Accountability: On the Road to Marrakech, Part 5

By Gangesh Varma

Recommendation 7

Continuing our series on tracking the CCWG Accountability Process, in our fifth post, we look at Recommendation 7 which concerns ICANN’s Independent Review Process. This post examines the key changes and developments since the 3rd Draft Proposal was opened for public comment.  Our previous posts can be found at this index page for the CCWG Accountability Blog Series.

Recommendation #7: Strengthening ICANN’s Independent Review Process.

Recommendation 7 attempts to strengthen ICANN’s existing Independent Review Process (IRP) to accommodate the changes post transition. ICANN’s IRP exists to ensure that ICANN does not exceed the scope of its mission, and operates within its Articles of Incorporation and Bylaws.  The public comments largely supported this recommendation while seeking clarification and details to avoid any gaps in the implementation. They key clarifications regarding this recommendation revolved around the scope of the IRP, Community IRP (related to Recommendation #4), and suggestions to be provided as implementation details to the Implementation Oversight Team (IOT).

Scope of IRP

The discussions regarding the scope of the IRP can be discussed as per the following changes from the 3rd Draft Proposal:

Inclusion of PTI

Inclusion of actions or inactions of Post Transition IANA (PTI):  The comments of the CWG-Stewardship indicated that the scope of IRP must be extended to appeals from direct customers of the IANA naming function that are not resolved through mediation.[1] It was decided that while the expansion of the scope to include the PTI is non-controversial it should be subject to the two conditions. First, it will be limited to the naming functions. Second, the standard of review for PTI cases will be an independent assessment of whether there is a material breach of PTI obligations under the contract with ICANN and this has resulted in material harm to the complainant.

Inclusion of DIDP Decisions

The idea that a denial of access to documents under DIDP can be escalated to an appeal through IRP was subject to considerable debate. The Board in its comments stated that reference to IRP to resolve under DIDP claims should be restricted to instances where such decisions violate ICANN’s bylaws as it currently does. It also suggested that the DIDP escalation path be made more robust and refined to involve a greater role for the Ombudsman under Work Stream 2. While DIDP processes are detailed in Work Stream 2, the CCWG agreed with the Board position and the final text of the recommendation specifically provides that the scope of IRP includes issues relating to DIDP decisions. However, it also specifies that this is restricted to cases where the DIDP decisions by ICANN are inconsistent with  the ICANN Bylaws.       

Exclusion of Protocol/Parameters Decisions

The Internet Advisory Board’s (IAB) comment to the 3rd Draft Proposal explicitly refused to support the recommendation unless it excluded the protocol/parameters decisions. It had stated in its comments to the 2nd Draft Proposal, that the protocol parameters community had a “well-tested appeals process” and that “a parallel process would be counter-productive” and in conflict with the Memorandum of Understanding between the IETF (including the IAB) and ICANN.

Limitation of challenge to Expert Panel Decisions

The Board in its comments had raised a concern with extending the IRP to challenge decisions of expert panels. It stated that IRP should not be used to challenge specific substantive operation decisions and such a measure would move away from the purpose of the IRP. Discussions during call #76 also highlighted the need to set up a process with respect to expert panel decisions and the need to be able to challenge the decisions where it is in conflict with the ICANN Bylaws. Eventually, the final text of Recommendation 7 provides that an IRP challenge to expert panel decisions would be limited to whether the panel decision is consistent with ICANN’s bylaws.  

Community IRP

The power to launch a community IRP is one of the seven powers of the Empowered Community provided under Recommendation #4. Certain details applicable to this power are clarified under Recommendation #7.

Legal Expenses

The first clarification was with regard to the legal fees in case of the Community IRP. Recommendation #7 clarifies that the legal expenses of the Empowered Community associated with the community IRP will be borne by ICANN. In his comment, Prof. Jan-Aart Scholte cautions that this arrangement might prompt a conflict of interest. He recommends that the financial resources be allocated to a trust fund which will be institutionally separate and this trust may administer the legal fees. This concern however is not addressed in the proposal, and may be considered by the Implementation Oversight Team.

Community IRP Challenging PDP

Recommendation #7 also provides an exclusive carve out language for a community IRP that challenges the result of a Policy Development Process (PDP). The exclusionary clause discussed during call #78 provides that no community IRP can be launched against the results of a PDP without the support of the supporting organization that developed such PDP. It also provides that the in case of joint PDPs, it would require the support of the supporting organizations that developed the PDP.  This language is also included in Recommendation 4.

While these are the key aspects in the development of Recommendation 7, a substantial amount of detail concerning its implementation will be addressed by the Implementation Oversight Team.  

[1] See paragraph 8 of Annex 07. It may be noted that the CWG-Stewardship Proposal dependencies also requires the ability to ensure PTI compliance through the IRP.

CCWG-Accountability: On the road to Marrakech, Part 3

By Gangesh Varma

Recommendation 4

In the weeks leading up to the ICANN 55 Meeting at Marrakech, we are doing a series of posts tracking the CCWG-Accountability process. The first and second posts by Aarti Bhavana analyze Recommendations 1 & 2 and Recommendation 6  & 12 respectively. This third post in our series on the CCWG- Accountability recommendations will recap the discussions on Recommendation 4. The Empowered Community is vested with powers to ensure enhanced accountability and these are provided under Recommendation 4: Ensuring Community Involvement in ICANN Decision-making: Seven New Community Powers. These were designed to prevent domination of a single stakeholder or individual section of the community.

7 Community Powers

 Source: CCWG-Accountability Supplemental Final Proposal on Work Stream 1 Recommendations at page 22.

Recommendation #4: Ensuring Community Involvement in ICANN Decision-making: Seven New Community Powers

While the public comments largely supported the recommendation and the seven community powers, there was a call for greater detail and clarity. The key discussions following the public comment period on this recommendation have been focussed on three aspects.[1] First, the issue of indemnification of community members in case of removal of Directors. Second the discussion on the power to reject the IANA Budget (IANA Budget veto power) and third the IANA Separation process. The discussion on the scope of Independent Review Panel (IRP) is closely connected to Recommendation 7: Strengthening ICANN’s Independent Review Process, and will be addressed in a separate post of this series.

Indemnification and Liability Mitigation in the Event of Removal of  Entire Board or Individual Directors:

One of the primary concerns raised with regard to these powers was that the removal of Board Directors runs the risk of litigation against community members. It was considered that there is a possibility that a Director who was being removed through this power vested in the community could sue members of the community for libel, slander or defamation. This would stall the process and restrict any utility of the provision. In order to prevent such liability, it was suggested that pre-service letters[2] with a waiver of right to sue for statements made in the exercise of this power might be required. On the last call addressing this recommendation, the Board objected to the inclusion of a waiver and indemnification while it was supportive of the pre-service letters. The Board also confirmed that the requirement for a clear and written rationale for removal was not a restriction over the type of rationale under which the removal would be executed.  After extensive discussions, it was concluded that indemnification will be available

(i) to a member of a Supporting Organization, Advisory Committee, the Nominating Committee or the Empowered Community

(ii) who is acting as a representative of such applicable organization or committee

(iii) for actions taken by such representative in such capacity pursuant to the Bylaws (e.g., a chair of a Supporting Organization submitting a written rationale for the removal of the director)

It was further clarified that this indemnification will be available only if the actions were taken in good faith, and in a manner that the indemnified person reasonably believed to be in the best interest of ICANN.[3] The specific guidelines for the standards of conduct such as good faith, due diligence etc. will be developed by ICANN. These details would ensure that even when the power of removal of directors is used, it will encourage and promote healthy discussions.

IANA Budget:

The power to reject the ICANN’s Budget or strategic/operating plans also includes the power to reject the IANA Budget. There were four main concerns with this aspect. First, the CWG-Stewardship in its comments sought for greater clarity in the process and criteria for exercise of this power (relating to budget transparency, grounds for rejection of a budget/plan, timing of budget preparation and development of the caretaker budget)[4]. The 2nd draft proposal contained these clarifications, and the CCWG resolved this concern by  re-introducing the 2nd draft proposal text in the 3rd draft proposal. The second main discussion was on refining the role of operational communities in the IANA Budget veto power, taking inputs from the various stakeholders. The Internet Advisory Board (IAB), in particular, raised this issue and stated that it did not wish to alter the power in a manner in which the IETF had a direct voice in the budget.[5] Upon further discussion, it was resolved by removing specific reference to the IETF, and inclusion of text referring to service level contractual obligations. The third concern was expressed by the Board that sought clarification on the IANA Budget within the context of this specific power, and made a proposal for a ‘caretaker budget’ to be operational so that ICANN can perform its functions on a day-to-day basis. While the finer details of the caretaker budget will be developed in the implementation process, the 3rd draft proposal requires it to be a public and transparent process. The fourth aspect for consideration was whether this ‘caretaker budget’ approach  should be embedded in the bylaws. The CCWG concurred with the Board’s suggestion that the ‘caretaker budget’ approach be embedded in the Fundamental Bylaws.

IANA Separation Process:

The Empowered Community is also vested with the power to reject ICANN Board decisions relating to the reviews of the IANA functions including the triggering of Post-Transition IANA Separation[6]. The Board suggested that the recommendation should clarify that this is limited to the Names component of the IANA function. Additionally, CWG in its comments suggested the insertion of two conditions for greater clarity.  First, the right to reject Board decisions relating to reviews of IANA Functions can be applied by the Empowered Community an unlimited number of times. Second, the ICANN Bylaw drafting process and related Separation process will continue to include involvement by the CWG-Stewardship. Both these suggestions were incorporated in the recommendation at paragraphs 75 and 77 of the final draft of Annex – 04.

Scope of Community Independent Review Process (IRP):

The Empowered Community is also vested with the power to initiate a binding Community IRP. The circumstances[7] under which this power may be used are listed as follows:

  1. “Hear and resolve claims that ICANN through its Board of Directors or staff has acted (or has failed to act) in violation of its Articles of Incorporation or Bylaws (including any violation of the Articles of Incorporation or Bylaws resulting from action taken in response to advice/input from any AC or SO).
  2. Hear and resolve claims that PTI through its Board of Directors or staff has acted (or has failed to act) in violation of its contract with ICANN and the CWG-Stewardship requirements for issues related to the IANA naming functions.
  3. Hear and resolve claims that expert panel decisions are inconsistent with ICANN’s Bylaws. Hear and resolve issues relating to DIDP decisions by ICANN which are inconsistent with ICANN Bylaws.
  4. Hear and resolve claims initiated by the Empowered Community with respect to matters reserved to the Empowered Community in the Articles of Incorporation or Bylaws”

In the 3rd Draft Proposal, this power is accompanied with the option of filing a Request for Reconsideration.  One of the main suggestions regarding limiting the scope of the Community IRP was to confine its applicability to the names community excluding the numbers and protocol community. Additionally, another key concern raised was with regard to the threshold for initiating this right and to prevent parts of the community affecting decisions relating to policy development processes. This discussion is closely related to Recommendation 7 and will be discussed in a separate post of this series.

[1] The key discussions on this recommendation were on calls #74, #75, #76, #77, #78, #79 and #82.

[2] Pre-Service Letters in this context refer to letters signed prior to taking the position of Director on the ICANN Board. In this case, the proposition was that such letter would include a waiver of the right to sue when this Power was used by the Community Member.

[3]  The final readings of this text was on call #83.

[4]http://mm.icann.org/pipermail/accountability-cross-community/2016-January/009308.html

[5]http://mm.icann.org/pipermail/accountability-cross-community/attachments/20160106/f7a04bfd/Recommendation4-BudgetIANA-0001.pdf See comment w6 at paragraph 22.

[6] As per Annex 04 at page 4: “ If the CWG-Stewardship’s IANA Function Review determines that a Separation Process for the IANA naming functions is necessary, it will recommend the creation of a Separation Cross Community Working Group. This recommendation will need to be approved by a supermajority of each of the Generic Names Supporting Organization and the Country-Code Names Supporting Organization Councils, according to their normal procedures for determining supermajority, and will need to be approved by the ICANN Board after a Public Comment Period, as well as by the Empowered Community”

[7] See   Paragraph 71 of the Annex 04 at page 22.