Civil Society and CCWG-Accountability: a report from IGF 2016

By Aarti Bhavana

The 11^th Internet Governance Forum (IGF) was held earlier this month in Guadalajara, Mexico. Established as a result of the Tunis Agenda, the IGF provides a space for discussing issues relating to the internet, where stakeholders can engage on an equal footing. Though it is not a decision-making forum, the IGF provides stakeholders the opportunity to share their work with others working in the same field.

CCG and the Non-Commercial Stakeholders Group (NCSG) organised a workshop that brought together active civil society participants from the IANA Transition to reflect on the process. The discussion was mainly centered around the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), which has been summarised in this post. With a long line-up of panelists, this workshop touched upon issues that were important to civil society, as well as successes and failures that could help develop strategies for future engagement. While the transcript for this workshop is not available yet, the video recording can be viewed here.

It has been a little over two months since the IANA Transition was successfully completed. The CCWG-Accountability, formed to make recommendations on enhancing ICANN’s accountability, completed the first phase of its work before this. Known as Work Stream 1 (WS1), this phase dealt with all the topics that needed to be completed before transition could occur. Now, CCWG-Accountability has shifted its focus to Work Stream 2 (WS2) and is busy with 9 subgroups working on different issues that were left to be discussed after the transition. However, the IANA Transition was a historic event that brought with it a treasure trove of experiences, invaluable as a guide for future work. Drawing lessons from this experience would require taking a step back and looking at the process as a whole. Luckily, the IGF provides just such a space.

Key issues for civil society

When the IANA Transition was announced in March 2014, civil society was among the voices that demanded increased accountability and transparency of ICANN. As Robin Gross summarised, routine violations with bylaws, top-down policies, mission creep, staff interference and opacity were just some of the reasons for this push. The call for enhancing ICANN’s accountability received support across the board, and was something with which the US government also agreed. The concerns raised had more to do more with the accountability of policy-making processes than of the IANA Functions, Milton Mueller explained. Accordingly, the CCWG-Accountability was created where civil society actors from NCSG and (At-Large Advisory Committee (ALAC) were very active. As Gross stated, it was critical to get strong community powers in order to hold the Board of Directors accountable (such as right to recall board members, oversight over the budget, approval for bylaw changes, etc.). Accordingly, there was a constant push from civil society for stronger accountability measures, be it for the structure of the Empowered Community, the Independent Review Process (IRP), role of governments, human rights, staff and community accountability, or transparency. Many of these issues are still being discussed in WS2. However, as pointed out by Alan Greenberg, it must be remembered that civil society being a large collective of stakeholders with diverse interests, does not have a single agreed position on these issues.

Failures and successes

The various accountability issues are nuanced and complex, and require external experts to join the process. For example, transparency and human rights. However, joining these discussions pose their own set of challenges. As Matthew Shears summarised, many barriers to participation often seen at ICANN were also reflected in the CCWG-Accountability process as well, such as the high time commitment, language of acronyms, and the quick learning curve. Since this process required an understanding of how ICANN functions as a whole, these challenges became all the more significant. As a panelist, I noted that discussions often tended to be centralised around the same few people, which made it difficult for people to join the conversation. Additionally, Jan-Aart Scholte observed that the civil society participation was mainly from North America and Europe. He continued to discuss another significant challenge- the lack of complete openness. While the IANA transition and the CCWG-Accountability are lauded for proving that multistakeholderism can work, we must not ignore the politics involved. He highlighted that crucial discussions and deals took place behind closed doors, and were later presented at the publicly recorded calls, meetings and mailing lists. He also pointed out that civil society was on the sidelines when it came to these private discussions, which reduced its ability to influence the outcome, unlike the other stakeholders involved.

One of the biggest takeaways from this process was observing the bridging effect of a common goal. As Shears noted, this process saw diverse stakeholders talk through options when there were conflicting opinions, perspectives and interests. However, with the completion of the transition, the common goal has gone away and he observed that participants are now falling back into their stakeholder group “silos”.

Strategies for the future

While it may be a bit early to take a call on successes and failures, WS2 is still ongoing. It may be useful to try to replicate what went well, and learn from the challenges seen in WS1. Greenberg pointed out the utility of having regular informal discussions with members from other stakeholder groups in order to reach a compromise, something he recommended should be continued in WS2. The nature of the work being done by CCWG-Accountability requires finding a way to continue to work together, beyond just “looking for the lowest common denominator”, as Klaus Stoll suggested. Further, the range of issues being discussed in WS2 is diverse, and continues to require experts from outside the ICANN community to get involved. The strategy of clearly dividing the topics into separate issues was appreciated by Marilia Maciel, as it allows for easy identification of the different areas. She also pointed out that even though most of the discussion has been documented, it would be impossible to go through the tens of thousands of emails exchanged and hundreds of hours of calls. Drawing parallels with the effort required to understand the NetMundial Initiative retrospectively, she emphasised the need for documenting this process while it is still recent. CCG has attempted to do that over the past year, but the sheer volume of the discussions require more active participants to pen down their experiences and analysis to allow for a closer study later.

 

CCWG ploughs on with WS2: ICANN57

By Aarti Bhavana

With 3141 participants in attendance, ICANN57 (held from 3-9 November 2016) was the largest public meeting in its history. It was also the first meeting to be held after the successful completion of the IANA Transition. The transition greenlit the enforcement of the provisions of the IANA Stewardship Transition Proposal, which consisted of two documents: the IANA Stewardship Transition Coordination Group (ICG) proposal and the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) Work Stream 1 Report. Our previous posts analysing these recommendations can be found here.

The meeting week was preceded by a full day face-to-face meeting of the CCWG-Accountability on the 2nd of November. The group met to continue its discussion on Work Stream 2 (WS2), which officially kicked off during the previous meeting in Helsinki. Rapporteurs from many of the WS2 Drafting Teams and subgroups presented updates on the progress of work in the preceding months. This post captures some of the key updates.

Jurisdiction

ICANN’s incorporation and physical location in California has long been a source of contention for governments and other stakeholders. Jurisdiction directly impacts the manner in which ICANN and its accountability mechanisms are structured (for example, the sole designator model arises from the California Corporations Code). Greg Shatan, co-rapporteur of the Jurisdiction subgroup presented an update document on the progress of this group. While the current bylaws state that ICANN shall remain headquartered in California, stakeholders were interested to see whether the subgroup would look into the matter of relocation. It was stated during this meeting that the subgroup has determined that it will not be investigating the issue of changing ICANN’s headquarters or incorporation jurisdiction. However, should a problem yield no other solution in the future, this option will then be examined.

A substantial issue found to be within the scope of this subgroup’s mandate is that of “the influence of ICANN’s existing jurisdictions relating to resolution of disputes (i.e., “Choice of Law” and “Venue”) on the actual operation of policies and accountability mechanisms”. The group’s working draft analysis of this issue can be accessed here. Another mandate from Annex 12 of the WS1 report requires the subgroup to study the ‘multilayer jurisdiction issue’. This has been discussed in some detail in the draft document, which can be accessed here.

One of the concerns raised during the discussion was that the subgroup would not recommend any change and conclude in favour of the status quo. Reassurance was sought that this would not be the case. The rapporteur stated in response that one cannot predict the outcome of the group as there are no internal preconceptions. It was also pointed out that since the discussion ran the risk of being purely academic, it was important to get external opinions. Accordingly, it was agreed that a survey would be sent out to hear from registries, registrars, and others. Advice will also be sought from ICANN Legal.

Transparency

ICANN has often been criticised for a lack of transparency in its functioning. This has largely been attributed to its hybrid structure, which is argued to not have the necessary active, passive, and participatory transparency structures. WS1 of the CCWG-Accountability attempted to address some of these concerns. The inclusion of inspection rights is one such example. However, a significant part of the work has been left for WS2.

This subgroup has made significant progress and shared the first draft of its report, which can be read here. This document discusses the right to information, ICANN’s Documentary Information Disclosure Policy (DIDP), proactive disclosures, and ICANN’s whistleblower protection framework. A suggestion was made to include requiring transparency in Board deliberations, which will be considered by the subgroup. There was also some discussion on increasing the scope of the proactive disclosures for greater transparency. Suggestions included disclosure of Board speaking fees and requiring disclosures of contracts of amounts lower than $1 million (the current threshold for disclosure) as well. There was also a discussion on ‘harm’ as an exception to disclosure, and the need to define it carefully. A revised draft of the report will be shared in the coming weeks, incorporating the points raised during this meeting.

Supporting Organisation (SO)/Advisory Committee (AC) Accountability

With the SOs and ACs being given greater powers under the Empowered Community, it is essential to ensure that they themselves do not remain unchecked. Accordingly, SO/AC reviews need to take place. This subgroup is tasked with the mandate of determining the most suitable manner of enhancing accountability. During this meeting, four identified tracks of activities were presented: (i) SO/AC effectiveness; (ii) evaluating the proposal of a ‘mutual accountability roundtable’; (iii) developing a detailed plan on how to increase SO/AC accountability; and (iv) assessing whether the Independent Review Process (IRP) should also apply to SO/AC activities.

Preliminary discussions have taken place on the first two tracks. It was decided that track 3 could not begin without some input from the SO/ACs. Accordingly, a list of questions was developed with the aim of better understanding the specific modalities of each organization. After a brief discussion, it was decided that this list would be sent to the SO/ACs.

Apart from these updates there was also a discussion on the Accountability and Transparency Review Team (ATRT) 3 and an interaction with the ICANN CEO.

ATRT3 and WS2:

During the Helsinki meeting, it was pointed out that the 3rd review of the Accountability and Transparency Review Team (ATRT3), scheduled to begin work in January, would have a significant overlap with WS2 topics (6 out of the 9 topics). After some discussion, it was decided that a letter would be sent to bring this to the attention of the ICANN Board. This letter also laid out possible ways to proceed:

1. Option 1- ATRT3 and WS2 work in parallel, with a procedure to reconcile conflicting recommendations.
2. Option 2- Delay ATRT3 until WS2 is completed.
3. Option 3- Limit the scope of ATRT3 to assessing the implementation of ATRT2. ATRT4 can then make a full assessment of accountability and transparency issues before 2022 (preferred path).
4. Option 4- ATRT3 continues with its full scope, with CCWG focusing only on the remaining issues. The ATRT recommendations could then be discussed by CCWG.

The Board’s response stated that while this was of concern, it was a decision to be made by the larger community, and brought it to the attention of the SOs and ACs. In Hyderabad it was decided that CCWG-Accountability will continue to follow up with the Board on this issue, while the SO/ACs deliberate internally as well.

Exchange with ICANN CEO

ICANN CEO Göran Marby’s meeting with CCWG-Accountability was arguably the most engaging session of the day. Central to this discussion was his recent announcement about a new office called the ICANN Complaints Officer. This person “will receive, investigate and respond to complaints about the ICANN organization’s effectiveness, and will be responsible for all complaints systems and mechanisms across the ICANN organization”. It was also stated that they would report to ICANN’s General Counsel. The last provision was not received well by members of the CCWG-Accountability, who stressed on the need for independence. It was pointed out that having the Complaints Officer report to the General Counsel creates a conflict of interest, as it is the legal team’s responsibility to protect ICANN. Though this was raised several times, Marby insisted that he did not think it was an issue, and asked that this be given a fair chance. This discussion was allotted extra time towards the end of the meeting, and there seemed to be a general agreement that the role and independence of the Complaints Officer needed greater thought and clarity. However, this remains the CEO’s decision, and any input provided by CCWG-Accountability will merely be advisory. It will be interesting to see whether he decides to take into account the strong concerns raised by this group.

The substantial discussions in WS2 are only just kicking off, with some subgroups (such as the Diversity subgroup) yet to begin their deliberations. The Transparency subgroup is making good progress with its draft document, on which CCWG-Accountability input is always welcome. It will be worth keeping an eye on the Jurisdiction subgroup, as this remains a divisive issue with political and national interests in the balance. Much remains to be done in the SO/AC Accountability subgroup, which is working to better understand the specific internal working of each SO/AC. This is an extremely important issue, especially in light of the new accountability structures created in WS1. CCWG-Accountability remains an open group that anyone interested can join as a participant or observer.

 

IANA Transition completed

By Aarti Bhavana

The much-discussed IANA transition has finally been completed, now that the U.S. Government’s contract with ICANN for IANA Functions has expired. This brings to an end the governmental oversight of these functions, a plan outlined back in 1998, and transfers it to a global multistakeholder community. The Centre for Communication Governance’s coverage of the transition over the last two years can be accessed here. In addition, our recent report on multistakeholderism discusses the role Indian stakeholders have played in ICANN over the last 5 years. It is a useful introduction to the way policy is made in ICANN’s multistakeholder model.

In March 2014, National Telecommunications and Information Administration (NTIA) under the U.S. Department of Commerce announced its intent to transfer the oversight of key Internet domain name functions to a global multistakeholder community. In the months that followed, working groups were set up to develop proposals both for the stewardship transition, as well for enhancing ICANN’s accountability. Both proposals were finalized and sent to the ICANN Board of Directors to be transmitted to NTIA. On 9^th June 2016, after careful evaluation, the NTIA announced that the proposals met the criteria outlined by the NTIA in March 2014.

Despite meeting all the requirements set out, the weeks leading up to today have been far from smooth. Last week, the U.S. Senate Judiciary Sub-committee held a hearing on “Protecting Internet Freedom: Implications of Ending U.S. Oversight of the Internet.” The opposition from the Republicans, led by Sen. Cruz, has also been supported by Donald Trump. There were also attempts to delay the transition by including a rider in the U.S. Government funding bill. This was ultimately not added, leaving the path clear for the transition.

However, in a dramatic twist two days ago, four U.S. states filed a lawsuit in Texas to block the transition. The motion for a temporary injunction was heard by the federal court a few hours ago, and denied. This officially brings a two year long process to a successful end. Many Indian stakeholders participated in the transition process as members of the multistakeholder community. However, as our report on multistakeholderism shows, there is scope for greater Indian engagement with ICANN and its policy processes.

In the midst of this celebration, it must be remembered that the work is not over. Efforts at increasing ICANN’s accountability are still ongoing with Work Stream 2, and consist of several critical topics like transparency, diversity and human rights that require the same level of effort as the transition. As discussed in our report‘s on ICANN Chapter, accountability is an issue on which ICANN has faced serious complaints in the past. The next stages of the transition offers stakeholders an opportunity to address these questions.

 

CCWG-Accountability WS2: An update

By Aarti Bhavana

In the weeks leading up to the finalisation of the CCWG-Accountability Work Stream 1 Report, we traced the evolution of each recommendation. While things have been quiet on the drafting front, there has been a lot of activity towards completing and implementing Work Stream 1 recommendations, to clear the path for Work Stream 2.

Over the past few months, the finalised IANA Stewardship Transition Proposal and the CCWG-Accountability Work Stream 1 Report were submitted to the ICANN Board, transmitted, to and approved by the NTIA. Alongside this, the bylaws were amended to reflect the changes recommended in the proposals, and these new bylaws were adopted as part of Work Stream 1 implementation.

With Work Stream 1 completed, the attention now shifts to the next set of topics that required further discussion, but weren’t urgent enough to need to be completed prior to the transition- Work Stream 2. The CCWG-Accountability face-to-face meeting at ICANN56 officially kicked off Work Stream 2, with a series of lightning talks aimed to introduce each topic. In the weeks since, dedicated subgroups have been created for each topic, with rapporteurs appointed to help facilitate the discussions. This post briefly introduces each topic and outlines what will be discussed in the months to come. Since the substantive work hasn’t started yet, this is a great time for those not following the process closely, to join in.[1]

Human Rights: The recently introduced human rights bylaw committing ICANN to respect internationally recognized human rights, will only take effect once a framework of interpretation (FOI) is in place to help inform how this bylaw is to be interpreted and implemented. This FOI shall be discussed and developed in Work Stream 2. This topic promises to bring forth some interesting discussions, as it was fairly contentious even at the stage of drafting the bylaw in Work Stream 1.

Jurisdiction: ICANN’s incorporation and physical location in California has long been a source of contention for governments and individuals alike. Jurisdiction directly impacts the manner in which ICANN and its accountability mechanisms are structured (for example, the sole designator model arises from the California Corporations Code). Over the coming months, this subgroup will analyse the effect of jurisdiction on ICANN’s operations and accountability mechanisms. While the current bylaws do state that ICANN will remain headquartered in California, it remains to be seen whether this subgroup will be tackling the issue of relocation. This multi-layered issue will be a controversial one, as it involves political and national interests.

Transparency: Accountability isn’t possible without transparency and the demands for greater transparency have only been increasing. This subgroup will be looking at improving transparency, with a focus on ICANN’s Documentary Information Disclosure Policy (DIDP), whistleblower policy, transparency of Board deliberations and ICANN’s interaction with governments.

Diversity: Public comments in Work Stream 1 highlighted the need for diversity to ensure better representation of the global internet community. Discussions in Helsinki showed that this issue isn’t going to be as simple as one might have thought. This subgroup will study the present diversity requirements and suggest improvements accordingly.

SO/AC Accountability: With the Supporting Organizations (SO) and Advisory Committees (AC) being given greater powers under the Empowered Community, it is essential to ensure that they themselves don’t go unchecked. Accordingly, SO/AC reviews will take place, and the subgroups will determine the most suitable manner of enhancing accountability based on various suggestions made, such as a mutual accountability roundtable.

Staff Accountability: In a similar vein of ensuring organizational accountability, WS2 will also be looking at staff accountability. Here, the subgroup will work on clearly understanding the role of ICANN staff in reference to the ICANN Board and Community. It will also work on developing a code of conduct, transparency criteria, training and independent audits. This work will tie in to the next subgroup on enhancing the Ombudsman’s role.

Ombudsman: Work Stream 1 already enhanced the Ombudsman’s role through the Request for Reconsideration process. In Work Stream 2, the subgroup will consider how to enhance the role of Ombudsman’s office, including evaluating the Ombudsman Charter, and recommend changes necessary for the adequate independence of this office.

While not considered separately at the time of Work Stream 1, there are two additional subgroups that will be working as part of Work Stream 2. The Guidelines on Good Faith Conduct in Participating in Board Removal Discussions subgroup will be looking at the removal of Board members and indemnity provisions. The Reviewing the Cooperative Engagement Process (CEP) subgroup shall be a continuation of improving the Independent Review Process (IRP), by reviewing the CEP, which is the first step of filing an IRP.

Timeline:

All WS2 topics will kick off simultaneously, but the timeline for discussions and output will depend on whether it has been identified as a ‘Simple’ or ‘Complex’ topic. The simple topics are expected to be short term, with public comment process in October. The complex topics will be more long term, with a public comment period in May and final report expected by June 2017. Whether a topic is simple or complex is something that needs to be communicated by the rapporteurs of each subgroup.

Simple Topics – Short Term

• June 2016: sub-groups agreed, commence work on docs for public input
• Aug 2016: first discussion with CCWG
• Sep 2016: refining work
• Oct 2016: CCWG agrees for public input
• 20 Oct-30 Nov: Public Input comment period
• Dec 2016: Analyze public comment staff/subgroups
• Jan 2017: Sub-groups refines and revises output
• Feb 2017: CCWG agrees final Output for consideration by community FOR ADOPTION at Copenhagen (ICANN58)

Complex Topics – Intermediate/Long Term

• Jun 2016: sub-groups agreed
• Sep-Oct 2016: first discussion with CCWG – identifies whether and how to update community at Hyderabad
• Nov-Dec 2016: second discussion with CCWG (first SUBSTANTIVE)
• Jan 2017: refining work
• Feb 2017: CCWG agrees docs for public input
• 1 Mar to 10 Apr: Public Input comment period
• Apr 2017: Analyze public comment staff/subgroups
• May 2017: Sub-groups refines and revises output
• May/Jun 2017: CCWG agrees final Output for consideration by community

[1]  To sign up as either an active participant or an observer in any of the Subgroups, a request can be sent to acct-staff@icann.org.

 

Heading into Helsinki: Core issues at ICANN56

By Aarti Bhavana

The upcoming 56^th ICANN meeting shall be held in Helsinki, Finland from 27-30^th June 2016. This is the first ‘Meeting B’ as per the new meeting strategy, which means a shorter, 4-day meeting focusing solely on policy work and outreach, and no public forum or public board meeting. A full schedule of this meeting can be found here. This post briefly highlights some of the core issues that will be discussed over the week.

CCWG-Accountability

On the Sunday before the meeting officially begins, the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) shall be having a day-long open session to discuss accountability-enhancing topics that were left for Work Stream 2.

At the end of ICANN55, the chartering organizations and the ICANN Board approved Work Stream 1 recommendations. A detailed analysis of these recommendations can be found here. Along with the IANA Stewardship Transition Proposal, the CCWG-Accountability Work Stream 1 Report was then transmitted to the U.S. National Telecommunication and Information Administration (NTIA) to be reviewed. In the mean time, Work Stream 1 implementation was in full swing, with the ICANN Board passing a resolution to adopt the new bylaws, which were amended to reflect the changes recommended by the proposals. With this, the final step of the transition was completed from ICANN’s end. On June 10^th, it was announced that the proposals met the criteria set out by the NTIA, and was therefore accepted by the Executive Branch of the U.S. Government.

That being done, the focus now shifts to Work Stream 2 topics. These are a list of issues that are necessary to enhance ICANN’s accountability, but not deemed urgent enough to be completed prior to the transition. However, this is not to mean that these topics are any less important. One might even say that some of the most critical accountability issues have been left to be dealt with once the pressure of the transition has been lifted. Taking off from Helsinki, the work will be divided into subgroups on the themes of: Human Rights, Jurisdiction, Transparency, Diversity, SO/AC Accountability, Staff Accountability, Ombudsman, Guidelines on Good Faith Conduct in Participating in Board Removal Discussions and Reviewing the CEP.

Active Policy Development Processes (PDPs)

Since this meeting will be focusing on policy work within ICANN, the PDPs take on an extremely important role, with multiple sessions dedicated to discussing these issues. The three big PDPs to watch out for at ICANN 56 are:

• New gTLD Subsequent Procedures : This PDP was initiated by the GNSO after the closure of the first round of new gTLD applications. The aim was to evaluate and learn from the experiences of the first round, and make policy recommendations and changes for subsequent rounds. The process began with the setting up of a discussion group that identified issues and areas of policy development for subsequent procedures. This process then culminated in the preliminary issue report and the final issue report. The GNSO Council then passed a resolution to initiate the PDP and set up a working group. More information on this PDP can be found here.

• Next Generation gTLD Registration Directory Service (RDS) : This Board-initiated PDP is the latest step in 15 years of efforts to develop a stronger WHOIS policy. WHOIS discussions usually revolve around issues of accuracy, purpose, availability, privacy, anonymity, cost, policing, intellectual property concerns and malicious use. This PDP will be analysing all these issues, with the aim of answering these questions- (1) what are the fundamental requirements for gTLD registration data; and (2) is there a need for a new RDS to replace the existing WHOIS policy. This work is expected to take place over three phases. More information on this PDP can be found here.

• Review of All Rights Protection Mechanisms in All gTLDs: Since the new gTLD Program, several new Rights Protection Mechanisms (RPMs) have been developed taking into account potential trademarks concerns that could arise from the increase of gTLDs: the Uniform Rapid Suspension Dispute Resolution Procedure (URS); the Trademark Clearinghouse (TMCH) and the associated availability through the TMCH of Sunrise periods and the Trademark Claims notification service; and the Post-Delegation Dispute Resolution Procedures (PDDRPs). This focus of this PDP is to conduct a review of all RPMs in all gTLDs in two phases: Phase One will focus on a review of all the RPMs that were developed for the New gTLD Program, and Phase Two will focus on a review of the Uniform Dispute Resolution Policy (UDRP). More information on this PDP can be found here.

Being the first of its kind, it will be interesting to see how well this new meeting structure works, especially in the absence of public sessions and public Board meetings. Watch this space for more updates from the meeting over the coming days.

CCWG-Accountability: A Marrakech Wrap-up

By Aarti Bhavana

With the final two chartering organizations confirming their approval yesterday, the co-chairs of the CCWG-Accountability sent the Final Report to the ICANN Board, which has now been transmitted to the NTIA. Today’s CCWG meeting outlined the work that lies ahead in the upcoming months.

Work Stream 1 recommendations will be implemented through the Budget Implementation Group and IRP Implementation Group. However, a majority of the work lies in Bylaws drafting, to ensure that the recommendations are accurately captured in the text of the new bylaws. The drafting and finalization of the bylaws are going to take place over the next few weeks, on a rather tight timeline. Though the final report has been transmitted to the NTIA, the review and assessment on that end will not be completed until bylaws implementing the Work Stream 1 recommendations are in place. Further, it is desirable that the NTIA-assessed report be submitted to the U.S. Congress before it goes on recess mid-July. Accordingly, the CCWG has set for itself a target timeline:

8 April: CCWG finishes draft bylaws

15 April: Open Public Comment for bylaws

15 May: Close Public Comment for bylaws

31 May: Board approves draft bylaws

Once this is completed, Work Stream 2 is expected to kick-off around June 2016. The work will be divided into subgroups on the themes of: Human Rights, Jurisdiction, Transparency, Diversity, SO/AC Accountability, Staff Accountability and Ombudsman. At present, the chartering organizations have been invited to re-confirm their appointed members, to ensure that they can take on the heavy workload that lies ahead.

As this historic meeting draws to a close, it must be remembered that the battle is far from over. While CCWG has completed a significant portion of its mandate, it must be emphasised that implementation details are crucial to this process. The importance of Work Stream 2 mustn’t be underestimated either, as each of those issues is critical to enhancing ICANN’s accountability.

A Marrakech update: CCWG-Accountability at ICANN55

By Aarti Bhavana

The most discussed topic floating around the surprisingly chilly winds of Marrakech this week has been the CCWG-Accountability proposal. Over the past few weeks we traced the evolution of each recommendation of this Final Report, which was sent to all the chartering organizations for their approval. SSAC was the first to confirm its approval, even before the meeting started, with ASO quick to follow. ALAC has also ratified the entire proposal. The much-awaited response from GAC came last night, as it confirmed that it had no objection to the current proposal being transmitted to the ICANN Board. While GAC finally confirmed its (conditional) intention to participate as a decisional participant in the Empowered Community, it has not reached consensus on Recommendation 11 and the GAC ‘carve-out’ proposed in Recommendations 1 and 2. Finally, GNSO and ccNSO passed the report this afternoon, completing the process of approval from Chartering Organisations. The next few days will see the report being sent to the ICANN Board, to be transmitted to the NTIA for the final steps of the IANA transition. The Board has confirmed that it will do so immediately, without making any changes.

On the Road to Marrakech: Part 6

By Aarti Bhavana

Recommendation 11

In continuation of our series on CCWG-Accountability recommendations, this post examines one of the most controversial recommendation: Board Obligations with Regard to Governmental Advisory Committee Advice (Stress Test #18). Previous posts in this series can be read here. No other recommendation has seen this level of debate and compromise as Recommendation #11 has over the past year. There have been several new developments over the past few weeks, as has been traced below.

Recommendation #11: Board Obligations with Regard to Governmental Advisory Committee Advice (Stress Test #18)

The matter of GAC advice remains the most hotly debated issue in Work Stream 1, with discussions taking place as late as earlier last week.^[1] The Governmental Advisory Committee (GAC) has a special advisory status in ICANN, which manifests in how the Board of Directors considers GAC advice on public policy. According to Article XI of the existing bylaws, if the Board takes a decision inconsistent with any GAC advice, it must state in writing the reasons for doing so, and then work with GAC to find a mutually acceptable solution. Stress Test 18 considers a scenario where the GAC changes its decision making process from consensus to majority voting. In such a scenario, the Board would be obligated to find a mutually acceptable solution even if the GAC advice achieved only a majority of votes. To mitigate these concerns, CCWG-Accountability recommended certain changes in the previous proposal, which have since been thoroughly debated and modified for the third proposal and again for the supplemental final report.

3rd draft proposal

In the 3rd draft, it was recommended that Article XI be modified to require trying to find a mutually acceptable solution only for advice supported by a full GAC consensus, and describes consensus to mean general agreement in the absence of formal objection, be included in Article XI. This ‘consensus’ clarification was added to ensure that the Board would only have to consider advice agreed upon by the entire GAC, and not find itself caught mediating between opposing governments. This recommendation also gave the Board an option to reject GAC advice, if this decision is supported by 2/3rds of the Board. However, this would not modify GAC’s ability to give advice at any time.

Public comments indicated support for the definition of consensus provided, and the requirement that GAC advice be supported by consensus. It also raised the need for GAC advice to be supposed by a rationale. Comments also objected to the 2/3rds threshold required from the Board to reject GAC advice, while others emphasised that the current operations of GAC should not be changed.

Clarifications

Starting with the less controversial issues, a few clarifications were made to address concerns raised in public comments. First, it was clarified that formal advice must be accompanied by rationale, and this requirement held true for all Advisory Committees, not just GAC. Second, it was categorically stated that while GAC advice is not restricted, the Board cannot take any action that is inconsistent with ICANN bylaws. Should the Board do anything inconsistent with the bylaws (even if acting on GAC advice), the Empowered Community would have the power to initiate an IRP against the Board. This provision is intended to limit the instances in which the Board is obligated to try to find a mutually acceptable solution.

Board threshold to reject GAC consensus advice

The only other matter left to be resolved is the one that was most discussed across several calls and hundreds of emails. Opinions were split on the 2/3rds threshold required for the Board to reject GAC consensus advice, with GAC members in favour of this higher threshold, while GNSO opposed it. For some vocal members of the GAC, retaining the 2/3^rd Board threshold for rejection was the only way Recommendation #11 and Stress Test 18 would be acceptable to GAC. However, GNSO members argued that the CCWG 3rd draft, as a whole, was changing the role of GAC and expanding its power. Therefore, the 2/3rds threshold was considered too high.

This difference of opinion resulted in a deadlock, and the co-chairs decided to conduct a poll among the CCWG-Accountability Members, to take stock of their position on this Recommendation. Ultimately, that wasn’t necessary, as members and participants brainstormed ideas and two major proposals gained traction in the community: One suggested reducing the threshold for rejection to 60%, but many felt that this did not address the overarching concerns about GAC’s role in post-transition ICANN. The second proposal took these concerns into account, as it suggested modifying Recommendation 2 to the effect of giving GAC a purely advisory role in situations where the Empowered Community is discussing launching an IRP to challenge Board’s implementation of GAC advice. Two special meetings were scheduled,^[2] to give the working group more time to discuss these new suggestions. During these calls, a third suggestion emerged, combining both the proposals, as neither satisfied all concerns independently. This compromise proposal suggested the following changes:

1. Recommendation #1– Establishing an Empowered Community for Enforcing Community Power

Language was proposed to be added to explain the ‘GAC carve out’, to give GAC a purely advisory role when the Empowered Community was considering challenging the Board’s implementation of GAC advice:

“The GAC may not, however, participate as a decision maker in the Empowered Community’s consideration of the exercise a community power for the purpose of challenging or blocking the Board’s implementation of GAC Advice. In such cases, the GAC remains free to participate in community deliberations in an advisory capacity, but its views will not count towards or against otherwise agreed thresholds needed to initiate a conference call, convene a Community Forum, or exercise a specific Community Power. This carve out preserves the ICANN Board’s unique obligation to work with the GAC try to find a mutually acceptable solution to implementation of GAC Advice supported by consensus (as defined in Rec. #11) while protecting the community’s power to challenge such Board decisions.”

2. Recommendation #2– Empowering the Community Through Consensus: Engage, Escalate, Enforce

The table defining thresholds required for the exercise of various powers would need to be modified to reflect that GAC cannot cast a decisional voice when considering the exercise of community IRP for Board action on the basis of GAC advice:

“The CCWG-Accountability also recommends that in a situation where the GAC may not participate as a Decisional AC because the community power is proposed to be used to challenge the Board’s implementation of GAC Advice and the threshold is set at four in support, the power will still be validly exercised if three are in support and no more than one objects.”

3. Recommendation #11– Board Obligations with Regard to Governmental Advisory Committee Advice (Stress Test #18)

Finally, this recommendation would have to be modified to reflect the lower threshold of 60% for the Board to reject GAC consensus advice.

This compromise ‘package’ proposal was accepted by the group, with broad agreement. Specificities of this compromise proposal were clarified by the CCWG-Accountability independent legal team.

GAC carve out revisited

Just when it was thought that the proposal had been finalized, certain aspects of Recommendations 1 and 2 were reopened to discussion when the Board submitted its position on the GAC carve out, expressing concern over the reduced threshold of 3 SO/AC for exercising the power of recalling the entire Board. This discussion was reopened in the CCWG-Accountability and the members and participants were polled in the last call. Based on the polling, the co-chairs concluded that the lower threshold of 3 SO/ACs for removal of the entire Board would only apply if the community IRP concluded that in following GAC advice, the Board acted inconsistently with ICANN bylaws. This version of the proposal has been finalised.

The issue of GAC’s role in post-transition ICANN has been the subject of much discourse. The majority of the dissent seemed to have arisen not because of Recommendation #11 alone, but because of how the CCWG proposal as a whole dealt with the role of GAC: as a decisional participant in Recommendation 1 (discussed here), exempting it from accountability reviews in Recommendation 10 (discussed here) and finally, GAC consensus advice in Recommendation #11. While the supplemental proposal has been finalised, it isn’t without dissenters. Minority Statements have been included in this proposal to accurately represent the range of opinions of CCWG-Accountability Members, and the proposal now awaits approval from the Chartering Organisations.

^[1] This recommendation was discussed in Meetings #73, #78, #79, #81, #82, #83, #85 as well as Rec-11 meetings on 4th February and 8th February 2016.

^[2] Special Rec-11 meetings were held on 4th February and 8th February 2016.

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 4

By Aarti Bhavana

Recommendations 3 and 10

As we fast approach the ICANN55 meeting at Marrakech, we continue our series of posts tracking the CCWG-Accountability process. Previous posts in this series can be read here, here and here. This post examines Recommendation #3: Redefining ICANN’s Bylaws as ‘Standard Bylaws’ and ‘Fundamental Bylaws’, and Recommendation #10: Enhancing the accountability of Supporting Organizations and Advisory Committees. It also studies the process of developments in these recommendations, since the 3rd draft proposal was opened for public comments.

Recommendation 3: Redefining ICANN’s Bylaws as ‘Standard Bylaws’ and ‘Fundamental Bylaws’

The 3rd draft proposal further refined the concept of fundamental bylaws by recommending the splitting of ICANN bylaws into ‘Fundamental Bylaws’ and ‘Standard Bylaws’. Fundamental bylaws are harder to change, and include the Mission, Commitments and Core Values, the seven community powers, and the framework for Independent Review Process, to name a few. Public consultations are to be undertaken before any changes are made to either standard bylaws or fundamental bylaws. Changes to fundamental bylaws would additionally require a 75% approval from the ICANN Board as well as approval from the community.

Source: CCWG-Accountability Supplemental Final Proposal on Work Stream 1 Recommendations, Annex 03.

The Board was in support of this recommendation, since it formalized the involvement of the community in major bylaw changes. The public comments also supported the adoption of this recommendation, with no major issues raised.

The matters discussed in the calls[1] were more in the form of clarifications. It was clarified that the IANA Functions Review provisions only apply to IANA’s domain name management function, as part of the CWG-Stewardship requirements. Further, the Empowered Community has also been given the right to approve amendments to the Articles of Incorporation in a process similar to the one provided for fundamental bylaws, to ensure that fundamental bylaw provisions aren’t subverted by amendments to the Articles. CCWG-Accountability’s independent counsel also recommended that the Empowered Community be provided the right to approve the transfer of all or substantially all ICANN assets, to solidify the community’s say in important matters, including changing ICANN’s legal jurisdiction. Finally, the right to inspect and the right to investigate have been added as fundamental bylaws, in keeping with the changes made to Recommendation #1. The Articles of Incorporation will be suitably modified to reflect these changes.

The entire CCWG-Accountability process has been directed towards solidifying the Empowered Community’s powers, to ensure that ICANN and its Board are accountable to the Community. However, accountability cuts both ways, and with the set of new powers being given to the participating SO/ACs, it is necessary to ensure that these bodies are accountable and transparent themselves.

Recommendation #10: Enhancing the accountability of Supporting Organizations and Advisory Committees

The 3rd draft proposal provided for this to be implemented in a staged process. In Work Stream 1, this will be achieved by including the review of SO/AC accountability mechanisms in the independent structural reviews performed regularly. However, the bulk of this discussion shall take place in Work Stream 2, including the proposal to add SO/AC accountability to the Accountability and Transparency Review Process.

While public comments were largely in favour of this recommendation, the major concerns raised were (1) that GAC should be subject to the same accountability standards as the other organizations, and (2) that independent reviews should be done at the request of a majority of the SO/ACs, and any recommended changes should only occur with the approval of the Empowered Community. These concerns were echoed by the GNSO as well, and discussed in the calls.[2]

(1) GAC Accountability

The CCWG-Accountability proposed that SO/AC accountability be enhanced in Work Stream 1 by including, through an amendment, a review of its accountability mechanisms in the organizational reviews performed regularly. Article 4, Section 4 of the ICANN bylaws require periodic review of the SO/ACs, with the exception of GAC, which is permitted to provide its own review mechanisms. As mentioned above, public comments found this exclusion to be problematic. In its comments, the GNSO stated that since GAC is sought to be empowered through Recommendations #1 and #11, it should also be subject to the same accountability standards as other decisional participants. After some discussion, it was decided that the Accountability and Transparency Review will assess the role and effectiveness of GAC’s interaction with the Board as well as the ICANN community, and make suggestions on how this can be improved.

(2) Top-Down Accountability Review

Another concern raised was over the current manner of handling SO/AC review results, which was considered top-down, with unilateral control held by the Board. The GNSO felt that this would allow the Board to be involved in the governance structure of SO/ACs, and instead expressed a preference for a community-led review process in keeping with ICANN’s bottom-up model of governance. This would entail independent reviews being done at the request of a majority of SO/ACs, and recommended changes occurring only with the approval of the Empowered Community. However, the Board expressed concern over removing the Board’s role in approving recommendations, stating that this would affect the independence of the review process. It was finally decided that a detailed working plan shall be developed in Work stream 2, taking into account the comments made during the public comment period.

[1] This recommendation was discussed in calls #77 and #79.

[2] This recommendation was discussed in calls #79 and #81.