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.

 

IANA Transition: On track for 30th September

By Aarti Bhavana

With just a month left for the 30^th September deadline, ICANN has been busy completing all the tasks required by NTIA to ensure a smooth transition. The question of whether or not the IANA transition will happen has been answered via a letter from Assistant Secretary Lawrence Strickling (in response to the Implementation Planning Status Report). He announced that the transition is moving according to plan, and that the NTIA will allow the IANA Functions contract to expire on 1^st October. Though this response was expected, it is still reassuring to receive official confirmation that this will bring to an end the U.S. government’s stewardship role over the IANA Functions, barring any unforeseen circumstances. In light of this update, this post unpacks the various implementation processes that have been going on ahead of the transition.

On 10^th March 2016, the ICANN Board transmitted the IANA Stewardship Transition Proposal to the NTIA, which consisted of two documents: the IANA Stewardship Transition Coordination Group (ICG) proposal and the CCWG-Accountability Work Stream 1 Report. This came two years after NTIA’s initial announcement about its intention to transfer the U.S. government’s stewardship role over the IANA Functions to a global multistakeholder body.

On 9^th June 2016, after careful evaluation, the NTIA announced that the proposal met the criteria outlined by the NTIA in March 2014. These criteria were laid out in March 2014, to ensure that the proposal:

1. Supports and enhances the multistakeholder model;
2. Maintains the security, stability, and resiliency of the Internet DNS;
3. Meets the needs and expectations of the global customers and partners of the IANA services;
4. Maintains the openness of the internet; and
5. Does not replace NTIA’s role with a government-led or intergovernmental organization solution

In the mean time, the ICANN community began working on the implementation of the recommendations proposed in the two reports, as they are a prerequisite for the transition to take place. This involved amending existing documents, drafting new contractual agreements, procedural changes and other organizational changes. In response to the NTIA’s request, ICANN prepared an Implementation Planning Status Report detailing the completed and ongoing implementation tasks.

The implementation process has been divided into three separate work tracks:

Track I: Root Zone Management (RZM)

In parallel to the work being done for the IANA Stewardship Transition is another track working on root zone management (RZM). The NTIA requested ICANN to work with Verisign to develop a proposal to transfer the NTIA’s role with respect to the RZM, while preserving the safety and stability of the DNS. Accordingly, Verisign and ICANN developed a proposal, which is part of the implementation process. A parallel root zone management system was built to simulate root zone functions in the absence of the NTIA, and has successfully completed its testing phase. Verisign and ICANN entered into a new agreement for root zone management functions, a service Verisign has been providing under a Cooperative Agreement with NTIA for decades. The ICG and CCWG-Accountability processes were developed by the community in keeping with the principle of multistakeholderism. However, the RZM process has been criticized for being closed. Only the draft agreement was open for public comment, while negotiations took place privately. This track has now been completed. 

Track II: Stewardship Transition

This track pertains to various implementation tasks required by the ICG proposal. One such task has been the incorporation of Public Technical Identifiers (PTI), the entity established to perform the IANA functions. This entity shall perform the IANA Functions according to the IANA Naming Functions Agreement (which is currently open for public comments). This track has also been working on the Service Level Agreement (SLA) for the IANA Numbering Services, which has been signed by the Regional Internet Registries and will come into effect on the date of the transition. A Customer Standing Committee (CSC) has been formed to ensure satisfactory performance of the IANA naming functions for its direct customers, in the absence of the NTIA. Further, a Root Zone Evolution Review Committee (RZERC) has also been formed to assist the ICANN Board with major architectural changes of the DNS root.

A few documents are yet to be finalized, but expect to be completed by 30^th September. These are the PTI Bylaws, ICANN-PTI Services Agreement and the ICANN-PTI Naming Function Agreement.

Track III: Accountability Enhancement

This track relates to the Work Stream 1 tasks from the CCWG-Accountability report. In May, the ICANN Board of Directors passed a resolution approving the amended bylaws. Further, the Articles of Incorporation have also been amended and passed.

This track is also working on implementing enhancements to the Independent Review Process (IRP) for claims filed once the bylaws come into existence. Further, work is also underway on a number of other processes, such as updating the reconsideration process; initiating the new reviews required by the bylaws; incorporating the Affirmation of Commitments into the ICANN bylaws; and operationalizing the new community powers under the CCWG-Accountability report.[1]

Further details about the status of the three tracks can be found here.

[1] For more details about these processes, see the IANA Stewardship Transition Proposal IANA Stewardship Transition Proposal Implementation Planning Status Report, pp 23-24.

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 56^th 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.

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.

ICANN and Human Rights

By Aarti Bhavana

The topic of human rights on the Internet has been one of significant interest, right from finding mention in the WSIS Declaration of Principles in 2003, to the UN Human Rights Council’s First Resolution on Internet Free Speech, which declared that the rights available to people offline must also be protected online. These have subsequently also been reaffirmed by UN General Assembly’s resolution on the right to privacy in the digital age, and the NETmundial outcome document, which called for human rights to underpin the principles of Internet governance.

However, the issue of human rights in the specific context of Internet architecture is one that has gained significant traction only in the recent past. As the entity responsible for the technical coordination of the domain name system (DNS), ICANN’s impact on human rights is not one to be underestimated. While it is a corporation bound by California corporate law, it also functions as a global governance body that develops Internet policy.^[1] As a result, a human rights study from an ICANN perspective not only includes the Universal Declaration of Human Rights (UDHR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), but also the UN Guiding Principles on Business and Human Rights (UNGP), which sets out corporate responsibilities to respect human rights.

ICANN policy processes and human rights

ICANN policies have a significant impact on internationally recognized human rights, such as freedom of expression, privacy, due process and freedom of association. There are also three major policy development processes (PDP) concerning issues with far-reaching human rights impacts:

New gTLD subsequent procedure: one of the biggest functions carried out by ICANN is deciding when to introduce new gTLDs^[2] After the first round of new gTLD applications, a review was undertaken to determine whether adjustments needed to be made for subsequent application procedures. This PDP will examine the set of issues identified from the experiences of the 2012 round of new gTLD Program and address related policy concerns. The will also include looking into various issues which will have substantial human rights impact, such as the freedom of expression, freedom of association, economic and social rights, and privacy.

Next-Generation gTLD Registration Directory Services to Replace Whois: also known as new WHOIS, next-gen WHOIS or WHOIS2, this PDP is the culmination of over 15 years of efforts to address the many issues related to gTLD registration data. The collection and public access to registration data has long been a cause for concern, and this PDP will have to focus on data protection and the right to privacy.

Review of all Rights Protection Mechanisms (RPMs) in all gTLDs: this PDP shall be assessing the effectiveness of the Rights Protection Mechanisms for all gTLDs, such as Uniform Dispute Resolution Policy (UDRP), Trademark Clearinghouse (TMCH) and Uniform Rapid Suspension 
Procedure (URS), among others. The right to freedom of expression and due process are directly impacted by RPMs, and any review must take this into account.

The IANA Transition

Apart from the individual policy processes, there has also been some work on developing an overarching human rights framework for ICANN. The IANA Transition, expected to take place in September of this year, required an enhancement of ICANN’s accountability and transparency. This involved several discussions on ICANN’s principles, values and mission, which led to a discussion of human rights.^[3] Article 4 of the Articles of Incorporation commits ICANN to “carrying out its activities in conformity with relevant principles of international law and applicable international conventions and local law.” Whether this includes international human rights instruments, is open to interpretation, and there was a demand for the bylaws to be amended to explicitly reflect human rights principles. The Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) worked on developing a human rights bylaw that explicitly commits ICANN to respect internationally recognized human rights. The bylaw language is currently being finalized, along with the rest of the CCWG-Accountability recommendations. (A detailed explanation tracing the evolution of CCWG-Accountability work on human rights can be found here).

Ongoing work on human rights

Work Party 4 of CCWG-Accountability continues its work on developing ICANN’s commitment to human rights. Future work in this area will be in the form of understanding how the proposed human rights bylaw is to be interpreted, specific to ICANN’s structure.

Further, there are groups dedicated to understanding the intricacies of human rights and ICANN’s policy work. The Cross-Community Working Party on ICANN’s Corporate and Social Responsibility to Respect Human Rights (CCWP-HR) and the GAC Working Group on Human Rights and International Law (HRIL) are two such examples. The work of these groups become even more significant with the three PDPs currently underway, as there needs to be a constant check to ensure that the policies respect internationally recognized human rights.

^[1] https://www.article19.org/data/files/medialibrary/38148/ICANN_CS_to_respect_HR_report_ALL_FINAL-PDF.pdf

^[2] Dr. Monika Zalnieriute and Thomas Schneider, ‘A Council of Europe Analysis on ICANN’s Procedures and Policies in the Light of Human Rights, Fundamental Freedoms and Democratic Values.’ Council of Europe, Strasbourg, DGI (2014)12.

^[3] https://www.article19.org/data/files/medialibrary/38148/ICANN_CS_to_respect_HR_report_ALL_FINAL-PDF.pdf

News Alert: India gets 4 new IDN ccTLDs

By Aarti Bhavana

ICANN recently announced the successful evaluation of four additional proposed IDN (Internationalized Domain Names) ccTLD strings for India. This was done through a fast track process that was approved by the ICANN Board in 2009. After the successful evaluation of the four new IDN strings (Malayalam, Kannada, Bengali and Oriya), the next step will be string delegation, where requests can be made for the delegation of these strings.

IDNs are very useful in increasing access to Internet, especially in a linguistically diverse country like India. With this in mind, one of the main criteria for IDN ccTLD applications is that the script used to represent the string must be non-Latin. With these new strings, there are now a total of 11 ccTLDs in various Indian languages, such as Hindi, Urdu, Telegu, Gujrati, Punjabi, etc.

More information can be found here and here.

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.

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[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.