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.

 

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.

Russia, India and China: Perspectives on Internet Governance

By Gangesh Varma

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

Four Key Aspects of Paragraph 12

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

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

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

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

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

Internet Governance in the Communique

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

India’s approach

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

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

 

Global Public Interest and ICANN

By Gangesh Varma

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

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

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

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

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

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

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

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

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

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

—

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

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

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

Implementing Enhanced Cooperation

By Puneeth Nagaraj

One of the important outcomes of the WSIS+10 review was the establishment of the CSTD (Commission on Science and Technology for Development) Working Group on Enhanced Cooperation (WGEC). Subsequently, the establishment of the WGEC was announced in February with Peter Major as its chair and the nomination process to the WGEC will conclude shortly. The WGEC will be constituted by the end of the month. This affords us an opportunity to reflect on the meaning on Enhanced Cooperation (EC) and how it can be implemented.

The notion of Enhanced Cooperation can be found in paragraphs 69-71 of the Tunis Agenda. However, the term itself has been used extensively within the European Union since the Treaty of Amsterdam in 1997. In the EU, the term refers to a certain number of EU Member States (usually 9) that are allowed to establish advanced integration or cooperation without the involvement of other members. In the context of the WSIS, debate has raged on for the last decade over the exact meaning of the term. The reference in the Tunis Agenda to EC leaves room for a lot of ambiguity. During the WSIS+10 negotiations, many delegations debated over whether EC is already taking place or if structures need to be put in place to implement it. Below are three ideas for the implementation of Enhanced Cooperation.

Stakeholder Participation

First is clarifying the roles of different stakeholder groups, in various Internet Governance fora. Engaging with the WSIS+10 Review has shown us that despite the emerging consensus on multistakeholder models of governance, there can be significant barriers to the participation of stakeholder representatives. The Review, unlike the Geneva and Tunis Summits was not an open process, driven primarily by Member States. Hence, the space afforded to other stakeholders was limited. This is against the ideal of “full participation of all stakeholders” as per the Tunis Agenda (para 31). To this end, establishing clear terms of civil society engagement in the various Internet Governance institutions should be an important function of the WGEC.

Funding Mechanisms

Second, both the Tunis Agenda and the WSIS+10 outcome document call for innovative funding mechanisms to facilitate ICT4D programmes. With the failure of the Digital Solidarity Fund, most ICT related development programmes are predominantly funded by Official Development Assistance (ODA). An oft ignored part of the WISS process is the governance of funding mechanisms. An allied issue is the delineation of the various UN bodies involved in the SDG process as they relate to ICTs. The WSIS+10 Outcome document stressed the overlaps with the SDG process but did not describe how this synergy was to be achieved. In the absence of an explicit ICT related goal in the SDG process, identifying the roles of organizations like the ITU, UNESCO, UNCTAD among others in fulfilling this dual mandate will be an important aspect of Enhanced Cooperation. The ITU has taken an important first step in identifying the overlaps between the WSIS Action lines and the SDGs. It is up to the WGEC to expand upon this effort and create synergy between the two processes.

Human Rights

Third, the crux of Enhanced Cooperation is in developing global public policy principles (Tunis Agenda para 70). One of the positive outcomes of the WSIS+10 review was the incorporation of a separate section on human rights. This recognition will be meaningless without embedding human rights into all global IG institutions. ICANN has recently, very encouragingly approved its human rights mandate. As the IGF also undergoes a transformation through the renewed Working Group on Improvements to the Internet Governance Forum, this is an important moment to establish public policy principles as they relate to human rights. The WGEC is the best place to create principles or governance frameworks to support human rights and other public interest issues. The UN HRC and Special Rapporteurs on Free Speech and Privacy have made important strides in this area. The WGEC should attempt to synthesize these efforts to produce adaptable standards for various IG institutions.

Puneeth Nagaraj is a Project Managers at the Centre for Communication Governance at National Law University Delhi

Legacy of Government Influence Looms as Internet Gears Up For Ownership Switch

By Aarti Bhavana

This article was first published on The Wire on 6th March 2016.

The recommendations for the post-transition ICANN, as they currently stand, change the power dynamics within ICANN. Governments will now get a say in key operational decisions, something that they earlier didn’t have.

How much of a say do governments have in the management of the domain name system? Less than you’d expect, but more than you’d like.

Background

The Internet Corporation for Assigned Names and Numbers (ICANN) is the California-based entity responsible for managing the domain name system (DNS). This includes developing and implementing policies on how key technical functions of the Internet operate. ICANN stands out among other international organisations because of its commitment to a multistakeholder form of governance. Unlike most international organisations where decisions are made in a top-down hierarchical manner, ICANN functions in a bottom-up fashion, involving inputs from various stakeholders, with governments being just one of them.

Policies are developed by entities within ICANN known as supporting organisations (SOs) and influenced by advisory committees (ACs). As an AC created under the ICANN bylaws, the 150+ member strong GAC (governmental advisory committee) provides advice on matters of concern to governments. This AC, comprising mainly of governmental representatives, functions in a solely advisory capacity. However, even in this restricted scope, the role of governments is one that has been subject to much discussion. According to the existing bylaws, if the ICANN board decides to not follow GAC advice on public policy matters, it must explain its reasons for not doing so. This not being enough, the Board is then obligated to work with GAC to try to find a mutually acceptable solution. Such a privileged status is not given to any other supporting organisation or advisory committee, which has been the subject of much debate within the community, especially given the IANA transition.

In March 2014, the National Telecommunications and Information Administration (NTIA) of the United States Department of Commerce announced its intention to transfer its oversight role over key ICANN functions to a global multistakeholder body (the IANA transition, scheduled to take place by September 30, 2016). The NTIA laid down certain criteria for this transition, one of which was that the new structure should not be government-led or intergovernmental in nature. Several recommendations have been developed in an effort to ensure that ICANN is accountable and transparent in the absence of this governmental oversight. One of the most hotly debated and polarising of these recommendations was over the role of governments in this post-transition structure. In the months since, the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG) has been working hard to develop recommendations with these criteria in mind. But the results leave one confused about the involvement of governments in ICANN in the future. In addition to maintaining GAC’s special advisory status, this group has also made other recommendations that expand GAC’s role.

CCWG-Accountability recommendations for GAC

CCWG proposes the creation of a new entity (known as the Empowered Community), which shall consist of ICANN’s SOs and ACs, to hold ICANN accountable. According to this group’s proposal, GAC will be an equal decisional participant in this entity, having an equal voice in the exercise of community powers such as removal of the Board, approving bylaw changes, budget, etc. This move has been fairly polarising, with some members arguing that ICANN was created to move away from governmental control as seen by the purely advisory mandate given to this committee. Giving it a decisional voice in matters about retaining or removing Board directors and operational issues, such as ICANN’s budget, goes against the fundamental role of GAC.

In an attempt to address some of these concerns, CCWG introduced certain checks on GAC. First, the Board of directors do not have to accept advice that go against the ICANN Bylaws. In fact, doing so could result in a challenge by the Empowered Community and even result in the removal of the entire Board. Second, GAC’s special advisory status only kicks in if there is consensus on the advice within GAC.  This is to ensure that the ICANN Board isn’t stuck mediating between countries with opposing views. Finally, this advice can also be rejected if supported by 60% of the Board. Some, including GAC representatives, feel that this effectively renders GAC toothless. However, the Board needs to be given an out, a way to not be forced to comply with GAC advice. The exact threshold was a matter of compromise, as it shifted from 50% to 66%, to a final renegotiated compromise of 60%.

The post-transition GAC

However, the full range of recommendations leaves one confused about whether GAC is intended to be treated just like the other SOs/ACs or given special treatment. If it is truly meant to be given equal treatment, the special advisory status does not make sense. Indeed, if it is to become a decisional participant, then there is need for greater transparency in its operations: at present, GAC calls and transcripts are not available to the public. Exempting a potential decisional participant from accountability reviews is incomprehensible. However, if GAC is to be treated differently, then why is it given the opportunity to be a decisional participant, with a voice equal to that of policy-making Supporting Organisations? What we are left with is a confusing mix of the two, leading one to conclude that GAC gets to take two bites of the proverbial apple.

At this point, it must be highlighted that GAC hasn’t been able to reach a decision internally on whether or not it will be a decisional participant in the new Empowered Community, so a lot of these discussions are taking place in a vacuum. The CCWG recommendations have been finalised and now await approval from the SOs and ACs before they can be transmitted to the NTIA to continue the transition process.

The recommendations for the post-transition ICANN as they currently stand change the power dynamics within ICANN. Governments will now get a say in key operational decisions, something that they previously didn’t get. These changes would make sense were they to be proposed in the context of a complete restructure of ICANN. What is troubling about these recommendations is that they have been made with the understanding that the present structure is to remain unchanged. And yet, somehow, this one committee’s role definitely appears to have changed.

CCWG-Accountability: On the road to Marrakech, Part 8

By Aarti Bhavana

Recommendations 8 and 9

In the final post in the series tracking CCWG-Accountability progress, we examine the remaining recommendations, Recommendation #8: Fortifying ICANN’s Request for Reconsideration Process, and Recommendation #9: Incorporation of the Affirmation of Commitments. This post traces the developments made in this recommendation since the third draft proposal was opened to public comments in December 2015.

Recommendation #8: Fortifying ICANN’s Request for Reconsideration Process

The current ICANN bylaws already provide for Request for Reconsideration, a process that allows any person or entity to submit a request for the review of an ICANN action or inaction. In the second draft proposal, CCWG-Accountability proposed several measures to fortify this process, such as expanding the scope of permissible requests, increasing the time for filing such requests and transparency-enhancing measures in the decision-making process. These recommendations have been incorporated in the third draft proposal, unchanged. Further, the much-criticised Document and Information Disclosure Policy (DIDP) shall be discussed in Work Stream 2.

At the end of the public comment period, the discussions^[1] started with the acknowledgment that certain issues needed to be addressed during the implementation stage:

1. That this process is not regarded in isolation, rather a cog in the larger system;
2. Ensuring that the reconsideration requests be fully communicated to the public, in a transparent manner;
3. The role of the ombudsman elicited two kinds of comments: one, that such an independent party should provide an initial assessment to the Board on the merit of all Reconsideration request, and two, concern that the Ombudsman is not adequately equipped or knowledgeable to do a substantive evaluation.

On the final point, Chris LaHatte, the ICANN ombudsman outlined the functions of the ombudsman. Subsequently, an additional step has been added to the process, where the Ombudsman provides an assessment on all Reconsideration Requests, giving due attention to fairness. CCWG-Accountability also propose reforms to increase the transparency of the entire process.

Finally, the Address Supporting Organisation (ASO) also clarified that disputes related to Internet number resources, protocols and parameters are out of scope of the Request for Reconsideration Process.

None of these comments or clarifications attracted much of a debate, and this recommendation was finalized smoothly, with a final suggestion from CCWG-Accountability legal counsel: with the addition of a rebuttal opportunity to the Board Governance Committee’s (BGC) recommendation to the Board, the time frames provided earlier were creating some inconsistency. In order to rectify that, a slight adjustment was suggested to these time frames, and the recommendation stands finalized.

Recommendation #9: Incorporation of the Affirmation of Commitments

The Affirmation of Commitments (AoC) is a 2009 bilateral agreement between ICANN and the NTIA. After the termination of the IANA agreement, the AoC will be the next target for elimination, as it is the last remnant of NTIA oversight. While the elimination of the agreement is simple enough (can be terminated by either party after giving 120-days’ notice), there are some provisions worth preserving. To do so, the CCWG-Accountability recommends adding certain ICANN commitments from the AoC to the bylaws. This also includes four types of review processes to ensure that Community Reviews are an integral part of the accountability and transparency framework. Following the adoption of these new bylaws, it was recommended that the AoC be mutually terminated. A major change brought in through the 3rd draft proposal was the recommendation that Section 8b (Article XVIII of the existing bylaws, which states that the principal office of ICANN shall remain in California) not be made a fundamental bylaw, but be incorporated as a standard bylaw. This provides greater flexibility, should ICANN’s location ever be changed.

The public comments raised a few issues, one of which was that with the exception of ATRT, reviews should be defined by the community, and not the AoC provisions. Some comments also opined that WHOIS reviews should not be included in the bylaws.

At the end of the meetings discussing this recommendation,^[2] it was decided that all AoC reviews should be incorporated in the bylaws. Competition, Consumer Trust and Consumer Choice reviews were reintroduced as well. The commitment to WHOIS review was modified to a commitment to a future Registration Directory Services (RDS) review, to reflect the likelihood of WHOIS being replaced by the new RDS. Further, despite some support for making Article XVIII of the existing bylaws (which describes ICANN’s place of incorporation) a fundamental bylaw, it was concluded that it would remain a standard bylaw, as changes to standard bylaws and Articles of Incorporation require approval from the Empowered Community. The Board made some suggestions regarding AoC reviews operational standards, which will be developed in the implementation stage, but only to the extent of implementation details. Finally, as per CCWG-Accountability lawyers’ suggestion, the term ‘diversity’ has been clarified to refer to geography, skills, gender, etc., with the idea that chairs of participating SO/ACs retain some flexibility of factors when selecting Review Team members.

The supplemental draft proposal has been finalized as a whole, and even been approved both by CWG- Stewardship and SSAC. We hope to hear from the other chartering organizations in the next few days, so the proposal can be transmitted to NTIA to continue the transition process. In the meantime, CCWG-Accountability will get busy with Work Stream 2 issues, starting from the Marrakech meeting itself.

^[1] This recommendation was discussed in Meetings #79 and #81.

^[2] This recommendation was discussed in Meetings #78 and #80.

On the Road to Marrakech, Part 7

By Gangesh Varma

Recommendation #5:

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

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

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

On Competition and Consumer Trust:

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

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

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

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

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

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

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

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

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

The World Economic Forum and Internet Governance

By Gangesh Varma

The World Economic Forum (WEF) held its annual meeting at Davos from 20-23 January, 2016. The theme of the meeting was ‘The Fourth Industrial Revolution’ which referred to advent of new technologies that converge “the physical, digital and biological worlds” to create seamless ‘cyber-physical systems’. Some of the main sessions and discussions were on the digital economy, privacy, internet fragmentation etc. While these are concerns that affect internet users currently, they will determine the future of the Internet and its users.

The WEF’s interaction with the Internet and its governance is not restricted to these discussions at the annual meetings. It was instrumental in launching the NETMundial Initiative (NMI) in collaboration with the Internet Corporation for Assigned Names and Numbers (ICANN), and the Brazilian Internet Steering Committee (CGI.br). The WEF which was founded in 1971 has always promoted a ‘stakeholder’ management approach, which essentially based corporate success on managers taking account of all interests. This would mean not merely restricting it to immediate interests such as shareholders, clients and customers, but employees and the communities within which they operate, including government. The natural extension of this can be seen in the WEF’s strong support for a multi-stakeholder approach to internet governance. This can be seen from its various reports and initiatives like the NMI and the Future of the Internet.

As the internet permeates deeper into the socio-economic fabric of human society it impacts various sectors. As a consequence, global fora that did not traditionally discuss the internet are impacted by it. This results in a growing number of fora that eventually discuss internet governance or any of its components. Among these, the WEF as a platform for collaboration may be considered old, but it was formally recognized as an international organization only last year. In the larger matrix of internet governance institutions and processes the WEF is merely one more addition. However, the WEF comes with extensive criticism for being a platform that is limited to an elite few while its relevance has often been debated. It has been called out for its hypocrisy while talking climate change, gender parity and inequality.

These ironies undermine the legitimacy of the discussions and outputs from such fora. It also affects the multistakeholder initiatives they support. An interesting study hypothesizes the situation of a ‘cyber davos’ in 2025 where the world’s largest internet companies and leaders gather to celebrate the first anniversary of the internet Free Trade Agreement (iFTA) . The group that conducted this study identified some of the potential threats of such a scenario as:

• Increased dominance of big business in global Internet governance
• Less economic innovation and creation of monopolies,
• Marginalization of civil society groups in Internet governance policy making,
• Exclusion of developing countries from Internet governance policy making,
• Increase of income inequality domestically, and between the Global North and South and
• Democratic institutions weakened by excessive lobbying

Unsurprisingly, these potential risks do not seem too far into the future if the multi-stakeholder approach is not reformed. In fact they resonate with most critiques of multi-stakeholder models. The support for multi-stakeholder approaches has grown as evidenced by the agreed outcome document of the WSIS+10 Review Process. However, the negotiations and consultations have revealed many aspects that need reform. ICANN’s CEO, Fadi Chehadé’s pitch at Davos was on the enormous impact of the Internet on global economic growth, and the importance of the Internet as an engine of growth. Fadi is scheduled to leave ICANN in March, 2016 and enter his role as Senior Advisor to the Executive Chairman of the WEF. One can only hope that while the WEF addresses its critics, it will also invest in reforming the multi-stakeholder approach it promotes in the internet governance arena.

A New Agenda for Digital Trade: Ideas from Brussels

By Puneeth Nagaraj

This author was one of the participants in the strategy meeting at the invitation of the Electronic Frontier Foundation

The Strategy Meeting on Catalyzing Reform of Trade Negotiation Processes was held last week in Brussels. Convened by the Electronic Frontier Foundation (EFF), it brought a diverse group of actors to chart an agenda to engage with trade negotiations in the emerging area of Digital Trade. Representatives from civil society groups, academia and the private sector met together to suggest solutions to make trade negotiations more transparent and accessible.

The meeting was prompted by the recent conclusion of the Trans Pacific Partnership and its inclusion of an e-commerce chapter. The TPP is the first of many new generation trade agreements- which include both mega regional and plurilateral agreements- which are increasingly making trade rules that affect the internet. Given that there is a global internet governance regime which does not create any hard law obligations, there is a danger of the trade law regime becoming the de facto international rules on the subject.

To address this pressing concern, the EFF convened policy practitioners and experts from both the internet governance and trade fields. Participants highlighted the need for research at the intersection of these diverse fields to understand the impact of trade agreements on the internet and the information society. The larger and more immediate concern of all participants was of the confidentiality under which these negotiations are being conducted. This is also at odds with the participatory norms of various internet governance institutions which count for openness, transparency and accountability as their governing ideals.

Aside from the diverging approaches to participatory norms and governance, trade agreements are also at odds with internet governance frameworks. For instance, many internet governance fora are multistakeholder platforms which allow for the participation of the civil society, private sector and technical communities on equal footing with governments. Trade agreements or even institutions like the World Trade Organization are multilateral and allow for very little access to other stakeholders.

The approach of trade agreements to substantive issues reduce the regulatory space available on many internet-related rules. Trade agreements aim to promote trade through liberalization. This often leads to a commercialised or commoditised approach to many of the issues they make rules on. This is evidenced from the debates and cases on issues like environment and intellectual property where policies of national governments taken in public interest have come in to question. Such a commoditized framework of rules has already been extended to the internet by the TPP. It is perhaps telling that the chapter that deals with internet related issues is called the ‘E-commerce’ chapter. However, many of the provisions of the chapter go beyond e-commerce and contains rules on issues like privacy, data transfers and net neutrality- which are core internet governance issues. Coupled with a dispute resolution mechanism, the trade regime on the internet could potentially subsume internet related policy making at the international level.

With these problems in mind, the participants at the meeting, had to come up with workable strategies to engage with trade negotiations on internet-related issues. The meeting split into breakout groups that looked at 3 broad issues: 1) transparency and new norms, 2) advocacy and liaison with allies and 3) civil society funding, capacity building and coordination. Some solutions like creating a civil society coordination group and creating a space for multistakeholder engagement were on process. Others, like creating expert groups and producing research at the intersection of these two new areas were on substance.

The strategy meeting was very useful in terms of bringing together a group of experts from two different fields. It also made everyone alive to the challenges that lay ahead in the intersectional area of internet and trade. The strategies that were suggested also reflected this diversity of thought with a mix of ideas from the trade and internet governance worlds.  The meeting concluded with efforts to draft a common statement which left the participants with a rich agenda for future work on internet and trade issues.

Puneeth Nagaraj is a Project Managers at the Centre for Communication Governance at National Law University Delhi