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.

 

CCWG-Accountability: On the road to Marrakech, Part 2

By Aarti Bhavana

Recommendations 6 & 12

In the weeks leading up to the ICANN 55 Meeting at Marrakech, we are doing a series of posts tracking the CCWG-Accountability process. The first post in this series, analysing Recommendations 1 & 2, can be read here. This post examines Recommendation #6: Reaffirming ICANN’s Commitment to Respect Internationally Recognised Human Rights and Recommendation #12: Committing to Further Accountability Work in Work Stream 2. It also studies the process of developments in these recommendations, since the 3rd draft proposal was opened for public comments.

Recommendation #6: Reaffirming ICANN’s Commitment to Respect Internationally Recognized Human Rights

The 3rd draft proposal recommended reaffirming ICANN’s commitment to human rights through two bylaws: one, a draft Bylaw which would clarify ICANN’s obligation to respect internationally recognised human rights, and the other, an interim bylaw that would commit to the development of a framework of interpretation for the implementation of the draft bylaw.  However, this approach was met with some resistance.

a. Human Rights and the ICANN Board

In its comments, the Board stated that while it is ‘committed to upholding human rights’, it disagreed with the staged approach proposed in the 3^rd draft proposal. It feared that the proposed language could be used to expand ICANN’s obligations and increase the risk of unintended consequences such initiating the Independent Review Process (IRP) or litigation on human rights grounds. Leaving issues open until the approval of the Framework of Interpretation (FOI) could result in courts and binding IRP decisions creating precedent for what ICANN’s rights commitments are. A rather surprising aspect of the Board’s comments was the reference to evaluate this recommendation on grounds of Global Public Interest,^[1] if its objections were not addressed.

The Board suggested holding off on a human rights bylaw until the FOI was approved. It also recommended developing a Human Rights Statement with the community, in a top-down manner.^[2] Crucial details such as whether a human rights commitment should be included in the bylaws or elsewhere would be discussed in Work Stream 2.

b. A shot at a compromise

Shortly after receiving the Board’s comments, the CCWG-Accountability attempted to understand the objections made, particularly with reference to Global Public Interest. Some viewed the Board’s response as a way to strong-arm the CCWG into a position acceptable by it, while others worked on ways to address these concerns without altering too much of the original text. Further, contrary to the Board’s position, the CCWG lawyers clarified that the language in the 3rd draft proposal would not create additional legal risks.

Against the backdrop of these discussions, the calls^[3] set out three ways of moving forward:

1. Continuing with human rights commitment in Work Stream1 (roughly the 3rd draft proposal approach),
2. Deferring the discussion to Work Stream 2 (the Board’s approach), and
3. A compromise position of including a bylaw, which would take effect only after the FOI was approved (dormant bylaw).

In an effort towards cooperation, the co-chairs invited members and participants to consider option C (dormant bylaw), as it was a compromise between the Board’s position and the language set out in the 3rd draft. This was met with some disagreement, as it was felt that CCWG and WP4 had together agreed on option A when it was included in the 3^rd draft proposal, and this work should not be disregarded.

In response to the Board’s objections and in the midst of much confusion over the options, it was decided that 3rd draft proposal language will be modified to make the bylaw dormant until FOI is approved. This would address the Board’s concerns over IRP and litigation risks as well, since the bylaw would not be effective until the framework of interpretation was adopted. There was consensus for the compromise option. However, the Board remained steadfast in its position of supporting option B, evoking quite a bit of frustration within the CCWG community. It was decided that unless the Board came up with a bylaw statement acceptable to the community, this compromise language would be finalised.

c. Necessity of inclusion of the HR bylaw

While comments received during the public comments period were largely supportive of the inclusion of human rights, few raised concerns about including a human rights commitment prior to the completion of the Framework of Interpretation, and some felt that this matter should be pushed to Work Stream 2. Another issue raised by a few was that a human rights commitment didn’t belong in the bylaws.

The large majority in favour of including the human rights commitment explained that in the absence of the NTIA oversight, there was no backstop for human rights obligations unless ICANN made such a commitment. This commitment was considered essential to satisfy the NTIA criteria of maintaining the openness of the internet. It was also felt necessary to include this commitment in Work Stream1 as an assurance that the work would continue in Work Stream 2.

Amidst much relief, the Board shifted its position and proposed bylaw language similar to the text agreed by the CCWG-Accountability. After a final call discussing this proposed language, CCWG accepted the Board’s proposal and the recommendation has been finalized. Final drafting is left to the lawyers, and the CCWG breathes a collective sigh of relief as the human rights commitment has been secured.

Recommendation #12: Committing to Further Accountability Work in Work Stream 2

The 3rd draft proposal proposed certain accountability topics for Work Stream 2- a timeline that extends beyond the IANA transition. These topics included mechanisms to enhance ICANN’s transparency, improve diversity at all levels, jurisdiction and accountability, developing a framework of interpretation for the bylaw on human rights, and enhancing the Ombudsman’s role and function. It also proposed an interim bylaw committing ICANN towards implementing CCWG-Accountability Work Stream 2 recommendations.

In its comments, the Board stated its concern over the interim bylaw requiring the Board to commit to implement the CCWG-Accountability Work Stream 2 recommendations in full, as it was felt that this commitment couldn’t be made without evaluating the recommendations first. It was also made it clear that while it supports Work Stream 2 efforts, this was limited only to the extent of the listed topics.

The discussion over this recommendation was fairly short,^[4] and it was the first to be finalised. The Board’s concerns were addressed through modifications to the Recommendation. Clarifications were made to the interim bylaw, ensuring that the Board’s obligations would be identical to those in Work Stream 1. The list of topics to be dealt with in Work Stream 2 has been limited to those listed. It was clarified that Work Stream 2 would follow rules similar to Work Stream 1: consensus recommendations would be endorsed by chartering organisations, and if 2/3rds of the Board agrees that a recommendation is not in the global public interest, it would have the option to initiate a special dialogue with the CCWG-Accountability.

Additionally, enhancing Ombudsman’s role and functions has been confirmed and elaborated for Work Stream 2, in response to public comments. Transparency of board deliberations have also been added, as suggested by NCSG in its comments. Finally, appropriate modifications are to be made to portions concerning human rights, keeping with the changes made to Recommendation #6, as detailed above.

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^[1] In its Resolution in October 2014, the Board committed to following certain principles when considering CCWG-Accountability recommendations. One such principle was over Global Public Interest: if, by agreement of 2/3rds of the Board, it was decided that a particular recommendation was not in the global public interest, the Board would initiate a special dialogue with the CCWG over its concerns.

^[2] The Cross-Community Working Party on ICANN’s Corporate Social Responsibility to protect Human Rights (CCWP-HR) is currently working on providing inputs for this human rights statement, in the hopes that it will be developed through a bottom-up multistakeholder process.

^[3] This recommendation was discussed in calls #76, #78, #80 and #83.

^[4] This recommendation was discussed in calls #74 and #76.