Unanimous GNSO Request for Independent Accountability Review Mechanism Surprises ICANN 50 Participants

"The GNSO has never had a unanimous view on anything before,” said Phil Corwin, founding principal of e-commerce and intellectual property law consultancy Virtualaw, by email. The IANA transition and Internet governance were expected to inform the majority of the discussions at ICANN 50, which ended Thursday (CD June 27 p7; June 24 p7).

If ICANN wants more government cooperation on the transition, ICANN’s Governmental Advisory Committee’s (GAC) Thursday request for five slots on the IANA-related Coordination Group is likely necessary, said CEO Nao Matsukata of FairWinds Partners, a domain consultancy, in an interview. The GAC request might be an overreach and could provide fodder for media coverage, depending on the nationality of GAC members elected to the coordinating body, said other stakeholders. Candidate nominations for the coordinating body are due July 2. The group will hold its first meeting in London July 17, said ICANN CEO Fadi Chehade. Chehade and ICANN board Chairman Steve Crocker downplayed the group’s role in determining the future of IANA oversight and stewardship.

The GNSO statement was the “biggest development” of ICANN 50, said Corwin. “It only took us 50 meetings but I think the rarity of what you're witnessing this afternoon sends a very strong message about our views” on the proposed accountability mechanism, said ICANN Registry Stakeholder Group (RySG) Chairman Keith Drazek, according to an ICANN transcript (http://bit.ly/1ll91uR). The RySG falls under the GNSO. The GNSO proposal shows “an unprecedented level of consensus across the entire GNSO community,” and is a “necessary and integral element of the IANA stewardship transition,” said Rafik Dammak, ICANN Non-Commercial Stakeholder Group (NCSG) chairman. The NCSG falls under the GNSO. The “unanimity” of the GNSO proposal “really seemed to take people by surprise” and “pleasantly so,” said Matsukata.

The proposed accountability mechanism is “meant to accompany the transition of the IANA functions away from U.S. control and is intended to encompass accountability issues beyond those that are IANA-specific,” said Corwin, in an Internet Commerce Association blog post (http://bit.ly/1lxb2bT) Friday. “Business, intellectual property, and civil society members of the GNSO will likely be delivering the message to Congress and the NTIA that [the] creation of this new accountability mechanism must be assured before any final action is taken on an IANA transition plan developed within ICANN’s multistakeholder community.”

There was “more representation” of U.S. government officials at ICANN 50 “than I've ever seen,” said Matsukata. U.S. officials struck a “balance” between pushing “along the transition,” while offering “tough talk” to “ensure” ICANN accountability, he said. ICANN leadership made a “sincere effort” to bring ICANN stakeholders into the fold on the transition, and the ICANN community responded with a “positive attitude” toward making the transition “work,” said Matsukata. Republicans skeptical of the transition “may want to consider the results of ICANN 50” and give ICANN stakeholders an “opportunity to see where this goes,” he said. Senate and House Republicans have introduced legislation to delay or prohibit the transition, including Senate Judiciary Committee member Ted Cruz, R-Texas (CD June 23 p9), and House Commerce Committee member John Shimkus, R-Ill. Shimkus is the sponsor of the Domain Openness Through Continued Oversight Matters (DOTCOM) Act, which passed the House as an amendment to the National Defense Authorization Act May 22 (CD May 23 p6). DOTCOM would delay the transition until a GAO study. Rep. Sean Duffy, R-Wis., submitted an amendment to prohibit NTIA’s transition of IANA, which passed the House with HR-4660 June 1 (CD June 2 p8).

GAC Request

The GAC request for five members on the IANA Coordination Group “may not be feasible,” said Corwin. ICANN’s Commercial Stakeholder Group within the GNSO is “only receiving a single representative” for the body, “even though they hold a policymaking role while the GAC is merely an advisory body,” he said. “Broader governmental representation in the IANA transition process was a theme repeated by GAC representatives throughout the week,” said Brian Winterfeldt, a Katten Muchin Internet lawyer. The GAC request was surprising, but “since we don’t know if they will get the five slots or who the representatives will actually be, it’s hard to say” if the request could influence Republican skepticism of the transition, said Statton Hammock, vice president-legal affairs of domain services company Rightside.

The GAC request was “to be expected,” said Michele Neylon, CEO of Irish domain registrar Blacknight Solutions. “Everyone seems to be spending a lot of time and energy worrying about their levels of representation in this circus.” How the request impacts Congress “depends” on who’s elected to the coordination body, he said. “Some of the countries that could end up” on the group might “make for wonderful media headlines,” said Neylon. “If I were ICANN, I would look at” the request as a “very positive” development, said Matsukata. ICANN needs international “buy-in” on the transition, so “why wouldn’t you want an appropriately represented group?” he asked. “It’s healthy to have more governments participate in the transition planning,” said NetChoice Executive Director Steve DelBianco.

"A strong emphasis on fiscal accountability must be added as an accountability measure” for ICANN, said the Domain Name Association in ICANN accountability review comments (http://bit.ly/TqgFwZ) filed Thursday. “ICANN is growing fast and mechanisms must put in place to avoid waste, adjudge return on investment, and report fully to the community.” A “new permanent cross-community working group with the role to impose external accountability on ICANN’s board and management” should be created, said the ICANN Business Constituency in its accountability comments (http://bit.ly/1iCWqbQ) filed Wednesday. ICANN’s accountability review reply period ended Friday.