Working Group's Revised ICANN Accountability Proposal Shows Consensus Possible

The CCWG-Accountability proposal will ensure that once NTIA no longer holds oversight authority over the IANA functions, the ICANN accountability “should be empowered” to take action when necessary, CCWG-Accountability Co-Chairman Thomas Rickert said during an ICANN webinar.

The revised CCWG-Accountability proposal recommends significantly enhancing the existing ICANN Independent Review Process for third-party reviews of ICANN actions to determine whether those actions violate ICANN bylaws, making it a fully independent arbiter for the ICANN community. The Independent Review Panel will become a standing panel, with IRP's seven members selected via a community-driven process, CCWG-Accountability said. IRP decisions would be binding upon the ICANN board, CCWG-Accountability said. The proposal also recommends additional reforms to ICANN’s request for reconsideration process, including expanding the scope of permissible requests to include board and staff actions that appear to contradict established ICANN policies or bylaws. CCWG-Accountability’s proposal would require the entire ICANN board to approve reconsideration decisions and would broaden the types of eligible decisions. The additional modifications to the independent review process “appear to render it more accessible and expeditious and substantially less costly for complainants, with decisions clearly binding upon ICANN,” Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw, said in an interview.

CCWG-Accountability is now proposing using the sole member model for community voting rights, which would allow non-member supporting organizations and advisory committees to exercise community powers to vote on overruling ICANN board decisions without needing to “transform themselves” into full ICANN members, Rickert said during the ICANN webinar. Moving to the sole member model doesn’t require creating any new decision-making groups, CCWG-Accountability said in its revised proposal.

CCWG-Accountability said it decided to move work on several key issues to a second round of accountability proposals set to be finalized after the IANA transition is complete, including resolving issues of ICANN’s future legal jurisdiction. ICANN is a California-incorporated nonprofit and is subject to California and U.S. laws. ICANN’s future jurisdiction has been a point of contention throughout the IANA transition planning process, with CCWG-Accountability members disagreeing over whether to structure community powers enforcement in a way in which a lawsuit would become the ultimate recourse for enforcing those powers. CCWG-Accountability wasn’t able to agree on the issue during a planning meeting last month in Paris.

The revised proposal makes “significant strides in proposing a pragmatic and effective ICANN accountability model,” but the lack of a final determination on ICANN jurisdiction “raises significant questions regarding the ultimate enforceability of enhanced accountability measures, as well as governments’ future role within and influence over ICANN,” Corwin said. The lack of CCWG-Accountability consensus on jurisdiction issues is understandable since “they are complex and controversial matters and there is a desire to deliver an accountability proposal as soon as feasible,” but it’s unrealistic for CCWG-Accountability to assume there will be the same appetite for addressing the issue once the IANA transition is completed, Corwin said.

Corwin and others also raised concerns about CCWG-Accountability’s proposal to amend ICANN bylaws to require the ICANN board to find a “mutually acceptable solution” when the Governmental Advisory Committee provides advice that’s supported by GAC member consensus. The proposed bylaw change may not satisfy NTIA’s requirement that the IANA transition avoid expanding governments’ role in ICANN decisionmaking, because it doesn’t explicitly prevent GAC from changing its decisionmaking process to provide consensus advice based on a two-thirds majority of the committee’s members, Corwin said. GAC currently provides consensus advice only when there’s an absence of any formal objection to that advice. GAC “is already accorded more deference than any other ICANN” advisory committee, so “this lack of specificity regarding what constitutes a GAC consensus should be addressed prior to consummation of the transition to assure that GAC advice does not exert undue influence,” Corwin said.

How the ICANN board uses GAC advice will likely be a key area of continued negotiations as CCWG-Accountability collects comments on its revised proposal, particularly since it’s likely to be an issue that NTIA will continue to pay attention to, said former NTIA administrator John Kneuer, JKC Consulting president and a Fairfax Media Partners senior partner. Kneuer has represented clients in the domain name industry but doesn’t represent any currently. The revised CCWG-Accountability proposal is overall a “very positive output,” but “you want to make sure that as the U.S. government steps away that we are not creating a vacuum,” he said. Corwin said he believes any perceived change in GAC’s post-transition role could invite further scrutiny from Congress.

NTIA Administrator Larry Strickling urged stakeholders Tuesday to comment on the CCWG-Accountability proposal and the combined IANA transition proposal released Friday by ICANN’s Iana Stewardship Transition Coordination Council (ICG). He said in a blog post that it’s “particularly important that stakeholders everywhere evaluate whether these plans meet the criteria that we have said must be part of the transition.” Comments on the ICG proposal are due Sept. 8, while CCWG-Accountability’s proposal has a Sept. 12 comment deadline.