ICANN Board Proposes Alternate Enforceability Mechanism for New Community Powers
ICANN’s board proposed its alternative for guaranteeing enhanced powers to the ICANN community Friday. The nonprofit told the Cross Community Working Group on Enhancing ICANN Accountability’s (CCWG-Accountability) that the board’s “Multistakeholder Enforcement Mechanism” (MEM) would deliver “on the objective of the community to create an enforcement mechanism.” CCWG-Accountability had been collecting comments through Saturday on its revised proposal for changes to ICANN’s accountability mechanisms, which include giving the ICANN community the power to veto board-passed budgets and to recall board members. The ICANN board has repeatedly raised concerns about CCWG-Accountability’s proposed single member model for enforcing the proposed new community powers (see 1509030025).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The ICANN board said it continues to be concerned about the single membership model. It believes if CCWG-Accountability continues to propose it as the only proposed path forward, it may be prudent to delay” the planned Internet Assigned Numbers Authority (IANA) transition until the single membership model “is in place and ICANN has demonstrated its experience operating the model and ensuring that the model works in a stable manner.” The board said it’s “absolutely not espousing status quo. We hear, accept and support the CCWG’s goals of improving accountability and enforceability.”
The proposed MEM would “empower the community by allowing ICANN’s supporting organizations and Advisory Committees to challenge a decision or action of the Board that they believe violates the Fundamental Bylaws and, where found to be the prevailing party, to obtain a binding arbitration decision that is enforceable in California courts,” the ICANN board said. The community could use MEM to challenge a board decision or action that violates one of ICANN’s fundamental bylaws, though enforcement should only be available related to actions that fall outside the board’s fiduciary responsibilities to manage ICANN, the board said. MEM wouldn’t require ICANN to change its existing corporate structure and wouldn’t replace ICANN’s existing independent review process, the board said.
The ICANN Generic Names Supporting Organization’s (GNSO) Business Constituency defended CCWG-Accountability’s single member model. BC said it’s “an escalation path that exists to backstop the Advisory Committees (ACs) and Supporting Organizations (SOs) and the bottom-up consensus process we’ve evolved over the last 17 years.” The single member model “can only consider petitions and voting after the community has worked through existing bottom-up processes such as public comment and policy development,” BC said. It said that petitions for enforcement via the single member model “must be supported by multiple AC/SOs, and the actual voting must be supported by supermajority.”
GNSO’s Intellectual Property Constituency (IPC) said it also supports the single member model, but is “concerned that it is not explained in sufficient clarity and detail.” That lack of clarity has left the CCWG-Accountability proposal “open to undue criticism,” IPC said. “We encourage the CCWG to further clarify and explicate the workings” of the single member model. Those clarifications should happen before CCWG-Accountability releases its final proposal, particularly given that it’s unclear whether ICANN’s At-Large Advisory Committee (ALAC) and the Governmental Advisory Committee (GAC) will participate in the single member model, IPC said.
ALAC said it believes “that the overall direction now being taken is acceptable.” It urged CCWG-Accountability to consider a “single designator” community mechanism model that would decrease the number of “moving parts” in the proposal, which it said would increase the possibility that the proposal "could be completed” in time to complete the IANA transition by Sept. 30, 2016.
GAC said it “has not determined whether to participate” in the community mechanism as a voting entity and will “continue to assess” the scope of CCWG-Accountability’s enforcement mechanism proposal. GAC said it would like to be entitled to five votes within the community mechanism, putting it on par with SOs and ALAC. GAC said it will still participate in CCWG-Accountability’s proposed community forum and will “work with other SOs and ACs to develop agreed mechanisms for the full participation by and exchange of views among and between all SOs and ACs.”
National governments that commented were divided on how to address GAC’s role post-transition. Australia, New Zealand and the U.K. said GAC should remain an entirely advisory body. Brazil said it supports GAC’s views on its involvement in the community mechanism. Egypt said it wants CCWG-Accountability’s final proposal to “recognize GAC’s important role in providing public policy advice, a unique and important characteristic of ICANN.” France said it supports clarifying the role of GAC’s advice but not as a way of replacing ICANN’s “obligation to consult with the GAC.” Germany said it believes GAC should remain an advisory body but a “future reassessment” of GAC’s role shouldn’t be prohibited if circumstances change. Italy said GAC shouldn't have "less power than now in the new framework” and should retain its current influence whether it stays an advisory committee or becomes a voting member. Norway said it supports GAC’s views on its involvement in the community mechanism. Norway said it believes it’s important for ICANN to avoid becoming overly influenced “by any group of stakeholders, but we fail to see how” GAC can reach that level of influence regardless of how its advice “is categorized or expressed in the future.”