Tempered Optimism for Progress on ICANN Accountability Proposal Despite Missing Summary Deadline

CCWG-Accountability “couldn’t put out an executive summary because there’s still major issues left unresolved,” including a final decision on how to weigh the Governmental Advisory Committee’s advice after the planned Internet Assigned Numbers Authority (IANA) transition, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. CCWG-Accountability hasn't come to a consensus on a proposal to amend ICANN’s bylaws to require the ICANN board to find a “mutually acceptable solution” when the GAC provides advice that’s supported by GAC member consensus. CCWG-Accountability is also continuing to work through revisions to ICANN’s mission statement, including language on contract enforcement. NetChoice CEO Steve Del Bianco told us he’s confident CCWG-Accountability will be able to publish a full proposal by Nov. 30 as planned, saying the working group is continuing to “make good progress” on outstanding issues via conference calls Monday.

Corwin and others said Brazil and several other GAC member governments are resurrecting a 2014 proposal to amend the ICANN bylaws to require two-thirds of the ICANN board to vote to be able to reject consensus GAC advice. Brazil and other governments are resurrecting the proposal by arguing that a two-thirds majority vote requirement could also be extended to other advisory committees. ICANN community stakeholders “objected strenuously” to the governments’ controversial proposal when it was introduced, Corwin said. The proposal also was the subject of Senate Commerce Committee scrutiny earlier this year, when ICANN CEO Fadi Chehadé promised the committee the proposal had been “taken off the table” (see 1502250062).

CCWG-Accountability confirmed its support for the sole designator model in the update, saying its adoption “could effectively be implemented while meeting the community’s requirements and having minimal impact on the corporate structure of ICANN.” The sole designator model would limit legally enforced community enforcement powers to the appointment and removal of ICANN board members. CCWG-Accountability’s previously supported sole member model also would have allowed additional statutory rights like making it possible to dissolve ICANN as a corporation that some stakeholders believed “could not be adequately constrained and might have unintended and unanticipated consequences,” the working group said. Before enforcing community powers, stakeholders would go through a six-step process -- including conference calls and community forums -- to determine consensus stakeholder opinion on disagreements with ICANN board decisions.

CCWG-Accountability also finalized language on other provisions, including a draft bylaw that would require ICANN to “respect internationally recognized human rights.” That commitment wouldn’t require ICANN “to protect or enforce human rights beyond what may be required by applicable law” and “does not create any additional obligation for ICANN to respond to or consider any complaint, request or demand seeking the enforcement of human rights by ICANN,” CCWG-Accountability said. The working group said it would clarify the framework for interpreting the human rights bylaw as part of a second ICANN accountability proposal round to occur after the planned Internet Assigned Numbers Authority transition. Other topics for the second transparency round include improving ICANN’s transparency, considering improvements to ICANN’s diversity standards and settling ICANN’s post-IANA transition jurisdictional status.

CCWG-Accountability’s third draft proposal won’t be open for public comment until the full text is released, rather than opening the proposal up for comment Sunday as originally planned, an ICANN spokesman said. “No one could start meaningfully evaluating this proposal until we see the details,” Corwin said. “We couldn’t do it using an executive summary and now we don’t even have that.” Moving the start of the comment period on CCWG-Accountability’s proposal to Nov. 30 would put the comment deadline in early January rather than late December, but that shouldn’t be a hindrance in getting the proposal cleared by chartering organizations in advance of ICANN’s March 5-10 meeting in Marrakech, Morocco, Corwin said.

Del Bianco said he’s concerned about the emergence of new stakeholder voices on CCWG-Accountability’s proposal as the working group moves closer to completing the proposal. “They’re bringing new ideas into the mix and we’re trying to deal with those right now,” Del Bianco said. “That’s not very helpful given that we’re trying to get closure on items we’ve been debating for a year. This proposal needs to be endorsed by ICANN’s chartering organizations, and their review is far more important than the third round of comments from the public at large.” Internet governance scholar and consultant John Laprise said he’s becoming “increasingly skeptical that all the pieces will come together” in time to meet the current Sept. 30 expiration of NTIA’s contract with ICANN to perform the IANA functions. That’s due in part to increasing community concerns about ICANN’s willingness to accept changes to its accountability mechanisms, which could “force NTIA not to approve the agreement.”