CCWG-Accountability Reaches Consensus on Handling GAC Advice Post-IANA Transition

The Cross Community Working Group on Enhancing ICANN Accountability reached a rough compromise Thursday on how to handle advice from the Governmental Advisory Committee following the Internet Assigned Numbers Authority transition, CCWG-Accountability members told us. CCWG-Accountability had been struggling to reach a consensus on whether to propose amending ICANN’s bylaws to require the ICANN board to find a “mutually acceptable solution” when GAC provides advice that’s supported by GAC member consensus. Lack of consensus on the issue earlier this month forced CCWG-Accountability to issue a formal update on its progress instead of an anticipated executive summary of its latest draft of a proposed set of changes to ICANN's accountability mechanisms (see 1511160047). CCWG-Accountability's compromise likely removes the last major barrier to finalizing the revised draft, which is set for release Monday, working group members said. The CCWG-Accountability proposal is widely seen as crucial to moving ahead with the IANA transition process.

CCWG-Accountability members' compromise will allow the ICANN board to reject any GAC consensus advice via a two-thirds majority board vote. The board will explain why it rejected the GAC advice and will work with GAC to find a mutually agreeable solution. The compromise wouldn't require the ICANN board to seek a compromise with GAC when it rejects nonconsensus GAC advice. The CCWG-Accountability compromise strikes a balance between the working group's proposed bylaws amendment and an alternate proposal from Brazil and several other GAC members to amend the ICANN bylaws to require two-thirds of the ICANN board to vote to be able to reject consensus GAC advice, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw.

GAC “basically had to back down” from its alternate proposal after NTIA sent an email via CCWG-Accountability's mailing list Wednesday requiring CCWG-Accountability to preserve and clarify the ICANN board's current practice for responding to GAC advice, said Milton Mueller, Georgia Tech communication and information public policy professor. ICANN should “amend its Bylaws to clarify that the Board is required to enter into a formal consultation process with the GAC only where it receives GAC advice that is consensus advice based on the current definition within the GAC’s Operating Principles, that is, advice to which no GAC member has raised a formal objection,” said NTIA Administrator Larry Strickling in the email.

Corwin also credited Strickling's email with “changing the whole tenor” of the debate over the GAC advice issue, though he said compromise appeared to be elusive until the closing minutes of a Thursday CCWG-Accountability conference call. The compromise was a “significant breakthrough,” but it occurred only after CCWG-Accountability members “doubled back” to the issue after initial debate during the conference call failed to produce an agreement, said Internet lawyer Greg Shatan of Abelman Frayne. “It was helpful to step away” from the issue while the working group finalized other matters, he said.

The rough compromise essentially puts the GAC advice issue to rest barring last-minute objections from GAC, ICANN board or others, though the language of a proposed bylaw will continue to require tweaking to prevent GAC from abusing it at a later date, Corwin and Mueller said. GAC could potentially change what constitutes a full consensus for its advice unless that issue is definitively articulated in the bylaws, Mueller said. GAC “was really viewing this process as a way of increasing their power," Mueller said. Some stakeholders didn't appear to realize it would be problematic to change the way ICANN considers GAC advice in a manner that could allow the chartering organization to increase its influence, he said. Shatan said he's optimistic that CCWG-Accountability “should be able to achieve the balance that's necessary” to move the working group's proposal forward. “Everyone gave a little, which is what you need to come to a consensus,” he said.

CCWG-Accountability also reached an agreement on proposed language in ICANN's mission statement that would govern the nonprofit corporation's obligations. CCWG-Accountability decided to define ICANN's current mission as being any activities the nonprofit currently engages in, grandfathering ICANN's existing public interest commitments (PICs) but imposing “strong limitations” on ICANN's ability to pick up additional PICs in the future that could be seen as an extension of the nonprofit's governing power on nongermane Internet issues, Mueller said.

Several CCWG-Accountability members said they remain concerned about CCWG-Accountability's decision to keep the current Dec. 21 comment deadline for the draft proposal since that allows stakeholders slightly more than half the normal amount of time to comment on the proposal, though Corwin noted that there was “no strong consensus for stretching out” the comment period. Shortening ICANN's normal 40-day comment period is problematic because it leaves limited time for any stakeholder to interpret the full CCWG-Accountability proposal, Corwin said. The shortened comment deadline “risks the legitimacy and thoroughness of the process, Mueller said. ICANN chartering organizations are expected to consider whether to approve the proposal soon after the comment period closes and CCWG-Accountability leaders have been pushing to get a final proposal to the ICANN board by Jan. 22.