ICANN Board Raises New Concerns on Accountability Proposal Language, Despite Overall Approval

“By and large, we’re very happy” with the CCWG-Accountability’s latest proposal draft and particularly with the compromises both the working group and board reached in recent months, ICANN Board Chairman Steve Crocker said in an interview. The board said in its comments it remains concerned with the language that the CCWG-Accountability used in several recommendations. Crocker said the concerns focus on “issues around the edges.” The CCWG-Accountability recommendations that the board suggested need further refining were largely ones that remain too ambiguous or that would “open the door to endless action by some individuals at a later date,” Crocker said.

The ICANN board supported the CCWG-Accountability’s consensus language on GAC advice without qualification. The CCWG-Accountability recommended language that would allow the ICANN board to reject any GAC advice via a two-thirds majority board vote and work with GAC to find a mutually agreeable solution when the rejected advice was supported by GAC consensus. The compromise wouldn't require the ICANN board to seek a compromise with GAC when it rejects nonconsensus GAC advice. The compromise language “addresses the Board’s key issue that GAC advice for which special consideration is granted is supported by consensus,” the ICANN board said. “The recommendation also balances concerns that the GAC should maintain autonomy over its Operating Procedures, particularly in addressing issues of not allowing a single objection to repetitively block consensus within the GAC.”

The ICANN board said it supports the CCWG-Accountability’s adoption of the sole designator model for enforcing proposed community powers, but said it’s concerned that proposed language on allowing community inspection of ICANN documents “is not yet appropriately scoped.” The board proposed that the inspection right language allow the community the right to inspect ICANN documents, with only the sole designator having the power to enforce that right. The broad language currently used to define proposed inspection rights essentially expands the community’s enforcement powers back to where they would have been under the CCWG-Accountability’s previous language calling for a single member model, which the ICANN board had objected to, Crocker told us. “Unbounded and unspecified inspection rights tread back into the territory where we had concerns before,” he said.

The ICANN board’s proposal to limit the scope of the inspection rights language would significantly hamper the ICANN community’s ability to enforce its new powers, said Milton Mueller, Georgia Tech communication and information public policy professor. Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw, said he doesn’t view the board’s concerns about the inspection rights language or other new concerns as “show stoppers” that “would likely create major frictions with the community or cause substantial delay and reworking of the proposal.” But the board’s concerns “illustrate that the proposal remains a work in progress and that much important detail will be left to the post-approval implementation and bylaws drafting stages,” Corwin said.

The ICANN board said it supports the CCWG-Accountability’s proposal to modify ICANN’s mission statement but said revised language in the statement must be “simple and clear.” The CCWG-Accountability’s proposed revision to the ICANN mission statement “has been intertwined with efforts on defining the scope of how ICANN serves its Mission, and the resulting language -- which is still under discussion -- continues to raise concern,” the board said. Efforts to grandfather ICANN’s existing public interest commitments (PICs) while strongly limiting the nonprofit’s ability to pick up additional PICs in the future have “not addressed the Board’s concerns,” the ICANN board said. “The Board cannot support including language in the Mission Statement that does not meet the community support levels that will be in place in the future for Fundamental Bylaws changes. Further, the Board cannot support the inclusion of language that is vague and an attempt to serve multiple goals.” Mueller questioned the validity of the board’s argument against the revised mission statement language, noting it was meant to specifically limit ICANN mission creep.

The ICANN board recommended the CCWG-Accountability clarify language on several of its proposed community powers, including the community’s powers to reject ICANN’s budget, to reject changes to ICANN's bylaws and to reject board decisions relating to possible future spinoff of the post-transition IANA. The ICANN board also recommended the CCWG-Accountability specify a “high” threshold for community recall of the entire board and to include a “clear rationale” for community recall of individual board members. The board’s suggestion of a clear rationale on board member removal “needs to be carefully considered by the community to assure it does not create substantial obstacles to effective enforcement,” Corwin said.

The ICANN board’s new objections set up another round of negotiations with the CCWG-Accountability that could again delay the working group’s push to finalize its proposal and submit it to ICANN’s chartering organizations, Mueller said. “Hopefully the CCWG has a background and won’t cave in on some of these things, particularly on the mission statement,” he said. The ICANN board pledged not to modify the CCWG-Accountability’s proposal once the chartering organizations approve it, but does plan to attach any remaining concerns with the proposal in comments to NTIA, Crocker said.