Governmental Advisory Committee Says no Consensus on Key Parts of ICANN Accountability Proposal

GAC said its members reached no consensus on adopting a “formal position” on the CCWG-Accountability’s recommendation 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 CCWG-Accountability recommendation, seen as a compromise when originally introduced in November (see 1511270048), wouldn't require the ICANN board to seek a compromise with GAC when it rejects nonconsensus GAC advice. GAC’s opinion on the GAC advice recommendation had been highly anticipated, so “I’m surprised they’ve punted on this,” said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. Although several governments’ representatives participating in CCWG-Accountability had pushed strongly for the two-thirds board vote threshold, “it’s pretty clear now that they were only representing their governments’ views,” Corwin said.

GAC’s failure to reach a consensus on the GAC advice recommendation “may strengthen the hand” of the GNSO Council and others who have raised significant concerns about raising the threshold for rejecting GAC advice, Corwin said. “If GAC really wanted the two-thirds threshold, now was the time to say it,” though the ICANN chartering organization may reach a consensus on the recommendation after reviewing an anticipated supplemental proposal, he said. The GNSO Council noted “broad opposition” among GNSO members to instituting the two-thirds threshold for rejecting GAC advice. Several GNSO members had “expressed serious concerns over the lack of specificity in the recommendation in relation to the requirements for GAC advice (such as the provision of rationale) and the possibility that this recommendation, if adopted, could unduly change the nature of the Board-GAC relationship and/or the position of the GAC vis-à-vis other” supporting organizations and advisory committees, the GNSO Council said.

GAC said it also hasn’t reached a “formal or final” position on a proposed recommendation on enforcing ICANN community powers because of “specific matters” related to the recommendation. The CCWG-Accountability’s proposed recommendation on community enforcement has become controversial because of ICANN board opposition to the working group’s language on the ICANN community’s right to inspect ICANN board documents (see 1601080054). The GNSO found some support for the CCWG-Accountability’s existing community enforcement recommendation but urged the working group to include a “robust right of inspection” of ICANN documents and other “expanded transparency measures."

The GAC advice recommendation is one of only a few “significant issues left” with the CCWG-Accountability proposal that need to be resolved, but such issues are “the most intractable ones” that “go to the core of the proposal,” said Internet lawyer Greg Shatan of Abelman Frayne during the State of the Net panel Monday. CCWG-Accountability is likely to release its supplemental proposal for further review by GAC, GNSO and other ICANN chartering organizations in a few weeks, and “there’s going to need to be some important and relatively quick consensus building” on any further feedback the chartering organizations provide so the working group can submit a final proposal to the ICANN board, Shatan said. An anticipated mid-February release of the CCWG-Accountability’s supplemental proposal to the chartering organizations likely means the working group won’t be able to deliver a final proposal to the ICANN board until at least late February, an industry lobbyist told us. If the ICANN board doesn’t receive a final CCWG-Accountability proposal until late February, it’s likely the proposal will color discussions at ICANN’s planned March 5-10 meeting in Marrakech, Morocco, to a far greater degree than earlier anticipated, Corwin told us.

GNSO Business Constituency Chairman Chris Wilson, 21st Century Fox vice president-government affairs, said Monday he agrees with NTIA Administrator Larry Strickling that a successful conclusion to the IANA transition is crucial for the future of Internet governance, saying the transition is “a litmus test on multistakeholderism.” Strickling said Monday a successful IANA transition “will serve as a powerful example” of what multistakeholder processes can accomplish (see 1601250062). The IANA transition process, including CCWG-Accountability’s drafting process, “has been a messy affair,” Wilson said. “There’ve been divisions on new issues and old issues.”

The House Commerce Committee and others on Capitol Hill are still “paying close attention” to how governments’ influence within ICANN morphs as a result of the IANA transition and the CCWG-Accountability proposal, said House Commerce GOP Counsel David Redl. “Governments don’t like to be on equal footing with non-governments, and we’re seeing that play out throughout this process. There’ve been multiple plays by the GAC to be the advisory committee that’s created a little more equal than other advisory committees.”