ICANN Accountability Working Group Readying Final Proposal To Submit to Chartering Organizations
The Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) is to publish a final supplemental version of its proposed set of changes to ICANN’s accountability mechanisms Thursday, after reaching agreement on most major remaining areas of contention, ICANN stakeholders said in interviews. Key to finalization of the CCWG-Accountability proposal was members’ agreement on revisions to its recommendation on how the ICANN board should handle Governmental Advisory Committee advice after the Internet Assigned Numbers Authority transition, stakeholders said. Agreement on the GAC recommendation likely removes the last major roadblock to ICANN’s chartering organizations and the ICANN board approving the CCWG-Accountability proposal, stakeholders told us.
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CCWG-Accountability members agreed on revisions to the GAC recommendation that would require 60 percent of ICANN board members to vote to reject consensus GAC advice. An earlier version of the GAC recommendation that CCWG-Accountability approved in November placed the ICANN board’s vote threshold for rejecting GAC advice at a two-thirds majority, resulting in objections from Generic Names Supporting Organization (GNSO) (see 1511270048 and 1601260067). CCWG-Accountability also removed language in the new version of the GAC recommendation that would have required the ICANN board to seek a compromise with GAC when it rejects consensus GAC advice. GNSO members and other stakeholders raised concerns the recommendation’s language too significantly changed how the ICANN board deals with GAC.
The revised recommendation allows the ICANN board to “retain flexibility” in dealing with GAC advice by allowing the board to continue informally seeking a compromise with GAC rather than “always pushing things to a formal vote,” said Internet lawyer Greg Shatan of Abelman Frayne. “The board has typically avoided those formal votes” on handling GAC advice whenever possible, he said: The revised recommendation “should make it clear that the process is unchanged.” The change in the recommended ICANN board vote threshold from a two-thirds majority to 60 percent isn't a “big difference” in the actual number of required votes, said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. A 60 percent vote of the board involves 10 of the board’s 17 voting members and a two-thirds majority of the board involves 11 members, he noted.
The new compromise GAC recommendation is likely “conceptually pretty close” to being acceptable to all ICANN stakeholders, including the GNSO, said a domain name industry lobbyist. “This is a proposal that the GNSO should be able to live with,” Shatan said. “As long as GAC doesn’t actively oppose it, we should be OK.” GAC members weren’t able to reach a consensus about whether to support the earlier version of CCWG-Accountability’s GAC recommendation, in comments submitted to CCWG-Accountability in late January. GAC “is the wild card, but I think they’ll have to stay silent if there’s still a lack of consensus” on supporting or opposing the recommendation, said Red Branch Consulting founder Paul Rosenzweig.
There’s still “one last wrinkle” over how CCWG-Accountability will deal with a proposed requirement that GAC be excluded from final consensus discussions when ICANN community members formally object to ICANN board implementation of GAC advice, Shatan said. The ICANN board has been “skittish” about agreeing to the GAC carve-out because it would result in only three advisory committees or supporting organizations being required to vote in favor, the domain name industry lobbyist said. CCWG-Accountability is exploring requiring a higher threshold of AC/SO support on challenges to implementation of GAC advice and is "hammering out" the carve-out issue, Shatan said.
CCWG-Accountability’s revision of the GAC advice was the only area of the accountability proposal that saw changes of “real significance” to most ICANN stakeholders, though there were technical changes in the proposal’s recommendation for revisions to ICANN’s mission statement, Rosenzweig said. CCWG-Accountability is recommending that ICANN revise its mission statement to clarify that its powers are limited to ensuring the sustained operation of the Domain Name System and that changes to the nonprofit’s mission scope must occur via community consensus. CCWG-Accountability also revised its recommendation that ICANN adopt a bylaw on its commitment to human rights to include more “moderate language” that would only require ICANN to respect international human rights to the extent required by applicable law, Shatan said. CCWG-Accountability clarified that ICANN won’t need to implement the human rights bylaw until the working group creates an interpretation framework during a planned subsequent round of work on ICANN accountability changes, Shatan said.
Thursday publication of the CCWG-Accountability proposal sets up a timeline that likely makes the accountability proposal the “most important topic” at ICANN’s planned March 5-10 meeting in Marrakech, Morocco, Rosenzweig said. The chartering organizations will need to submit their final opinions on the CCWG-Accountability proposal by March 8, just before the ICANN board’s planned March 10 meeting, the domain names industry lobbyist said. If the ICANN board approves the CCWG-Accountability proposal during the Marrakech meeting, it will almost immediately submit that proposal and the already-approved IANA transition proposal to NTIA, the lobbyist said.