Draft ICANN Bylaw Revisions Reflect IANA Transition, Accountability Goals
ICANN stakeholders are in the early stages of reviewing draft revisions to bylaws, and initial analyses indicate the draft largely tracks with provisions included in the Internet Assigned Numbers Authority (IANA) transition plan and a related set of recommended changes to ICANN’s accountability mechanisms, said stakeholders in interviews. ICANN tasked its in-house and outside legal counsel last month with rewriting its bylaws to conform with the IANA transition-related plans. ICANN’s board approved both plans last month and sent them on for an NTIA review (see 1603100070). Some issues that affected negotiations on recommendations from the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) resurfaced in CCWG-Accountability members’ review of the draft ICANN bylaw revisions, but those concerns are unlikely to result in major changes to the draft, stakeholders told us.
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Ongoing reviews of the draft ICANN bylaws revisions from both CCWG-Accountability and the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (CWG-Stewardship) members are “a critical juncture” in the bylaws drafting, said Internet lawyer Greg Shatan of McCarter & English. ICANN is collecting feedback from both CCWG-Accountability and CWG-Stewardship in a bid to further revise the draft before releasing it for public comment. ICANN plans to collect public feedback on the draft April 20-May 20, with an ICANN board vote on the bylaws May 27. “It’s a forced march level of progress, but I think we can do it,” Shatan said.
“At this point, I think [the draft] accurately reflects” the CCWG-Accountability recommendations’ language, though there are “a few cases where interpretations of the recommendations may have gone a little awry,” Shatan said. None of those issues takes the draft “off track,” and fixing them will require ICANN to make only “small corrections” to the draft, he said. “We’re just starting the journey” of reviewing the draft ICANN bylaw revisions, but nothing in early reviews of the draft indicates the proposed revisions “aren’t reflecting the letter and spirit of the proposal,” said Phil Corwin, principal of e-commerce and IP law consultancy Virtualaw. “As we delve deeper into the details, that could still occur, but it hasn’t happened yet.”
One potential area of concern is the revision to ICANN’s mission statement, said Milton Mueller, Georgia Tech communication and information public policy professor. The current draft mission revision creates a potential loophole that would exempt existing contracts that would normally fall outside ICANN’s revised mission from being challenged during renewal, Mueller told us. CCWG-Accountability recommended ICANN grandfather in existing contracts rather than immediately end them at the time it puts the revised mission statement into effect, but didn’t intend that grandfather clause to extend to those contracts’ renewal, Mueller said. Extending the grandfather clause to include renewals “isn’t acceptable and needs to change," he said. “It would be like saying we made a mistake the first time and will plug the leaks but we’ll actually allow existing leaks to continue into the future.”
Some Governmental Advisory Committee members are resurrecting concerns they raised during CCWG-Accountability’s drafting of its accountability recommendations and attempting to inject them into the ICANN bylaws revision process, Shatan said. Several GAC members objected to CCWG-Accountability’s recommendation that would require 60 percent of ICANN board members to vote to reject consensus GAC advice, along with a carve-out that would bar GAC from final consensus discussions on possible enforcement action when ICANN community members formally object to ICANN board implementation of GAC advice. GAC later said it had no objection to the CCWG-Accountability recommendations moving forward and noted the GAC members’ earlier objections (see 1602190047 and 1603090059).
“It’s not surprising that these issues are coming up again now,” but those concerns aren’t likely to result in changes to the draft revisions, Shatan said. “The goal is to faithfully translate [the IANA transition plan and CCWG-Accountability recommendations] into draft bylaws, not to use this as an opportunity to shoehorn in” new changes or proposals that failed to make it into the plans the ICANN board passed, he said. “In the end, cooler heads will prevail, but those who have desire to score points won’t stop just because the final bell has rung.”