PC 1 Tool_comprehensive_18 Aug 2015.docx

PC 1 Tool_comprehensive_18 Aug 2015.pdf

 

This document contains a summary of the public comments [1] received in response to the draft Work Stream 1 recommendations issued by the Cross Community Working on Enhancing ICANN Accountability (CCWG-Accountability).  The comments are summarized in order of submission for each category as applicable.  Even though this summary was drawn up to reflect as accurately and objectively as possible the views expressed by participants, it does not substitute in any way the original contributions which are publicly available for full reference at: http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/

 

Contributions provided by:

 

Comments on Specific Recommendations

African Regional At-Large Organization (AFRALO)

Association française pour le nommage Internet en coopération (Afnic)

At-Large Advisory Committee (ALAC)

Australia's Domain Name Administrator (auDA)

Business Constituency (BC)

Canadian Internet Registration Authority (CIRA)

Carlos Raúl Gutierrez (CRG)

Center for Democracy & Technology (CDT)

Centre for Communication Governance (CCG)

China Academy of Information and Communication Technology (CAICT)

Council for European National Top Level Domain Registries (CENTR)

CWG to Develop an IANA Stewardship Transition Proposal on Naming Related Functions Stewardship (CWG-St)

Cyber Cafe Association of India (CCAOI)

Danish Business Authority (DBA)

David Post – Danielle Kehl (DP-DK)

DotConnectAfrica Trust (DCA-T)

DotMusic (.MUSIC)

eco (eco)

Federal Ministry for Economic Affairs and Energy (Govt-DE)   

Google (GG)

Government of Brazil (Govt-BR)

Government of India (Govt-IN)

Government of Italy (Govt-IT)

Government of Spain (Govt-ES)

gTLD Registries Stakeholder Group (RySG)

ICANN Board of Directors (ICANN)

Information Technology Industry Council (ITI)

Intellectual Property Constituency (IPC)

International Trademark Association (INTA)

Internet Architecture Board (IAB)

Internet Association (IA)

 

Internet Infrastructure Coalition (I2Coalition)

InternetNZ (.NZ)

Internet Services Provider and Connectivity Provider Constituency (ISPCP)

Jan Scholte (JS) comment 1

Jan Scholte (JS) comment 2

Japan Network Information Center (JPNIC)

Jiah He (JH)

Lee Andrew Bygrave (LAB)

London Internet Exchange (LINX)

Milton Mueller (MM)

Ministère des Affaires étrangères (Govt-FR)

Ministry of Foreign Affairs of Argentina (Govt-AR)

Motion Picture Association of America (MPAA)

Namibian Network Information Centre (.NA)

Nigeria Internet Registration Association (NIRA)

Nell Minow (NM)

Nominet (.UK)

Non Commercial Stakeholder Group (NCSG)

Regional Internet Registries (RIR)

Richard Hill (RH)

Roberto Bissio (RB)

Root Server System Advisory Committee (RSSAC)

Sébastien Bachollet (SB)

Security and Stability Advisory Committee (SSAC)

Sivasubramanian M (Siva)

Sue Randel (SR)

UNINETT Norid AS (NORID)

US Chamber of Commerce (USCC)

US Council for International Business (USCIB)

US Rep. Mike Kelly HR2251 (HR2251)

William Currie (WC) comment 1

William Currie (WC) comment 2

Zhong Rui (ZR)

 

 

General Comments

SUMMARY for General Comments:

 

Number of comments: 59

Number of agreements: 42

Number of concerns: 22

Number of confusion: 1

Number of divergence: 5

Number of new ideas: 11

NB: some comments are classified in two or more categories

 

Abstract:

The majority of the comments received were supportive of the general approach taken by the CCWG, whereby ICANN’s accountability architecture should be based on 4 building blocks, i.e. an empowered community, the Board, the Bylaws and the Independent Review Process. Most comments regarded the suggestions that have been made as improvements of ICANN’s accountability.

 

The commenters have also raised concerns, asked questions or provided additional information not yet discussed by the CCWG. Questions and concerns are primarily related to the CCWG’s proposed accountability measures implementation and not that much on the recommended measures, e.g. community powers, and such.

 

In this report, the CCWG responds to the comments received and explains if and when the suggestions are relating to ideas or arguments that have already been discussed by the group, but which did not get sufficient traction to make it to the set of proposals in the first report. Also, the CCWG highlights concerns and divergence in particular and identifies where new ideas need to be further discussed or where concerns should lead to a reconsideration of the approach taken.

 

Several commenters recommend that the CCWG should put more emphasis on the accountability of the community itself (the SOs and ACs) and also to ensure that ICANN is accountable to all stakeholders, including those outside ICANN.

 

Several commenters expressed concerns regarding implementation details and complexity, underlying costs and risks associated. Others highlight the need for enforceability and are supportive of the proposed implementation.

 

Some commenters regret that the CCWG did not explore setting up a global structure, or incorporating ICANN as an international organization or in a neutral state such as Switzerland.

 

Action items for CCWG:

-            Consider the idea of the public accountability forum

-            Provide details on the rationale for not exploring the setting up of a global structure

#

Contributor

Comment

CCWG Response/Action

1

RH

- This is a step in the right direction but it suffers from reinventing the wheel.

- Consider the proposals of the Internet Ad Hoc Group (IAHC) http://web.archive.org/web/19971211190257/http://www.gtld-mou.org/gTLD-MoU.html .

- It would be easier to implement proper accountability if the several functions were separated, each with its own accountability mechanism, as proposed by the Just Net Coalition .

- ICANN should not be incorporated in the USA, or in any other powerful state that might be tempted to interfere with ICANN for political or economic reasons. It should be incorporated in a neutral state that is unlikely to interfere, for example Switzerland. If ICANN remains incorporated in the USA it will be subject to US law, which could have undesirable consequences (e.g. force ICANN to comply with sanctions that are unilaterally imposed). 

Concerns   Divergence

Summary / Impression:

-            In the right direction but complex

-            Incorporate ICANN in neutral state (e.g. Switzerland)

-            Consider accountability mechanism proposed by IAHC

Actions suggested:

Look into proposals by IAHC and Just Net Coalition.

 

CCWG Response:

Thank you for your comment - the CCWG has extensively discussed the question of where ICANN should be located, but relocation did not get sufficient traction for multiple reasons. However, the question of jurisdiction will further be looked into as a WS2 issue.  Also, the proposed accountability architecture got broad support so that the CCWG proceeded on that basis.

2

JS comment 1

- Congratulations for the impressive achievement. That the group could in just six months produce such a comprehensive, creative, reflective, professional proposal is a real tribute to what a well-executed multistakeholder process can accomplish.

- One can always find areas for further development, but the glass is already so very much more than half-full.

Agreement

Summary / Impression:

-            Tribute to multistakeholder process

-            Areas for further improvement

Actions suggested:

No action required

CCWG Response: Thank you for your comment

3

auDA

- auDA welcomes the work of the CCWG and, specifically, the significant efforts of the group to deliver an appropriate model for ensuring the ongoing accountability of ICANN's operations beyond the transition.    

- auDA does not support the CCWG's assertions regarding how these principles and goals should be implemented.

- While auDA's supports the general principles for improved accountability, as well as a number of implementation mechanisms mentioned, our position diverges significantly from that of the CCWG in regard to many other implementation details proposed in the Draft Report. Our concerns are very serious and we believe that the flaws in the CCWG's draft proposals are significant and profound.   auDA notes that the CCWG has focussed on a structure that can enforce accountability by delivering to the community the ability to sue ICANN / the ICANN Board. While auDA accepts that this is one way to bolster accountability, we question whether the proposed solution: 1) is worth the significant and seismic changes to ICANN's structure and to the nature of ICANN's Supporting Organisations and Advisory Committees; 2) might give rise to a series of new risks and weaknesses that run counter to both the goals of the CCWG and ICANN's own Bylaw commitments; and 3) might, on the whole, be inferior to an accountability solution involving changes to existing mechanisms and the introduction of fundamental bylaws that cannot be altered without the explicit support of SOs and ACs.

-  The CCWG has developed a solution that gives rise to a number of new complexities and questions, and which may not deliver the most effective and efficient outcome. Associated cost, risk and structural issues all need to be considered and weighed against any proposal and auDA is not satisfied that the need for a ‘legal enforceability’ solution (which would also serve to further concentrate power in the United States) is greater than the compromises and costs required to implement it. auDA strongly recommends that the CCWG and the ICANN community return to the fundamental principles identified as part of the preliminary stages of the CCWG's work, abandon the need for legal enforceability as a fundamental tenet of the accountability review and attempt to arrive at a solution that delivers acceptable levels of accountability and community empowerment.          

Divergence

Summary / Impression:

-            Welcomes work but does not support CCWG’s assertions regarding implementation details

-            Structure where community has ability to sue ICANN/ICANN Board might create risks counter to CCWG goals and ICANN’s Bylaws commitments

-            Complexity which may not deliver efficiency

-            Consider associated cost, risk and structural issues

-            Enforceability will concentrate power in US

-            Return to fundamental principles identified at preliminary stages

-            Abandon enforceability as fundamental tenet empowerment.

 

Actions suggested:

The concerns need to be discussed and more information on the proposed alternative models needs to be provided.

 

CCWG Response:

Thank you for your comment - the CCWG has considered this feedback.  The CCWG trusts that most, if not all concerns are addressed in the 2 nd report.

4

DBA

- Denmark welcomes the decision by the NTIA to transition the stewardship of the IANA functions to the global multistakeholder community and to remain fully committed to completing the transition in a timely and responsible manner.

- Our initial assessment of the Initial Draft Proposal, which focuses on developing accountability mechanisms necessary for the IANA transition to take place, is that the overall framework looks promising and ICANN’s accountability towards the multistakeholder community would be enhanced when implemented.

- In our view the combination of accountability mechanisms proposed provides a set of necessary of checks and balances for the global multistakeholder community to hold the ICANN Board and management accountable in the absence of the NTIA in its current role.

- In light of the fact that the CWG Stewardship Transition Proposal on Naming Related Functions is dependent on these community powers, these dependencies must not be compromised.

- It is of crucial importance to ensure that the new governance model is truly multistakeholder-based. To this end there must be safeguards against capture from any specific stakeholder group in any way, including in ICANN’s policy development processes and decision making functions.

- Finally, Denmark is committed to participating in the CCWG Accountability and in developing an accountable and multistakeholder-based proposal for the IANA transition process together with the global internet community.

Agreement - Concerns  

Summary / Impression:

-            It looks promising

-            It provides set of necessary checks and balances

-            CWG dependencies on community powers must not be compromised

-            Ensure the new governance model is truly multistakeholder: there must safeguards against capture

Actions suggested:

Check with DBA whether more stress tests to test if ICANN is sufficiently safeguarded against capture are needed after the revision following the PC period.

CCWG Response:

Thank you for your comment – the CCWG has considered this feedback.  The CCWG trusts that most, if not all concerns are addressed in the 2 nd report.  In particular, the proposals in the 2 nd report and the updated section on stress tests should show that the risk of capture is well addressed.

5

WC comment 1

- The CCWG-Accountability proposal does an excellent job of creating an empowered community as the accountability forum which can hold the accountable actor, the Board, to account for its decision-making. By tightening up the principles, commitments and core values in ICANN’s by-laws, the proposal makes clear what the standards are against which the Board is to be held to account.

- The new community powers are finely balanced and limited in a way that will not hamper the Board’s fiduciary duties towards ICANN, nor undermine the efficiency or effectiveness of the Board’s decision-making processes.

- What is missing is a space in which the community - as accountability forum - can hold the Board - as accountable actor - to account on a regular basis. Here the work of public accountability academic, Mark Bovens, may be of use. He sees accountability as a social relation and defines accountability as `a relationship between an actor and a forum, in which the actor has an obligation to explain and to justify his or her conduct, the forum can pose questions and pass judgment, and the actor can be sanctioned’. At its regular meetings, ICANN holds a Public Forum which already has many of these features. The Board gives an account of some of its activities and members of the community can make comments and pose questions to the Board. It may be of value to transform this Public Forum into a Public Accountability Forum. The way this could work is as follows: 1 The community, that is the supporting organisations and advisory committees, represented by their chairpersons and vice-chairs, meets and constitutes itself as the accountability forum. 2 The accountability forum then chooses a chairperson and vice-chair to convene the Public Accountability Forum at each tri-annual ICANN meeting, for the period of a year; 3 The Board and the CEO would constitute the accountable actor at the Public Accountability Forum; 4 The Chairpersons consult with the community, the Board and the CEO to determine the agenda for the Public Accountability Forum; 5 At the Public Accountability Forum, the Board, as accountable actor, gives an account of the agenda items and the accountability forum, represented by the chairs and vice-chairs of each supporting organisation and advisory committee, pose questions and pass judgment. Passing judgment, in this instance, would be the equivalent of comments on the behaviour or actions of the accountable actor rather than a formal judgment by the accountability forum as a whole; 6 In a second round, members of the community have an opportunity to pose questions and pass judgment. Passing judgment here would be the perception or opinion of the individual community member on the behaviour or actions of the accountable actor; 7 Should any matters arise that touch on the new community powers to sanction the Board, these are noted by the chairs of the Public Accountability Forum for discussion by the accountability forum, which would meet on its own directly after the Public Accountability Forum is over; 8 The Chairs of the Public Accountability Forum briefly sum up the discussion and close the Public Accountability Forum. The idea would be to limit the agenda to a few key issues rather than to address every conceivable question. The emphasis would be on the accountable actor giving an account of its actions and the accountability forum questioning and passing judgment. The question of sanctions would only arise if the issues under discussion touched on one of the new community powers.

Agreement New Idea  

Summary / Impression:

-            Excellent job of creating an empowered community which holds Board accountable

-            Consider transforming public forum into a public accountability forum: SO/ACs Chairs constitute forum, choose a Chair and Vice-Chair, consult with community, Board and CEO to establish agenda, Board gives account. Should any matters touch on new community powers to sanction Board, these will be discussed with the forum. The question of sanctions would only arise if the issues under discussion touched on one of the new community powers.

 

Actions suggested:

Discuss proposed accountability forum

CCWG Response :

Thank you for your comment – the CCWG has considered this feedback and your recommendations are reflected in section 6.3 of the 2 nd report.

6

NM

I begin by endorsing the comments of Jan Aart Scholte, which express my concerns with more eloquence and depth. With regard to our frequent mentions of the importance of transparency, we also need to be more specific. We’re talking about organization that is core to the most transparency-friendly entity in the history of the world, and yet we don’t have any specifics about what the organization needs to do when there are say, for example, proposed bylaw changes, to make sure that they are widely disseminated. We need to have some specifics about making sure that they take specific steps to make sure that everything they do and everything that the advisory groups do is as widely disseminated as possible, even to the extent of outlining the minimums for social media reach and unique visitors to make sure that transparency is not just offered but is actually implemented.

Agreement - Concerns  

Summary / Impression:

-            Agrees with JS comments

-            Need to be more specific about transparency, make sure it is implemented

-            Need specifics steps to ensure wide dissemination.

Actions suggested:

No additional actions needed.

CCWG Response :

The CCWG is cognizant of the need for outreach and global engagement. It will ensure to treat this area as a priority, but would welcome suggestions on concrete and implementable measures.

7

CRG

- In my view the CCWG draft document has focused on the Board-Community relation only. So far there is little on the draft proposal related to the internal structure of ICANN, summarised sometimes as “management” & "staff”, but limited to the budget veto mechanism (as per paragraph 40). I think a full section (or 5th Building Block) on “internal” checks and balances is quiet necessary, for the wider scope of parties that will be reviewing the CCWG-ACCT proposal.

- Para 40, under #2 speaks of mechanisms to restrict actions of he board AND MANAGEMENT of the Corporation, but the present draft develops only Board decisions and no Management ones.

Concerns   New Idea  

Summary / Impression :

-            There is little on internal structure of ICANN (management/staff). Section on internal checks and balances is necessary.

-            5th Building Block on “internal” checks and balances

Actions suggested:

Add more detail on checks and balances.

 

CCWG Response :

The CCWG has prepared its proposal based on the idea of establishing improved and robust checks and balances. The CCWG has made this more explicit in its report.  A section on Staff Accountability has been added as Section 8.2.  Aggrieved parties can invoke IRP and RFR not only against actions of the Board, but also against staff action, see para 268 and 270 of the report.

8

AFRALO

The AFRALO community members express their support to the CCWG and think that the report needs further work to find the best ways to empower the community using the right means and avoiding ICANN the risk of being weakened or losing its independence, its inclusiveness and its multi-stakeholder nature.

Concerns  

Summary / Impression:

Further work needed to find best ways to empower community using right means and avoiding risk of being weakened or losing independent, inclusiveness and multistakeholder nature.

Actions suggested:

No particular action, but recognition of the principle in further deliberations.

CCWG Response:

The CCWG welcomes the suggestion made by the AFRALO and encourages continued input from the AFRALO when it comes to concrete implementation measures to counter the concerns expressed in their comment.

9

Govt-AR

Argentina will continue participating in the IANA transition process, and expects that those principles agreed in the Net Mundial Mulstistakeholder Statement will guide our work and will be respected.

- Discussion about mechanisms for guaranteeing the transparency and accountability of those functions after the US Government role ends, has to take place through an open process with the participation of all stakeholders extending beyond the ICANN community.

- This transition should be conducted thoughtfully with a focus on maintaining the security and stability of the Internet, empowering the principle of equal participation among all stakeholder groups and striving towards a completed transition by September 2015

- It is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that satisfy requirements from both internal stakeholders and the global community. The active representation from all stakeholders in the ICANN structure from all regions is a key issue in the process of a successful globalization.

Concerns  

Summary / Impression:

-            NetMundial statement should guide work and be respected

-            All stakeholders should participate in conversation

-            Conduct transition with focus on maintaining SSR, empowering equal participation, strive toward completion in September

-            Speed up process of globalization

Actions suggested:

Revisit reference to NetMundial in the report.

 

CCWG Response:

The issues raised by Argentina have been discussed by the CCWG.

10

Govt-IN

- As ICANN is the current IANA operator, it must demonstrate accountability in its approach

- Subsequent to the IANA Transition irrespective of ICANN’s role and degree of involvement with operational aspects of the IANA functions, ICANN must have improved robust accountability and transparency mechanisms: stronger accountability mechanisms are of paramount importance, specifically, in terms of operations relating to naming policy development and gTLDs. 

- In addition to strengthened internal community oversight and accountability, the accountability review must endeavour to incorporate external accountability and checks and balances in respect of the functions exercised by ICANN. 

- ICANN must be clear and transparent, particularly about its structure, mission, operations, staff, elections, collaborations, decision-making processes, plans, and budget, finances and 
earnings 


Agreement - New Idea  

Summary / Impression:

-            ICANN must demonstrate accountability in IANA operator role

-            Consider incorporating external checks and balances

-            Transparency is required

-            Accountability review

 

Actions suggested :

No additional actions required.

CCWG Response:

Thank you for your comment. The CCWG has considered the suggestion made. However, the CCWG already took and will continue to take to heart the principles mentioned in the comment when drafting the first report. The CCWG trusts that external accountability can be achieved by means of reviews including independent reviewers and independent review process. The CCWG welcomes concrete suggestions to be included in the upcoming report.

11

DCA-T

- ICANN’s past has faced many question relating especially to the accountability of the organization, some users of ICANN’s services and especially the new gTLD applicant have faced many issues as regards a fair and just handling of the issues that cover accountability and transparency. As such ICANN’s need for accountability and transparency in all its activities cannot be over stated. The need for independence must also be accompanied by proper structures and mechanisms to address accountability of Board and staff in equal measure.

- ICANN must therefore allow an independent and separate accountability and transparency body to be created to manage the issues that arise from actions or inactions of the Board and/or staff and any other contractor assigned specific duties in the day to day running. Such accountability mechanisms need to touch on all spheres of ICANN including the ICANN budgets 

Agreement - Concerns  

Summary / Impression:

-            ICANN’s need for accountability cannot be overstated

-            Independent and separate accountability and transparency should manage actions or inactions

 

Actions suggested:

None.

CCWG Response:

The CCWG agrees with the principles stated and would welcome more detail on what can or should be done beyond the proposed improvements.

12

Afnic

- CCWG-Accountability has laid the foundation for both a rapid and profound enhancement of ICANN accountability, necessary for the achievement of the IANA stewardship transition (Work stream 1), and the implementation of a sustainable accountability mechanism for the long term (Work stream 2).

- Given the sometimes complex and, in any case, technical nature of this exercise, Afnic wants to commend all participants of this group for their implication and their involvement, as well as for the very intensive outreach work done.

- Having participated to this outreach by organizing a French event on the ICANN accountability and IANA transition, Afnic can witness that moving from the accountability principle stage to the principles implementation stage, while trying to maintain a global consensus, is indeed very difficult.

- [The] community empowerment proposal shows what is currently missing in ICANN, to make this organization a truly multistakeholder one. Without the powers given to the community, ICANN is more in a “representative democracy” model, and not even, because all Board members are not elected.

Agreement -

Summary / Impression:

-            Foundation laid for profound enhancement

-            Moving from principle stage to implementation stage is difficult

-            Without community powers ICANN is a “representative democracy” model, and not even, because all Board members are not elected.

 

Actions suggested:

No action required

CCWG Response:

Thank you for your comment.

13

NORID

NORID welcomes the opportunity to praise the significant work the group has done to deliver their view on improved accountability in ICANN within the restricted timeframe given and the openness in which the process has been conducted under. We support most of the principles outlined, but being a small registry we do not have the resources to go into detail. Therefore we instead support the very sensitive of our regional organization CENTR.

Agreement -

Summary / Impression:

-            Support most of outlined principles

-            Endorses CENTR comments

 

Actions suggested:

No action required

CCWG Response:

Thank you for your comment.

14

Govt-DE

We would like to thank the Danish GAC representatives in particular for their comments which we fully support.

- Germany supports the multistakeholder approach inherent in the CCWG’s working methods and draft report because the joint governance of internet resources and standards by the internet community has proven to be one of the key factors driving the success of the internet.

- In this context we would like to recall the joint German Position Paper on Guidelines and Recommendations for Action for the IANA Stewardship Transition from 26 March which has been drafted in a multistakeholder process itself. Germany notes that many of the issues raised in this position paper have been adressed by the draft report.

Agreement -

Summary / Impression:

-            Supports DBA comments

-            Supports multistakeholder approach inherent in CCWG report and methods

-            Report addresses many of issues raised in German Position Paper

 

Actions suggested:

No action required

CCWG Response:

Thank you for your comment.

15

DP-DK

- We strongly endorse these four critical goals: 1) Restating ICANN’s Mission, Commitments, and Core Values, and placing those into the ICANN Bylaws; (2) establishing certain bylaws as "Fundamental Bylaws" that cannot be altered by the ICANN Board acting unilaterally, but over which stakeholders have prior approval rights; (3) creating a formal “membership” structure for ICANN, along with provisions designed to give the stakeholder-members greater influence on Board decisions; and (4) enhancing and strengthening ICANN's Independent Review Process (IRP).

-  We believe that the CCWG has made significant and substantial progress in designing a durable accountability structure for a post-transition ICANN.  We also believe, however, that there are a number of important omissions and/or clarifications that need to be addressed before we can be confident that these mechanisms will, in practice, accomplish their mission.

- The IANA transition is premised on the notion – one that we strongly endorse – that the DNS can best be managed going forward by a private, non-governmental, global, consensus-based, “multi-stakeholder” institution. No element of the transition plan is more important than the design of effective accountability mechanisms for that institution. The DNS has become a significant and immensely valuable global resource, and whoever controls DNS policy-making and policy-implementation wields considerable power. How can the US government, and the global Internet community, assure itself that that power will not be abused by a post-transition-ICANN (“PT-ICANN”) that is no longer answerable to the US government for its actions? If the USG is not going to be exercising oversight over PT-ICANN’s management of the DNS, who is?  How is that oversight to be exercised, and how effective is it likely to be?  These “accountability” concerns must be addressed before the transition proceeds.

- There are many examples of private global governance institutions whose accountability mechanisms are notoriously ill-developed – FIFA and the International Olympic Committee come immediately to mind – and in whose hands we would hardly be expected to place a resource of the magnitude and importance of the Internet’s DNS.  There is also widespread agreement (and acknowledgement by ICANN itself) that as currently configured, ICANN has a substantial accountability deficit.  Professors Weber and Gunnarson’s recent summary captures what we believe is a broad consensus among scholars and other observers of the history and practice of DNS policy-making: ICANN’s corporate organization vest[s] virtually unconstrained power in its Board of Directors. The Board may be influenced or even pressured by particular stakeholders on particular issues at particular times. But it remains legally free to remove directors and officers; disregard community consensus; reject recommendations by the Board Governance Committee or the IRP regarding challenges to a Board decision; and reject policy recommendations from any source, including the GAC and its nation-state representatives.

- The IANA transition represents an opportunity to get these accountability mechanisms right.  The ICANN Board has indicated that it accepts, as a pre-condition for implementing the transition, the need to implement fundamental changes in the corporation’s governance structure; but once the transition takes place, that leverage disappears. And the opportunity, once lost, might well not come again, because the transition will be very difficult to undo. As we explained in a recent paper, the IANA transition involves nothing more, at bottom, than the expiration of a government procurement contract; because NTIA isn’t transferring anything to ICANN as part of the transition, there’s nothing for it to “take back” if the accountability mechanisms fail to effectively control ICANN’s misbehavior. In addition, it appears that many other components of the final transition proposal – involving the operational details of the transfer of the IANA functions (names, numbers, protocols) – are themselves expressly conditioned on the development of an adequate accountability structure for ICANN, giving added significance and importance to the Accountability portion of the transition plan.

- We are particularly concerned, and focus our comments below upon, the extent to which the proposal protects against two forms of abuse: Capture by an entity or an interest (public or private) seeking to use DNS resources for its own self-interested purposes, and Mission Creep , leveraging control over the DNS to exercise power over matters outside the confines of the DNS itself.  These are not, we acknowledge, the only risks posed by the transition; but they are sufficiently important to warrant special attention, and we believe our comments will be most useful if they are focused on them. 

- The CCWG correctly identifies the task it is undertaking – to ensure that ICANN’s power is adequately and appropriately constrained – as a “constitutional” one: that the CCWG Draft Proposal, and ICANN’s accountability post-transition, can be understood and analyzed as a constitutional exercise, and that the transition proposal should meet constitutional criteria. Constitutions exist to constrain and to channel and to check otherwise unchecked power – “sovereign” power that is subject to no higher (governmental) power.  ICANN is not a true “sovereign,” but it can usefully be viewed as one for the purpose of evaluating the sufficiency of checks on its power.  We believe that there is a broad consensus – reflected in the CCWG Draft – that a “constitution” for a re-formulated ICANN should provide, at a minimum, for: 1.  A clear enumeration of the powers that the corporation can exercise, and a clear demarcation of those that it cannot exercise; 2.  A division of the institution’s powers, to avoid concentrating all powers in one set of hands, and as a means of providing internal checks on its exercise; 3. Mechanism(s) to enforce the constraints of (1) and (2) in the form of meaningful remedies for violations; 4. Transparency and simplicity.  No constitutional checks on an institution’s power, no matter how clearly they may be articulated in its chartering documents, can be effective to the extent that the institution’s actions are shielded from view. And it is particularly important, in the context of a truly global multi-stakeholder institution, that its structure, and the chartering documents that implement that structure and that guide its operations, are framed as simply and transparently as possible. ICANN’s Charter and Bylaws should speak to the global Internet community whose interests the corporation seeks to advance. The more complex those chartering documents are, the less likely it is that they will be comprehensible to that community (or even to the subset of English speakers within that community).

- Designing the mechanisms through which a post-transition ICANN can be held accountable for it actions to the global community is both a critical component of the overall IANA transition process and an extraordinarily difficult task. We applaud the efforts that the CCWG-Accountability group has made thus far, and we support the goals it has identified and the general thrust in which the Draft Proposal is pointing. There are, however, a number of elements that must fall into place to ensure that the global multistakeholder community has the means to correct any abuses or misuses of ICANN’s power after U.S. government oversight is removed. We believe that the concerns that we have raised in these comments need to be considered and addressed if ICANN’s power is to be adequately constrained. We look forward to continued engagement on these important matters.

Agreement   - Concerns  

Summary / Impression:

-            Strongly endorse four critical goals

-            Endorse restating mission, commitments, and core values; establishing “Fundamental Bylaws; creating membership structure; strengthening IRP

-            Progress but omissions

-            Address accountability prior to transition

-            ICANN has a substantial accountability deficit

-            ICANN vests unconstrained power in its Board

-            NTIA isn’t transferring anything to ICANN as part of the transition, there’s nothing for it to “take back” if the accountability mechanisms fail

-            Capture and mission creep are risks posted by the transition

-            “Constitution” for a re-formulated ICANN should provide, at a minimum, for: 1. A clear enumeration of the powers, and a clear demarcation of those that it cannot exercise; 2. A division of the institution’s powers, to avoid concentrating all powers in one set of hands; 3. Mechanism(s) to enforce the constraints and (2) in the form of meaningful remedies for violations; 4. Transparency and simplicity

-            The more complex those chartering documents are, the less likely it is that they will be comprehensible to that community

-            A number of elements that must fall into place to ensure that the global multistakeholder community has the means to correct any abuses or misuses of ICANN’s power after U.S. government oversight is removed

Actions suggested:

No particular action required.

 

CCWG Response:

Thank you for your comment - the CCWG has considered this feedback and welcomes the continued input from the Danish Government.  The CCWG trusts the most, if not all concerns are addressed in the 2 nd report.

16

IA

Once the plan is accepted, ICANN must implement the Bylaw changes in full prior to the USG terminating the IANA contract.

Agreement

Summary / Impression:

-            ICANN must implement Bylaw changes in full prior to terminating IANA contract

 

Actions suggested:

Ensure bylaw changes are added to the mandatory WS1 requirements.

 

CCWG Response:

There will be more bylaw changes required than those inevitably needed for WS1 requirements. Thus, the mandatory bylaw changes should be limited to those essential to make the WS1 requirements work.

17

RB

- On the first conference call of the advisors the issue was raised of the need to define under what jurisdiction ICANN would be incorporated. This is a key starting point, as the jurisdiction will ultimately define the law that applies and incorporation, which implies registering bi-laws (and the definition of a: who is a party, b: who takes decision and c: who the parties relate to the decision-making) but also who the "external authority" that ultimately defines the legitimacy and legality of the whole operation.

- First, it must be pointed out that in replacing the role of the US government, the focus here is on external accountability of ICANN and not its internal accountability. External accountability is the larger political accountability, with regard to general public interest, and the internal accountability is vis a vis the groups and constituents - often called stakeholders - that directly deal with ICANN, and are in any case represented in various ways in its internal processes. While internal accountability is important, it must be remembered that this whole debate was triggered by the vacuum that arises in terms ICANN's *external accountability* as a consequence of the US government stepping out (in whatever limited way). The focus should therefore be on the responsibility to the larger public -what the document calls “the community” and which is not defined.

Yet, in any analysis of what the Internet currently is and who benefits from ICANN services or could be affected by its malfunction, it is clear that “the community” is composed by the billions of users of Internet and potentially by all of humanity. Such a large public will never be able to exercise direct accountability. Two institutional devices are normally employed in democratic polities. (1) A body that is as representative as possible of the larger public is the one that extracts accountability, and (2) there is separation of powers whereby when one particular body (and groupings around it) is to be held accountable, we seek another body which has the least overlap with the first body in its constitution and interests and make the first one accountable to the second one - making the arrangement in a manner - as is their between the executive and the judiciary for instance - that both bodies have different kinds of power, and therefore neither can independently become tyrannical, at least not easily. At the same time, by the very separation of groups/ processes involved in constitution of the two bodies, the very dangerous possibility of collusion is minimised.

- In the current case, neither of these key criteria and method-templates have been satisfied or employed. There has been no effort made to explore some kind of global structure that can be considered to have some kind of representativity vis a vis the global public - however less than perfect. Neither the lesser and easier criterion of seeking separation of power by looking at a body/ system with a very different kind of constitution than what makes the current power configuration in the ICANN being fulfilled. What one sees is that the same groups and systems that put the ICANN decision making structures in place in the first instance are being given some recall and interim powers vis a vis this power structure. Certainly an improvement as far as the ICANN's organisational structure is concerned but it says nothing about ICANN's accountability to the global public what this process was really mandated to seek, and put in place.

- It should be reminded that NTIA asked for transfer of oversight to global multistakeholder community. Most of the external advisors to the group share the notion that this requires some form of internationally agreed legal incorporation and accountability to an external group that can somehow represent the whole of humanity. We were told that this would be “unrealistic”. See http://forum.icann.org/lists/comments-ccwg-accountability-draft-proposal-04may15/msg00018.html for full comment.

Divergence - New Idea  

Summary / Impression:

-            Define under what jurisdiction ICANN would be incorporated is the key starting point

-            Focus is on external accountability, not internal accountability, i.e. responsibility to the larger public

-            No effort made to explore global structure

-            A form of internationally agreed legal incorporation and accountability to an external group that can somehow represent the whole of humanity is required

 

Actions suggested:

Provide a rationale why the suggestions made by RB did not get traction.

 

CCWG Response:

Thank you for your comment. The CCWG has dealt, during its deliberations, with most of the points raised. Nevertheless, its members have found some points as not having sufficient support in order to continue discussing them. However, particularly the question of jurisdiction will be further worked on in WS2..

18

Govt-FR

- The French government comprehend that temporary US jurisdiction over ICANN is necessary for purposes of stress testing the CCWG-accountability final proposal over a limited period of time. Yet the CCWG-accountability final proposal should be transposable on an international legal framework, which we ultimately consider to be the only neutral legal framework suited for ICANN.

We finally have concerns with the expectations that the CCWG-accountability placed upon governments.

NTIA made it clear that the IANA transition is a resumption of the process of privatisation of the DNS and that they will not accept a transition proposal that replaces the NTIA role with a government-led or intergovernmental organisation solution. We therefore understand that, consistent with the US approach to the IANA transition, the solution designed by the CCWG- accountability cannot be but a private sector-led organisation. We also find it perfectly understandable that the solution designed by the CCWG-accountability would focus on mechanisms to mitigate the risk of capture of the future organisation by governments.

- Govt-FR has concerns with the expectations that the CCWG-accountability placed upon governments.

- Govt-FR understand that the solution designed by the CCWG- accountability cannot must be a private sector-led organisation

- Govt-FR understand that the solution designed by the CCWG-accountability would focus on mechanisms to mitigate the risk of capture of the future organisation by governments.

Concerns  

Summary / Impression:

-            Final proposal should be transposable on international legal framework i.e. neutral legal framework suited for ICANN

 

Actions suggested:

No additional action required.

 

CCWG Response:

Thank you for your comment - the CCWG has planned to further work on the question of jurisdiction in WS2.

19

.NA

- The CCWG Accountability has not only failed its mandate, but in a manner that can hardly be described accountable. In conclusion, as one of the ccNSO appointed member of the Cross Community Working Group on Enhancing ICANN Accountability, I do not support this document nor the recommendations made therein.

- In particular does the document not contain discernible content relevant to ccTLD Managers which is hardly surprising considering the dynamics within the CCWG Accountability. As I have written in my comments to the CWG Stewardship’s 2nd Draft Proposals, ccTLD Managers only need Root Zone Change Request Management – not including delegation and redelegation (NTIA IANA Functions Contract: C.2.9.2.a) and Root Zone “WHOIS” Change Request and Database Management (NTIA IANA Func- tions Contract: C.2.9.2.b) whereas ICANN needs the IANA Function. And the root zone. No other service provided by the IANA Function Manager is required, per se, by a ccTLD Manager, including DNSSEC.Delegation service is a one time occurrence, which does not affect the ccTLD Manager once completed and it must also be said that hardly any ccTLD Manager wishes to avail oneself of un-consented revocation services by the IANA Function Manager.

- (Individual) ccTLD Managers need accountability by the ICANN Function Manager, for the decisions it (in this context the Board) takes against them and for the way its staff interacts with incumbent and/or prospective ccTLD Managers. The charter clearly states that all accountability issues other than operational and administrative ones of the IANA Function (which are to be addressed by the CWG Stewardship, where, unfortunately, they are not being addressed to any relevant extent) fall under the CCWG Accountability.

- Without a shadow of a doubt is the root zone a database and thus clearly an asset, ie some form of property, even though it is very closely linked to the services such as Root Zone Change Request Management and Root Zone “WHOIS Change Request and Database Management. I firmly believe the root zone can exist without the services surrounding it, but absolutely not can the services exist without the root zone.

- Now the issue is not what type of property it is, per se, but what will happen to it. In other words, who owns the root zone, will ownership be transferred, at all? And if so how and when? From this the question follows, what will happen if only the functions to manage but not the ownership of the root zone, and/or the root zone itself are transferred.

- It also raises the unanswered question under what statutory powers this transfer will occur.

And this question must be answered in order for any transfer of the functions and/or the root zone to occur.

Divergence

Summary / Impression:

-            No support for proposal

-            Consider that ccTLD Managers need accountability by ICANN Functions Manager

-            Who owns the rootzone: will it be transferred and under what statutory powers?

 

Actions suggested:

None.

 

CCWG Response:

Thank you for your comment.

20

Govt-ES

The IANA stewardship transition and the accountability process should strengthen ICANN responsiveness to the demands of the global Internet community, enhance mechanisms to keep it accountable to that community and prepare ICANN for its globalization, which should remain as a priority for the organization.

Concerns  

Summary / Impression:

-            Process should strengthen ICANN responsiveness to demands of global internet community, enhance mechanisms to keep it accountable and prepare for globalization

-            Globalization is a priority

 

Actions suggested:

No additional action.

 

CCWG Response:

Thank you for your comment.

21

RySG

- The RySG believes the set of Work Stream 1 proposals contained in the interim report, if implemented, would likely provide sufficient enhancements to ICANN’s accountability framework to enable a timely and responsible transition of IANA functions stewardship (in conjunction with the ongoing work of the IANA Stewardship Transition CWG).

- The RySG believes that ensuring that ICANN adheres to its mission, commitments, and core values are fundamental to ensuring ICANN accountability. As such, we strongly support that the Draft Proposal provides a clear statement of ICANN’s Mission, as well as ICANN’s commitments to the community and its Core Values that govern the manner in which ICANN carries out its Mission. Equally key is the ability of the global multi-stakeholder community to challenge decisions or actions of the ICANN Board and management, where the Board itself is no longer the ultimate authority in review of its own decisions. Appropriate checks and balances on power are the critical requirement.

- The RySG strongly supports the recommended enhanced community powers. However, RySG is concerned that these proposed and necessary community powers would be unenforceable under ICANN’s current organizational and corporate structure.

- A number of additional concerns and questions raised by the Draft Proposal. These comments should not be taken to undermine our generally strong support for the accountability mechanisms proposed.

Agreement

Summary / Impression:

-            Likely to provide sufficient enhancements to enable timely transition

-            Ensuring ICANN adheres to mission and ability to challenge Board/management are fundamental

-            Strongly supports enhanced community powers but they would be unenforceable under current structure

 

Actions suggested:

None.

 

CCWG Response:

Thank you for your comment.

22

CCG

- The phrase “public interest” is repeated extensively through the proposal including: 1. The “public interest” goal in the revised Mission Statement; 2. The role of “public interest” when balancing competing cores/commitments; 3. When language of AOC is imported into the proposed ICANN Bylaws, “public

interest” finds mention. The proposal acknowledges that public interest has not been defined. Is the additional text – emphasizing the process through which it is identified -- sufficient, must a substantive definition be added? Commitments that ICANN shall work to the benefit of the public cannot get around the problem of defining what public interest is, given the corporation’s context-specific functions.

- The ICANN Board is not bound by community feedback when it comes to changes in ICANN Bylaws, budget, strategic/operating plans (unlike the proposed Fundamental Bylaws). This is of concern. Community feedback should be binding on the board in instances involving budgetary decisions. Will the proposed voting structure of the EC etc. be included as a Fundamental Bylaw, making it difficult to change?

- A formal definition of “private sector-led” is required.

Concerns  

Summary / Impression:

-            Define public interest and private sector-led

-            ICANN Board is not bound by community feedback when it comes to changes in ICANN Bylaws, budget, strategic/operating plans)

-            Community feedback should be binding on Board

-            Will voting structure be a Fundamental Bylaw

 

Actions suggested:

No additional actions.

 

CCWG Response:

Thank you for your comment.

23

JH

The existing CCWG proposal is trying to solve two problems: (1) The membership mechanism is to empower the community; (2) The IRP Panel is to establish a mechanism of power separation: Empowered Communities make rule, ICANN board executive and IRP Panel make judgment.  Those first two steps are very important and a good start. But the problem of ICANN Accountability and Transparency is still not fully solved yet. ICANN Accountability mechanism should answer: What to do if ICANN makes the wrong decision? This question related to three important parts: (1) What is a wrong decision? (2) Is it really wrong? (3) How to deal with the wrong decision? This proposal did not answer well yet. The reasons and my comments (words in black colors) will be followed with the questions in the Public Comment Input guideline of CCWG report (red color words).

Concerns  

Summary / Impression:

-            Membership mechanisms and IRP are a good start but will not solve problem

-            Accountability mechanism should answer what to do if ICANN makes the wrong decision? What is a wrong decision? Is it really wrong? How to deal with wrong decision?

 

Actions suggested:

No additional action.

 

CCWG Response:

Thank you for your comment.  Changes have been made in the 2 nd report with respect to IRP and RFR (Section 5.1 and 5.2) and the CCWG trusts that these address the concerns. 

24

BC

- BC supports the proposed rationale and definition for what must be in Work Stream 1 and believes that the proposed community powers in Work Stream 1 should be adequate to overcome any resistance from the ICANN Board and management to additional measures the community attempts to implement after the IANA transition is complete.

- BC believes that the community needs to have enforceable powers: To challenge Board decisions via an enhanced independent Review Process; To reject Board-proposed budgets and strategic plans; To reject (or in some cases, approve) Board-proposed changes to Bylaws; To recall ICANN Board Directors, individually or in total as a last-resort measure and is gratified to see these powers among the Work Stream 1 measures proposed by CCWG. BC is concerned that these powers might not be enforceable if we fail to adopt an Supporting Organization/Advisory Committee (SO/AC) Membership Model that takes advantage of powers available under California law and therefore encourages the CCWG to explain how Membership status can be created and maintained without undue costs, complexity, or liability.

- BC supports “mechanisms giving the ICANN community ultimate authority over the ICANN Corporation” and supports that “Mechanisms to restrict actions of the Board and management of the ICANN corporation” provided that Work Stream 1 powers are enforceable against the corporation. From legal advice provided to CCWG that may require us to adopt an SO/AC Membership Model to exercise statutory powers under California law.

- Work Stream 1 measures should be implemented before NTIA relinquishes the IANA contract. Implementation should include, at least, changes to ICANN Bylaws that establish community powers. Some implementation details could be accomplished post-transition, provided that the community has powers to force ICANN to take a decision on recommendations arising from a Review Team required by the Affirmation of Commitments . If ICANN decides not to implement Review Team recommendations, the enhanced IRP process give the community standing and a low-cost way to challenge and potentially overturn that decision.

Agreement

Summary / Impression:

-            Supports Work Stream 1 proposal

-            Needs to be adequate to overcome resistance from Board/Management

-            Enforceable powers required

-            If fail to adopt membership, powers might not be enforceable

-            Explain how membership can be created

-            Supports power giving ultimate authority to community and mechanisms that restrict Board/Management

-            Implementation before NTIA relinquishes IANA contract. It should include Bylaws that establish powers. Details could be accomplished post transition provided Review Team given decision-making

 

Actions suggested:

Discuss “enforceability” as a requirement of enhanced accountability.

 

CCWG Response:

Thank you for your comment. The CCWG trusts that the 2 nd report addresses most, if not all concerns.  In particular, the new Community Mechanism addresses the request for enforceability sufficiently. 

25

.UK

Generally we welcome the approach followed by the CCWG.  The practical mechanisms proposed give a good framework on which to build and we support the general approach.

The draft has a heavy focus on legal structures and mechanisms for use where trust and confidence have already seriously broken down.  While we recognise that it is important to have such clear safeguards, we would like to see a little more focus on building confidence and trust – processes that encourage better understanding between the communities and with the executive and the Board.  This could include jointly agreeing remedial action and only if there were a failure to act would it then lead into an escalation process, should that be necessary.

This is fundamental – ICANN itself is the community and, as an organisation made of different stakeholder groups, there should always be tensions between different interests.  Processes need to be more consensual than adversarial, and more needs to be done between communities at an early stage in policy development to build shared understanding.

We are concerned that many of the mechanisms identified in the proposal will be massively disruptive – nuclear options.  One result of sanctions of such consequence is that they are considered unusable.

Agreement - Concerns    

Summary / Impression:

-            Supports general framework

-            Focus on building trust and confidence. This could include jointly agreeing remedial action

-            Processes need to be more consensual than adversarial.

Many of the mechanisms identified in the proposal will be massively disruptive – nuclear options

 

Actions suggested:

Consider the impact of the proposed measures on ICANN’s operations.

 

CCWG Response:

Thank you for your comment.  The CCWG trusts that most, if not all, concerns are addressed in the 2 nd report.

26

USCIB

USCIB urges you to consider that the overall transition process would benefit from closer coordination of the development of the CWG-Stewardship and CCWG Enhancing ICAAN Accountability proposals. As the two documents are parts of a complete proposal and must be considered together by the community, their contents and reviews should be coordinated. For example, cross-references can be included in the respective sections of each document and availability of the documents and their respective review cycles can be coordinated to enable a holistic review of the proposals.

Q1. Work Stream 1 proposals:  We applaud the hard work by CCWG and all participants. Overall, we feel the draft Accountability proposal is high quality and inspires confidence that the final proposal will meet all requirements.

Implementation: We feel the estimate for Work Stream 1 implementation (roughly nine months) is reasonable and prudent, and would allow for a safe and smooth transition from NTIA stewardship to the global multi-stakeholder community. 


Agreement  

Summary / Impression:

-            Closer coordination between CWG and CCWG needed

-            Proposal inspires confidence

-            Implementation estimate is reasonable

 

Actions suggested:

No additional action required.

 

CCWG Response:

Thank you for your comment. Coordination of CWG and CCWG is a priority for both groups.

27

LINX

- We have confidence that if implemented fully, incorporating the changes to the CCWG proposals that we suggest below, the total package would provide sufficient enhancement to ICANN’s accountability for us to support IANA Stewardship transition. We would like to emphasise that this support relies upon the existence of effective, credible, independent and enforceable mechanisms to adjudicate claims that ICANN has acted contrary to its Bylaws and, in particular, that it has acted outside its Mission, and to ensure corrective action in the event of a finding against ICANN. We note that the mechanism to achieve ultimate enforceability, namely the creation of a membership model, members of which would have standing in court, is neither fully developed nor agreed in principle within the CCWG. Though we have our own doubts about whether the Reference Model is the best that can be achieved, this concern is not fundamental. What is fundamental is that the accountability changes must be legally binding and ultimately enforceable. If ICANN were able to disregard its own Bylaws, or disregard IRP rulings against it (whether arbitrarily, citing a broader public interest, or even in response to the Board’s understanding of its own fiduciary duty diverging from the Bylaws), then there would be no accountability worth the name. We would not be able to support IANA Stewardship transition unless credible, independent, binding and enforceable accountability mechanisms are created.

- Review and redress:  We will only be able to support the end of NTIA’s role as redress of last resort if we are satisfied that there is clear statement of the intended scope of ICANN’s authority, and an effective, credible and enforceable mechanism to limit ICANN’s activities to its intended scope. 


Agreement  

Summary / Impression:

-            Sufficient enhancements provided enforceable mechanisms

-            Although doubts about Reference Model, fundamental changes must be legally binding

-            Will support end of NTIA’s role if satisfied effective, credible and enforceable mechanism

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment.

28

ISPCP

We welcome the efforts to define ICANN’s mission more precisely, and to provide an enforceable, binding IRP so as to provide confidence that ICANN will remain within its properly authorised scope. We consider this element of the CCWG proposal to be an essential precondition for IANA transition.

Agreement  

Summary / Impression:

-            A precise mission and binding IRP are an essential precondition to transition

 

Actions suggested:

No additional action required

 

CCWG Response:

Thank you for your comment

29

JPNIC

 

It is important to maintain the stability of ICANN, as an organization operating the management of the critical internet resources, as well as a forum of policy development for the names related policies.

JPNIC would like to recommend the following general principles in considering ICANN Accountabilities.

* Accountability proposal should ensures open, bottom-up and community based decision making process in policy development; * Proposed accountability mechanism should be simple to be comprehensible and pragmatically adoptable in reasonable timeframe; * Accountability proposal and its implementation should not be a delaying factor in the IANA Stewardship Transition.

We would like to raise caution of over considering accountability measures which could lead to destabilizing the organization by putting excessive challenges to ICANN Board and/or secretariat decision, which are needed to carry out the activities under its mission. Further, overly complex system often leads to instability, with unintended affect which makes it harder to be identified when making changes, and it makes it harder for the parties to use such mechanisms when in needs.

Concerns  

Summary / Impression:

-            Maintain stability of ICANN

-            Ensure bottom-up process

-            Mechanism should be comprehensible and pragmatically adoptable and not delay transition

-            Overly complex system will lead to instability

 

Actions suggested:

No additional action required.

 

CCWG Response:

Thank you for your comment.  The CCWG has strived for making its recommendations easy to understand and keeping implementations of the recommendations as lean as possible while meeting all requirements that are deemed important.

30

Govt-IT

There is a need to improve ICANN transparency, accountability and redress mechanisms.
Furthermore, there is necessity for strengthening ICANN accountability and providing for effective and affordable means of redress, with adequate guarantees of independence.

The role of the GAC is to provide ICANN with “advice on public policy aspects of specific issues for which ICANN has responsibility. This is an important dimension of ICANN’s work”.  Nevertheless, in the current framework, the GAC held only a non-voting position in the Board of Directors of ICANN.  In the new model, it might be considered that GAC could appoint at least a Voting Director in the Board.

Agreement New idea

Summary / Impression:

-            Need to improve accountability

-            GAC has non-voting position in Board of Directors. In new model, could appoint a voting Director

 

Actions suggested:

No additional action requirement.

 

CCWG Response:

Thank you for your comment.  The role of the GAC has been the subject of extensive discussions in the CCWG.

31

CWG-St

The CWG-Stewardship's proposal has dependencies on and is expressly conditioned upon, the work of the CCWG-Accountability and the outcomes we anticipate.  We are encouraged by your understanding that the CCWG Accountability initial proposals meet the CWG Stewardship expectations and moreover, that within your group's deliberations, the ability to meet these requirements has been rather uncontroversial. Including the ability for the community to have more rights regarding the development and consideration of the ICANN budget.

Agreement  

Summary / Impression :

-            Dependencies on CCWG work

-            Proposal meets expectations

 

Actions suggested:

None.

 

CCWG Response:

Thank you for your comment

 

32

IPC

- IPC remains concerned that sufficient impetus will remain post-transition to implement the WS2 recommendations, the powers proposed in WS1 appear sufficient to ensure the community can expand ICANN reform efforts if they so choose. In all likelihood, the proposed changes in WS2 will be subject to experimentation, review and update and will result in evolutionary change within ICANN.

- However, the IPC notes that the power to enforce decisions by the community to review board decisions, reject budgets, scrutinize bylaw changes and recall the board (or individual members) is critical for these accountability mechanisms to be effective. Absent the membership structure or some equivalent, the ICANN community would find itself back where it began at the start of this exercise.

- The IPC supports the notion that ICANN should ultimately be accountable to its community and believes the proposed measures in WS1, if enforceable, provide that ultimate accountability. That said, the IPC is anxious to see the process of reform continue after the IANA contract expiration to enable a more finely tuned framework of accountability that will serve the interests of all parts of the community. Operational accountability will be in the details, not the broad strokes outlined in WS1.

- However, the IPC also believes that the focus on Board accountability is too narrow. Many of the issues that arise in ICANN’s activities and cause concerns in the community stem from actions by senior management rather than the Board. We recognize that the Board is ultimately responsible for the actions of management, but this is indirect oversight and accountability at best, since many management actions occur without express Board approval. We urge the CCWG to consider mechanisms whereby the actions and inactions of management are also held accountable to the community.

Agreement - Concerns  

Summary / Impression:

-            Sufficient impetus will remain post transition

-            Power to enforce decisions by community and membership structure are critical

-            WS1 measures if enforceable provide accountability

-            Consider mechanisms whereby action and inactions of Board management are held accountable

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment

 

33

Govt-BR

- Brazil believes it is crucial to make sure the this process is structured in a way that all stakeholders feel fully involved – including governments - in order to ensure that the final outcome of the exercise is also considered legitimate by all participants.

- The U.S. government has provided the global community with an unparalleled opportunity to reflect on which steps should be taken to ensure that the post-2015 ICANN would be an organization with unchallenged legitimacy. That goal could only be achieved, in our view, if the "legal status" of the corporation would also be included in the "package" of items to be addressed in the transition proposal.

- Brazil considers that enhancing the legitimacy of ICANN before all its stakeholders, including governments, requires the adoption of a "founding charter" agreed upon by all stakeholders in replacement of the present pre-determined status of ICANN as a private company incorporated under the law of the state of California.

- The government of Brazil, in line with the model for Internet governance adopted domestically, is not advocating that ICANN should be governed by an intergovernmental agreement, this "founding charter" should be negotiated and agreed upon by the global multistakeholder community, including, but not limited to, governments.

- Brazil ́s main concern is not correctly captured, on the other hand, by the notion that ICANN should move out of the U.S.

- What we have defended throughout the process is that, unless the issue regarding the "legal status" of the corporation is adequately addressed, any attempt to reform its practices and to establish new governance or accountability mechanisms will be limited, at the end of the day, by the fact that any proposed changes will have to adapt to an existing legal status. From the Brazilian perspective the existing structure clearly imposes limits to the participation of governmental representatives, as it is unlikely that a representative of a foreign government will be authorized (by its own government) to formally accept a position in a body pertaining to a U.S. corporation.

- In the spirit of the Tunis Agenda and the NETmundial ́s related provisions, Brazil certainly believes governments have a role and responsibility in regard to issues addressed by ICANN, in particular regarding their perspective on how public interest should be considered in the corporate ́s initiatives and decisions – an obligation which, by the way, ICANN is committed to uphold.

- Brazil perceives the current IANA stewardship transition and the accountability review processes as important steps towards the internationalization of ICANN.

- In the post-transition period, the corporation should become a truly international entity which is accountable not only to a limited group of stakeholders in specific regions, but rather to the worldwide multistakeholder community.

- The Brazilian government understands the sense of urgency that is guiding the work of the CCWG-Accountability, the quality of the recommendations should have a higher priority than the accomplishment of deadlines.

Concerns   New Idea  

Summary / Impression:

-            Make sure process structured in way that all stakeholders are involved

-            Adopt founding charters agreed upon all stakeholders in replacement of current status to reach unchallenged legitimacy

-            Existing structure imposes limits to governments’ participations. Governments have a role

-            Transition and accountability are important towards internationalization

-            Accountable to worldwide multistakeholder community

-            Quality over deadlines

 

Actions suggested :

No additional actions required.

 

CCWG Response:

Thank you for your comment.  The role of Governments has been thoroughly discussed including the points raised by Brazil.

34

MPAA

- MPAA stresses the importance of transparency and believe the ICANN community must receive fair, complete and timely access to all materials relevant to the ICANN decision-making process.

- Specifically we believe that additional transparency of ICANN’s dealing with governments is required to prevent government capture or undue ICANN influence on public policies unrelated to ICANN’s core mission. Governments could seek to control ICANN decision making processes by providing quid pro quos for actions taken by ICANN or governments could try to use intimidation. This situation could cause ICANN to make policy decisions that are not based on what is in the best interest of the ICANN community, but what would benefit ICANN as a corporation. In addition, ICANN could use it tremendous resources and clout to interfere with Internet governance public policies that are outside the scope of ICANN’s technical obligations.

- Therefore, we suggest that an additional bylaw be added that requires ICANN or any individual acting on ICANN’s behalf to make periodic public disclosure of their relationship with any government official, as well as activities, receipts and disbursements in support of those activities on behalf of ICANN. Disclosure of the required information facilitates evaluation by the multi-stakeholder community of the statements and activities of such persons in light of their function as representatives of ICANN.

- MPAA fully supports the views of the CCWG-Accountability team requiring Work Stream 1 accountability changes must be committed to and implemented before any transition of IANA stewardship from NTIA can occur.

Agreement - New Idea  

Summary / Impression:

-            Transparency: complete and timely access to all materials relevant to decision-making, dealing with governments

-            Add a Bylaw that require ICANN to make public disclosure of relationship with government official, activities, receipts and disbursements

-            Supports view that committed to or implemented before transition

 

Actions suggested:

Discuss the bylaw change suggested.

 

CCWG Response:

Thank you for your comment.

35

CDT

CDT has long called for ICANN to have greater accountability to its community and for it mission to be appropriately circumscribed. The measures proposed by the CCWG go a long way to satisfying both of CDT’s priorities.  As the work on the CWG has focused increasingly on an ICANN affiliate structure for the post transition IANA (PTI) – a model that effectively makes ICANN the IANA steward, contracting party and operator (at least initially) - the dependencies on the work of the CCWG Accountability, and particularly Work Stream 1, have grown. A mechanism that empowers the ICANN community – as is outlined in the proposal – has therefore become central, indeed essential, to the neutrality, transparency and effectiveness of the IANA functions – and therefore the stability, security and resilience of the DNS.

Agreement

Summary / Impression:

-            Mechanism that empowers community has become central to neutrality, transparency, effectiveness of IANA functions and therefore SSR

 

Actions suggested:

No action required

 

CCWG Response:

Thank you for your comment

36

CIRA

 

- I commend the CCWG for addressing the dependencies between the IANA stewardship transition and enhancing ICANN accountability processes identified by the CWG in its April 15, 2015 letter. As these two processes are inextricably linked, it is critical that the mechanisms and processes identified by the two working groups integrate seamlessly.

- Overall, this document provides a comprehensive approach to enhance ICANN’s accountability. The CCWG has done a good job of identifying the standards by which, and to whom, ICANN should be held accountable. However, while I believe enhancing the structures and mechanisms to ensure accountability and transparency are important, trust in an organization is only truly possible when accountability is ‘baked in’ to its very culture. I urge the CCWG to explore tools that would enable an ICANN culture that takes accountability and transparency as the starting point for its activities, and not added as a mandatory component to meet obligations set out by the community.

- CIRA will submit a more detailed commentary on the revised draft during the second public comment period.

Agreement - New Idea  

Summary / Impression:

-            Applaud CCWG for addressing CWG dependencies

-            Good job but accountability needs to be baked into culture.

-            Consider a structure where accountability and transparency as starting point, not added as mandatory component

 

Actions suggested:

None

 

CCWG Response:

Thank you for your comment.  The CCWG trusts that the concerns are addressed in the 2 nd report.

37

SR

- I applaud the work of the ccwg-accountability team and appreciate the opportunity to comment.

Your proposal to replace the current US government backstop on IANA function oversight by empowering ICANN's current membership structure is both simple and efficient.

- The past few years of mismanagement inside ICANN have demonstrated a necessity to place such overriding powers outside of the management and board.

- Your framework offers a mechanism to not only fix the problems of inexperienced or mismatched (with mission/core values) management but to also shine a brighter light on internal operations to improve much needed transparency.

- With the ability to recall the board or dismiss individual board members as well as directly effect board/management/staff decisions on strategic plans and budget, the community will finally have an effective recourse to such self-serving behavior.

- Furthermore, enshrining a mechanism for the community to veto or approve ICANN's bylaws, mission, commitments and core values is an excellent way to ensure ICANN only attracts the right talent in the board and executive levels.

- Your detailed work on the bylaws is most welcome as they have long needed updating to align with what ICANN actually does and be strengthened to limit mission creep...and to ensure ICANN's decisions are for public benefit - not just a particular set of stakeholders or ICANN itself.

- I believe your proposals made in the Report will solve the numerous problems extending up and down the current and future management chains, ensuring accountability, and going a long way to making the multstakeholder experiment succeed and become a model for others.

Agreement

Summary / Impression:

Applaud CCWG for simple and efficient approach

 

Actions suggested:

No action required

 

CCWG Response:

Thank you for your comment

38

USCC

In particular we are pleased that a plan for accountability has procedures in place to ensure real accountability through legal enforceability. The Chamber recognizes that there has been discussion in the CCWG around the use of the term “private sector” (see e.g. paragraph 66). For simplicity, we recommend affirming that private sector refers to any non-governmental entity (see paragraph 841), which includes business, academia, civil society, and any other groups that are neither government nor fully government controlled. This affirmation will prevent unnecessary confusion and uphold long standing usage and global interpretation of the phrase “private sector.”

Agreement

Summary / Impression:

-            Plans to ensure real accountability

-            Suggests private sector definition

 

Actions suggested:

None.

 

CCWG Response:

Thank you for your comment

39

INTA

- INTA strongly believes that ICANN must be accountable to the Internet community as a whole (“Community”) and that the proposals set forth in Work Stream 1 provide an excellent starting point. However there is much work to be done. 

- INTA supports keeping ICANN as a public benefit (non-profit) corporation domiciled in California. ICANN’s status as a public benefit corporation in California allows the members to have greater input within ICANN and improve ICANN’s overall accountability.

- The Community as a whole has worked with ICANN in its present form for many years now and is familiar with ICANN’s abilities (and inabilities) as governed by California law. Any change to that status at the present time would bring more uncertainty to a system and process that needs stability.

Agreement

Summary / Impression:

-            Excellent starting point but much work to be done

-            Supports ICANN in California; it allows members to have greater input

-            Any change to jurisdiction would bring uncertainty

 

Actions suggested:

No action required

 

CCWG Response:

Thank you for your comment.

40

.NZ

- .NZ Supports the SO/AC Membership model as the best way to empower the whole community, and broadly supports the specific initiatives proposed by the CCWG.  To make this accountability a reality, the CCWG must develop a proposal that delivers meaningful accountability to that community. Such accountability must be, as the current mechanism is, legally watertight and, should matters require it, enforceable in a court of competent jurisdiction.

- Its nature as an unbroken chain of accountability is one underlying reason why InternetNZ supports the membership model proposed by the CCWG. Another reason is that InternetNZ is a membership organisation, and as such is well familiar with the governance framework that the membership model would allow

We note that there has been considerable discussion on the CCWG email list regarding the importance of enforceability.

- InternetNZ regards enforceability as an essential ingredient in accountability: accountability does not exist if the tools that purport to allow it can be ignored by the party being held accountable.

- [the WS1] proposals are sufficient to allow the IANA Stewardship transition to occur, as long as they are in essence implemented, and as long as the framework within which the proposals are implemented is one that is enforceable.

Agreement

Summary / Impression:

-            Supports CCWG proposals and membership model as best way to empower community

-            Enforceability is essential

-            Sufficient to allow transition as long as implemented and enforceable

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment

41

ITI

While there are still important areas yet to be addressed, we support the direction reflected in the draft proposal. If adopted, as we believe it should be, we are confident that the proposed accountability enhancements will help engender and strengthen trust and confidence in ICANN.

We applaud the CCWG-Accountability for its work on this important initiative, and look forward to the opportunity to evaluate a more complete proposal during the next round of review and comments.

Agreement

Summary / Impression:

While areas yet to be addressed, support proposals – it will create trust in ICANN

 

Actions suggested:

No action required

 

CCWG Response:

Thank you for your comment

42

HR2251

- I have been observing with interest the multi-stakeholder community process to develop a proposal for a transition in Internet governance, particularly the work of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), and I support your efforts to enhance accountability within ICANN in the absence of U.S. oversight.

- ICANN shall remain subject to United States law (including State law) and to the jurisdiction of United States courts (including State courts).

- The United States Government has been granted ownership of the .gov and .mil top-level domains.

Agreement

Summary / Impression:

-            Supports CCWG proposals

-            ICANN shall remain subject to US law. US Govt has ownership of .gov and .mil TLDs.

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment

43

NCSG

NCSG supports the empowerment of the ICANN community through the 6 powers identified in the proposal. These powers are central to enhancing ICANN’s accountability and appropriate tools for community empowerment.

Agreement

Summary / Impression:

6 powers are central

 

Actions suggested:

No action required

 

CCWG Response:

Thank you for your comment

44

MM

The CCWG has strived to confront many of ICANN’s key accountability problems and on the whole it is making tremendous progress toward that goal. In these comments, I address the proposal’s treatment of ICANN’s mission and scope, its amendments to the independent review process, and its membership proposal. On the first two points, I largely agree with what the CCWG proposes; on the third (membership) I think you need to make some major revisions.

Agreement

Summary / Impression:

-            Largely supports CCWG proposals but major revisions needed

-            ICANN is making tremendous progress towards accountability

 

Actions suggested:

No action required

 

CCWG Response:

Thank you for your comment

45

GG

- For the IANA transition to be successful, it is essential that the organization carrying out those functions be accountable to its customers and the multistakeholder community. Among other things, the community must have confidence that the organization makes decisions in a fair, impartial, and transparent fashion; that the organization has a mechanism in place for relevant stakeholders to appeal decisions if necessary; and that the organization remains focused on its core mission and executes that mission efficiently. With these goals in mind, Google appreciates the work of the Cross Community Working Group on Accountability (CCWG-Accountability) to develop an Accountability Initial Draft Proposal (Proposal) to enhance the accountability of ICANN, the organization currently carrying out the IANA functions pursuant to a contract with NTIA. We agree with much of the Proposal; the suggested reforms, if enacted, will be important enablers of a successful and durable IANA transition. Moreover, the Proposal and the reforms contained therein are evidence of the multistakeholder community’s ability to reform itself from within, based on a clear-eyed understanding of areas that need improvement.

- With these goals in mind, Google appreciates the work of the Cross Community Working Group on Accountability (CCWG-Accountability) to develop an Accountability Initial Draft Proposal (Proposal) to enhance the accountability of ICANN, the organization currently carrying out the IANA functions pursuant to a contract with NTIA. We agree with much of the Proposal; the suggested reforms, if enacted, will be important enablers of a successful and durable IANA transition. Moreover, the Proposal and the reforms contained therein are evidence of the multistakeholder community’s ability to reform itself from within, based on a clear-eyed understanding of areas that need improvement.

- We believe that the majority of the changes described in the Proposal strike the right balance: they provide a meaningful check on ICANN without compromising administrative efficiency.

- We believe that the Proposal could be improved in a few key respects. We detail each of these areas below, but in general, Google believes that some of the proposed measures may unnecessarily create operational inefficiencies and undermine confidence in the finality and predictability of ICANN’s decision-making process -- without necessarily improving accountability along the way.

- Google recognizes the importance of enhancing ICANN’s accountability to its customers and the broader multistakeholder community. In our view the suggestions outlined in the Proposal represent an important first step in achieving this goal. We look forward to working with the CCWG-Accountability in refining these proposals and ensuring that ICANN conducts its important work in an accountable, competent, and efficient way.

Agreement - Concerns  

Summary / Impression:

-            Supports CCWG proposals

-            Majority of changes strike the right balance

-            Some of proposals measures may create operational inefficiencies and undermine confidence in finality and predictability of ICANN’s decision-making without necessarily improving accountability

-            Proposals should be refined to ensure ICANN conducts its important work in an accountable, competent, and efficient way.

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

46

Board

- The ICANN Board thanks the CCWG-Accountability for all of its work leading to the first draft proposal of mechanisms to enhance ICANN accountability in light of the changing historical relationship with the US Government. As the CCWG Accountability prepares its proposal, the Board has some comments, observations and questions for the CCWG to consider. We provide these below, and look forward to continued discussions, including at the upcoming ICANN 53 meeting.

- As discussed at ICANN52 in Singapore, the Board reiterates that the main areas of proposed enhancements are items that the Board supports. We understand and appreciate how important these changes are to the CCWG-Accountability, and agree that there is a path forward to achieve the community powers and enhancements identified in the CCWG-Accountability’s first report. We recognize the importance of affording the ICANN community a voice in assuring that the Strategic Plans of ICANN are within ICANN’s mission, that budgets support the mission, and that the Board does not have unilateral ability to change the Bylaws, particularly those parts of the Bylaws that are fundamental to maintaining the Board’s accountability to the community. We understand the community’s need to have a tool to deter the Board (as a whole or as individuals) from neglecting ICANN’s mission, and how a powerful tool may allow for appropriate action to deter such behavior. We agree that the Independent Review Process needs to be refined; with the standard better defined to meet the needs of the community, and that it is important to have binding decisions arising out of that process, as appropriate. As we noted in Singapore, we are far more closely aligned with the CCWG-Accountability than many in the community might realize.

Agreement

Summary / Impression:

-            Supports the main areas of proposed enhancements

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

47

CENTR

- CENTR welcomes the opportunity to comment on the first public draft of the CCWG-Accountability paper relating to Work Stream 1 that aims to improve and refine ICANN accountability mechanisms prior to the IANA Stewardship transition. We would like to acknowledge the complexity of the work and compliment the working group for having managed to produce a list of recommendations that represents a good first step even though they are not supported by the consensus of the working group.

- The CENTR Board would like to acknowledge the valuable work done by the CCWG.

Recommends that the CCWG further investigates the membership model from a legal perspective and present an ad-hoc paper about it to the community to explain who is expected to become a member, under which jurisdiction the body will be incorporated, obligations and duties of current ccNSO Council members, implications for current ccNSO members, engagement options for non-ccNSO members as well as possible financial and administrative provisions of such a body;

- CENTR reiterates the request that ICANN be more transparent in terms of IANA’s function costs and their itemization.

- CENTR is supportive of the IANA Function review to take place no more than two years after the transition is completed, but believes that subsequent reviews should occur more regularly and not every five years.

Agreement

Summary / Impression:

-            Valuable work

-            Further investigate membership model from legal perspective and present ad-hoc paper to community to explain

-            IANA to be more transparent in IANA functions costs

-            Supports IANA Function review to take place no more than two years after transition is completed but believes subsequent review should occur more regularly (not every five years)

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment. The CWG has requested certain transparency for the ICANN budget and we trust that this is sufficient to address your concern regarding the cost. The CCWG will make this CWG requirement part of its recommendations.

48

I2Coalition

The i2Coalition appreciates the work of the CCWG, and we broadly support the proposal’s direction. In particular, we appreciate that the CCWG shares two of our key goals: (1) ensuring that ICANN remains focused on its core mission of coordinating the global Internet's systems of unique identifiers and ensuring the stable and secure operation of the Internet's unique identifier systems, and (2) creating a binding mechanism and enforceable community empowerment by which actions outside of or in contravention of ICANN’s bylaws can be challenged. I2Coalition believes it represents a strong starting point for continued discussions on improving ICANN’s accountability. We look forward to continuing the work with the group as it moves toward finalizing the proposals.

Agreement

Summary / Impression:

-            Broadly supports proposal’s direction

-            Share goals of mission and IRP

 

Actions suggested:

No action required

 

CCWG Response:

Thank you for your comment.

49

CCAOI

CCAOI wishes to thank the CCWG for providing the opportunity to comment on the Initial draft on Proposed Accountability Enhancements (Work Stream 1). Accountability and Transparency of ICANN to the global community, we believe is critical for the smooth running of the IANA Functions.

Agreement

Summary / Impression:

-            Critical for smooth running of Functions

 

Actions suggested:

No action required

 

CCWG Response:

Thank you for your comment.

50

NIRA

- NIRA welcomes the work done by CCWG-Accountability since its creation.  In addition to supporting the announcement by NTIA to transition its stewardship role in the IANA Functions to the global multi-stakeholder internet community, NIRA supports the proposal of strengthening ICANN Accountability by empowering the ICANN community to have an oversight role in processes and activities of the ICANN Corporate. However, given that ICANN is still under the Californian law, there may be need to explore other jurisdictional legal requirements that can provide flexibilities being sought for/recommended by the CCWG.The globalization of ICANN should be pursued further.

- If implemented or committed to, would provide sufficient enhancements to ICANN's accountability to proceed with the IANA Stewardship transition.

- In general, NIRA supports the work done so far. However, NIRA thinks the implementation should be clearly stated for the community to be well informed and aware of the legal implications of the proposal. The review mechanisms being proposed should be harmonized with any such reviews being proposed by the three operation communities who are direct customers of IANA.

Agreement - New Idea  

Summary / Impression:

-            Supports proposal by empowering community

-            There may be need to explore other jurisdictional requirements that can provide flexibility

-            Globalization should be pursued further

-            Implementation should be clearly stated

-            Harmonize review mechansims with reviews proposed by three operational communities

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

51

ALAC

In general the ALAC is supportive of the direction being taken by the CCWG and will provide guidance on a number of issues, some of which the CCWG is explicitly seeking, and others where the ALAC believes that reconsideration may be required.

Agreement - Concerns

Summary / Impression:

-            Supportive in general

-            Will provide guidance on where reconsideration may be required

-            Believes that reconsideration may be required

 

Actions suggested:

None.

 

CCWG Response:

Thank you for your comment

52

LAB

- I commend the CCWG-Accountability for producing a set of draft proposals that, if adopted, will substantially strengthen accountability mechanisms within ICANN. Concomitantly, I support the thrust and mechanics of the reforms being proposed.

- I concur, for the most part, with the views of my fellow Advisors, Jan Aart Scholte and Willie Currie, as set out in their respective comments on the draft proposal. In particular, I find the suggestions by Currie of establishing a “Public Accountability Forum” and a “Mutual Accountability Roundtable” well worth considering. Although I am not convinced that the latter will fully resolve the issue of who will “guard the guardians”, it seems a step in the right direction.

Agreement - Concerns  

 

Summary / Impression:

-            Supports thrust and mechanisms

-            Concurs with WC and JS, especially Public Accountability forum and Mutual Accountability Roundtable.

-            who will “guard the guardians"

 

Actions suggested:

No additional actions required.

 

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

53

RSSAC

RSSAC has reviewed the CCWG-Accountability Work Stream 1 Draft Report. We have no consensus comments on the substance of the CCWG proposal at this point, as we understand the purpose of the CCWG-Accountability group's efforts but find the impacts of the current proposal difficult to evaluate.

Concerns  

Summary / Impression:

Difficult to evaluate

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment the CCWG is looking forward to further exchanges.

54

SSAC

The Security and Stability Advisory Committee (SSAC) welcomes the opportunity to comment on the Cross Community Working Group (CCWG) Proposal on ICANN Accountability Enhancements (Work Stream 1).

CCWG Response:

Thank you for your comment the CCWG is looking forward to further exchanges.

55

CAICT

This Draft is a significant step forward in enhancing the process of developing ICANN accountability program, and is the basis of further discussions among the communities.

Since CCWG’s draft proposal has critical impact on the transfer process and ICANN’s future institutional design, CAICT provides the following suggestions: first, CWG and CCWG’s plans should be taken into consideration as a whole, with both accountability and transparency mechanism design issues resolved prior to transfer, and the transfer can happen only when both of the plans are confirmed by the communities; second, CCWG’s draft proposal should first reach consensus within each community and then get consensus of all communities; third, CAICT hopes the US government show its opinion on CCWG draft proposal in GAC as early as possible, and comply with GAC’s consensus; fourth, enhance power of the communities, as changing the existing operating mechanism of ICANN is a major change that demands comprehensive assessment and careful decision making, not only considering the impact of US laws, but also asking for comments from governments and communities of other countries, showing respect to different requirements for accountability in different countries, and considering the possibility and feasibility of ICANN signing AOC with governments of different countries or their representative organizations; fifth, enhancing accountability requires changing council election mechanism, reforming NomCom and enhancing its accountability and transparency to the communities, and strengthening the review and supervision rights of governments of various countries and GAC over decisions related to public policy.

Confusion - Divergence

Summary / Impression:

-            CWG and CCWG work needs to be coordinated

-            CCWG proposal needs buy-in from each community before broader support

-            Seeking USG feedback on proposal sooner rather than later

-            Community empowerment by changing ICANN operations, signing AoCs with other countries

-            Reforming NomCom and increasing government authority of public policy related decisions

 

CCWG Response

The CCWG agrees with you that its work needs to be coordinated both within the group, and more broadly through the SO/ACs and the CWG.

 

Certain issues, such as signing the AoC with other countries and reforming NomCom, are longer term and are not appropriate for WS1. These are issues that can be considered for the broader work of WS2.

56

SB

I wish to contribute with my own views to the discussion, adding my user perspective, coming from an end user of the Internet.

The original version of this text is in French.

To make it clear (and transparent), I wish to inform the readers of my involvement (past and current) in and around ICANN.

• I first started following ICANN activities in 2001 as a voice for corporate users (France).

• Elected chair of the French chapter of the Internet Society in 2004 and participated in the creation of EURALO in 2007. ALAC member (2007 2010).

• Member of the ICANN Board of Directors, appointed by At Large: 2010 2014.

• Member of the Board of IFFOR: 2011 2014.

• Member of the Board of Directors of AFNIC, appointed by the users committee (2013 2016).

• Member of the CCWG Accountability appointed by Euralo/At Large

Complexity

The proposals of the CWG IANA Stewardship Transition added to those of the CCWG Accountability are too complex.

Not to mention the proposals which will come from the IANA

Stewardship Transition Coordination Group (ICG.)

o Especially if one takes into account the new structures that are proposed, the members of which will be chosen among those involved with the work of ICANN.

o How many structures and how many members?

 PTI – Post Transition IANA (3 to 5 members)

 CSC – Consumer Standing Committee (4 memb + x + 1 liaison)

 IFRT – IANA Function Review Team (11 members + 1 liaison)

 SCWG – Separation CCWG (12 members + 2/4 liais)

 The "community" (29 members)

o A clear objective must be the prohibition to hold multiple offices .

o For all these structures, we must therefore find more than 60 people with the necessary skills and diversity.

Elections

o Regardless of whether it is for existing or for new structures, an elections office must be created to ensure the due consideration of

 an open and transparent process;

 the bylaws;

 diversity;

 the prohibition to hold multiple offices (at any given point in

time or / throughout time);

 …

Systematic view

o In order to ensure an acceptable end result which is understandable and implementable, it is absolutely necessary to have a systematic consideration:

 Of ICANN as an organization;

 Of its reviews by

• Structure;

• Topic.

 Of the proposals

• Of the CWG IANA Stewardship Transition;

• Of the CCWG Accountability;

• Of the IANA Stewardship Coordination Group (ICG).

Concerns   - New Idea  

Summary / Impression:

-            The process is complex (including CWG and ICG)

-            Suggestion to prohibit community members from holding multiple offices on future structures (PTI, CSC, etc.)

-            Suggestion for an elections office to monitor elections

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

57

ZR

It is suggested that a special session for topic of Accountability could be added in future each ICANN meeting, in which ICANN could introduce its implementation efforts regarding how accountable to the global public interests and what kind of improvement achieved to meet the requirements raised by the communities.

Agreement - New Idea  

Summary / Impression:

Special session for accountability which introduces improvements achieved.

 

Actions suggested:

Discuss proposed accountability forum.

CCWG Response :

The CCWG will consider the suggestion made.

58

RIR

- The RIR community appreciates the CCWG efforts to take into account the timelines of the IANA stewardship transition project.

- At the same time the ASO representatives would like to echo concerns expressed by members of the numbers community with regards to the implementation of the proposed amendments. Specifically, that the implementation of all accountability mechanisms identified in Work Stream 1 could be a delaying factor to the - IANA stewardship transition.

- The RIR community understands that the intention of Work Stream 1 is to identify measures that should be taken before the IANA transition can occur, and urges a review of all measures against the proposed transition timeline such that the transition is not unreasonably delayed.

Concerns  

Summary / Impression:

-            Concerned with regards to implementation of proposed amendments. They could be a delaying factor

-            Urges a review of measures against proposed transition timeline

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

59

DotMusic

 

- DotMusic supports the creation of a meaningful framework that would hold both the ICANN Board and ICANN Staff accountable to serve the global public interest and to enhance trust. DotMusic commends the CCWG for its efforts in submitting the initial draft proposal to the community for review. Overall, DotMusic is supportive of the accountability framework proposed by the CCWG. It is essential that an appropriate and meaningful accountability framework be in place before the IANA Functions contract expires.

- The current ICANN accountability framework is inadequate. Furthermore, any ICANN accountability framework that will be implemented requires mechanisms for enforcement to be effective.
- DotMusic concludes that the Initial Draft Proposal by the CCWG constitutes a significant first step towards increasing ICANN’s accountability and commends the CCWG for their work.

Agreement

Summary / Impression:

-            Supports creation of meaningful framework that would hold Board and staff accountable

-            Supports proposed framework

-            Mechanisms required to be effective

-            Draft proposal is significant step towards accountability

 

Actions suggested:

No action required

 

CCWG Response:

Thank you for your comment.

Methodology

SUMMARY for Methodology:

 

Number of comments: 26

Number of agreements: 6

Number of concerns: 16

Number of confusion: 4

Number of divergence: 3

Number of new ideas: 3

NB: some comments are classified in two or more categories

 

Abstract 

While a number of comments are globally positive on the methodology, concerns are raised regarding the complexity of the proposal, and several commenters regret the short duration of the public comment (30 days). At the same time, more details were requested (impact analysis, clearer and more detailed timelines…). Several commenters also called for intensification of outreach efforts. The ICANN Board suggested working with staff on a draft project plan for implementation.

 

Action items for CCWG:

-            Ensure 2 nd public comment period is 40 days

-            Consider ways to make report easier to read

-            Develop and refine timelines

#

Contributor

Comment

CCWG Response/Action

60

JS comment 1

- The proposal relies quite heavily on ‘the (global) public interest’ as an ultimate criterion of policy evaluation. Yet, the concept ‘public interest’ can be quite problematic in practice. ‘The public interest’ can very much lie in the eye of the beholder. Moreover, the concept can be abused by the powerful to claim that their advantages are for the collective good. The (global) public interest could be ‘identified through the bottom-up multistakeholder policy development process’; however, this would make it all the more imperative to ensure that the multistakeholder mechanisms are not dominated by powerful special interests and equitably involve all affected circles.

- Motivate why ‘the community’ should have more influence on certain Board decisions. Currently para 12 simply affirms this point, without giving any rationale.

- The jurisdiction issue – which for many observers lies at the heart of ICANN accountability challenges – is mentioned only once (para 688/2) and then in order to defer the issue. Will critics pick up on this point?

Concerns   Confusion

Summary / Impression:

-            Public interest can be problematic. It can be abused by the powerful. It could be defined by bottom-up but it would it imperative to ensure mechanisms are not dominated by special interest

-            Concept of independence is given no specification

-            Motivate why community should have more influence on certain Board decisions

-            Jurisdiction mentioned once

 

Actions suggested:

None.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

61

auDA

- auDA welcomes the CCWG's methodical efforts in attempting to meet its goals. auDA agrees that it was appropriate for the CCWG to: 1) identify an inventory of existing accountability mechanisms; 2) list contingencies ICANN must be safeguarded against; and 3) develop a set of stress tests to assess whether the CCWG's proposed architecture protects against these contingencies.

- auDA agrees with the CCWG's assertion that "accountability" is comprised of a series of dimensions: transparency, consultation, review and redress.

- auDA agrees with the key "building blocks" that the CCWG has identified as the basis for ICANN's future accountability.

- auDA believes that the most efficient and effective method of implementing the principles and goals identified by the CCWG would be the refinement and strengthening of mechanisms that already exist.   Many have been developed by the community (or received input from the community) and have been used by ICANN for a number of years as part of existing commitments to accountability and transparency. They are well established and well developed and therefore form a logical basis for future work. auDA notes that the CCWG proposes a number of improvements to these mechanisms and functions and encourages the group to make these areas its primary focus as it finalises its recommendations.

Agreement

Summary / Impression:

-            Agrees with listing of inventory, contingencies and stress test

-            Agrees accountability is comprised of dimensions

-            Agrees with building blocks

-            Refine, focus on and strengthen well-establishing and existing mechanisms

 

Actions suggested:

None.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

62

DBA

- It is positive that GAC’s input (principles) to the CCWG Accountability appears to have been taken into consideration. However, there are still substantial issues (political and juridical) to be addressed before the transition of the IANA Functions to ICANN and the global multistakeholder community could take place. This includes how to organize the Community and ensure an appropriate role for governments in its advisory role.

- We are, however, concerned about the complexity of the document as this will make it more difficult to ensure effective participation in the process. This makes the communication and outreach strategy even more important and efforts should be made to engage the broader global community and reach out to stakeholders outside of ICANN.

Agreement - Concerns  

Summary / Impression:

-            Agrees with listing of inventory, contingencies and stress test

-            Agrees accountability is comprised of dimensions

-            Agrees with building blocks

-            Refine, focus on and strengthen well-establishing and existing mechanisms

-            There are still substantial issues (political and juridical) to be addressed

-            Need to ensure an appropriate role for governments in its advisory role

-            concerned about the complexity of the document as this will make it more difficult to ensure effective participation in the process

 

Actions suggested:

No additional action required.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

63

Govt-AR

Argentina has already expressed concern in relation with the outreach strategy and involvement of countries and communities that are not present in the ICANN process. Efforts must be made to ensure the involvement of the whole Internet community, with special focus on developing economies.

Concerns  

Summary / Impression:

-            Ensure involvement of whole community with special focus on developing economies

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

64

Govt-IN

Currently there is a lack of clarity as to the interpretation of crucial terms such as ‘community’, ‘public’ and ‘public interest’. Further clarity on these terms would assist in determining who ICANN is accountable to. 


Confusion

Summary / Impression:

Lack of clarity of interpretation of crucial terms

 

Actions suggested:

Check language of next report for clarity.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

65

DCA-T

-There I a need y the CCWG-Accountability to define the number of change proposals that can occur at a time in order to avoid the participant and the volunteer exhaustion and apathy that may have been witnessed in the current state.

- The proposal should be set to reduce the number of PDP’s and proposals to a certain minimum, this will enable the community to properly comment or respond diligently to the proposals.

- The number of days allocated for comments must also be increased to ensure thorough input research.

Concerns  

Summary / Impression:

-            Define the number of change proposals that can occur at a time to avoid volunteer exhaustion

-            Set proposal to reduce number of PDPs and proposals to minimum

-            Increase days allocated for comments

 

Actions suggested:

No additional actions required.

 

CCWG Response:

The CCWG will consider the suggestion made, but notes that not all suggestions are within the charter of the CCWG.

66

Govt-DE

- The complexity of the CCWG’s work and the large number of stakeholders make it seem necessary to raise awareness of this drafting process beyond the ICANN community to ensure a well-balanced approach for ICANN’s future.

Concerns  

Summary / Impression:

Raise awareness beyond ICANN community to ensure well-balanced approach

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

67

IA

- IA suggests that CCWG-Accountability provide in its next draft a document that contains all proposed changes to the Bylaws with changes to the existing Bylaws marked in redline. The Internet Association further encourages CCWG-Accountability to develop a timeline for ICANN to implement the final plan.

New Idea  

Summary / Impression:

-            Provide a document containing all proposed changes to Bylaws

-            Develop implementation timeline

 

Actions suggested:

Work on a more detailed time plan and discuss having draft bylaws wording as an Appendix for next proposal.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version. While it would be desirable to have concrete language of bylaw changes in the report, this might not be feasible.

68

eco

- eco recognizes the outreach efforts by the CCWG, including webinars and the translation of the report into multiple languages as well as ICANN’s outreach efforts on the IANA Stewardship Transition at the global level. As the draft report does not represent consensus positions, these outreach efforts need to be continued and intensified to ensure the process is as inclusive as possible.

- Regarding the membership model, eco fully supports the working method used by the CCWG based on requirements.

Agreement - Concerns  

Summary / Impression:

-            Since draft report does not represent consensus position, outreach efforts need to be intensified

-            Supports requirements working method

 

Actions suggested:

No additional actions required.

 

CCWG Response:

The CCWG will consider the suggestion made

69

RB

As a member of the honorary advisory group I regret that key recommendations and observations made during the conference calls of the group were not taken into account or properly responded to in the Draft Recommendations.

Concerns  

Summary / Impression:

Key recommendations made during calls not properly responded to

 

Actions suggested:

Provide rationale in updated report.

 

CCWG Response:

The CCWG will respond in the next versions of the report.

70

.NA

- A convoluted report at 143 pages, making a graphical supplement necessary for ease of understanding, which was expensive to produce. Clearly the result of a rushed process, where content was subordinated to an arbitrary deadline

- Numerous concerns were raised in different levels of vehemence by appointed members of every chartering organizations against this, mine being most vocal and numerous, but were ignored

- Poor quality of the process made evident when 3 additional questions were posted to the comments web site. A clear violation of the charter, as the comment period for these questions just 2 days.

- The report also violates the rules of engagement in the charter as a mandatory Consensus Call not held, and in fact refused, including the submission of minority viewpoint(s) to be included in the report.

- It was not helpful that a SubTeam created purely for funneling legal questions to what is termed Independent Counsel, or rather a single participant (not even a member) of this SubTeam, decides which questions are relevant and it was particularly unhelpful that requests to look at this accountability (i.e. from a “higher level”) were rejected or ignored by the Co-Chairs.

Divergence

Summary / Impression:

-            Rushed process

-            Arbitrary deadline

-            Vehemence ignored

-            Violation of charter: 2-day comment period for 3 additional questions

-            Violates rules of engagement – no consensus call

-            Legal questions funneled by a single participant

 

Actions suggested:

None.

 

CCWG Response:

The CCWG notes that these concerns are unfounded, and were discussed several times.

71

RySG

Several RySG members have noted concern with the relatively short time available for consideration of the draft CCWG proposal and development of feedback. As such, RySG support is conditional on further development of the details. Accordingly, we reserve the right to amend our position.

Concerns  

Summary / Impression:

Short timeframe to comment

 

Actions suggested:

None.

 

CCWG Response:

The CCWG 2 nd public comment period will last 40 days.

72

JH

Given that CCWG report has a significant reformation of ICANN system, it is necessary to have a deep thinking and a broad discussion. While, the Chinese translated draft report has not been provided yet, which brings some difficulties for some Chinese experts to have a deep understand and think about the report. This comment is from my individual point of views. So is it possible to prolong 7 days?

Concerns  

Summary / Impression:

Deep thinking needed; request to extend for 7 days

 

Actions suggested:

No additional actions required.

 

CCWG Response:

The CCWG notes that the submission deadline has been extended for that purpose.

73

CWG-St

- We would like to confirm the quality of the ongoing coordination between co-chairs of our respective groups that has been taking place since the launch of your group. Each of our groups has been updated regularly on progress  made as well as issues faced, including the interdependency and interrelation between our works and this has led to  key correspondence being exchanged on a regular basis to develop and formalize the linkage. As CWG-Stewardship  co-chairs, we have been provided with the opportunity to speak directly with the CCWG-Accountability group in  addition to the regular discussion of key aspects of the work of both groups amongst the co-chairs.

- Looking forward, we remain committed to retaining both the focus of the CWG Stewardship and the link between the works of the two groups. To this end, the assistance and professional advice from the independent legal advisors has been critical and will remain so as we seek to comprehensively formalise the links and dependence.

Agreement

Summary / Impression:

Close CWG-CCWG coordination

 

Actions suggested:

None.

 

CCWG Response:

Thank you for your comment. The CCWG and the CWG hold regular coordination calls and look forward to continued efforts through the completion of their work.

74

IPC

- There is no justification for a truncated public comment period, even though this truncation was approved by two “ICANN Global Leaders,” and even though a somewhat longer public comment period is contemplated for later in the process.

- The statement in paragraph 7 of the Draft Proposal that it is based in part on “requests and suggestions that have been provided by the community during a public comment period conducted last year following the NTIA announcement” is somewhat misleading, since the most recent such public comment period was explicitly limited to “addressing questions about the design of the Enhancing ICANN Accountability Process – not about the potential solutions or outcomes of the review.” See https://www.icann.org/public- comments/enhancing-accountability-2014-09-05-en. This is actually the first opportunity the ICANN community has had to comment on specific proposals to enhance ICANN’s accountability in the context of the IANA transition. Accordingly, the IPC reserves the right to supplement these comments at a later time.

Divergence

Summary / Impression:

-            No justification for truncated public comment period

-            Statement that Draft Proposal is based on suggestions provided by community is misleading

 

Actions suggested:

None.

 

CCWG Response:

The CCWG 2 nd public comment period will last 40 days.

75

CIRA

 

In terms of process, I expect that the second draft proposal that will be posted for public comment will include timelines, and that those timelines will align with the work of the CWG. I look forward to reviewing the second draft CCWG proposal.

Agreement

Summary / Impression:

Expectation that timelines (in alignment with CWG work) will be provided

 

Actions suggested:

No particular action required.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

76

USCC

As a threshold issue we believe that the 30 day comment period is much too limited time to review and provide substantive feedback on such a substantial plan, in particular for our members who may not be seeped in the day-to-day CCWG or ICANN conversations. While we recognize the desire to have a discussion around community comments at the upcoming Buenos Aires ICANN meeting, we think it is imperative that any future major inflection points provide a longer comment period and that no issues (except for those with broad community consensus) be settled following such a short turnaround time.

Divergence

Summary / Impression:

-            30 days too limited

-            Imperative to have longer periods for future major inflection points

 

Actions suggested:

No particular action required

 

CCWG Response:

The CCWG 2 nd public comment period will last 40 days.

77

INTA

- Requests that ICANN provide additional time to allow for meaningful Community input on complex issues such as the IANA transition and ICANN accountability.  Between the CCWG and the CWG reports, the Community had just over one month to review and analyze 233 pages of extremely dense material. This is not sufficient time to critically analyze how the 2 documents work together and whether the pressing concerns of accountability have been fully addressed. The work is too important to rush.

- Moreover, as with the CWG report, many of the concepts and questions discussed in the CCWG report are dependent upon other policies or require much more specification before any Community member could rationally indicate their support.

- Concerned by the leading nature of the questions set forth herein and the fact that the answering party is forced by the form of the question to indicate agreement or opposition. Any such statements should only be taken as representing a position that INTA may currently possess in light of limited time it has had to analyze this report.

- Object to the posting of 3 additional questions after the commencement of the comment period. We have opted not to respond to the additional questions at this time.

Divergence

Summary / Impression:

-            Insufficient time to review report

-            Many concepts are dependent upon other policies or require much more specification

-            Concerned about leading nature of questions

-            Objection to posting of 3 additional questions

 

Actions suggested:

No particular action required

 

CCWG Response:

The CCWG 2 nd public comment period will last 40 days and apologizes for the missing questions.

78

.NZ

We note that the details of implementation, including the role of unincorporated associations as legal ‘packages’ through which the SOs or ACs act, are still being developed and we look forward to the conversation on that, as well as the overall settlement, in Buenos Aires later this month.

Confusion

Summary / Impression:

Legal packages and details of implementation are still being discussed

 

Actions suggested:

Provide more details on implementation

 

CCWG Response:

The CCWG will consider this feedback while preparing the next version of the proposal.

79

NCSG

The proposal needs more work on transparency - both in the working of the CCWG (for example chairs mtgs should be transcribed) and also in the substance of the CCWG work.

Confusion

Summary / Impression:

More work needed on transparency of CCWG work

 

Actions suggested:

Transcribe co-chair meetings.

 

CCWG Response:

The CCWG notes that this suggestion was discussed within the group and not adopted.

80

Board

- Starting from the baseline that we are supportive of the CCWG-Accountability’s main goals, we then have to turn to considerations of implementation – how do we make sure that the goals are implemented in ways that do not pose undue risks to how the ICANN community interacts within the ICANN multistakeholder model? One of the analyses that we do not see within the report is a something akin to a regulatory impact analysis, where the costs, benefits and alternatives to proposals are weighed to assure that the design of the solution for each issue is the most efficient, least burdensome on the community, and most cost-effective solution. This seems a separate exercise from the stress test work that is reflected in the report. That stress test, or contingency planning, work builds from the identification of stressors or situations that ICANN may face, and then considers how the proposed solutions assist ICANN in being more accountable when those situations arise, however unlikely. This is valuable work in considering that the CCWGAccountability is working towards the crucial issues. What seems to be the necessary next step, however, is considering whether the mechanisms that are proposed as solutions are themselves capable of withstanding contingencies and stressors. In this regard, the Board presumes there will be an impact analysis. It is currently working on a series of questions to assist in performing that impact analysis. The membership model that is described within the CCWG-Accountability report is one of those main areas for which impact testing seems to be needed. We do have a concern that the extent of the governance changes that could be required through the CCWG-Accountability creates the possibility for too much change to be introduced into the ICANN system at once. As one of the participants in the recent Board workshop panel on the IANA Stewardship Transition cautioned, sound engineering practices are based in incremental change and following with additional reforms as needed, as opposed to changing everything at once. When you change too much at once, and there is later an issue, it’s very hard to figure out what part of the change caused the issue. A shift to a membership model, which may introduce a large number of changes into the whole governance model, is indeed an area where there is potential for unintended consequences. We believe that it’s important to keep this principle in mind as impact analysis is performed.

-  We also support one of the advisors to the CCWG-Accountability, Jan Aart Scholte, in his continued reminder to make sure that the solutions and governance changes that are being introduced today include considerations of how the different parts of the ICANN community remain accountable to each other, and allow for those who are not affiliated with any of the current structures to have meaningful participation options in the future. We recommend that this be part of any impact analysis as well.

- As we strive to look at the timeframes, clearly some of the proposals can be achieved more rapidly than others, building on existing mechanisms. New proposals, in particular those changing the governance structure of the organization, require additional time for implementation and testing. Once the proposals become more concrete it would be useful for the CCWG to work with staff on a draft project plan for implementation.

Concerns  

Summary / Impression:

-            Regulatory impact analysis where costs, benefits and alternatives are weighted to assure the design of the solution is the most efficient and less burdensome is missing. 

-            Working on a series of questions to assist in performing impact analysis.

-            Governance changes that could be required creates possibility for too much change

-            Supports JS comments that solutions being introduced include considerations of how different parts of ICANN remain accountable to each other and allow for meaningful participation in the future

-            CCWG to work with staff on a draft project plan for implementation as new proposals require additional time for implementation and testing

 

Actions suggested:

-            Add impact analysis

-            Work with staff on implementation ASAP

 

CCWG Response:

The CCWG welcomes the suggestion to engage with staff to speed up implementation.

The CCWG will consider how to detail impact analysis in the next version of its proposal.

81

CENTR

- The draft paper presents various recommendations for whose implementation ICANN bylaws need to be amended. We fail to see a clear timeframe for these amendments to enter into force prior to the IANA Stewardship transition. We suggest to the CCWG that any part of the proposal is assessed from a detailed time perspective (best case and worse case time scenarios) to make sure its implementation is feasible considering the time constraints. The timeline as presented in section 10 seems to be based on best-case scenarios where the intervals between CCWG working periods, public comments and deliverables are based on tight, consequential timings that might be subject to delays. It would be valuable to understand what would happen if a section of the proposal does not move forward because of lack of consensus. Will it be withdrawn and reconsidered at a later stage?

- We express our concern at seeing that most of the proposed accountability enhancements are linked to the introduction of safeguard mechanisms. While we believe this might be necessary at a certain stage, we would like to underline that any enhancement of any accountability process must be linked and strongly supported by actions that improve the accountability literacy, culture and attitudes of those who are expected being held accountable. Therefore, we warmly recommend that the entire ICANN Board, and, most of all, ICANN staff – especially those daily involved in community engagement and operation management – go through regular accountability training programmes as well as a by-yearly audit process - done by an independent body - of their daily modus operandi (e.g. a proper, careful and regular review of the ICANN Documentary Information Disclosure Policy which in our opinion should occur as part of the accountability enhancements of Work Stream 1 instead of 2 as proposed by the CCWG).

- In order to make this process as transparent and inclusive as possible, we would recommend that any future draft for public comment is always accompanied by graphics that help the broader DNS community – generally made of time-starved executives – to better understand the implications of certain proposals at ICANN internal and external level. As a matter of fact one measurement for the success of such a process is the extent of community engagement which, to date, has been extremely low. Furthermore, we would recommend that any draft and/or graphics go through a proper language editing and consistency check to avoid that certain proposed mechanisms are named in a different way throughout the paper and graphics.

- We are concerned by the paragraph that underlines the uncertainty relating to the efforts required for Work Stream 1 implementation. Furthermore, we believe that several of the estimated timelines represent the best case scenario and invite the CCWG to present the community with a more detailed timeline under best and worst case scenarios.

- CENTR recommends 1) the CCWG further detail the proposal implementation timeline to foresee worse case scenarios and/or scenarios where the deployment of one or more sections of the proposal might be postponed due to the lack of community consensus; 2) that any enhancement of any accountability process be linked and strongly supported by actions that improve the accountability literacy, culture and attitudes of the ICANN Board and staff.

Concerns   - New Idea  

Summary / Impression:

-            No clear timeframe. Provide best case scenario and worst case scenario

-            Assess proposals from a detailed perspective to evaluate feasibility

-            Concerned most enhancements are linked to introduction of safeguard mechanisms. It must be linked to culture, literacy and attitudes. Staff and Board should go through regular accountability training programs and yearly audit processes

-            DIDP should be Work Stream 1

-            Accompany any future public comments with graphics to better understand implications

-            Any draft to go through proper language editing and consistency check

 

Actions suggested:

-            Provide scenario for timeline

-            Include aspects of culture

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

82

CCAOI

The CCWG Accountability draft seems quite complex and this might make it more difficult for stakeholders to participate in the process. For more engagement of the global community outside ICANN, the latter must promote greater engagement through more face to face meetings across the world and outreach activities. There seems to be a lack of in-depth discussion of jurisdiction of ICANN-Especially, US jurisdiction of ICANN. There should also be emphasis on accountability track including financial accountability of ICANN, and use of proceeds from new gTLD auctions. The focus on accountability should not be limited to ICANN, but also contributors such as IETF, RIRs, National Names and Number Registries and other players including respective staff and secretariats.

Concerns   - New Idea  

Summary / Impression:

-            Complex draft. It makes it difficult to participate in process

-            Greater engagement and outreach needed

-            Lack of in-depth discussion of jurisdiction

-            Emphasis on accountability track including financial and use of proceeds from new gTLD auctions needed

-            Focus should not be limited to ICANN. Extend to key players (IETF, RIRs, Names and Number Registries)

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

83

SSAC

The SSAC notes the relatively short time available for consideration of the draft proposal, driven by a timeline set by external events such as the expiration of the contract between NTIA and ICANN related to IANA. Accordingly, the SSAC reserves the right to make additional comments as further details are developed.

Concerns  

Summary / Impression:

Short timeframe available

 

CCWG Response:

The 2 nd public comment period will last 40 days.

84

CAICT

Unfortunately, this draft fails to provide versions in Chinese and other languages in a timely manner, and the comment period is too short to collect sufficient amount of comments from various stakeholders. Especially considering this draft is not a consensus based proposal, CAICT hopes ICANN and CCWG can provide full versions in multiple languages as soon as possible, extend the comment period, and put greater emphasis on enhancing accountability program development process, in order to avoid imbalance between enhancing ICANN accountability and IANA’s function stewardship transition processes.

Concerns  

Summary / Impression:

-            Need for translations to be available
sooner

-            Too short of a timeframe available for Public Comment

 

CCWG Response:

The CCWG acknowledges your concern and is seeking ways to improve turnaround time of the translated drafts. Also, given the community feedback, the 2 nd Public Comment period will last 40 days.

85

SB

No comments on this section

/

86

RIR

The proposed plan does not clearly describe why the proposed multiplicity of community powers e.g. review process enhancements, recall of entire Board) is necessary beyond the powers of bylaw change ratification and individual director removal, that when taken together provide a concerned supermajority of the community sufficient authority to replace a controlling portion of the Board and secure any necessary redress. It is particularly important to have this elaborated in the plan since the additional powers increase implementation complexity, time, and risk.

Concerns  

Summary / Impression:

-            No description of why the proposed multiplicity of community powers is necessary beyond powers of Bylaw change ratification and Board director removal that when taken together provide a concerned supermajority of the community sufficient authority to replace a controlling portion of the Board and secure any necessary redress

-            Additional powers increase implementation complexity, time, and risk

 

Actions suggested:

No additional actions required.

 

CCWG Response:

Thank you for your comment - the CCWG will consider this feedback as it develops the next version

Stress Tests

 

SUMMARY for Stress Tests:

 

Number of comments: 12

Number of agreements: 9

Number of concerns: 8

Number of confusion: 4

Number of divergence: 1

Number of new ideas: 1

Number of neutral: 1

NB: some comments are classified in two or more categories

 

Abstract 

26 Stress tests in 5 Contingency   categories were published for our public comment period: I. Financial Crisis or Insolvency (Scenarios #5, 6, 7, 8 and 9); II. Failure to Meet Operational Obligations (Scenarios #1,2,11, 17, and 21); III. Legal/Legislative Action (Scenarios #3, 4, 19, and 20); IV. Failure of Accountabilit y (Scenarios #10, 12, 13, 16, 18, 22, 23, 24 and 26); V. Failure of Accountability to External Stakeholders (Scenarios #14, 15, and 25). 9 of the 12   comments suggested   agreement with (some of) the STs;   1 was a new idea and resulted in an additional 2 STs post PC1. 2 also included general comment.   8 comments noted   concerns. 1 was neutral and one also indicated significant concern regarding which entity would have the Root Zone Maintainer role. The   main issue/s or concerns and the response / action to each is detailed in the following table.

 

Action items for CCWG:

The following ST items were added post PC1 following the NTIA statement published on 16 June ( link ): ST NTIA-1: Test preservation of the multistakeholder model if individual ICANN AC/SOs opt out of having votes in community empowerment mechanisms; ST NTIA-2: Address the potential risk of capture (ST 12 and 13 partly address this, but not adequately for capture by internal parties in an AC/SO); ST NTIA-3: Barriers to entry for new participants; ST NTIA-4: Unintended consequences of “operationalizing” groups that to date have been advisory in nature (e.g. GAC). The ICANN Board letter also introduced stress test items ( link ). These are either addressed in PC2 documentation, or will be reviewed as part of the analysis performed on any additional STs. Specific modifications and adjustments based on many of the PC1 comments to the ST section resulted in modification of the 26 Stress Tests and/ or additional and new Scenarios, as outlined in the ST sections(s) of the PC2 documentation.

#

Contributor

Comment

CCWG Response/Action

87

RH

Stress test category III, Legal/Legislative Action: as the proposal correctly states the "proposed measures ... might not be adequate to stop interference with ICANN policies". In particular, they cannot stop interference from the country where ICANN is incorporated. Hence, as stated above, ICANN should be incorporated in a neutral country that is unlikely to interfere, for example Switzerland. Or ICANN should negotiate immunity of jurisdiction.

Concerns

Summary / Impression:

Stress tests cannot stop interference from country where ICANN is incorporated.

 

Actions suggested:

RH says, “ ICANN should not be incorporated in the USA, or in any other powerful state that might be tempted to interfere with ICANN for political or economic reasons. It should be incorporated in a neutral state that is unlikely to interfere, for example Switzerland.”

 

CCWG Response:

RH acknowledges that jurisdiction is distinct from where ICANN is organized and located.“ ICANN will be subject to the laws of the countries in which it operates” The CCWG notes no disagreement there.

On this point, ICANN’s Articles of Incorporation and Bylaws Article XVIII require California incorporation and location.   In WS1, the CCWG is not proposing any changes in ICANN’s state of incorporation.  ICANN relocation could be a subject for later debate, although any change to Articles or Bylaws would be subject to new community veto of the proposed change.

88

DBA

We would like to underline that stress testing the proposal is of highest importance and we appreciate the work done by the CCWG Accountability in this regard. It is of crucial importance to ensure that the new governance model is truly multistakeholder-based. To this end there must be safe- guards against capture from any specific stakeholder group in any way, including in ICANN’s policy development processes and decision making functions.

Agreement - Concerns

Summary / Impression:

Stress testing is of highest importance

Model must be truly multistakeholder

Safeguards against captures are needed including in PDP and decision-making

 

Actions suggested:

Include safeguards against capture.

 

CCWG Response:

Several stress tests address capture of AC/SOs and policy/decision-making functions (see, ST 12, 13, 26).

 

First draft of Stress Testing indicated need for transparency and participation processes within AC/SO charters and operating procedures.  This is likely to be a WS2 item.

 

Still, the ST team has added new stress tests for capture by members of an AC/SO (see ST 33, suggested by NTIA, and ST 36, requested by ICANN)

89

WC comment 1

The stress tests are comprehensive and indicate that the proposed changes should be able to withstand pressures from the environment, external and internal, to the ICANN ecosystem.

Agreement

Summary / Impression:

-            Comprehensive stress tests

-            Should be able to withstand pressures

 

Actions suggested:

None

 

CCWG Response:

The CCWG thanks you for your comment.

90

CRG

Are they any stress test yet about conflicts of interest internal to the corporation (Board- Management, Management-Management)?

Neutral - Concerns

Summary / Impression:

Are there stress tests about conflicts internal to the corporation?

 

CCWG Response:

CRG asks if there any STs for internal conflicts of interest within ICANN board and management.  ST 9 comes closest, by examining corruption or fraud.

 

Of the existing accountability measures, there is an anonymous hotline for employees to use.  And in 2013 ICANN published a Conflict of Interest review ( link ), see pages 4 and 5 for implementation of new policies.

 

The CCWG proposes community powers to challenge ICANN decisions or inaction via a binding IRP.  And the community could block ICANN’s operational plan or budget if the proposal were tainted by conflict of interests.  Finally, the community could remove one or all ICANN directors.

91

Govt-IN

It is noted that the stress test regarding appeals of ccTLD revocations and assignments (ST 21) has not been adequately addressed as the CCWG-Accountability awaits policy development from the ccNSO. Any subsequent accountability architecture should also take into account the results from this stress test.

Concerns

Summary / Impression / Actions suggested:

Stress test regarding appeals of ccTLD revocations and assignments (ST 21) has not been adequately addressed. Accountability architecture should take into account results from stress test.

 

CCWG Response:

In ST 21, the Stress Test team attempted to address this scenario.  However, ccNSO has decided to undertake policy development pursuant to the Framework of Interpretation (Oct-2014), and requested that CCWG defer to that process. CCWG agreed.

92

DP-DK

We also propose adding the following “Stress Tests” to test the adequacy of this formulation (see proposed fundamental Bylaw in Revised Mission, Commitments & Core Values:

Stress Test 1 :

At urging of the GAC, the Board directs ICANN’s contract compliance department to take the view that, in order to comply with the mandatory PIC requiring a flow down clause in the registry-registrar contract that contemplates the termination of domain names for “abuse,” the registries must provide assurances that registrars with whom they are doing business are actually enforcing that clause by terminating names whenever they receive any complaint of violation of applicable law. The Board insists that this mandatory flow down provision be included in all new contracts for legacy gTLDs upon renewal. 

Current situation: no real recourse.

Proposed situation: Registry could challenge ICANN's actions as outside its Mission (development of consensus policies on issues uniform global resolution of which is necessary to assure stable operation of the DNS) on the grounds that this was not a consensus policy, nor one that was developed stable and secure operation of the DNS, and for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, and/or stability of the DNS. The IRP would likely find that imposition of this obligation, in the absence of consensus, is not within ICANN’s powers.

Stress Test 2:

ICANN terminates registrars on the ground that they do not terminate domain names claimed to have been used to provide access to materials that infringe copyright. ICANN takes the position that, despite the absence of any court orders or due process, and even when the registrar does not host the content in question, it would be “appropriate” to delete the domain name where registrars have received infringement complaints (of a specified kind, in specified numbers) from rightsholders, and that, therefore, the registrar is required by section 3.18 of the Registrar Accreditation Agreement, to delete the accounts or lose its accredited status.

Current situation: No real recourse. 

Proposed situation: An aggrieved party could bring an IRP claim arguing that imposition of this requirement, by mandatory contract, is invalid as a violation of ICANN's Mission on the grounds that:  (1) Neither the contract clause nor the policy of enforcing it in this manner was developed by consensus, but unilaterally by ICANN staff; (2) The policy being implemented is unrelated to “ensur[ing] the stable and secure operation of the DNS ” but rather relates to an entirely different set of policy goals; (3) Nor is it a policy “for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, and/or stability of the DNS ”; and finally (4) it represents an attempt by ICANN to “use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.” We believe such an action would be likely to succeed.

New Idea  

Summary / Impression / Actions suggested:

David Post and Danielle Kehl requested two additional stress tests regarding enforcement of contract provisions that exceed the limited mission of ICANN.

 

CCWG Response:

The ST team added 2 new stress tests for the 2nd draft, ST 29 (similar to ST23), and ST30.

 

In both these new stress tests, the proposed accountability measures would be adequate to challenge ICANN enforcement decisions.

93

IA

IA strongly supports the results of stress test 18 regarding the Board’s response to GAC advice. However, disagrees with paragraph 636, which states that the threat posed by stress test 18 “is not directly related to the transition of IANA stewardship.” We view this issue as directly related to the transition and believe that it is essential that relevant actions be taken to implement this change before the transition is complete

Agreement with comment

Summary / Actions suggested / CCWG Response:

IA agrees with ST 18, and suggests that it is directly related to the IANA transition.  

 

First, the ST team made this designation on the narrow criteria of whether the IANA transition provoked the stress test scenario. In the case of ST18 and GAC voting, this is not related to IANA contract.

 

The “related to IANA” designation was for informational purposes only, and did not determine whether a change is part of WS1 or WS2.  To avoid confusion, this designation was removed from 2 nd draft proposal.

94

Govt-ES

- Test 21: opposed to this stress test. It is based on contentious policy (RFC 1591) and thus, should not be used to test the robustness of new accountability mechanisms. Furthermore, appeal mechanisms to delegation and re-delegation of ccTLDs have been left aside of the accountability enhancements proposed by the CCWG.

- Note Singapore GAC Communiqué states the following regarding the Frame of Interpretation WG outcome: “The GAC notes the work of the ccNSO FOIWG, and its efforts to provide interpretive clarity to RFC1591. The GAC welcomes the FOIWG’s recognition that, consistent with the GAC’s 2005 Principles, the ultimate authority on public policy issues relating to ccTLDs is the relevant government. As such, nothing in the FOIWG report should be read to limit or constrain applicable law and governmental decisions, or the IANA operator ́s ability to act in line with a request made by the relevant government.”

- Test 4: We fail to see how accountability mechanisms can be used to defy a decision not taken by ICANN, but by a third party, i.e., a Government. Thus, we recommend doing without this stress test.

- Test 12: It grabs our attention that a stress test named “Capture by one or several groups of stakeholders” is so focused on governments and the GAC. Even in the case of the other SO/ACs, it is stated that they need accountability and transparency rules to prevent capture from outside each community, but little is said about ICANN’s capture by an internal community other than the GAC.

- Measures to prevent capture by other groups should be proposed. Otherwise, this stress test overlaps with stress test 18.

- Test 18: We cannot agree with this stress test being included in the final report. ICANN Bylaws state that the Board shall duly take into account Governments' advice "on public policy issues". - This is the key point: the GAC brings the public policy perspective into ICANN. The GAC advice to the Board is not anything further than an advice that is not binding on ICANN. If the Board doesn ́t agree with a particular piece of GAC advice, it has to enter into a process with the GAC to try and find a "mutually acceptable solution". Again, if this cannot be found, the Board is still free to do what it feels appropriate, including simply not following GAC advice. We fail to see where the contingency or the risk of government capture lays. Advice adopted by a majority of GAC members would still qualify as “public policy advice” which ICANN should afford to ignore. In short, we call on the CCWG to respect GAC ́s ability to approve its own working methods (Article XI.Section 2.1 c) of the Bylaws) and require the Board to fully consider advice agreed according to GAC internal procedures.

- Test 14: We find it is pointless to keep this particular stress test at this moment in time, when the community is actually dealing with the termination of the Ao

- Test 15:  While the AoC actually states that ICANN should be headquartered in the USA, and the Articles of Incorporation set forth that ICANN is a non-profit public benefit corporation under the California law, we do not believe this should be incorporated into a core or fundamental value of ICANN (page 21), for the reason that the remaining of ICANN subject to Californian Law is not fundamental to the global Internet community.

Concerns

Summary / Actions suggested / CCWG Response:

ES opposes ST 21, regarding revocation and re-assignment of ccTLD manager. In ST 21, the Stress Test team attempted to address this scenario.  However, ccNSO has decided to undertake policy development pursuant to the Framework of Interpretation (Oct-2014), and requested that CCWG defer to that process. CCWG agreed, and therefore ST 21 is not being cited to suggest any changes as part of CCWG proposal.

--

ES recommends doing without ST 4 regarding new regulation or legislation. This stress test evaluates how the community could challenge ICANN’s decision in reaction to new legislation/regulation.   The improved IRP could overturn ICANN’s decision, allowing the community to pursue other means of reacting to the regulation/legislation, such as further policy development or litigation.

--

ES notes that ST 12 focuses on capture by GAC, whereas there are other capture scenarios.  Several stress tests address capture of AC/SOs and policy/decision-making functions. (see ST 12, 13, 26). The ST team also added new stress tests for capture by members of an AC/SO (see ST 33, suggested by NTIA, and ST 36, requested by ICANN)

 

First draft of Stress Testing indicated need for transparency and participation processes within AC/SO charters and operating procedures.   This is likely to be a WS2 item.

--

ES does not agree with ST 18.  The ST team notes that the scenario in ST 18 is entirely conceivable –GAC can change to majority voting instead of the absence-of-objection method it has always used.  The bylaws change suggested by ST 18 is designed to preserve the “mutually agreeable solution” obligation as it has always been applied – to GAC advice that is supported by consensus.

GAC can still offer advice that is not supported by consensus, and that advice would still be “duly taken into account” by ICANN.

--

ES does not think that ST 14 is necessary since we are bringing AoC commitments into the Bylaws.  However, it was ST 14 that suggested the inclusion of AoC into the bylaws, so we shall retain ST 14 as part of that process.   Para 507 of 2 nd draft states, “After these aspects of the Affirmation of Commitments are adopted in ICANN bylaws, ICANN and the NTIA should mutually agree to terminate the Affirmation of Commitments.”

--

Regarding ST 15, the CCWG 2nd Draft report discusses Article XVIII on page 36, concluding not to propose Article XVIII be designated as a Fundamental Bylaw, for reasons cited in para 253-255.. 

95

RySG

- RySG agrees that the so-called “Stress Tests” have been valuable as a tool to weigh the risks and reward of various proposals. As such, we believe the incorporation of the bylaws changes recommended by the CCWG interim proposal would help to enhance ICANN’s accountability to the community and NOT doing so would undermine it.

We are interested in whether and how the CCWG-Accountability intends to handle Stress Tests where the proposed Accountability Mechanisms are identified as “inadequate” or “partially inadequate”.

Stress Tests 5, 6, 7, and 8: in the assessment of proposed accountability measures in the case of financial crisis or other loss of revenue: we do not believe that simply leveraging increased fees is a viable solution to this Stress Test and recommend that instead the stress test looked at how ICANN’s expenditures could be constrained to reflect the decline in revenue, while minimizing the negative impacts on the key services that it provides.

This assessment also raises a more general issue of how the proposed community powers will interact with the contracts between ICANN and its contracted parties. We are concerned about the ability for these agreements to be revised other than through the existing procedures in the Registry Agreement and Registrar Accreditation Agreement. If this is within the intended scope of the community powers, we request that further clarity is provided to permit more substantive comment in the next comment round.

Stress Test 16: ICANN engages in programs not necessary to achieve its technical mission, is described as being directly related to the IANA Stewardship Transition. We believe that this is a general issue not directly related to the IANA Stewardship Transition. We request that this statement be revised to reflect this general nature or that greater clarity be provided as to why this Stress Test is directly tied to the IANA Stewardship Transition.

Stress Test 20: “Preventive: During policy development, the community would have standing to challenge ICANN Board decisions about policy and implementation.” There is a temporal issue in this statement in that the board should not be making policy or implementation decisions before a policy development process was complete, except in limited, emergency circumstances. We suggest that this statement be revised and revised to reflect the processes for Policy Development as defined in the ICANN Bylaws.

Stress Test 26: The assessment of proposed accountability mechanism refers to how this would be handled if the action of concern resulted from the board decision. Additional discussion should be included to consider whether these mechanisms would be sufficient if the issue followed from staff decisions and actions that did not directly follow from a board decision, as overturn of the Board decision would not be the appropriate fix.

Agreement -   Concerns

Summary / Actions suggested/ CCWG Response:

RySG asks how CCWG will react to STs that are scored as “inadequate” or “partially adequate”.  First, the CCWG intends to adjust proposed accountability measures to the extent feasible in order to address all stress tests.  However, as noted in our first draft, “ We discovered that while some risk mitigation was possible, it became clear that no accountability framework could eliminate the risk of such events or entirely alleviate their impact.”

--

RySG asks how community powers (incl IRP decisions) could drive revisions to registry and registrar agreements.  The ST team notes that proposed changes to ICANN’s Mission and Core Values are partly designed to constrain ICANN’s ability to impose obligations outside its limited technical mission. Core Value in para 187 states that “ICANN shall have no power to act other than in accordance with, and as reasonably appropriate to achieve its Mission. “

--

RySG notes that ST 16 is not related to the IANA transition.  In the second column, the ST team noted “As long as NTIA controls the IANA contract, ICANN would risk losing IANA functions if it were to expand scope without community support. But as a result of IANA stewardship transition, ICANN would no longer need to limit its scope in order to retain IANA contract with NTIA.” The “related to IANA” designation was for informational purposes only, and did not determine whether a change is part of WS1 or WS2.  To avoid confusion, this designation was removed from 2nd draft proposal.

--

RySG notes that ST 20 had temporal mismatch.  We corrected para 782 to read, “Preventive: At the conclusion of policy development, the community would have standing to challenge ICANN Board decisions about policy implementation.”

--

RySG notes that ST 26 should also address actions of ICANN staff in the absence of an actionable board decision.  The ST work team agrees that staff actions should be challengeable via reconsideration or IRP, and is working with WP2 and WP3 to address this in the next draft proposal.

96

BC

 

- BC notes that important questions with respect to the Root Zone Maintainer still need to be resolved (p.77). Insight into the process of transitioning the Root Zone Maintainer would help ensure there is a well-established structure and process for approval of major architectural and operational changes to the Root Zone environment. The BC calls on the CCWG to clarify which entity will have this role and to establish the process that would be used for consultation with the global multi-stakeholder community.

Agreement - Concerns

Summary / Impression:

- Important questions with respect to the Root Zone Maintainer still need to be resolved.

 

Actions suggested:

Clarify which entity will have Root Zone Maintainer role and to establish the process that would be used for consultation with the global multi-stakeholder community.

 

CCWG Response: Stress Tests 19 and 25 looked at Root Zone Maintainer role. ICANN and NTIA are considering the Root Zone Maintainer role in parallel with IANA stewardship transition. At this time there is no information available.

97

IPC

- The phrasing of Stress Test #23 (page 85) seems one-sided. While there may be a danger that “ICANN uses RAA or other measures to impose requirements on third parties outside scope of ICANN Mission,” the more plausible danger is that ICANN will fail to enforce contractual obligations and consequently will harm third parties. The stress test exercise is described in paragraph 18 as applying “a set of plausible, but not necessarily probable, hypothetical scenarios” in order to “gauge how certain events will affect a system, product, company or industry.” The contractual enforcement failure just described would certainly affect the companies and industries that depend on trademark and copyright protection. The stress test should be adjusted to reflect this, and overall the risk of ICANN’s failure to consistently and transparently enforce contracts must be effectively addressed in any accountability framework.

Agreement

Summary / Impression / Actions suggested:

- Stress test #23 is one-sided: contractual enforcement failure would certainly affect the companies and industries that depend on trademark and copyright protection.

 

CCWG Response:

In para 864 of 2 nd Draft proposal, CCWG notes that registrants and users can be aggrieved parties entitled to challenge a board decision that reduces TM and copyright protections that fall within ICANN’s Mission, Commitments and Core Values, or established policies.

98

USCIB

- para 550: We note that important questions with respect to the Root Zone Maintainer still need to be resolved. Direct insight into the process of transitioning the Root Zone Maintainer would help to ensure that there is a well-established structure and process for approval of major architectural and operational changes to the Root Zone environment. USCIB commends that any future proposal to clarify which entity will have this role, and further, to explicitly establish the process that would be utilized for consultation be a topic of public consultation with the multistakeholder community.

 

Agreement Concerns Divergence

Summary / Impression:

- Important questions with respect to the Root Zone Maintainer still need to be resolved.

 

Actions suggested:

Clarify which entity will have Root Zone Maintainer role and to establish the process that would be used for consultation with the global multi-stakeholder community. Create a separate stress test.

 

CCWG Response: Stress Tests 19 and 25 looked at Root Zone Maintainer role. ICANN and NTIA are considering the Root Zone Maintainer role in parallel with IANA stewardship transition. At this time there is no information available.

99

Govt-BR

With regards to stress tests, Brazil considers that the definition of contingencies is an important tool to test the resilience of the proposed accountability structure.

Agreement

Summary / Impression:

Definition of contingencies is an important tool.

 

Actions suggested:

None.

 

CCWG Response:

The CCWG thanks you for your comment.

100

SR

- para 406 Although it may be out of scope, a 6th stress test category might be capture of root zone by ITU or other body. As there is no legal or technical barrier to such an event - only reputation and political (e.g. arising from para 499). Thus far the US government has provided political cover from this. I see para 596 attempts to address but may be insufficient.

- para 452-454 PTI should be forced to publish any audit results in full (e.g.SOC2) and have separate legal advisors from ICANN. e.g., para 549.

- para 581, 657 - and reputation loss that could lead to capture.

- para 585 YES!

- para 613 From past community discussions, if community driven, an "ICANN foundation" may be a desirable outcome.

- 663 YES!

- 707,708 YES!

Agreement plus suggestions

Summary / CCWG Response:

Sue Randel suggests an additional stress test for capture of IANA root zone by ITU or other body.  As noted in several stress tests, the proposed bylaws changes, binding IRP, and change regarding GAC advice are sufficient to prevent ICANN actions to transfer control of root zone if that transfer were not supported by IANA customers and by supermajority of ICANN Membership.

 

--

Regarding ST 1 and 2, Sue Randel suggests that PTI have separate legal advisors and publish its audits.  This suggestion is for the ICG to consider, and does not affect ST 1 & 2.

--

Regarding ST 10 & 24, Sue Randel suggests adding “reputation loss” that could lead to capture. Based on feedback, this has been done.

--

Regarding ST 16, Sue Randel notes that an ICANN Foundation might handle programs outside ICANN’s technical mission. Perhaps an item to be considered post-transition.

Revised Mission, Commitments & Core Values

Question 1: Do you agree that these recommended changes to   ICANN's Mission, Commitments and Core Values would enhance   ICANN's accountability?

Question 2: Do you agree with the list of requirements for this recommendation? If not, please detail how you would amend these requirements.

37 Comments submitted

31   Agreements  

16   Concerns

2   Confusion

10   New Ideas  

 

#

Contributor

Comment

CCWG Response/Action

101

JS comment 1

- Could tensions arise in practice between para 35 (‘ICANN accountability requires compliance with applicable legislation in jurisdictions where it operates’) and para 51/2/iii/2 (‘any decision to defer to input from public authorities must be consistent with ICANN’s Commitments and Core Values’)?

Concerns

Summary / Impression:

Could tensions arise in practice between compliance with jurisdiction and decision to defer to input from authorities must be consistent with ICANN core values and commitments.

 

Actions suggested:

Consider need to reconcile limitation on compliance with deference to input from public authorities with both Commitments/Core Values and applicable law.

 

CCWG Response:

To the extent ICANN is directly subject to any applicable law it must comply with that law, and nothing in the proposed Bylaws is intended to change that (nor could it).  This reality is recognized in the proposed Core Values that calls on ICANN to comply with relevant principles of international law, applicable law, and international conventions.

 

In the ICANN policy development context, however, “advice” from public authorities may go beyond what is required or prohibited by applicable law.  In addition, the specifics of applicable law may vary from jurisdiction to jurisdiction. In discerning the global public interest through the bottom-up multistakeholder process, the Commitments and Core Values are designed to reflect widely established principles of fairness and due process, and to provide a stable and predictable foundation for ICANN policy development. 

 

The CCWG also notes that the ICANN Bylaws, including its Commitments and Core Values, do not and cannot displace the rights of sovereigns.  All governments retain the right and authority to apply their laws and regulations to actors and actors subject to their jurisdiction.  International law provides other formal intergovernmental mechanisms to prescribe behaviors where international powers agree on a common standard.

102

DBA

- Strengthened principles for ICANN, including a new Mission Statement, Commitments and Core Values, which i.e. aim at keeping ICANN within its technical mandate and focuses on its core mission.

Agreement

Summary / Impression:

Supports strengthened principles, including new mission statement and core values which aime at keeping ICANN’s technical mandate and focuses on core mission.

 

Actions suggested:

None.

 

CCWG Response:

The CCWG thanks you for your comment.

103

WC comment 2

Has the working group, when it comes to tightening up the Principles section discussed whether to include a commitment towards freedom of expression? And the reason I raise this is that one of the accountability issues is the question of who the community as accountability forum is accountable to. And one of the answers is to say that ICANN as a whole is accountable to democratic standards. An important aspect of the logical infrastructure as a system of unique identifiers, that ICANN is to be the steward for, is that it is an infrastructure which underpins humanity’s freedom of expression. And I was wondering if that has been discussed for inclusion in the revised Bylaws.

Concerns

Summary / Impression:

This raises a variety of “who is watching the watchers” questions

 

Actions suggested:

Consider an explicit reference to freedom of expression as a Commitment and/or Core Value to further safeguard fundamental right.

 

CCWG Response :

The revised ICANN Mission Statement explicitly provides that ICANN shall not engage in or use its powers to regulate services that use the Internet’s unique identifiers, or the content that they carry or provide.  As the commenter points out, this is not the same as an affirmative undertaking to promote free expression on the Internet. 

 

The CCWG-Accountability extensively discussed the opportunity to include into a Commitment related to human rights, within ICANN’s stated Mission, in the ICANN Bylaws.   The group commissioned a legal analysis of whether the termination of the IANA contract would induce changes into ICANN’s obligations, within its defined Mission, with regards to Human Rights.  While no significant issue was found to be directly linked to the termination of the IANA contract, the group acknowledged the recurring debates around the nature of ICANN’s accountability towards the respect of fundamental human rights within ICANN’s Mission.   The group has achieved consensus on including a human rights related Commitment in ICANN's Bylaws within its defined Mission. However   no particular wording currently proposed achieved consensus. Reiterating its commitment to articulate concrete proposals as part of its mandate, the CCWG-Accountability is   calling for comments on this approach and the underlying requirements.

104

DCA-T

Additional text for para 89 Employ open, transparent and bottom-up, [private sector led multistakeholder] policy development processes that (i) seeks input from the public, for whose benefit ICANN shall in all events act, (ii) promote well-informed decisions based on expert advice TO WHOM DUE DILIGENCE ON CONFLICT OF INTEREST HAS BEEN PERFORMED UPON, and (iii) ensure that those entities most affected can assist in the policy development process

Agreement Concerns  

Summary / Impression:

-  Current Bylaws are too weak and permit excessive discretion. 

- Support limiting ability of ICANN Board to change Bylaws.

 

Actions Suggested :  Specifically call out that expert advice must be free from conflict of interest.

 

CCWG Response :  The CCWG appreciates this input.  ICANN policies currently include measures to prevent conflicts of interest.

 

105

NM

We provide for changes in the by-laws, but it may be that we would be better off making clear that core principles are not subject to change.  The ultimate goal of the organization is to act in the interest of the public as a whole, without special treatment of any business, private entity, individual, or government. The inherent founding principle that this entity exists for the overall public good and not for the commercial benefits of any individual or group should be a core principle that cannot be changed, no matter how many people go for it.

Agreement New Idea  

Summary / Impression:

-            Clarify that core principles are not subject to change

-            Goal of ICANN is to act in interest of public

-            Founding principle that ICANN exits for public good should be a core principle

 

Actions suggested:

-            Prohibit changes to Commitments and Core Values

-            Create Core Value stating that ICANN exists for the overall public good and not for the commercial benefits of any individual or group

 

CCWG response:

ICANN exists, per its Mission Statement, to coordinate the global Internet’s unique identifiers and ensure the stable and secure operation of those systems.  The primary Commitment contained in the proposed Bylaws is that ICANN must operate for the benefit of the Internet community as a whole.  The CCWG discussed the idea of making the Mission Statement, Commitments, and Core Values unchangeable, but ultimately concluded that so long as sufficient safeguards are in place to prevent capture, flexibility should be maintained.  The Mission Statement, Commitments, and Core Values are, however, proposed as Fundamental Bylaws, which cannot be changed without community approval.

106

Afnic

The revised Mission, Commitments and Core Values are more specific in the current draft that they were before. Clearer bylaws are an obvious enhancement for accountability.

Agreement

Summary/Impression:

-            More specific in current draft than before

-            Clearer Bylaws are an obvious enhancement

 

Actions suggested

None

CCWG response: The CCWG thanks you for your comments

107

DP-DK

- We have alternative proposals that strengthen the statement of ICANN's Mission so that it can serve effectively as an enforceable limitation on ICANN's powers (and we propose several "Stress Tests" to test the adequacy of our formulation).

- One central risk of the transition is that a largely unregulated and unconstrained ICANN will leverage its power over the DNS to exercise control over non-DNS-related Internet conduct and content. ICANN has (and has always been conceived of as having) a limited technical mission: in the words of its current Bylaws, that mission is to “to coordinate, at the overall level, the global Internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of [those] systems.” It should exercise those powers (but only those powers) necessary to carry out that mission effectively.  Articulating precisely what that mission is and what and those powers are, and doing so in a manner that will effectively circumscribe the exercise of the corporation’s powers and constrain its ability to exercise other powers, or to stray into policy areas outside of or unrelated to that mission, is a critical and indispensable task of the transition. The CCWG Draft Proposal recognizes this risk, and we strongly endorse its stated goals: (a) “that ICANN’s Mission is limited to coordinating and implementing policies that are designed to ensure the stable and secure operation of the DNS and are reasonably necessary to facilitate the openness, interoperability, resilience, and/or stability of the DNS,”; (b) that its Mission “does not include the regulation of services that use the DNS or the regulation of the content these services carry or provide,” and that (c) “ICANN’s powers are ‘enumerated’ – meaning that anything not articulated in the Bylaws are outside the scope of ICANN’s authority.” (emphases added).

- The goals the CCWG is pursuing in this section of the CCWG Draft Proposal, and in the re-stated Mission, are critically important ones.  We strongly support the central thrust of the CCWG recommendations, and believe it can be articulated even more directly than in the draft.  ICANN’s Bylaws should explicitly recognize that the corporation’s role in DNS policy-making is limited to:  “coordinat[ing] the development [of] and implementation of policies” that are (a) “developed through a bottom-up, consensus-based multistakeholder process,” (b) designed to “ensure the stable and secure operation of the DNS,” and for which (c) “uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, and/or stability of the DNS.” This helps to clarify that ICANN’s role (and, therefore, the primary role of its Board of Directors) is to coordinate a consensus-based policy-development process, and to implement the policies that emerge from that process.

- A constitutional balance for the DNS must preserve and strengthen the separation between DNS policy- making and policy- implementation.   ICANN’s position in the DNS hierarchy gives it the power to impose its policies, via the web of contracts with and among registries, registrars, and registrants, on all users of the DNS. One critical constraint on the exercise of that power is that it is not free to impose on those third parties whatever policies it chooses – even those it believes in good faith to be in the “best interest” of those Internet users.  It is the Internet stakeholder community, acting by consensus, that has the responsibility to formulate DNS policy.  ICANN’s job is a critical though narrow one:  to organize and coordinate the activities of that stakeholder community – which it does through its various Supporting Organizations, Advisory Committees, and Constituencies – and to implement the consensus policies that emerge from that process.

- Power checks power.  Although this separation has gotten muddier over the last 15 years, it has always been an essential component of ICANN’s consensus-based, bottom-up policy development scheme – modeled, as it was, on the consensus-based, bottom-up processes that had proved so effective in managing the development and global deployment of the DNS and related Internet protocols in the period prior to ICANN’s formation.  It is a critical safeguard against ICANN’s abuse of its power over the DNS. Effective implementation of this limitation will go a long way towards assuring the larger Internet community that ICANN will stick to its knitting – implementing policies which relate to the openness, interoperability, resilience, and/or stability of the DNS, arrived at by consensus of the affected communities. 

- We believe that the implementation of this principle in the CCWG Draft Proposal can be substantially improved and strengthened.  To begin with, it is not as clear and it could and should be that the statement of ICANN’s Mission is meant to serve as an enforceable limitation on ICANN’s powers i.e., that it is a means of enumerating those powers, and thereby of declaring what the corporation can, and cannot, do. The Proposal’s demarcation between and among ICANN’s Mission, its “Core Values,” and its “Commitments” is overly complex and confusing.  It is not clear which are meant to be enforceable enumerations of the corporation’s power – to be included in a Fundamental Bylaw and enforceable by the Independent Review Board - and which are more generally advisory or aspirational, “statements of principle rather than practice” that are “deliberately expressed in very general terms.” By covering so much ground between them, the structure detracts from, rather than enhances, the force of those provisions that are designed to serve as actual limits on the corporation’s powers (as opposed to those that are merely aspirational).  There are many good reasons to state aspiration and advisory guides to future corporate action, but we suggest that they be more clearly separated from the enumerated powers.

- We also suggest that the relevant CCWG-proposed Bylaw provision – that “ICANN shall not undertake any other Mission not specifically authorized in these Bylaws” – may not function effectively to limit ICANN to activities within the narrowly-stated limits of its Mission.  Precisely because the Mission, Core Values, and Commitments cover so much overlapping ground, there is a vast range of action that ICANN might take that could be justified with reference to some element or elements appearing on those lists, and thereby deemed to have been “specifically authorized in these Bylaws.” We believe this could detract, importantly, from the effectiveness of the Mission statement as a meaningful limit on what ICANN can and cannot do.

- We propose the following alternative as a Fundamental Bylaw, which we suggest would be a clearer and more direct statement of the principle to be implemented and therefore more likely to be adequately enforceable:

“(a) ICANN’s Mission is to coordinate the development and implementation of policies that are developed through a bottom-up, consensus-based multistakeholder process, designed to ensure the stable and secure operation of the DNS, and for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, and/or stability of the DNS; “(b) ICANN shall have no power to act other than in accordance with, and as reasonably necessary to achieve, its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.””  

Agreement Concerns   New Idea  

 

Summary / Impression:

CCWG has made significant progress in designing a durable accountability structure, but there are important omissions and/or clarifications that need to be addressed.

 

Actions suggested: 

-            Clarify and strengthen the separation between DNS policy-making and policy-implementation by limiting the role of the Board to (1) organize and coordinate ICANN’s policy development process and (2) implementation (only) of consensus policies emerging from that process

-            Revise proposed Mission Statement to read:

“(a) ICANN’s Mission is to coordinate the development and implementation of policies that are developed through a bottom-up, consensus-based multistakeholder process, designed to ensure the stable and secure operation of the DNS, and for which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, and/or stability of the DNS.

“(b) ICANN shall have no power to act other than in accordance with, and as reasonably necessary to achieve, its Mission. Without in any way limiting the foregoing absolute prohibition, ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers, or the content that they carry or provide.””  

-            Adopt a new stress test to test the alternative formulation

 

CCWG Response:

The CCWG appreciates this input, much of which has been reflected in the 2 nd Draft Proposal.

108

IA

-  IA agrees that ICANN’s Mission Statement, Commitments, and Core Values are instrumental to ensuring and enforcing ICANN accountability, and supports the concept that they should form ICANN’s “constitutional core.” ICANN’s conduct should be measured against these provisions and ICANN must be accountable for meeting these standards, as well as for not exceeding its scope of responsibilities.

- IA supports changes to ICANN’s Bylaws to impose binding obligations on ICANN to operate for the benefit of the Internet community as a whole, and to carry out its activities in accordance with applicable law, and international law and conventions through an open and transparent process.

- The scope of ICANN’s authority should be specifically enumerated.

- IA supports the clarification to ICANN’s Mission Statement that the scope of its authority does not include the regulation of services that use the DNS or the regulation of content these services carry or provide.

- IA supports the clarification to the Core Values that any decision to defer to input from public authorities must be consistent with ICANN’s Commitments and Core Values

- IA suggests the continued use of the phrase “private sector led” in the Bylaws and other documentation. The term has been used since ICANN’s inception to mean “non-governmental,” and not commercial.  If any alternative term is used, it must be clear that it is meant that ICANN will remain non-governmental led.

- IA, however, seeks clarification on the inclusion of new criteria associated with balancing commitments and core values. The new language appears to import concepts from U.S. constitutional law jurisprudence. But under U.S. law, these tests are typically applied when one fundamental value (e.g., equal protection or freedom of speech) is infringed, not when the courts are seeking to balance competing fundamental interests. And the proposed tests, while useful for the context in which they were originally developed, do not provide any guidance as to how ICANN should actually balance competing interests. Unless CCWG can provide more information about how the new text would assist in decision-making, the Internet Association suggests retaining the existing language.

Agreement

Summary / Impression:

 

-            IA Supports the revised Mission Statement, Commitments and Core Values and supports the continues use of the phrase “private sector led”

 

-            IA seeks clarification on the new language for balancing Commitments and Core Values.  According to IA (and other commenters) the proposed text is too US-centric and is typically applied when one fundamental value is being infringed, not when the courts “are seeking to balance competing fundamental interests.”  IA concludes that the criteria do not provide guidance “as to how ICANN should actually balance competing interests.”

 

Actions suggested: 

Clarify inclusion of new criteria associated with balancing commitments and core values.

In favor of continued use of “private-sector led”

 

CCWG response:

The CCWG appreciates this input.  A number of commenters were uncomfortable with the proposed balancing test, on the grounds that it might tend to favor inaction.  We agreed with this input and modified the proposed balancing test language accordingly.  Specifically, we have eliminated the test for balancing Commitments, on the grounds that these reflect ICANN’s fundamental compact with the community and are intended to apply consistently and comprehensively to ICANN’s activities.  We retained the simpler proposed balancing test for competing Core Values.

 

 

109

Govt-ES

The proposed text “ While remaining rooted in the private sector, recognizing that governments and public authorities are responsible for public policy and duly taking into account the public policy advice of governments and public authorities in accordance with the Bylaws and to the extent consistent with these Fundamental Commitments and Core Values . ”  Request the underlined text be deleted.  Neither the current Bylaws nor the Articles of Incorporation limit the ability of governments to issue advice to the ICANN Board. This is because it would be ineffective as governments ́ would still be obliged to protect general public interests (paragraphs 68 and 69 of the Tunis Agenda and page 6 of the Net Mundial Statement). Moreover, this is not in the best interest of the global Internet community ICANN pledges to serve as managing the Internet system of unique identifiers in the public interest is the first and foremost mission of ICANN (sections 2 and 3 of the AoC and sections 3 and 4 of the AoI)

- In this respect, acting for the benefit of the global Internet users and ensuring its decisions are made in the public interest should feature higher in the Bylaws, either in the definition of its mission or as one of its first core values.

- Core values para 69. There is no justification to strike out the explicit mention to local law when reflecting this provision of the AoI into the Bylaws. Local law plays an essential role in ICANN’s legal environment, as for instance data retention period or Whois accuracy issues easily prove.

Concerns   Divergence Confusion

Summary / Impression:

-            The government of Spain objects to the proposed language that clarifies that ICANN’s deference to public authorities must be tempered by adherence to ICANNs own Bylaws, including its Commitments and Core Values.

-            The government of Spain notes that any such limitation would be ineffective to the extent that ICANN’s actions would be inconsistent with applicable principles of sovereignty or law.

-            The government of Spain believes that the principle of decision-making in the public interest should appear higher in the text.

-            The government objects to the removal of a reference to local law.

 

Actions suggested: 

Feature public interest higher in Bylaws. Reinstate core values p69.

 

CCWG response: 

The CCWG appreciates this input.   A number of government commenters strongly objected to the proposed change in existing Core Value 11 which states that ICANN, “ While remaining rooted in the private sector,” should recognize “that governments and public authorities are responsible for public policy” and should duly taking into account governments' or public authorities' recommendations.  After lengthy conversation, the CCWG proposes to address these concerns in two ways:

 

  • First , to remove confusion about the meaning of “private sector” in the ICANN Bylaws, we propose to expressly state that the private sector includes business stakeholders, civil society, the technical community and academia.

 

  • Second , we propose to remove the language that was read by some commenters to remove ICANN’s obligation to consult with the GAC on consensus Advice.  Instead, we propose to amend Article XI of the Bylaws, to provide that each advisory committee should provide a rationale for its advice, with references to relevant applicable national or international law where appropriate.  The proposed language also implements the recommendation of ATRT2 requiring ICANN to work with the GAC to facilitate the GAC developing and publishing rationales for GAC Advice at the time Advice is provided.

 

  • Third , we propose to clarify that the Independent Review Process applies to all violations of the ICANN Bylaws, including violations resulting from ICANN’s action or inaction based on input from advisory committees or supporting organizations.

 

 

110

RySG

- RySG notes a difference of opinion on language pertaining to ICANN “remaining rooted in the public sector.” We support the definition of Public Sector proposed in the draft proposal and do not believe that this clarifying language is inconsistent with the multi- stakeholder model. With respect to the obligation to avoid capture, it is not clear whether the CCWG-Accountability intends to address this through specific language or through community balancing mechanisms built into the proposed community empowerment structure. We advise that this be achieved through the latter; otherwise defining and identifying instances of capture may be difficult and introduce subjectivities. We believe that the checks and balances described in the draft proposal, which will be reflected in the revised bylaws, help to avoid capture.

- If implemented, the RySG believes the recommended changes to ICANN’s mission, commitments and core values would help to enhance ICANN’s accountability to the global multi-stakeholder community. They are more clearly and strongly articulated than in the existing bylaws.

- We are especially supportive of the recommended clarification that ICANN’s powers are enumerated.

- RySG supports the list of requirements included in the recommendation, provided that the community has the ability to approve or reject any future changes initiated or advanced by the ICANN Board

Agreement

Summary / Impression:

 

-            The Registry Stakeholder Group supports retention of ICANN’s obligation to remain “rooted in the public sector” and notes that this language is consistent with the multi-stakeholder model.

-            The RySG supports use of the proposed community empowerment structure (rather than Bylaws language) to prevent capture.

 

Actions suggested: 

Clarify whether the CCWG intends to address capture through specific language or through community balancing mechanisms built into the proposed community empowerment structure.

 

CCWG response

The CCWG appreciates this input.  The 2 nd Draft Proposal contains a proposed additional Core Value that states that in performing its Mission, ICANN will strive to achieve a reasonable balance between the interests of different stakeholders.

111

CCG

The proposed Mission provides that ICANN will be subject to international law. The only reference made to any particular convention in the proposal is with respect to WHOIS database adhering to privacy conventions. An exhaustive, or at the very least, an indicative list of applicable international treaties/conventions should be provided.

New Idea  

Summary / Impression:

The CCG suggests that an indicative list of applicable international treaties and conventions should be used to define ICANN’s obligation to comply with international law.

 

Actions suggested: 

Provide a list of applicable international treaties/conventions

 

CCWG response:

The CCWG appreciates this input, but decided not to catalogue applicable international treaties/conventions.  Some of this may be addressed in the context of ongoing discussions regarding inclusion of a commitment to comply with fundamental human rights.  In addition, the 2 nd Draft Proposal clarifies that this applies to relevant principles of international law and conventions.

112

BC

- BC, in general, supports the changes to ICANN’s Bylaws in the areas of Mission, Commitments, and Core Values. When coupled with legally enforceable community power to block, or in some cases approve, Board-proposed amendments to the Bylaws, these changes would enhance ICANN’s accountability.

- BC looks forward to IETF language on ICANN’s mission with respect to protocol, port, and parameter numbers, which is still a missing element.

- BC supports the CCWG proposal to limit the scope of ICANN’s mission via the Bylaws: “ICANN shall not undertake any other Mission not specifically authorized in these Bylaws.” (paragraph 60 on p.20). However, the BC proposes a change to the next sentence in paragraph 60, which now reads: “...ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet’s unique identifiers, or the content that they carry or provide”.

- BC strongly support the proposition that ICANN should not attempt to establish obligations on non-contracted parties. Paragraph 60 should be clarified and we propose that it should read as follows: “ICANN shall not engage in or use its powers to attempt to establish contractual obligations on companies with which it is not in privity of contract and shall not attempt to establish contractual obligations on contracted parties that are not agreed by such parties.”

- Regarding the balancing test among competing Commitments and Core Values, the BC seeks clarification as to why changes are needed to existing language. Any amendments to the existing language should promote prompt resolution of issues – not the lack of action. The BC strongly urges the CCWG to address this in the next iteration of the proposal.

- BC supports the use of the phrase “private sector led” in the Bylaws.

- BC s upports ICANN’s commitment stated in paragraph 336 (p.59), arising from the Affirmation of Commitments required review of gTLD expansions: “ICANN will ensure that as it expands the top-level domain space, it will adequately address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection.”  While paragraph 337 indicates this language will be added to the Bylaws core values section, it is only partially reflected in paragraph 107 (p.26), which adds the phrase “enhances consumer trust and choice”. The BC therefore urges the CCWG to implement the entire commitment from the Affirmation of Commitments, including “malicious abuse issues, sovereignty concerns, and rights protection”

Agreement - New Idea  

Summary / Impression:

-            The BC supports the changes to ICANN’s Mission Statement, Commitments, and Core Values.

-            The BC proposes to strengthen paragraph 60 to ensure that ICANN does not attempt to establish obligations on non-contracted parties.

-            The BC urges the CCWG to fully reflect the AoC obligations regarding new gTLD safeguards about malicious abuse, sovereignty concerns, and rights protection in the revised bylaws.

 

Actions suggested: 

Consider suggested language change. Clarify why changes are needed to existing language regarding balancing test among competing Commitments and Core Values.

 

CCWG response:

The CCWG appreciates this input.

 

WP2 discussed the suggestion put forth by the BC (Comment 109) and others comment to add language regarding contract issues:  “ICANN shall not engage in or use its powers to attempt to establish contractual obligations on companies with which it is not in privity of contract and shall not attempt to establish contractual obligations on contracted parties that are not agreed by such parties.”   The group felt that on balance this addition was not necessary.  The limit on ICANN’s ability to regulate services and content does not preclude ICANN from entering into contracts and enforcing its contracts in furtherance of its Mission.  For example, a number of applicants for new gTLDs made voluntary commitments to better serve registrants and end users and to address concerns about competition, consumer protection, right protection, etc.  Nothing about enforcing those voluntary commitments would be inconsistent with ICANN’s Mission.  

A number of commenters were uncomfortable with the proposed balancing test, on the grounds that it might tend to favor inaction.  We agreed with this input and modified the proposed balancing test language accordingly.  Specifically, we have eliminated the test for balancing Commitments, on the grounds that these reflect ICANN’s fundamental compact with the community and are intended to apply consistently and comprehensively to ICANN’s activities.  We retained the simpler proposed balancing test for competing Core Values.

The full AOC commitment on expansion of the top level domain space will be remove added to the Review Section and modified to state:  “In any expansion of the top-level domain space will address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection.”

113

.UK

While we welcome the approach in this proposal, some of the wording needs more thought.  (Wording like “to the extent feasible” and “where feasible,” for example, rather negates ideas considered to be fundamental.)  Given the significant role of the mission, commitments and core values in underpinning the new accountability structure, we would question why they should not be considered at the level of fundamental bylaws for allowing changes.  Changes here should be at a minimum subject to rigorous debate and command good community support. Paragraph 56:  This appears to duplicate text from paragraph 55, but with a different emphasis.  We would note that ICANN does not coordinate the development and implementation of policy for ccTLDs except in exceptional circumstances.

Agreement

Summary / Impression:

-            More thought needed in wording.

-            Given significant role of mission, commitments and core values, why should they not be considered at level of fundamental bylaws for allowing changes.

-            Paragraph 56 is a duplicate from paragraph 55

 

Actions suggested: 

More thought needed in wording.

 

CCWG response:

The CCWG appreciates this input.  The 2 nd Draft Proposal eliminates the “where feasible” language, creates the Commitments and Core Values as Fundamental Bylaws.  The 2 nd Draft Proposal does not modify or affect the manner in which ccTLD policies are developed.  

114

IAB

- We suggest a clarification to the following existing bylaws text in paragraph 56: "The mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to coordinate, at the overall level, the global Internet's systems of unique identifiers, and in particular to ensure the stable and secure operation of the Internet's unique identifier systems.  In particular, ICANN: 1.  Coordinates the allocation and assignment of the three sets of unique identifiers for the Internet, which are Domain names (forming a system referred to as "DNS"); Internet protocol ("IP") addresses and autonomous system ("AS") numbers; and Protocol port and parameter numbers; 2.  Coordinates the operation and evolution of the DNS root name server system; 3.  Coordinates policy development reasonably and appropriately related to these technical functions." We believe the verb "coordinates" gives the wrong impression about ICANN's core function, particularly for those outside of the ICANN community who are not familiar with the ecosystem of entities involved in developing and managing policies and identifier assignments related to core Internet registries.  Furthermore, since there are many sets of unique identifiers that ICANN is not involved in administering, it would be more accurate to use the term "core Internet registries" rather than referring to the Internet's unique identifier systems.  We suggest the edited text below to make both of these points more clear: “The mission of The Internet Corporation for Assigned Names and Numbers ("ICANN") is to support, at the overall level, core Internet registries, and in particular to ensure the stable and secure operation of those registries.  In particular, ICANN: 1.  Supports the allocation and assignment of values in three categories of registries as directed by the consensus processes in the responsible operational communities.  These categories are Domain names (forming a system referred to as "DNS"); Internet protocol ("IP") addresses and autonomous system ("AS") numbers; and Protocol parameters; 2.  Supports the operation and evolution of the DNS root name server system; 3.  Supports policy development reasonably and appropriately related to the DNS." With these edits, we believe the paragraphs that further articulate ICANN's role (57-60) would not be necessary because item (1) circumscribes ICANN's mission to carrying out identifier allocation and assignment at the direction of the relevant communities.  At the very least, it obviates the need for paragraph 59, which we view as unnecessarily constraining the relationship between the IETF and ICANN. That relationship has benefited from fluidity over the years and that characteristic should be preserved going forward.

Agreement - New Idea  

Summary / Impression:

The IAB suggests language clarifying ICANN’s limited role with respect to coordination of unique identifiers for “core internet registries” rather than the whole of the Internet’s “unique identifier systems.”

 

Actions suggested: 

Consider suggested language

 

CCWG response :

The CCWG appreciates and carefully considered this input.  On balance, the CCWG elected to retain the reference to coordination, but clarified ICANN’s limited Mission.

115

USCIB

- Para 50, 71-76: The need to balance competing interests exists in ICANN’s current Bylaws. USCIB

seeks clarification as to why changes are needed to existing language. Any amendments to the existing language should promote prompt resolution of issues and not inactions. USCIB strongly urges the CCWG to address this in the next iteration of the proposal.

- Para 58: The current draft does not contain ICANN’s mission with respect to protocol, port, and parameter numbers (which is to be provided by IETF). We wait for this important element.

- Para 60, para 337: We strongly support the proposition that ICANN should not attempt to establish obligations on non-contracted parties. Indeed, ICANN’s entire multi-stakeholder structure is built on a self-regulatory system implemented through contractual obligations and thus ICANN can only establish contractual obligations on parties with which it has privity through a negotiated and mutually agreeable contract/amendment with such parties. Therefore, para 60 should be clarified and we propose that it should read as follows: “ ICANN shall not engage in or use its powers to attempt to establish contractual obligations on companies with which it is not in privity of contract and shall not attempt to establish contractual obligations on contracted parties that are not agreed by such parties.

- We also note and support ICANN’s obligation at paragraph 337, “ICANN will ensure that as it expands the top-level domain space, it will adequately address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection.” Paragraph 337 says this language will be added to the bylaws core values section, which USCIB supports. However, the entirety of this section does not appear in the proposed bylaw core value changes proposed by the CCWG and we request that the entirety of this language be added.

- para 89: We support the retention of the term “private sector.” It is both historically accurate and an important element to retain.

- para 269: The proposed text for insertion in the bylaws is “where feasible, and appropriate, depending on market mechanisms..... ” We feel that there is a large range of opinions on the role of the market. The AoC, however, is stronger in its support of the marketplace, so we would suggest deleting the words “and appropriate”.

Agreement New Idea Concerns  

Summary / Impression:

-            The USCIB supports the retention of the term “private sector”

-            The USCIB proposes to strengthen paragraph 60 to ensure that ICANN does not attempt to establish obligations on non-contracted parties.

-            USCIB also seeks clarification on the new language for balancing Commitments and Core Values. 

-            The USCIB urges the CCWG to fully reflect the AoC obligations regarding new gTLD safeguards about malicious abuse, sovereignty concerns, and rights protection in the revised bylaws.

 

Actions suggested:

Strengthen paragraph 60, clarify new language for balancing Commitments and Core Values and urge ICANN to reflect new gTLD AoC

 

CCWG response:

The CCWG appreciates this input.

WP2 discussed the suggestion to add language regarding contract issues:  “ICANN shall not engage in or use its powers to attempt to establish contractual obligations on companies with which it is not in privity of contract and shall not attempt to establish contractual obligations on contracted parties that are not agreed by such parties.”   The group felt that on balance this addition was not necessary.  The limit on ICANN’s ability to regulate services and content does not preclude ICANN from entering into contracts and enforcing its contracts in furtherance of its Mission.  For example, a number of applicants for new gTLDs made voluntary commitments to better serve registrants and end users and to address concerns about competition, consumer protection, right protection, etc.  Nothing about enforcing those voluntary commitments would be inconsistent with ICANN’s Mission.  

A number of commenters were uncomfortable with the proposed balancing test, on the grounds that it might tend to favor inaction.  We agreed with this input and modified the proposed balancing test language accordingly.  Specifically, we have eliminated the test for balancing Commitments, on the grounds that these reflect ICANN’s fundamental compact with the community and are intended to apply consistently and comprehensively to ICANN’s activities.  We retained the simpler proposed balancing test for competing Core Values.

The full AOC commitment on expansion of the top level domain space will be remove added to the Review Section and modified to state:  “In any expansion of the top-level domain space will address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection.”

 

Finally, the 2 nd Draft Proposal implements the USCIB’s suggestion to remove the “feasible and appropriate” language.

116

LINX

- We consider it essential that ICANN adopt a Mission in its Bylaws that is sufficiently clear to be justiciable – that is, for an independent body to objectively rule on whether a particular action is authorised by the Mission or is ultra vires.

- LINX emphasises the importance of the following points: a. We support the clarification that ICANN’s Mission is limited to the enumerated powers, and we agree with the CCWG’s proposed statement of what the Mission is;

b. We support the inclusion of an explicit statement that ICANN’s Mission does not include the regulation of services that use the DNS, or the regulation of the content these services carry or provide; c. We congratulate the CCWG on finding an imaginative way to identify certain Core Values as Commitments that should be adhered to absolutely, without need to balance against each other, while others may involve trade-offs. We support the chosen Commitments.

- LINX is concerned by the reference to the “global public interest” in paragraph 105: a. We would strongly object to the inclusion of a general, unqualified commitment to the “global public interest” as this amounts to a general authorisation for the decision-maker to do whatever they feel is best in their almost unconstrained discretion. That would be inappropriate; b. Paragraph 105 qualifies the “global public interest” with “identified through the bottom-up, multistakeholder policy development process and are accountable, transparent, and respect the bottom-up multistakeholder process”; c. In our view this improves the term, but still risks asking the ICANN community, through the PDP, to seek to fix all the troubles in the world, and inviting them to take ICANN beyond its defined mission in pursuit of the global public interest as the ICANN community sees it. We would therefore remove the reference to “the global public interest” in Paragraph 105.

Agreement

Summary / Impression:

Linx generally supports the proposed changes to the Mission Statement, Commitments and Core values but seeks a clarification to the term “global public interest” to ensure that ICANN (a) remains within its limited mission and (b) identifies public interest values consistent with that mission through the bottom up multi-stakeholder process.

 

Actions suggested: 

Clarify “global public interest”.

 

CCWG response:

The CCWG appreciates this input.  The group extensively discussed the issue of defining the “global public interest” identified by this commenter and others.  The 2 nd Draft Proposal incorporates a number of changes designed to prevent Mission creep in the name of ensuring the “global public interest.”

 

117

JPNIC

Yes. We believe it enhances ICANN’s accountability by clearly defining the scope of ICANN’s missions, to ensure ICANN focuses to conduct its activities within this scope. We especially find it important, that “ICANN’s Mission does not include the regulation of services that use the DNS or the regulation of the content these services carry or provide” We also agree to designate certain Core Values as Commitments listed below, which are all essential principles in ensuring ICANN remains accountable in maintaining the stability of the Internet and how the Internet and bottom up, transparent, open form should be facilitated.

1. Preserve and enhance the stability, reliability, security, global interoperability, resilience, and openness of the DNS and the Internet

2. Limit its activities to those within ICANN’s Mission that require or significantly benefit from global coordination;

3. Employ open, transparent, bottom-up, multistakeholder processes; and

4. Apply policies consistently, neutrally, objectively and fairly, without singling any party out for discriminatory treatment.

Yes, agree with the requirements listed help ensure that ICANN’s mission is more clearly described, based on what has been commonly shared and agreed by the ICANN community, that ICANN conducts its activities under its scope, ensures stability and reliability of its services. We also agree that ICANN should defer to input from public authorities to be consistent with ICANN’s Commitments and Core Values. This is an important point to cover.

Agreement

Summary / Impression:

JPNIC supports the proposed revisions to the Mission Statement, Commitments, and Core Values and believes that ICANN should defer to input from public authorities that is consistent with ICANN’s Commitments and Core Values.

 

Actions suggested: 

None

 

CCWG response :

The CCWG appreciates this input.

118

IPC

- Generally agrees with the recommended changes to ICANN’s Mission, Commitments, and Core Values. These changes help create a culture of accountability within the organization.

- IPC is concerned that the proposal in paragraph 60 to add to the Bylaws a statement that “ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet’s unique identifiers or the content that they carry or provide” could be read too broadly. We assume there is no intent here to constrain ICANN’s ability to enter into or enforce contractual provisions that require those making these identifiers available to take into account how they are used in specified circumstances – for example, to require domain name registration services to adopt and enforce policies against prohibited or abusive uses of domain names. We urge that this very broad proposed language be reviewed and refined to reduce the risk of any interpretation that would constrain ICANN’s ability to enforce its contractual obligations.

- Agrees with the requirements for this recommendation. Given recent events it is clear that maintaining a strict definition of ICANN’s mission and scope is essential to organizational performance and operational accountability.

Agreement - Concerns

Summary / Impression:

The IPC general supports the proposed revisions to the ICANN Mission Statement, Commitments, and Core Values, but is concerned that the prohibition on regulation of services or content could be read to constrain ICANN’s authority to enter into and enforce contract prohibitions on abusive use of the domain name system.

 

Actions suggested: 

Clarify p60.

 

CCWG response The CCWG appreciates this input, and discussed the suggestion to add language regarding contract issues:  “ICANN shall not engage in or use its powers to attempt to establish contractual obligations on companies with which it is not in privity of contract and shall not attempt to establish contractual obligations on contracted parties that are not agreed by such parties.”   The group felt that on balance this addition was not necessary.  The limit on ICANN’s ability to regulate services and content does not preclude ICANN from entering into contracts and enforcing its contracts in furtherance of its Mission.  For example, a number of applicants for new gTLDs made voluntary commitments to better serve registrants and end users and to address concerns about competition, consumer protection, right protection, etc.  Nothing about enforcing those voluntary commitments would be inconsistent with ICANN’s Mission.

 

119

Govt-BR

Brazil fully supports the suggestion of incorporating ICANN's specific mission into its bylaws (p.19 -20). Moreover, we support that the global multistakeholder community should be provided with accountability mechanisms to ensure that the corporation acts strictly in accordance with its mission.

- References to the leadership of the private sector ("private sector led", "rooted in the private sector") are inadequate and contradict the spirit of multistakeholderism that should govern the corporation. The fact that ICANN is currently incorporated as a "non-profit organization" reinforces this understanding.

Agreement

Summary / Impression:

The government of Brazil supports the proposed revisions to the ICANN Mission Statement.

 

Actions suggested: 

None

 

CCWG response :

The CCWG appreciates this input.  We have modified the reference to private sector leadership to clarify that it refers to commercial stakeholders, civil society, the technical community, and academia.

120

MPAA

- Paragraph 337 notes that the language in paragraph 336 will be added to the Bylaw Core Values, however this language doesn’t appear in the proposed Bylaw Core Values updates proposed by the CCWG. MPAA supports the obligation reference in 336 and we suggest the language, in its entirety, be added.

- The proposed language in paragraph 60 is too broad. While we strongly support the notion that ICANN must not attempt to regulate non- contracted parties, we also assume it is not the intent to constrain ICANN’s ability to enter into, interpret or enforce contractual obligations. The new accountability mechanisms must not minimize ICANN’s ability to enforce contractual obligations and these obligations should be negotiated as they have been in the past, with ample input from the global multi-stakeholder community.

Agreement - Concerns

Summary / Impression:

The MPAA generally supports the proposed revisions to the ICANN Mission Statement, Commitments, and Core Values, but is concerned that the prohibition on regulation of services or content could be read to constrain ICANN’s authority to enter into and enforce contract prohibitions on abusive use of the domain name system.

 

Actions suggested: 

Refine paragraph 60.

 

CCWG response :

The CCWG appreciates this input, and discussed the suggestion to add language regarding contract issues:  “ICANN shall not engage in or use its powers to attempt to establish contractual obligations on companies with which it is not in privity of contract and shall not attempt to establish contractual obligations on contracted parties that are not agreed by such parties.”   The group felt that on balance this addition was not necessary.  The limit on ICANN’s ability to regulate services and content does not preclude ICANN from entering into contracts and enforcing its contracts in furtherance of its Mission.  For example, a number of applicants for new gTLDs made voluntary commitments to better serve registrants and end users and to address concerns about competition, consumer protection, right protection, etc.  Nothing about enforcing those voluntary commitments would be inconsistent with ICANN’s Mission.

 

121

CDT

- CDT fully support the proposed changes to ICANN’s Mission, Commitments and Core values. We believe that these changes – and particularly the notion of enumerated powers – should ensure that ICANN respects and acts in conformance with its mission and that any attempts to change that mission must be subject to greater thresholds and to community assent.

- CDT supports the more detailed elaboration of the core values and commitments and agree with the strict limitations that the proposal suggests with regard to “balancing” one core value with another.

- CDT support the incorporation of the Affirmation of Commitments (AoC). The AoC’s reviews and other provisions that specifically lay out a series of expectations of behavior and similar commitments are key components of the overall enhancement of ICANN’s accountability. Their inclusion is essential.

Agreement

Summary / Impression:

-            CDT supports the proposed revisions to ICANN’s Mission Statement, Commitments, and Core Values, including the revised balancing test.

-            CDT supports the incorporation of the AoC reviews and other provisions as essential components of ICANN’s accountability.

 

Actions suggested: 

None

 

CCWG response :

The CCWG appreciates this input.

122

USCC

- Yes, the recommended changes do represent a positive move towards enhancing ICANN’s accountability. We want to encourage the CCWG to stay the course on creating assurances that accountability mechanisms are binding.

- Yes we support the list of requirements included in the recommendation, but this support is contingent on the community having the ability to approve or reject any changes that the ICANN Board seeks to implement in the future.

- however, wish to raise concerns with one bylaws change regarding modifying the “balancing” language describing how ICANN will evaluate situations when one commitment must be reconciled with another commitment or core value. This new language, closely tracks language on “strict scrutiny” and “intermediate scrutiny” tests that are a part of U.S. legal jurisprudence. These standards were not developed to be used to weigh multiple competing interests or values. Therefore, the original language covering balance and reconciliation of competing values ought to be retained.

- However, in order to avoid confusion and ensure ICANN is able to best serve its core mission, we suggest the language in 337 be added to the bylaws. We further suggest paragraph 60 be amended to indicate that without prejudice to ICANN’s ability to interpret or efforts to ensure compliance with its contracts, ICANN does not enjoy broad regulatory authority and will not engage in or use its power to regulate entities with which it does not have a contractual relationship, and shall not attempt to establish additional requirements on parties beyond those to which the parties agree.

Agreement - Concerns

Summary / Impression:

-            USCC supports the revised Mission Statement, Commitments and Core Values and supports the continues use of the phrase “private sector led”

-            USCC is concerned about the new language for balancing Commitments and Core Values.  According to IA (and other commenters) the proposed text is too US-centric and is typically applied when one fundamental value is being infringed, not when the courts “are seeking to balance competing fundamental interests.”  IA concludes that the criteria do not provide guidance “as to how ICANN should actually balance competing interests.”

 

Actions suggested: 

Add language in 337 to Bylaws and amend paragraph 60.

 

CCWG response:

The CCWG appreciates this input.  A number of commenters were uncomfortable with the proposed balancing test, on the grounds that it might tend to favor inaction.  We agreed with this input and modified the proposed balancing test language accordingly.  Specifically, we have eliminated the test for balancing Commitments, on the grounds that these reflect ICANN’s fundamental compact with the community and are intended to apply consistently and comprehensively to ICANN’s activities.  We retained the simpler proposed balancing test for competing Core Values.

 

123

INTA

- Agrees with these recommendations but would like to see the Community have the ability to challenge a decision made by ICANN on the basis that it contravenes one or more of the mission statements, Affirmation of Commitments (“AoC”), or core values. Such a challenge should be arbitrated by a third party and the procedure for any arbitration procedures should be outlined in advance.

- Agrees in principle with enumerated goals and recommendations. However, there must be accountability to the Internet community of governments, NGOs, and individual stakeholders, each of whom should have available a mechanism to challenge a decision by ICANN.

- With regard to the proposed incorporation of AoC paragraph 7, we note that the introductory provision of a new Section 8 in Article II of the Bylaws presently reads, “ICANN shall adhere to transparent and accountable budgeting processes, providing [reasonable] [adequate] advance notice to facilitate stakeholder engagement in policy decision- making ...” We believe that the use of the term “advance” is insufficient, as ICANN often provides inadequate time for comment periods, and the resulting limitation on adequate review is especially difficult for large membership organizations such as INTA, which represents trademark professionals from around the world. Therefore, we recommend that this phrase read, “providing reasonable and adequate advance notice.”

Agreement

Summary / Impression:

INTA generally agrees with the proposed revisions to the Mission Statement, Commitments, and Core values, but supports a community challenge mechanism.

 

Actions suggested: 

Strengthen “advance” – consider “providing reasonable and adequate advance notice”

 

CCWG response:

The proposed changes to the Independent Review contemplate a community challenge.  The 2 nd Draft Proposal provides for a community rejection of the budget and strategic plan. 

 

124

.NZ

- The changes would improve the clarity of ICANN’s mission and make it easier for the community to ensure that the organisation doesn’t engage in scope creep.

- The reconciliation test set out on page 17 of the report is also an improvement on the current language in the Bylaws.

- Making these parts of the bylaws hard to change without broad community support would also help give assurance that ICANN won’t engage in scope creep.

Agreement

Summary / Impression:

-            .NZ supports the proposed changes to ICANN’s Mission Statement, Commitments, and Core Values.

-            .NZ also supports the revised balancing test, and inclusion of these provisions as Fundamental Bylaws.

 

Actions suggested: 

None

 

CCWG response :

The CCWG thanks you for your comments.

125

HR2251

- Control over the management of the Internet domain name system will not be exercised by a governmental or intergovernmental body.

- The bylaws of ICANN have been amended to provide for the following: No director or officer of ICANN may be selected by or represent a governmental or intergovernmental body.

- The board of directors of ICANN is prohibited from voting on advice or a policy proposal offered by the Governmental Advisory Committee unless such Committee reaches consensus regarding such advice or proposal. For purposes of the preceding sentence, the term “consensus” means general agreement in the absence of any formal objection.

- ICANN is committed to upholding freedom of speech, freedom of the press, freedom of assembly, and freedom of association and has adopted and implemented standards that are at least as protective of such freedoms as is the First Amendment to the Constitution.

- ICANN is prohibited from engaging in activities unrelated to ICANN’s core mission or entering into an agreement or modifying an existing agreement to impose on a registrar or registry with which ICANN conducts business any condition (such as a condition relating to the regulation of content) that is unrelated to ICANN’s core mission.

Neutral

Summary / Impression:

The comment consists of proposed United States legislation that has been superseded by subsequent events.

 

Actions suggested: 

None

 

CCWG response :  The CCWG appreciates this input.  The 2 nd Draft Proposal incorporates many safeguards designed to prevent mission creep.

 

126

NCSG

No ICANN action should violate fundamental human rights. We therefore welcome and note with approval that the call to forebear from content regulation in the mission statement section shows a positive concern for human rights.

- The NCSG supports a clear statement of ICANN’s limited technical mandate. We agree that ICANN’s mission should be limited to the coordination and implementation of policies and procedures required to facilitate the stable and secure operation of the DNS.

- We applaud the recognition that ICANN’s Mission does not include the regulation of services that use the DNS or regulation of the content that these services carry or provide.

- We also applaud the CCWG’s recognition that the existing bylaw language describing how ICANN should apply its Core Values is weak and permits ICANN to exercise excessive discretion.

- In paragraphs 69-100 NCSG believes the CCWG should avoid overly broad references to furthering “the public interest;” such references should be more specific and refer to a “public interest goal within ICANN’s mandate.” ICANN does not have a mandate to pursue the general public interest; it is intended to serve the public interest only within its narrow DNS-related scope of activity.

- Paragraph 105 There is horribly redundant wording here: ensure that decisions are made in the global public interest identified through the bottom-up, multistakeholder policy development process and are accountable, transparent, and respect the bottom-up multistakeholder process.” This should be simplified to: “Ensure that the bottom-up, multistakeholder policy development process is used to ascertain the global public interest and that those processes are accountable and transparent.”

- Paragraph 107 We prefer the original wording, with the exception of adding “in the DNS market.” The current revision muddles and undermines the clear intent of this passage, which was to encourage ICANN to rely on competition and market mechanisms. The addition of the words “healthy” and “enhances consumer trust” introduce vague criteria that in many ways contradict competitive market criteria. The addition of “consumer choice” is unnecessary as that value is already encompassed by a commitment to competition.

- Paragraph 110 This paragraph is incorrect as it currently stands; it says “governments and public authorities are responsible for public policy.” As ICANN deals with a global arena, it should say that “governments and public authorities are responsible for public policy in their jurisdictions.” We also believe that the phrase “duly taking into account the public policy advice of governments” should be changed to “duly taking into account the advice of the GAC,” as it is GAC - not “governments” - that formally provide advice to the board under the bylaws and not all of its advice deals with public policy.

- We fully support the changes to the Core Values and the designation that certain Core Values are considered Commitments - values that should rarely (if at all) be balanced against each other - and the incorporation of various provisions from the Affirmation of Commitments. We support the addition of respect for Human rights to the core values and support the addition of an obligation for human rights impact analyses for ICANN decisions to the mission. NCSG has consistently recommended that ICANN adopt the “Respect, Protect, and Remedy” framework which was developed for private corporations and that ICANN benchmark its human rights compliance by joining the Global Network Initiative. These would provide simple ways to further strengthen this core value.

Agreement Concerns   New Idea  

Summary / Impression:

-            The NCSG agrees that ICANN should forebear from content regulation and supports the proposed revisions to ICANN’s Mission, Commitments, and Core Values. 

-            The NCSG supports the revised balancing test

-            The NCSG is concerned about overly broad references to the “public interest” – suggests clarification to ensure ICANN remains within the scope of its mission

-            The NCSG proposes revised wording for paragraphs 105, 107, and 110

-            NCSG has consistently recommended that ICANN adopt the “Respect, Protect, and Remedy” framework

 

Actions suggested: 

Clarify “public interest” and consider wording for paragraphs 105, 107, and 110

 

CCWG response :

The CCWG appreciates this input.  The 2 nd Draft Proposal focuses on the need to ensure that ICANN stays within its Mission, and that in carrying out its Mission the bottom-up multistakeholder policy development process is used to identify the public interest.  The Draft also revises the language of paragraphs 105 and 107.  While we understand the objection to paragraph 110, the CCWG elected to retain the current Bylaws wording.

 

The CCWG-Accountability extensively discussed the opportunity to include into a Commitment related to human rights, within ICANN’s stated Mission, in the ICANN Bylaws.   The group commissioned a legal analysis of whether the termination of the IANA contract would induce changes into ICANN’s obligations, within its defined Mission, with regards to Human Rights.  While no significant issue was found to be directly linked to the termination of the IANA contract, the group acknowledged the recurring debates around the nature of ICANN’s accountability towards the respect of fundamental human rights within ICANN’s Mission.   The group has achieved consensus on including a human rights related Commitment in ICANN's Bylaws within its defined Mission. However   no particular wording currently proposed achieved consensus. Reiterating its commitment to articulate concrete proposals as part of its mandate, the CCWG-Accountability is   calling for comments on this approach and the underlying requirements.

127

MM

Clearly defining ICANN’s mission and putting into place efficient and effective institutional mechanisms for enforcing those limitations is the most important element of the ICANN accountability reforms.

I applaud the recognition that ICANN’s Mission does not include the regulation of services that use the DNS or the regulation of the content these services carry or provide. I hope this can serve as a strong constraint on existing and future ICANN contracts, some of which already violate that principle. I also agree with the CCWG’s recognition that the existing bylaw language regarding the application of ICANN’s Core Values is weak and permits ICANN to exercise excessive discretion. That being said, there are still elements in the draft that lend themselves to an expansive mission. In paragraphs 69-110, there are many references to furthering “the public interest.” These references need to be modified to refer only to a “public interest in the openness, interoperability, resilience, security and/or stability of the DNS” or a “public interest goal within ICANN’s mandate.” Paragraph 107, which was intended to encourage ICANN to rely on competition and market mechanisms rather than top-down regulation, has also been altered in a way that suggests a more expansive vision of ICANN’s remit. The addition of the concepts “healthy” and “enhances consumer trust” introduce vague criteria that differ from and may contradict competitive market criteria. The addition of “consumer choice” is unnecessary as that value is already encompassed by a commitment to competition. In general, I prefer the original wording, with the exception of adding “in the DNS market.”

Paragraph 110 fundamentally misrepresents the role of governments in ICANN. Currently it says that “governments and public authorities are responsible for public policy.” As ICANN deals with a global arena, it should say that “governments and public authorities are responsible for public policy in their jurisdictions .” We also believe that the phrase “duly taking into account the public policy advice of governments” should be changed to “duly taking into account the advice of the GAC,” as it is GAC and not “governments” that formally provide advice to the board under the bylaws, and not all of its advice deals with public policy.

Agreement - Concerns

Summary / Impression:

-            MM agrees that ICANN should forebear from content regulation and supports the proposed revisions to ICANN’s Mission, Commitments, and Core Values. 

-            MM is concerned about overly broad references to the “public interest” – suggests clarification to ensure ICANN remains within the scope of its mission

-            The NCSG proposes revised wording for paragraph 107 and 110

 

Actions suggested: 

Clarify “public interest”

 

CCWG response :

The CCWG appreciates this input.  The 2 nd Draft Proposal focuses on the need to ensure that ICANN stays within its Mission, and that in carrying out its Mission the bottom-up multistakeholder policy development process is used to identify the public interest.  The Draft also revises the language of paragraphs 105 and 107.  While we understand the objection to paragraph 110, the CCWG elected to retain the current Bylaws wording.

128

GG

Google does not support the CCWG-Accountability’s proposed revisions to bylaws language addressing balancing and reconciliation of competing core values. In its Proposal, the CCWG-Accountability proposes modifying the “balancing” language in the bylaws to describe how ICANN will evaluate situations when one commitment must be reconciled with another commitment or core value. This new language, which among other 2 things requires some reconciliations to be “justified by an important, specific, and articulated public interest goal . . . [and] narrowly tailored using the least restrictive means reasonably available,” appears to be taken from so-called “strict scrutiny” tests that U.S. courts use to 3 evaluate First and Fourteenth Amendment challenges. The proposal suggests that in reconciling core values, ICANN should use a version of the U.S. Supreme Court’s intermediate scrutiny tests/. These standards are not appropriate for ICANN. In situations where U.S. courts employ strict or intermediate scrutiny tests, there is usually only one core value to be upheld (e.g., free speech, equal protection). These tests are not designed to provide guidance when balancing multiple compelling interests that lead to different conclusions. For that reason, the tests often favor governmental inaction. But in the face of competing core values, the Internet ecosystem depends on ICANN continuing to act, albeit in a way as faithful as possible to the many interests at stake. The strict scrutiny test does not provide ICANN with any guidance for how to address this conundrum, nor does it provide any predictability for the community that depends on ICANN’s decision. We recognize, however, that the current test is vague: it, too, provides little guidance to the ICANN board and staff and little predictability to parties affected by ICANN’s actions. At its core, the bylaws provision amounts to an exhortation that ICANN bodies to “exercise [their] judgment.” We urge the CCWG-Accountability to develop a proposal that provides 5 meaningful guidance in balancing ICANN’s commitments and core values, while avoiding a bias in favor of preserving the status quo, even if the status quo itself does not represent the best effort to balance competing commitments and core values.

Agreement - Concerns

Summary / Impression:

Google is concerned about the new language for balancing Commitments and Core Values.  According to IA (and other commenters) the proposed text is too US-centric and is typically applied when one fundamental value is being infringed, not when the courts “are seeking to balance competing fundamental interests.”  IA concludes that the criteria do not provide guidance “as to how ICANN should actually balance competing interests.”

 

Actions suggested: 

D evelop a proposal that provides meaningful guidance in balancing ICANN’s commitments and core values, while avoiding a bias in favor of preserving the status quo.

CCWG response: The CCWG appreciates this input.  A number of commenters were uncomfortable with the proposed balancing test, on the grounds that it might tend to favor inaction.  We agreed with this input and modified the proposed balancing test language accordingly.  Specifically, we have eliminated the test for balancing Commitments, on the grounds that these reflect ICANN’s fundamental compact with the community and are intended to apply consistently and comprehensively to ICANN’s activities.  We retained the simpler proposed balancing test for competing Core Values.

 

 

 

129

Board

How will the principles proposed to enhance and improve the Mission and Core Values of ICANN be tested against the bylaws in their entirety? Given that modifying the Mission and Core Values was not part of the community discussion at the Singapore meeting, what is the CCWG-Accountability doing to highlight this change as part of the suite of recommendations? In asking this question, we are supportive of the idea that the mission statement and core values should be refined.

Concerns   Confusion

Summary / Impression:

The Board questions how the revised language will be tested.  The Board expresses concerns that this language was not part of the discussion in Singapore.

 

 

 

Actions suggested: 

Consider testing the principles proposed to enhance and improve Mission and Core Values

CCWG response :  The CCWG appreciates this input.  The proposed revisions to the Mission, Commitments, and Core Values have existed in draft form since January of this year and were discussed in Singapore.  We received numerous comments on these changes in the first comment period, and modified the proposal in response. 

130

CENTR

- The recommendations in the draft include revising ICANN’s Bylaws to clarify the scope of ICANN’s policy authority, reflect key elements of the Affirmation of Commitments, and establish a set of “Fundamental Bylaws” which can eventually be amended based on prior approval by the Community. While we agree that ICANN’s Mission statement might require language refinement against the scope of ICANN’s policy authority, that the current Bylaws might also be reviewed to reflect the key elements of the Affirmation of Commitments and that the Board should have a limited ability to change the key accountability provisions, we support the list of requirements that represent the basis of the recommendation but we do not believe that these changes alone will improve accountability at ICANN Board and staff level. As a matter of fact and as stated earlier, we recommend that – once the accountability enhancements are enforced – both ICANN staff and Board go through regular training programmes to increase their accountability literacy and culture which are of paramount importance if the community likes to have the accountability spirit at the next level. Moreover, we think that introducing a distinction between “ICANN Commitments” and “ICANN Core Values” may just add unnecessary complexity within an already over-structured statutory framework. We would also like to point out that one of the first elements to be clarified is to make sure that any Bylaws do not contain “competing values”, but rather “complementary values”.

- CENTR believes that introducing a distinction between “ICANN Commitments” and “ICANN Core Values” may just add unnecessary complexity within an already over-structured statutory framework;

Agreement Concerns

Summary / Impression:

-            CENTR supports the proposed changes but is unconvinced that these changes are sufficient to ensure accountability of the Board and staff. 

-            CENTR calls for regular training to increase accountability literacy and culture.

-            CENTR questions the distinction between Commitments and Core Values may add unnecessary complexity.

 

Actions suggested: 

Consider training programs on accountability literacy. Clarify that Bylaws do not contain “competing values”, but rather “complementary values”.

 

CCWG response :

The CCWG appreciates this input.  The 2 nd Draft Proposal maintains the distinction between Commitments and Core Values, and distinguishes the way in which these principles may be balanced.  Commitments reflect ICANN’s fundamental compact with the global Internet community and are intended to apply consistently and comprehensively to ICANN’s activities.  In any situation where one Core Value must be balanced against another, potentially competing Core Value, the balancing must further an important public interest goal within ICANN’s Mission that is identified through the bottom-up, multistakeholder process.

131

I2Coalition

The i2Coalition strongly supports the inclusion of language limiting ICANN’s activities to those that further its mission, as well as changes to ICANN’s Bylaws requiring ICANN to carry out its activities in accordance with applicable law and international law and conventions through an open and transparent process. In particular, it supports clarifying ICANN’s Mission Statement to state explicitly that the scope of ICANN’s authority does not include the regulation of services that use the domain name system (DNS) or the regulation of content these services carry or provide. However, the i2Coalition has concerns regarding the inclusion of new criteria associated with balancing commitments and core values. The new language suggests that “strict scrutiny” and “intermediate scrutiny” concepts imported from U.S. constitutional law should guide ICANN in making decisions that implicate multiple commitments or core values. But under U.S. law, these tests are typically applied when one fundamental value (e.g., equal protection or freedom of speech) is infringed. They are not designed to provide guidance when balancing multiple compelling interests that lead to different conclusions. For that reason, the tests often favor governmental inaction. But in the face of competing core values, the Internet ecosystem depends on ICANN continuing to make decisions, rather than refrain from acting. The strict scrutiny and intermediate scrutiny tests do not provide ICANN with any guidance for how to address this conundrum. For these reasons, we believe that the existing language regarding balancing and reconciliation of competing core values ought to be retained. The i2Coalition supports the clarification to the Core Values that any decision to defer to input from public authorities must be consistent with ICANN’s Commitments and Core Values. This is important to the goal of accountability; public authorities would have the ability to provide input into ICANN decisions, while ensuring that all ICANN actions are compliant with its Bylaws.

Agreement Concerns

Summary / Impression:

Strong support for including language limiting activities and clarifying Mission statement to state that ICANN's authority does not include regulation of services. Concerns regarding inclusion of new criteria associated with balancing. Strict scrutiny and intermediate scrutiny do not provide ICANN with any guidance on how to address conundrum. Supports the clarification to the Core Values that any decision to defer to input from public authorities must be consistent with ICANN’s Commitments and Core Values.

 

Actions suggested: 

Retain existing language on balancing and reconciliation

 

CCWG response :

The CCWG appreciates this input.  A number of commenters were uncomfortable with the proposed balancing test, on the grounds that it might tend to favor inaction.  We agreed with this input and modified the proposed balancing test language accordingly.  Specifically, we have eliminated the test for balancing Commitments, on the grounds that these reflect ICANN’s fundamental compact with the community and are intended to apply consistently and comprehensively to ICANN’s activities.  We retained the simpler proposed balancing test for competing Core Values.

 

 

 

132

NIRA

- NIRA agrees with recommended changes and requirements.

Agreement

Summary / Impression:

Agrees with recommended changes.

 

Actions suggested: 

None

 

CCWG response :

The CCWG thanks you for your comments.

133

ALAC

Para 50, Section 3.1.1.a: The ALAC believes that in accordance with the Affirmation of Commitments, ICANN has a responsibility to develop policies that will foster user trust in the DNS. The ALAC understands that ccTLDs are outside of ICANN scope in regards to this.

-  believes that fostering trust in the DNS must be incorporated into the ICANN Bylaws. This can be accomplished by adding the phrase “and to foster user trust in the DNS” to Paragraph 56 as well as including it in Commitments. The reference in paragraph 107 is not sufficient since that is in relation solely to competition.

Para 65: The ALAC believes that it is appropriate to define the reference to Private Sector leadership as explicitly meaning NOT led by the governments. Furthermore, although it is led by the private sector (as defined here), governments do have a role to play in the ICANN Multistakeholder model.

-  recommends caution on classing any Bylaws related to reviews as fundamental without a provision for altering the timing, with widespread community agreement, but without requiring a formal Bylaw change.

 

Agreement New Idea  

Summary / Impression:

-            ALAC proposes new language to “foster user trust in the DNS” in paragraph 56 and the Commitments

-            ALAC believes that paragraph 107 is inadequate to reflect the relevant provisions of the AOC

-            ALAC proposes that “private sector leadership” in paragraph 65 should be defined as meaning “not lead by governments”

-            ALAC urges caution on making reviews-related bylaws fundamental bylaws.

 

Actions suggested: 

Consider new language, define “private sector leadership” in paragraph 65.

 

CCWG response :

The CCWG appreciates this input.  The language from the AoC regarding, among other things, user trust, will be included in the Review section as follows to:  “In any expansion of the top-level domain space will address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection.”

 

 

 

134

LAB

- Para 56 the syntax is overly complex and ambiguous (does the “which” refer to “policy”, “process” or “systems”?). I suggest the syntax be simplified. I suggest too that “open, transparent” be inserted directly before “bottom-up”.

- Para 76, the words “in a way that is substantially related to that interest” seem superfluous and could thus be deleted.

- 86, I suggest that the rather lengthy phrase “relevant principles of international law and applicable law and international conventions” be replaced by simply “international and domestic law” (assuming that “applicable law” is intended to encompass national/domestic law).

- Para 87, I suggest deleting “internet” from the phrase “internet DNS”.

- Para 111, I suggest the following wording: “Striving to ensure that the interests of one or more interest groups are not advanced at the undue expense of others”.

Agreement New Idea  

Summary / Impression:

Lee Bygrave generally supports the proposed revisions and makes several suggestions to clarify and enhance the wording.

 

Actions suggested: 

Consider language revisions.

 

CCWG response :

The CCWG appreciates this input.  The 2 nd Draft Report incorporates these suggestions.

135

RSSAC

We note that the proposed bylaws revision (p. 20) includes a placeholder for language relating to the root server system in an updated description of ICANN's mission. We expect to contribute proposed language on this point as the process of revising the bylaws proceeds.

Neutral

Summary / Impression:

The RSSAC will provide language for the placeholder description of ICANN’s mission with respect to the DNS root servers.

 

Actions suggested: 

None

 

CCWG response :

The CCWG appreciates this input and looks forward to receiving proposed language from the RSSAC.

136

RIR

- A clear definition of the scope of ICANN’s Mission, Commitments and Core Values could contribute positively to the enhancement of ICANN’s accountability.

- In particular the RIR community fully supports the description of ICANN’s mission with regard to the coordination of policy development for Internet number resources page 20, paragraph 57):  

"In this role, with respect to IP addresses and AS numbers, ICANN’s Mission is described in the ASO MoU between ICANN and RIRs."

- With regards to ICANN’s core values in the Bylaws and in particular page 25, paragraph 89, the RIR community notes that the term "private sector led multistakeholder" and similar terms) have been used by the NTIA in describing ICANN, but the RIRs describe their policy development processes using terms such as "inclusive, open, transparent and bottom-up". These different descriptions are compatible, provided it is understood that "private sector led" does not exclude government participation.

Agreement

Summary / Impression:

The RIR community supports the changes to ICANN’s Mission Statement, Commitments, and Core Values.  It notes that the phrase ”private sector led multistakeholder,” which has been used by NTIA, is compatible with the RIR’s approach so long as it does not exclude government participation.

 

Actions suggested: 

None

 

CCWG response :

The CCWG appreciates this input.

137

DotMusic

 

DotMusic agrees with the recommended changes to ICANN's Mission, Commitments, and Core Values. These changes will help create a culture of accountability within ICANN. However, DotMusic is concerned that a Bylaws statement that "ICANN shall not engage in or use its powers to attempt the regulation of services that use the Internet's unique identifiers or the content that they carry or provide" can be interpreted too broadly.  DotMusic recommends that this broad proposed language be reviewed and refined to reduce the risk of any interpretation that would constrain ICANN s ability to enforce any contractual obligation.

Agreement - Concerns

Summary / Impression:

DotMusic generally supports the proposed revisions to the ICANN Mission Statement, Commitments, and Core Values, but is concerned that the prohibition on regulation of services or content could be read to constrain ICANN’s authority to enter into and enforce contract prohibitions on abusive use of the domain name system.

 

Actions suggested: 

Consider refining some language.

 

CCWG response :

WP2 discussed the concerns expressed regarding contract issues, and the suggestion to modify this language. The group felt that on balance that clarification was not necessary.  The limit on ICANN’s ability to regulate services and content does not preclude ICANN from entering into contracts and enforcing its contracts in furtherance of its Mission.  For example, a number of applicants for new gTLDs made voluntary commitments to better serve registrants and end users and to address concerns about competition, consumer protection, right protection, etc.  Nothing about enforcing those voluntary commitments would be inconsistent with ICANN’s Mission.  

 

138

Siva

The proposed changes would indeed enhance ICANN’s Accountability. However, ICANN’s adherence to the Accountability framework would depend on the commitment of the ICANN Board and its Members, Constituencies and its participants, Executive and Staff to the notions of Accountability, which ought to exceed the legal commitments of the organization and its constituents. Accountability standards would have to become inherent to the organization. This needs to be achieved by an ongoing process which could begin with an elaborate exercise in work stream 2

Agreement New Idea

Summary / Impression :

Siva generally supports the proposed changes but believes that true accountability requires a cultural change that goes beyond legal commitments.

 

Actions suggested: 

Consider an ongoing process.

 

CCWG response :

The CCWG appreciates this input and agrees that accountability is an ongoing process.

Fundamental Bylaws

Additional Question: The CCWG-Accountability welcomes feedback on whether there is a need, as part of Work Stream 1 (pre-Transition), to provide for any other means for other parts of the   ICANN system to be able to propose new Fundamental Bylaws or changes to existing ones.   In particular, the CCWG-Accountability welcomes feedback on whether the Mission should be subject to even higher thresholds of Board or community assent.  

Question 3: Do you agree that the introduction of Fundamental Bylaws would enhance   ICANN's accountability?

Question 4: Do you agree with the list of requirements for this recommendation, including the list of which Bylaws should become Fundamental Bylaws? If not, please detail how you would recommend amending these requirements.

38    Comments Submitted

36    Agreements

  5    Concerns

  7    New Ideas

  1    Divergence

 

#

Contributor

Comment

CCWG Response/Action

139

RH

Only the membership should have the power to change the Bylaws.

Agreement New Idea

Summary / Impression:

Mr. Hill supports concept generally but believes only membership should have the power to amend the Bylaws.

 

Actions suggested: 

Consider membership as the sole entity to have power to change Bylaws.

 

CCWG response :  Under the 2 nd Proposed Draft, Fundamental Bylaws may be changed only with the agreement of the community.  The community may reject other changes proposed by the Board.

140

JS comment 1

- Motivate more explicitly the creation of Fundamental Bylaws. Currently para 113 simply asserts that ‘CCWG-Accountability believes’, without specifying the grounds for this belief. Since the creation of Fundamental Bylaws adds considerable complication to the proposal, perhaps greater justification of the step is wanted? Indeed, why would Fundamental Bylaws inherently enhance accountability, as implied at para 122? Could situations not arise where a particular Fundamental Bylaw worked against accountability and, owing to its ‘fundamental’ character, would be harder to correct?

- The proposal repeatedly refers to ICANN’s ‘limited technical mission’ and the need to avoid ‘mission creep’. Where in practice would the line be drawn between ‘technical mission’ and wider activity? Could one person’s legitimate mandate be another’s mission creep? What lies behind this concern? Would it be helpful to be more specific in this regard: e.g. that ICANN should not embark on unduly restrictive regulation of the domain name industry; or that ICANN should not interfere in the operations of ccTLDs?

Concerns

Summary / Impression:

-            Mr. Scholte suggests that the need for “Fundamental Bylaws” and the assumption that they would contribute to accountability requires greater justification.

-            Ms. Scholte questions the community’s expressed concerns about “mission creep” and suggests greater specificity with respect to this concern.

 

Actions suggested: 

Motivate the creation of Fundamental Bylaws. Clarify where the line is between ICANN’s limited mission and wider activity.

 

CCWG response :  The CCWG appreciates this input.  The 2 nd Draft Proposal reflects the inclusion of Fundamental Bylaws and clarifies that ICANN may not act outside of its Mission.

141

auDA

- auDA supports the concept of utilising "fundamental bylaws" as another mechanism for facilitating accountability. the concept of fundamental bylaws that restrict the ICANN Board's ability to change these tenets is similar to the "golden bylaws" concept auDA proposed as part of our initial response to the consultations of the CWG on IANA transition.14 Although the foci of the CWG and CCWG differ, auDA supports the concept of using such mechanisms as the primary tool for delivering accountability.

- auDA supports the list of items that the CCWG proposes could be afforded coverage by fundamental bylaws

- auDA notes the CCWG's observation that the language for underlying Bylaw provisions has not yet been reviewed by Legal Counsel and ". . . is only conceptual in nature at this stage. . ." and, accordingly, welcomes the opportunity to provide additional / revised commentary once such advice has been provided and analysed.

Agreement Concerns

Summary / Impression:

-            auDA supports the concept of Fundamental Bylaws and the proposed list to be made fundamental.

-            auDA notes need for legal review of proposed language.

 

Actions suggested:

Have legal counsel review the language for underlying Bylaw provisions.

 

CCWG response

The CCWG appreciates this input and notes that any final bylaws language will be reviewed by legal counsel and adopted in accordance with the requirements for notice and comment.

142

DBA

In particular, we would like to emphasize the following: Creating a set of Fundamental Bylaws.

Agreement

Summary / Impression:

Emphasizes Fundamental Bylaws.  

Actions suggested: 

None

 

CCWG response :

The CCWG thanks you for your comments. The 2 nd Draft Proposal reflects the inclusion of Fundamental Bylaws.

143

CRG

- To question 1a) ICANN values and fundamental Bylaw proposals call for more general values than the present narrow technical scope under the USG stewardship. For example: ICANN is accountable to all its members, users and open and free Internet. ICANN is accountable for the IANA, functions as well as a stable, resilient, open and efficient DNS Market..... Then ICANN should be measured against those higher/more general standards. But the proposed amendments mix present technical objectives with more general (future) standards. It will be a hard discussion if we start with an amended text, but guess thats the reason we have so many lawyers involved.

- Based on my personal experience in ATRT2, I consider the AoC to be the best basis for the actual constitutional core values, from which the new By Laws have to be drafted. For example, if the community commits to a “market” model in the fundamental Bylaws as per above, the discussion of “private sector led” o not led, becomes less relevant and maybe it can be preempted. The proposal has to respect some strict hierarchy of values first, technical conditions second, etc. so as not to get boggled down in details further down the road in the best UN fashion.

- Q3. It should be part of WS to establish at the level of Management, the internal clarity of operative roles and the level of internal separation of powers between them. This cannot be left to the discretion of any new CEO anymore. The question is so important in terms of internal accountability, that it should be embedded in the Fundamental By Laws pre-transition (WS1) so has to have it protected under the highest threshold possible.

- Q4. WS1 should develop a minimum requirement of internal checks and balances and transparent arms length relationships should be established at least for the major organisational areas of (a) policy development, (b) compliance and (c) operational functions, including but not limited to IANA.

New Idea

Summary / Impression:

-            Mr. Gutierrez proposes to add an additional fundamental bylaw that specifies the operative roles of ICANN staff and Board and the level of internal separation of powers among them.

-            Internal checks and balances should be place to separate policy development, compliance, and operational functions of organization.

 

Actions suggested: 

Consider adding an additional fundamental bylaw on roles of staff and board and separation of powers. Consider internal checks and balances.

 

CCWG response

The CCWG appreciates this input and notes that the 2 nd Draft Proposal incorporates the AoC commitments into ICANN’s Bylaws.  The review and redress provisions are designed to ensure that ICANN can be held for all violations of its Bylaws and Articles of Incorporation.

144

DCA-T

- Q3. Indeed the ICANN’s Bylaws should be harder to change than others. These would be deemed Fundamental Bylaws; these identified sections of the bylaws should be well designated and marked.

- Q4. The proposed increase of the voting threshold to 3/4 of votes in favour of the change (higher than the usual threshold of 2/3) Is acceptable, however the members of the board in question must also demonstrate their understanding of the proposals through proper study so that it is not just passed by vote without due considerations. The board members should be careful not to be just approvers of proposals; they must do so under justifiable and necessary means.

Agreement New Idea

Summary / Impression:

-            Generally supports concept of Fundamental Bylaws, including specified list.

-            In addition to voting threshold, Board members must demonstrate their understanding of proposed changes before approving.

 

Actions suggested: 

None.

 

CCWG response

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws may only be changed with the approval of the community. 

145

NM

We provide for changes in the by-laws, but it may be that we would be better off making clear that core principles are not subject to change. The ultimate goal of the organization is to act in the interest of the public as a whole, without special treatment of any business, private entity, individual, or government. The inherent founding principle that this entity exists for the overall public good and not for the commercial benefits of any individual or group should be a core principle that cannot be changed, no matter how many people go for it.

Agreement New Idea

Summary / Impression:

Perhaps better to prohibit change to core principles and Mission altogether.  

 

Actions suggested: 

None.

 

CCWG response :

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws may only be changed with the approval of the community. 

146

AFRALO

Q3. The creation of fundamental bylaws that require the consent of the community to be changed is a good approach and would enhance the accountability of ICANN board to the community.

Q4. AFRALO members believe that the fundamental bylaws should include the fundamental standing issues such as the mission and the core values of the organization, excluding any functional or operational issue.

Agreement New Idea

 

Summary / Impression:

-            Supports basic concept of Fundamental Bylaws.

-            Should include Mission, Core Values, and other “fundamental standing issues”.

 

Actions suggested: 

Fundamental Bylaws should include Mission, Core Values, and other “fundamental standing issues”

 

CCWG response

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the Mission Statement, Commitments, and Core Values - may only be changed with the approval of the community. 

147

Afnic

Q3. Afnic supports the idea of fundamental bylaws, in the sense it’s a way to balance the powers of the Board through the empowerment of the Community (see below). This set of fundamental bylaws is interesting only if the empowered community is put in place.

Q4. Afnic agrees with the list of fundamental bylaws proposed and, in order to achieve the IANA stewardship transition, insist on the importance of including in the fundamental bylaws the provisions for reviews that are part of CWG-Stewardship work as well as the creation of the CSC.

Agreement New Idea

 

Summary / Impression:

-            Good idea but only meaningful if empowered community is in place.

-            Include CWG Stewardship reviews and creation of CSC as Fundamental Bylaw

 

Actions suggested: 

Include the provisions for reviews that are part of CWG.

 

CCWG response :

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the Mission Statement, Commitments, and Core Values, as well as the CWG-Stewardship dependencies - may only be changed with the approval of the community. 

148

Govt-IN

It is appreciated that the current proposal suggests that fundamental bylaws should stay intact unless change is called for by the community. It is important for ICANN to have a well defined mission, commitments and core values that should be reflected in its organisational DNA, objectives and prioritisation approach.

Agreement

Summary / Impression:

- Important to have a well-defined mission, commitments and core value that should be reflected in DNS

 

Actions suggested: 

None

 

CCWG response :

The CCWG appreciates this input and agrees on the importance of articulating a well-defined Mission for ICANN.

149

DP-DK

We strongly endorse the use of Fundamental Bylaws as a means of assuring the broader Internet community that ICANN will continue to live up to the commitments it is making as part of the transition for the foreseeable future, and that these fundamental constraints on the abuse of its power will not themselves be subject to easy manipulation. 

Agreement

Summary / Impression:

Endorses Fundamental Bylaws as a means of assuring that ICANN will continue to live up to commitments and that fundamental constraints on abuse will not be subject to easy manipulation

 

Actions suggested: 

None.

 

CCWG response

The CCWG appreciates this input.

150

IA

- IA agrees that classifying some Bylaws as “Fundamental Bylaws” will enhance ICANN’s accountability by restricting its ability to change certain Bylaws with only a two-thirds majority.

- The CCWG may want to examine whether there is a way to ensure that the need for binding Independent Review panels is enshrined in a Fundamental Bylaw without binding the community to the precise formulation recommended by the CCWG. Although the process set forth by the CCWG seems reasonable, it may be the case that it needs to be modified at the margins once parties have had some experience with it.

- IC believes that it is a requirement for the ICANN principal office or headquarters to be located in Los Angeles should be included as a Fundamental Bylaw.

Agreement

Summary / Impression:

-            Supports general approach

-            May need flexibility to modify details of IRP with experience.

-            HQ in Los Angeles should be Fundamental Bylaw.

 

Actions suggested: 

Consider binding IRP and HQ in California as Fundamental Bylaws

 

CCWG response

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the IRP - may only be changed with the approval of the community.  The current Bylaws/Articles continue to specify that ICANN is a California non-profit corporation, headquartered in California, but this language is not proposed as a Fundamental Bylaw.

151

eco

- Making some bylaws more robust than others, i.e. the idea of creating Fundamental Bylaws, is a good one. The described process seems to strike an appropriate balance between making it harder to change these bylaws and at the same time allowing for changes whenever substantial parts of the community deem this to be required. Some flexibility needs to be retained for an organization working in a rapidly changing environment.

- Fundamental Bylaws, changes to which require approval, are an appropriate measure to enhance ICANN’s accountability.

- The list of items qualifying for Fundamental Bylaws should be kept as short as possible and only encompass those clauses that are needed to protect the accountability architecture as such. Based on the suggestions made in the draft report, the list of items appears to be appropriate.

Agreement

Summary / Impression:

-            Supports general approach

-            Keep list short as possible

-            May need flexibility to modify details in light of experience and changing environment.

 

Actions suggested: 

Keep list of items as short as possible.

 

CCWG response :

The CCWG appreciates this input.

152

Govt-ES

- The organization needs a stable and predictable legal and jurisdictional environment and these requirements could certainly be included in the Bylaws as a way to ensure   compliance with the accountability measures designed. But prescribing a particular jurisdiction now would preclude other jurisdictions that could perfectly fit and comply with   these requirements (in and out the USA) from hosting the organization in the long run.  

- On the other hand, jurisdiction is already a task of Work Stream 2 (page 90) of the CCWG, and enshrining ICANŃs current jurisdiction as a fundamental bylaw would pre-empt the future work of WS2 in this regard. It is essential that when that process begins, the global public interest is taken into account and all relevant stakeholders have   their say, including governments.

Agreement Concerns

 

Summary / Impression:

Supports general approach. Jurisdiction should not be prescribed in Bylaws at this time

 

Actions suggested: 

None.

 

CCWG response

The CCWG appreciates this input. The current Bylaws/Articles continue to specify that ICANN is a California non-profit corporation, headquartered in California, but this language is not proposed as a Fundamental Bylaw.

153

RySG

- Executive Summary refers to “reviews required by the CWG-Stewardship.” We support the recommendation that these reviews be incorporated into the Fundamental Bylaws and recommend that the procedures for implementing the outcomes of such reviews that are determined by the CWG-IANA are also included within that fundamental bylaw 10

- Yes. Establishing an approval threshold of 75% would serve to ensure a substantial percentage of the affected community agrees with proposed changes.

- RySG agrees with the list of proposed Fundamental Bylaws, with one recommended addition. We believe that ICANN’s current bylaw (Article XVIII, Section 1) establishing ICANN’s principle office location, which is consistent with the Affirmation of Commitments Section 8b establishing ICANN’s headquarters location, should be made a Fundamental Bylaw. Reason: All of the accountability mechanisms and reforms currently proposed by the CCWG assume ICANN s continued operation under California not-for- profit corporate law. If that assumption were to change, all of the current accountability reform efforts would need to be re-assessed and started anew.

- The RySG also strongly supports the recommendation that the CWG-Stewardship’s proposed IANA Function Review, including CWG-identified requirements for implementing the outcomes of the IFR, should be added to the ICANN Bylaws, as a Fundamental Bylaw.

Agreement

Summary / Impression:

-            Supports general approach, voting threshold, proposed list.

-            Supports adding HQ requirement as Fundamental Bylaw.

-            CWG IANA Function Review and CWG-identified requirements should be Fundamental Bylaws.

 

Actions suggested: 

CWG IANA Function Review and identified requirements as Fundamental Bylaws.

 

CCWG response

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the IRP - may only be changed with the approval of the community.  The current Bylaws/Articles continue to specify that ICANN is a California non-profit corporation, headquartered in California, but this language is not proposed as a Fundamental Bylaw.

154

JH

According to the current proposal, I agree that the introduction of Fundamental Bylaws would enhance ICANN's accountability. Because if we say something is wrong, we should have right criteria, which should be the Fundamental Bylaws. Although ICANN has Bylaws now, there are still many problems. This proposal should point out these problems and give specific amendments. For example, many problems have already been raised by the communities: the transparency of Nomcom, the representativeness of the ICANN Board of Directors (It is questionable whether board members selected from each community represent the community or just themselves), the ICANN Board membership and voting rights issues, which law should ICANN follow. It is critical to have Bylaws under the ground of community consensus, because it is the criteria to judge whether ICANN does sth wrong or right decision. If the criteria is problematic, it is impossible to discuss about the latter issues.

Agreement

Summary / Impression:

-            Agrees Fundamental Bylaws would enhance accountability.

-            Critical to have Bylaws underground of community consensus to judge criteria.

 

Actions suggested:

Proposal should point out problems and give specific amendments .

 

CCWG response :

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the Mission Statement, Commitments, and Core Values, as well as the CWG-Stewardship dependencies - may only be changed with the approval of the community. 

155

BC

- BC supports the concept of designating certain Bylaws as Fundamental Bylaws that would require majority approval by community Members. Also, the BC supports the CCWG’s proposal that 75% of community Members must vote in favor of any proposed change to Fundamental Bylaws.

- However, we suggest that the CCWG explore a way to ensure that the need for binding Independent Review is enshrined in a Fundamental Bylaw without fixing every aspect of Independent Review Panel procedure in the Fundamental Bylaw itself. The specific IRP procedures proposed are new, and the community and Board may wish to modify them based on gained experience without having to meet the very high bar established by enshrining these specific details in a Fundamental Bylaw. We need to ensure the process remains sufficiently flexible to address the needs of the community as the Internet continues to evolve.

- Additional Fundamental Bylaws:Article XVIII Section 1, the location of ICANN's principal office

- BC believes that Article 18 should be a Fundamental Bylaw, so that it would require 75% community voting approval for any change. BC Members presently rely upon contract enforcement and legal action based upon the US court system and do not want that to be changed without broad community approval. Moreover, the BC hopes to rely upon statutory powers to recall the Board and other actions, as necessary, to ensure that the ICANN Board and staff remain accountable to the community. The legal analysis indicating that these powers are available to Members of the organization was predicated on the understanding that ICANN would remain a non-profit organization organized under California Law.

Agreement

Summary / Impression:

-            Supports general approach

-            May need flexibility to modify details of IRP with experience.

-            HQ in Los Angeles should be Fundamental Bylaw.

-            Article 18 should be Fundamental Bylaw

 

Actions suggested:

Add article 18 and HQ in Los Angeles as Fundamental Bylaws.

 

CCWG response :

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the Mission Statement, Commitments, and Core Values, the IRP, as well as the CWG-Stewardship dependencies - may only be changed with the approval of the community. The current Bylaws/Articles continue to specify that ICANN is a California non-profit corporation, headquartered in California, but this language is not proposed as a Fundamental Bylaw

156

.UK

We support the general concept of fundamental bylaws.

3.2.3.3:  While we recognise the need to have a high bar to changing a fundamental bylaw, this can also be an impediment to necessary change.  We wonder whether some thought should be given to exceptional mechanisms that can define and assess necessary changes (addition of new, abrogation or amendment of existing) in exceptional circumstances, something akin to a constitutional conference.

Agreement

Summary / Impression:

Supports general approach but suggests consideration of exceptional mechanisms – e.g., “constitutional conference”

 

Actions suggested: 

Consider exceptional mechanisms that can define and assess necessary changes.

 

CCWG response

The CCWG appreciates this input.  The 2 nd Draft Proposal does provide for amendment of Fundamental Bylaws, but only with the consent of the community.  The proposed Community Forum may provide a vehicle for the discussion of needed changes.

157

USCIB

Q3. Yes. Critical elements that require a high standard to change, are important both from a stability standpoint, and also to address legitimate concerns for the integrity of the transition.

Q4. paragraph 337, “ICANN will ensure that as it expands the top-level domain space, it will adequately address issues of competition, consumer protection, security, stability and resiliency, malicious abuse issues, sovereignty concerns, and rights protection.” Paragraph 337 says this language will be added to the bylaws core values section, which USCIB supports. However, the entirety of this section does not appear in the proposed bylaw core value changes proposed by the CCWG and we request that the entirety of this language be added.

Agreement Concerns

Summary / Impression:

Supports general approach but requests inclusion of entire AoC provision regarding TLD expansion in Core Values.

 

Actions suggested: 

Include entire AoC provision regarding TLD expansion in Core Values .

 

CCWG response

All elements of the AoC haven been incorporated into the 2 nd Draft Proposal.  The specific language identified by the USCIB is now contained in the Review Section of the Bylaws.

158

LINX

- LINX support the introduction of Fundamental Bylaws.

- LINX agree with the CCWG’s selection of bylaws for “Fundamental” status and do not identify any omissions.

- LINX caution against excessive use of “Fundamental” status: ascribing bylaws Fundamental status recklessly would force the community to use what is intended to be an exceptional mechanism more routinely. This would weaken the protection for those bylaws that do deserve entrenchment. We therefore advise approaching with caution any recommendations to give additional bylaws fundamental status.

- LINX believe the threshold suggested by CCWG for changing Fundamental Bylaws is appropriate.

- LINK are willing to be persuaded that a mechanism should be created for the Community to add or amend Fundamental Bylaws, but this should be subject to a very high threshold within each community. Merely requiring the unanimous support of all SOACs should not be sufficient (or perhaps even necessary): if there is only a bare majority within GNSO this should not be sufficient.

Agreement

Summary / Impression:

-            Generally support, but avoid excessive use of “Fundamental” status.

-            Very high level should be established to amend or add to Fundamental Bylaws

-            Voting threshold ok

 

Actions suggested: 

Add very high threshold within each community to add/amend Fundamental Bylaw

 

CCWG response

The CCWG appreciates this input, which is reflected in the 2 nd Draft Proposal.

159

JPNIC

Yes. By distinguishing Fundamental Bylaws from the other Bylaws, with explicit community approval required for its changes, it ensures changes to key components of the Bylaws will only take place with clear community support, and avoids the Board passing Fundamental Bylaw changes without getting noticed by the community. We also recognize the need for Fundamental Bylaws is identified by CWG-Stewardship.

Yes, we agree all of them to be included in the Fundamental Bylaws. Including the IANA Function Review and any others they may require, as well as the creation of a Customer Standing Committee.

Agreement

Summary / Impression:

General support – including need for CWG Stewardship requirements such as IANA Function Review and Customer Standing Committee

 

Actions suggested:
None. 

 

CCWG response

The CCWG appreciates this input.

160

CWG-St

- Work on the CWG Separation Process (previously Separation Review) has been further developed within the CWG and we expect that this will be more fully described in the forthcoming proposal from the CWG-Stewardship. We are not yet in a position to provide full details ahead of the closure of the this public comment period on June 3rd, but do expect to work with you in future to effectively communicate any additional requirement, including the possible use of a fundamental bylaw to deal with this.

- The CCWG Accountability initial proposals describe the scope of the "fundamental bylaws" in section 3.2.4. It is proposed that the "Reviews that are part of the CWG-Stewardship’s work – the IANA Function Review and any others they may require, as well as the creation of a Customer Standing Committee" would be considered Fundamental Bylaws. As such, any change of such Bylaws would require prior approval by the community.

Agreement

 

Summary / Impression:

General support – including need for CWG Stewardship requirements such as IANA Function Review and Customer Standing Committee

 

Actions suggested:

None. 

 

CCWG response :

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the Mission Statement, Commitments, and Core Values, as well as the CWG-Stewardship dependencies - may only be changed with the approval of the community. 

161

IPC

- The IPC does not believe that there is a need for additional means to propose or amend Fundamental Bylaws, other than those proposed by the CCWG. The IPC is not necessarily opposed to increasing the supermajority thresholds proposed by the CCWG, but any change must be carefully analyzed to avoid a single stakeholder veto situation. Furthermore, there should be a degree of deference to existing supermajority thresholds of general applicability.

- “Fundamental Bylaws” should be those bylaws that are fundamental to the mission and core values of ICANN. These bylaws should be harder to change because of their fundamental nature, not merely because they are designated as such.

Thus, the introduction of bylaws that are harder to change does not, by itself, enhance ICANN’s accountability. Rather, it is the substance of these bylaws that must be reviewed to determine whether they will affect ICANN’s accountability. That said, if these bylaws are fundamental in nature, they should be more protected from changes by the Board.

- The IPC is generally supportive of the bylaws which have been proposed to be “fundamental.” However, as noted below, the IPC suggests that Affirmation of Commitments paragraph 8b should also become a Fundamental Bylaw: ICANN affirms its commitments to: remain a not for profit corporation, headquartered in the United States of America with offices around the world to meet the needs of a global community.

Agreement Agreement New Idea

Summary / Impression:

-            IPC believes that this status should apply only to Bylaws that are fundamental to the mission and core values of ICANN.

-            Supports proposed list but add AoC paragraph 8b re HQ in US

 

Actions suggested: 

None.

 

CCWG response :

All elements of the AoC haven been incorporated into the 2 nd Draft Proposal.  The specific language identified by the IPC is now contained in the Review Section of the Bylaws.

162

Govt-BR

CCWG should consider reviewing Article XVIII, Section 1, of ICANN's bylaws. Brazil supports the elimination of that specific requirement, which should by no means be granted the status of a "fundamental bylaw".

Agreement Concerns Divergence

Summary / Impression:

-            The Government of Brazil that Article 18 should not receive status of Fundamental Bylaw.

 

Actions suggested: 

Article 18 as Fundamental Bylaw.

 

CCWG response :

The CCWG appreciates this input and notes that the current Bylaws/Articles continue to specify that ICANN is a California non-profit corporation, headquartered in California, but this language is not proposed as a Fundamental Bylaw.

163

MPAA

- MPAA fully supports the concept of making certain bylaws Fundamental Bylaws that enjoy special protection and can only be changed based on prior approval by the Community. The five items proposed to have the status of Fundamental Bylaws (p. 5) will ensure a stable, autonomous and self-governing ICANN that is not easily altered or swayed by the Board or any external forces.

- MPAA suggests that the existing ICANN bylaw requiring the principal office of ICANN be in the State of California, USA, also be designated as a Fundamental Bylaw. See additional comment on this topic in the Nexus section below.

- Regarding transparency in the proposed IRP process, the MPAA believes it will be important for the community to be aware of the filing of IRPs in an open and timely manner. This will allow parties “materially affected” by the IRP process and eventually decisions to fully participate.
- The US Courts provide a de facto check on ICANN’s adherence to its bylaws and the rule of law. Litigation represents a last resort to be used only in the event of a catastrophic failure of the multi-stakeholder process, but the mere existence of that option has a stabilizing effect. As such, and as mentioned above, MPAA suggests that current ICANN bylaw Article 18, Section 1 be made a Fundamental Bylaw. requiring 75% community voting approval for any change, would go a long way to ensure a stable and accountable ICANN post transition.

Agreement

Summary / Impression:

-            Supports general approach

-            May need flexibility to modify details of IRP with experience.

-            HQ in Los Angeles should be Fundamental Bylaw.

-            Article 18 should be Fundamental Bylaw requiring 75% community approval for change.

 

Actions suggested:

Article 18 and HQ in Los Angeles as Fundamental Bylaws.  

 

CCWG response

The CCWG appreciates this input and note that the current Bylaws/Articles continue to specify that ICANN is a California non-profit corporation, headquartered in California, but this language is not proposed as a Fundamental Bylaw

164

CDT

- CDT agrees that the addition of fundamental bylaws enhances ICANN accountability and supports a role for the community with regard to approving new bylaws or changes to existing bylaws. The latter is a critical element in ensuring that ICANN does not stray from its mission, commitments and core values.

- CDT supports the proposed list of current bylaws that would become fundamental bylaws. We also support the inclusion of the IANA Function Review (the periodicity of the review, as well as the Special Review) and the Customer Standing Committee (CSC) as a minimum set of IANA related mechanisms that should be brought into the fundamental bylaws.

Agreement

Summary / Impression:

-            Supports general approach and list

-            Include IANA Function Review and CSC as Fundamental Bylaws

 

Actions suggested:

Add CSC and IFR as Fundamental Bylaws  

 

CCWG response

The CCWG appreciates this input.

165

CIRA

 

I believe the introduction of specific ‘fundamental bylaws’, while limiting the Board of Directors’ ability to modify these bylaws may be effective as a check against mandate creep on the part of the organization.

Agreement

Summary / Impression:

Supports general approach as effective check against mandate creep.

 

Actions suggested: 

None.

 

CCWG response :

The CCWG appreciates this input.

166

SR

I believe the thresholds proposed are sufficient at this time.

Agreement

Summary / Impression:

Supports general approach and thresholds

 

Actions suggested: 

None.

 

CCWG response :

The CCWG appreciates this input.

167

USCC

- Yes, the threshold ensuring that 75% of the impacted community approves of the proposed changes will enhance accountability.

- Yes it is useful to elevate certain bylaws, in particular those preventing mission creep would ensure

accountability and allow ICANN to focus on its core duties.

- However, given this higher voting threshold, the CCWG should consider how to strike a balance between providing an appropriate level of detail and creating the flexibility to add improvements to new processes created by the plan.

- Suggests the inclusion of a new bylaw aimed at the prevention of government capture or undue ICANN influence on public policies unrelated to ICANN’s core mission. This would be achieved through additional transparency, requiring that ICANN or any individual acting on ICANN’s behalf make periodic public disclosure of their relationship with any government official, as well as activities, receipts and disbursement in support of those activities on behalf of ICANN. Disclosure of the required information facilitates evaluation by the multi-stakeholder community of the statements and activities of such persons in light of their function as representatives of ICANN.

Agreement

Summary / Impression:

-            Supports general approach and thresholds

-            Consider need for flexibility to add improvements to new processes

-            Consider adding new Fundamental Bylaw aimed at safeguard against government capture, e.g., disclosure of relationship to governments, etc.

 

Actions suggested:

Consider safeguard against Government capture as a Fundamental Bylaw 

 

CCWG response

The 2 nd Draft Report retains the concept of private sector leadership in the Commitments and Core Values.  Fundamental Bylaws may be changed, but only with the consent of the community.  The 2 nd Draft Proposal provides a number of safeguards against capture by any single part of the community, including governments and public authorities.

168

INTA

Q3. agrees that there should be certain bylaws considered “fundamental,” in that they embody core principles and goals and, hence, are more difficult to amend or abrogate.

However, establishing “fundamental” bylaws does not necessarily provide a remedy if the Community perceives that ICANN is not following a fundamental bylaw, or any other bylaw for that matter. We strongly support a mechanism in which an aggrieved party or group can seek redress if it has credible evidence that ICANN is not adhering to a fundamental bylaw.

Q4. agrees, in general, with the bylaws which have been proposed to be “fundamental.” However, after review, we suggest the addition of AoC ¶ 8b as a mechanism(s) for establishing the IRP (§4.1), and Community powers (§§5.3–5.6) should be included as a “fundamental” bylaw

Agreement

Summary / Impression:

-            Supports general approach and thresholds

-            Necessary but not sufficient – requires dispute resolution mechanism

-            Add Aoc paragraph 8b and Community Powers as Fundamental Bylaws.

 

Actions suggested: 

Add Aoc paragraph 8b and Community Powers as Fundamental Bylaws.

 

CCWG response :

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the IRP - may only be changed with the approval of the community. 

169

.NZ

- Yes. In the context of a membership model, making some parts of the bylaws harder to change – and the authorisation of such changes being more broadly done than simply by the Board – would be a meaningful enhancement to ICANN’s accountability in the post-contract environment.

- Yes – the requirements set out are reasonable, and the proposed list of Fundamental Bylaws is appropriate. The membership model on which this new accountability system rests should also be Fundamental, whether it is set out in the Bylaws or the Articles.

Agreement

Summary / Impression:

-            Supports general approach and thresholds

-            Add membership model as Fundamental provision in Bylaws or Articles

 

Actions suggested: 

Add membership model as Fundamental provision

 

CCWG response :

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the membership model - may only be changed with the approval of the community. 

170

HR2251

Requirements: ICANN has adopted, if necessary through amendment to its bylaws, all additional measures recommended by the multistakeholder community through the IANA Stewardship Transition Coordination Group, the Cross Community Working Group on Enhancing ICANN Accountability, and the Cross Community Working Group to Develop an IANA Stewardship Transition Proposal on Naming Related Functions.

Agreement

Summary / Impression:

Requirement for ICANN to adopt if necessary through amendment to Bylaws measures recommended by community through ICG, CWG, CCWG

 

Actions suggested: 

None

 

CCWG response

The CCWG has considered this input.

171

NCSG

- Supports the empowerment of the ICANN community through the introduction of fundamental bylaws. - supports the importance of preserving the ICANN’s narrow mandate and believes that a higher threshold for initiating a new or changing an existing fundamental bylaw and a role for the community to approve such bylaw changes are essential components in that regard.

- Support the list of suggested fundamental bylaws as well as the addition of reviews that are a part of the CWG Stewardship’s work.

Agreement

Summary / Impression:

-            Supports general approach, list and thresholds

-            Include IANA Function Review and CSC as Fundamental Bylaws

 

Actions suggested:

Include IANA Function Review and CSC as Fundamental Bylaws

 

CCWG response :

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the CWG-Stewardship dependencies - may only be changed with the approval of the community. 

172

GG

While we support designating some bylaws as fundamental, fundamental bylaws should not be overly detailed. Fundamental bylaws should be flexible enough to adapt to evolving experience. We agree with the CCWG-Accountability’s proposal to designate certain bylaws as fundamental and the requirement to require support from the community, as well as a ¾ vote of the ICANN Board, in order to change any fundamental bylaws. However, given 6 this higher voting threshold, the CCWG-Accountability should consider whether some fundamental bylaws might be unnecessarily detailed. For example, we agree that the fundamental bylaws should include a requirement for a binding, accessible Independent Review Process (IRP) mechanism that reaches both substantive and procedural complaints. However, because the ICANN community to date has no experience with this new IRP process, the procedures will likely evolve in light of experience. At this time, the detailed procedures governing how the IRP operates should not be fixed in the language of the fundamental bylaws.

Agreement

Summary / Impression:

 

-            Supports general approach.

-            Include IRP as Fundamental Bylaw, but retain flexibility to reflect experience (i.e., do not create operational rules as Fundamental Bylaws)

-            Consider whether others are too detailed, create too much inflexibility

 

Actions suggested: 

None.

 

CCWG response :

The CCWG appreciates this input.  Under the 2 nd Draft Proposal, Fundamental Bylaws – which includes the IRP - may only be changed with the approval of the community.  At the same time, implementation of the IRP, including the detailed rules under which it will operate, will require significant work, supported by expert advice, which will be undertaken in Work Stream 2 and which are not themselves proposed as a Fundamental Bylaw.

173

CENTR

We believe that the introduction of so-called “Fundamental Bylaws” that should be “harder” to change than other provisions, would moderately improve ICANN’s accountability. The entire ICANN “rulebook” should apply to all ICANN Board members and/or staff without distinguishing among core values that would then become “frozen”.

Agreement

Summary / Impression:

-            Supports general approach and thresholds

-            Necessary but not sufficient – entire “rulebook” should apply to all

 

Actions suggested: 

Consider “rulebook”.

 

CCWG response

The CCWG appreciates this input and notes that the 2 nd Draft Proposal contemplates and IRP with authority to consider alleged violations of any provision of ICANN’s Bylaws.

174

NIRA

- NIRA supports that the proposal be subjected to higher assent by the community.

- NIRA agrees with the introduction of Fundamental Bylaws and requirements of the recommendation. It expects that Fundamental Bylaws would be scarcely used, and where they are use, the wishes and powers of the community would be allowed to prevail over that of the Board including recalling the Board.

Agreement

Summary / Impression:

-            Supports general approach, list and thresholds

-             

Actions suggested: 

None.

 

CCWG response

The CCWG appreciates this input.

175

RIR

There is general support the introduction of Fundamental Bylaws. Regarding the list of Bylaws that should become Fundamental Bylaws, most of them indeed contain fundamental principles. However, the RIR community does not believe that the requirement for ICANN to remain in the United States of America is fundamental, but rather is an administrative issue.

Agreement

Summary / Impression:

-            Supports general approach, list and thresholds

-            HQ/incorporation are administrative matters, not Fundamental Bylaws

 

Actions suggested: 

None.

 

CCWG response :

The CCWG appreciates this input. The current Bylaws/Articles continue to specify that ICANN is a California non-profit corporation, headquartered in California, but this language is not proposed as a Fundamental Bylaw.

176

Siva

Fundamental Bylaws would minimise the likelihood of misdirections in ICANN governance. On the need for such changes as part of Work Stream 1, it is not necessary to rush these changes as a part of the pre-transition proposals. The proposals for fundamental bylaw changes require deeper deliberations, more thoroughly done as part of Work Stream 2, which ICANN could irrevocably commit to facilitate and sufficiently empower.

Agreement

Summary / Impression:

-            Supports general approach

-            Requires deeper calibration and should be part of Work Stream 2

 

Actions suggested: 

Reconsider in WS2.

 

CCWG response

The CCWG appreciates this input.

Independent Review Panel Enhancement

Question 5: Do you agree that the proposed improvements to the IRP would enhance   ICANN's accountability? Do you agree with the list of requirements for this recommendation? If not, please detail how you would recommend amending these requirements.

43 Comments Submitted

38   Agreements

14   Concerns

4   New Ideas

2   Confusion

 

 

#

Contributor

Comment

CCWG Response/Action

177

RH

"Third party international arbitral bodies would nominate candidates". That is too vague. The proposal would have to specify some specific bodies. But I propose that this provision be deleted entirely.  I doubt that any arbitral body has enough knowledge and experience to be able to propose candidates. I would propose instead that ICANN itself ask for nominations, as it did for the PIC DRP.

New Idea

Summary / Impression:

Do not seek nominations from international arbitral bodies; rather ICANN to call for nominations.

 

Actions suggested: 

See above.

 

CCWG response
The CCWG appreciates this input.

The 2 nd Draft Proposal addresses this concern on page 41. The selection of panelists would follow a 4 -step process: ICANN, in consultation with the community, will initiate a tender process for an organization to provide administrative support for IRP, beginning by consulting the community on a draft tender document.

ICANN will then issue a call for expressions of interest from potential panelists; work with the community and Board to identify and solicit applications from well-qualified candidates with the goal of securing diversity; conduct an initial review and vetting of applications; and work with ICANN and community to develop operational rules for IRP.

The community would nominate a slate of proposed panel members.

Final selection is subject to ICANN Board confirmation.

178

JS comment 1

- How can the costs of non-compliance be made sufficiently high that parties will follow the rulings? For example, the Dispute Settlement Mechanism of the World Trade Organization has binding rulings, but sometimes rich and powerful states can pay the (for them relatively modest) fine and continue with the violating behavior.

- Is some more precise definition of ‘independence’ wanted? The concept is given no specification. If someone were to challenge the ‘independence’ of a proposed panelist on the IRP, how would the validity or otherwise of the objection be determined? Is it sufficiently specific to say the person is not ‘beholden to ICANN´ (para 125); how would that beholden-ness be concretely assessed?

Concerns

Summary / Impression:

-            Consider how to make cost of non-compliance high enough to incentivize compliance

-            Define “independence” more precisely to avoid unnecessary challenges

 

Actions suggested: 

Provide definition of “independence”.

 

CCWG response

The CCWG appreciates this input. 

 

The IRP process does not involve the imposition of fines or penalties.  Rather, the 2 nd Draft Proposal anticipates that decisions of the IRP will be binding to the maximum extent permitted by law, and enforceable by a court of competent jurisdiction.  In addition, the Community Powers, including the power to recall the Board, provides additional support for the integrity of the process.  

 

The 2 nd Draft Report provides that members of the Standing Panel must be independent of ICANN, including ICANN SOs and ACs.   To ensure independence, term limits should apply (5 years, no renewal), and post-term appointment to Board, NomCom, or other positions within ICANN would be prohibited for a specified time period.  Panelists will have an ongoing obligation to disclose any material relationship with ICANN, SOs/ACs, or any other party in an IRP.

 

Implementation of these enhancements will necessarily require additional, detailed work. Detailed rules for the implementation of the IRP (such as rules of procedure) are to be created by the ICANN community through a CCWG (assisted by counsel, appropriate experts, and the Standing Panel when confirmed), and approved by the Board, such approval not to be unreasonably withheld.  Provisions to permit a party to object to a member of the proposed decisional panel on the basis of prejudice could be explored in this process.

179

auDA

Bolstering the process for Independent Review to hold ICANN to a "substantive standard of behaviour rather than just an evaluation of whether or not its action was taken in good faith". That these review processes are proposed by the CCWG to be binding upon the ICANN Board, is a welcome improvement.

Agreement

Summary / Impression:

Supports general approach

 

Actions suggested: 

None.

 

CCWG response

CCWG appreciates this input

180

DBA

New and improved appeal mechanisms: An IRP Panel that is binding, affordable, more accessible, broadened in scope as well as a reformed Reconsideration Process.

Agreement

Summary / Impression:

Supports general approach

 

Actions suggested: 

None.

 

CCWG response

The CCWG appreciates this input.

181

WC comment 1

Reforming the way in which the Independent Appeals mechanisms function enables those affected by the Board’s decisions to have the basis for such decisions to be tested in a fair and accessible process.

Agreement

Summary / Impression:

Supports general approach

 

Actions suggested: 

None.

 

CCWG response :

The CCWG appreciates this input.

182

WC comment 2

The question of whether the community should resolve disputes over its powers by arbitration or recourse to the courts is a very interesting question in the sense that it may be that the executive of the US government in the form of Department of Commerce is handing over oversight and accountability in a proposal to the community of ICANN, but the courts - the legal or judicial accountability- still remains in terms of the courts in California and legislative accountability remains in terms of what's in the non-profit corporation legislation. So are we left with the argument that the community should not be seen to be going to the courts for enforcement, and therefore arbitration is a better solution, or is it really a way of perhaps avoiding the fact that there still is judicial accountability for ICANN even after the transition?  I obviously haven't been party to all of the discussions so I'm really not fully able to assess this.

Neutral

Summary / Impression:

We are left with the argument that the community should not be seen to be going to the courts for enforcement, and therefore arbitration is a better solution, or is it really a way of perhaps avoiding the fact that there still is judicial accountability for ICANN even after the transition? 

 

Actions suggested: 

None.

 

CCWG response

The CCWG appreciates this input.  The 2 nd Draft Proposal reflects a recognition of the need for a dispute resolution panel that understands ICANN and has the ability to create guiding precedent over time to reduce disputes. 

183

 

DCA-T

- The Independent review process is a very important redress mechanism for the users of ICANN’s services; the ICANN’s existing Independent Review Process (IRP) could be having some limitations as have been identified by the panels that are currently handling different IRP’s of the new gTLD process.

- The Independent Review Process (IRP) panels need to be more empowered to be able to do its duties as an independent yet judicial mechanism that can propose or produce declarations without the fear of a veto by a disagreeing ICANN Board.

- The IRP Panels ought to feel well empowered to perform it duties transparently and with the confidence that a resulting ruling will carry the day. Therefore it is important that the rulings from the IRP are binding rather than merely advisory.

- On accessibility, applicants have shied away from accessing these services due to the expensive nature of the IRP. Thus the IRP should be made more be accessible, both financially and from a standing perspective, transparent, efficient. Therefore the burden of the legal fees would be on ICANN

- Results from the IRP should not make ICANN to immunize or insulate itself more to ‘WIN’ in future rather it should take into account the recommendations of the IRP panels and be used to enrich the operation of ICANN in the foreseeable future.

- The time limits set for filing IRPs should be extended to at least 9 months from the date of the decision that is being challenged, having taken into account the additional (elapsed) time expended on Reconsideration and Cooperative Engagement Processes (CEP). The point is that delays in preliminary/exploratory processes might affect a final decision to institute an IRP, if the preliminary processes prove unsatisfactory, and time limitation should not stop an aggrieved party from seeking accountability through the IRP procedure.

- Since the purpose of an IRP is to contest ICANN board or staff actions against policy, an IRP should focus really on accountability and should not be dismissed on a flimsy technicality. An adjudicating IRP Panel should allow a plaintiff to re-file or amend an IRP filing if it is deemed to have been filed incorrectly.

- An IRP Panel should be able to determine financial claims and damages and make such awards accordingly.

- A party that institutes an IRP against ICANN should also be allowed to exercise the option of seeking redress and relief in a regular court of Law within the judicial system if the IRP is seen as restricted. The overall aim is to seek justice for any wrongful action.

- Composition of Panel; Expertise : Most of ICANN s activities are rendered by volunteers, however there is need for significant training for anybody deemed fit to offer a consultancy or legal expertise, particularly international arbitration expertise and expertise, developed over time, about the DNS and ICANN’s policies, practices, and procedures.

- Anyone who renders advisory services to ICANN that shall be admitted as evidence or expert must be able to understand the operations of the DNS to be able to provide relevant and actionable advice.

- A Standing IRP Panel should not be normative. Each IRP Panel should be constituted afresh for any IRP to ensure that the neutrals are not influenced to take the details and procedures of a particular IRP proceeding and use that in trying to decide a different IRP Process.

Agreement New Idea

Summary / Impression:

-            Supports general approach

-            IRP needs to be more empowered

-            IRP needs to be more accessible

-            IRP decisions should have precedential value

-            Time limits should be relaxed

-            Permit re-filing and/or amending

-            Permit complaining party to go to court as well as IRP

-            Panelists should have necessary expertise

-            Each IRP panel should be constituted “afresh”

 

Actions suggested: 

Consider proposed amendments.

 

CCWG response

The CCWG appreciates this input and considered these suggestions. For example, although the 2 nd Draft Report does not extend the filing deadline to 9 months, the proposal would require filing from the time an affected party becomes aware of the alleged violation and how it allegedly affects them. Implementation of these enhancements will necessarily require additional, detailed work. Detailed rules for the implementation of the IRP (such as rules of procedure) are to be created by the ICANN community through a CCWG (assisted by counsel, appropriate experts, and the Standing Panel when confirmed), and approved by the Board, such approval not to be unreasonably withheld.

184

AFRALO

AFRALO members appreciate the reinforcement of the Independent review Process.

Agreement

Summary / Impression:

Supports general approach

 

Actions suggested: 

None.

 

CCWG response
The CCWG appreciates this input

185

Afnic

- Afnic is of the opinion that the IRP is an answer long awaited by the community, to have an independent, affordable and binding decision making body that allows affected parties to challenge ICANN’s decisions.

- Afnic is also convinced that the existence of such an IRP has to be included in the fundamental bylaws, along with the obligation for ICANN to fund adequately this process.

- However, in the spirit of enhancing the Community powers, and of recognizing the international nature of this IRP, Afnic suggests the following amendments: 11: The geographical diversity shouldn’t be achieved only by “reasonable efforts”. Here like in other parts of the proposal (see below) Afnic recommends to strengthen this diversity, by including the following provision: no more than 2 members of the panel from the same region (5 regions); 14. a.: Prior to the submission by “third party international bodies” it should be stated the ICANN has to launch an international public tender; 14. b: Icann Board should send to the “community mechanism” not only the list of candidates it has selected, but the full list of eligible candidates, in which it should isolate the candidates proposed by the board; 19: as for pro bono representation, the complainants should ask for it from the start directly to the panel. The panel (and not ICANN) would allow the complainant to have free access, after examining the non-frivolous nature of its complaint, and the impossibility to afford the expense of the IRP. There’s no reason why only community and non for profit complainants should access this pro bono representation, as some SME’s (small or medium size enterprise) or individuals can be affected by decisions ICANN makes. In order to avoid the multiplication of complaints by individuals, collective complaints should also be considered as eligible.

Agreement

Summary / Impression:

-            Supports general approach

-            IRP should be independent, binding, affordable, and accessible to affected parties

-            IRP should be a Fundamental Bylaw

-            Diversity requirements should be strengthened

-            Provide for pro bono representation for all

-            Consolidate multiple complaints

 

Actions suggested: 

Include it as a Fundamental Bylaw and consider proposed amendments.

 

CCWG response
The CCWG appreciates this input.  The 2 nd Draft Report implements the goal of capping the number of members of the panel from the same region, and significantly modifies the selection process to reflect these suggestions.  It provides for the consolidation of similar complaints, in a manner to be determined as part of Work Stream 2.

186

DP-DK

- We enthusiastically support the CCWG Draft Proposal’s efforts to overhaul and reform ICANN’s existing Independent Review Process (IRP).  Independent review is the final piece of the constitutional puzzle – a third “branch,” independent of the other two ( i.e., both the Board and the community/members), with neither a policy-making nor a policy-implementation role, which can serve as a neutral arbiter in disputes regarding the exercise of those powers by the other components of the institution. We agree that the IRP should possess the main structural features set forth in the CCWG Draft Proposal.

- We have alternative proposals that can strengthen the Independent Review Process by defining its core mission more precisely, consolidating references to the IRP's powers in one place in the Bylaws, giving the Board an “override” or “veto” power, exercisable only upon supermajority or unanimous vote, over IRP decisions, and adding several features that will help the IRP develop the institutional weight and institutional power it will need to perform its critical task adequately.

- The Substantive Standard of IRP Review. Like the Board of Directors, the IRP will function most effectively if its powers are confined narrowly to its core mission, which in the IRP’s case is to determine whether ICANN is complying with the provisions of the Bylaws – including, importantly, the provisions regarding ICANN’s Mission and powers. The IRP should not become a general-purpose catch-all institution to which anyone who might claim that ICANN has acted badly towards them, or has harmed them in some way, has recourse.  Defining the IRP’s mandate too broadly will embroil the institution in any number of ordinary commercial disputes, distracting and deflecting it from its core mission.  ICANN, of course, is and will continue to be enmeshed in a complex web of contracts between and among registries, registrars, and registrants, and the disputes that inevitably arise concerning performance under those contracts are already subject to commercial arbitration (see, e.g. , § 5.2 of the Base Registry Agreement); we have no reason to believe that that system has been inadequate for that task, or that the IRP is meant to supplant or augment it. The IRP’s powers need to be carefully delineated so that it excludes this class of disputes from the scope of its jurisdiction. 

- the power that the IRP does require to achieve its narrow but critical mission – the power to overturn and invalidate Board action that is inconsistent with the Bylaws – is itself subject to abuse, and the IRP’s exercise of its powers, like the corresponding powers of the Board, needs to be kept within narrow constraints.  As is the case with the Board’s powers, a careful and precise enumeration of the IRP’s power will help to achieve that goal. 

- We believe the language in the CCWG Draft Proposal can be tightened up considerably in this regard.  At various points in the draft, the IRP’s duties are deemed to include resolving the question of “whether ICANN is staying within its limited technical Mission”; whether it is “abiding by policies adopted by the multistakeholder community”; whether “in carrying out its Mission and applying consensus policies it is acting in accordance with ICANN’s Articles of Incorporation and/or Bylaws, including commitments spelled out in the proposed Statement of Mission, Commitments & Core Values, or ICANN policies”; whether “in carrying out that Mission, [it] acts in a manner that respects community-agreed fundamental rights, freedoms, and values”; whether its actions “violate community-approved standards of behavior, including violations of established ICANN policies”; and whether it has complied with “policies established to hold ICANN accountable to legal requirements applicable to non-profit corporate and charitable organizations.” We believe these formulations are much broader than necessary for the IRP to serve its “constitutional” function.  We would propose consolidating references to the IRP’s powers in one place in the Bylaws, and stating them more directly:

The Independent Review Panel shall have the power to determine whether ICANN has acted (or has failed to act) in violation of these Bylaws.  Any person materially harmed by action or inaction by ICANN in violation of these Bylaws may file a claim with the IRP to remedy that violation.

- Binding decision . The CCWG Draft Proposal states that “the intent is that IRP decisions should be binding on ICANN.” The draft is not entirely clear, however, as to how that will be accomplished, and there appears to be some confusion about how that principle will be implemented in the Bylaws and how it will operate in practice.

In particular, there appears to be an open question as to whether, or the extent to which, California law permits the Board to agree, in advance and via a specific provision in the Bylaws, to comply with the decisions of an Independent Review Panel.  The Proposal notes that that “the IRP could not address matters that are so material to the Board that it would undermine its statutory obligations and fiduciary roles to allow the IRP to bind the Board ,” [2] without any indication of the matters that might fall into that category (and therefore outside of IRP review/control).  The legal memorandum attached to the CCWG Draft Proposal has a discussion of this question, though it does not provide much clarity on this question.

- Here as well there is no explanation of what powers are part of the Board’s “core powers” that would not be subject to independent review.  It is, potentially, a very troubling restriction on the IRP’s ability to carry out its mission, which is to help ensure that the Board does not exercise any of its powers beyond the confines set forth in the Bylaws.  An IRP that cannot examine the exercise of the Board’s “core powers” might – depending on the definition of “core powers” – be an ineffective and toothless check on improper Board action.  It is very difficult, without a better understanding of this constraint, to evaluate the likely effectiveness of the IRP as an accountability mechanism, and we strongly urge the CCWG to obtain additional clarification from counsel on this question. 

We also would propose the following, as a possible means of implementing the principle that IRP decisions bind the corporation without running afoul of the requirement that “all corporate powers shall be exercised by or under the direction of the Board”:  In addition to an explicit requirement that that the Board shall comply with IRP decisions, giving the Board the power to refuse to comply – an “override,” or “veto,” power – exercisable only upon supermajority (or even unanimous) action by the Board.  This has a number of features to recommend it.  It could serve as a useful check on the IRP’s powers and the possibility of “rogue decision-making” by the IRP; the combination of a high voting threshold (which could be as high as 100%) and the representation of the various ICANN communities on the Board will help ensure that resisting an IRP directive in any particular matter has broad community support; and it would appear to comply with the requirement that the Board retains direction and control over corporate action, insofar as it retains the ability to “decide for itself” whether or not to comply with IRP directives (though the non-compliance option is one that can only be exercised by a extraordinary Board action).

- Independence, Transparency, and Precedent. We are concerned that in a number of crucial features, the IRP, as described in the CCWG Draft Proposal, appears to be modeled along the lines of ordinary commercial arbitration. The IRP’s mission is far removed from ordinary commercial arbitration, and will require a different structure, modeled more closely on the constitutional courts common in civil law countries – institutions whose task, like the IRP’s, is to determine whether the terms and limitations set forth in the relevant foundational documents have been complied with - than on commercial arbitration systems.  This is a task that ordinary commercial arbitrators are never called upon to undertake.

- There are many reasons why ICANN’s existing IRP process – which has been a feature of ICANN’s structure since its inception – has failed, in the eyes of virtually all observers, to serve as an effective check on ICANN’s powers. The Bylaw modification, adopted in 2012, authorizing the IRP to evaluate only whether a narrow class of Board procedural misconduct had occurred – “did the Board act without conflict of interest in taking its decision? did the Board exercise due diligence and care? did the Board members exercise independent judgment in taking the decision?” – rather than applying a substantive standard (did the Board act in compliance with all provisions of the Bylaws, including the substantive restrictions on its power?) certainly played a very significant part. 

- But we would suggest that an additional cause of the failure of the process is that it, too, has been modeled far too closely on ordinary commercial arbitration.  The IRP process is, in its current configuration, outsourced to a third party “international dispute resolution provider” chosen by the ICANN Board – currently, the International Center for the Settlement of Investment Disputes (ICSID)), an institution with long-standing experience in providing arbitration and mediation services for complex international commercial disputes.  The outside provider has the responsibility for choosing the members of the IRP “standing panel”, designating a “Chair” of the Standing Panel, determining the size (1-person or 3-person) of the IRP panel that will hear any individual dispute, and assigning individual members of the standing panel serve as panelists.

This is a familiar arbitration mechanism that functions quite effectively for ordinary commercial disputes.  But it is ill-designed for the fundamental purpose the IRP is meant to serve.  It is not reasonable to give a single arbitrator, chosen by a third-party provider, who may have little or no prior contact with or understanding of the complex world of DNS policy-making, who may never again be called upon to examine any aspect of ICANN’s operations or to consider its role in the management of DNS resources, who has no body of prior precedential decisions to use as a guide to decision-making and little or no incentive to add to the stock of well-reasoned and persuasive decisions, the power to decide (with no appeal of the decision permitted) that Board action contravened fundamental principles embodied in the corporation’s foundational documents and was therefore invalid.  The Board’s reluctance, over the years, to allow this process to exercise that power is, in a sense, entirely understandable.

- Unlike an ordinary “standing panel” of available arbitrators, the IRP “Standing Panel” needs to be an independent institution , with institutional weight, institu