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All other consensus items could be in Work Stream 2, provided the mechanisms in WS1 are adequate to force implementation of WS2 items despite resistance from ICANN management and board.
Re the ATRT reference column. Very few of the specific recommendations in this list have a corresponding entry in ATRT1 or ATRT2 documentation. In some cases the topic was discussed but with different outcome. Also ATRT Recommendation 5 and 9 recommended several ongoing activities related to improving the appeals, transparency and ombudsman activities, that did not mention specific remedies, but rather recommended that a community wide process be convened to discuss those issues in detail. The Staff summary of prveious comments was more general and this on that table it was easier to indicate the related area of the ATRT that dealt with that kind of issue. It is recommended that both this table and Issues Identified During Public Comment be consulted for a fuller picture.
1. Mechanisms giving the ICANN community ultimate authority over the ICANN corporation. Most of these are initially designated as WS1, since community Members need the leverage of IANA transition to obtain these Bylaws changes. | |||
Accountability Suggestions from public comments and posts | Supported by | WS | ATRTRef. [2] |
Community Members as ultimate authority[1]. Amend ICANN bylaws to recognize permanent cross-community Members (ALAC, ccNSO, GAC, SSAC, NRO, RSSAC, IETF, ASO, and each Constituency) with authority in these specific areas: | GNSO Joint Statement, BC, ITIC, B.Carpenter, CNNIC, Siva, TPI, Verizon, NCSG, Just Net, E.Morris, Izumi | WS1 | - |
Appoint members of Affirmation review teams | BC, Spain, Avri Doria | WS1 | |
Review any board decision. Non-approval would send decision back to bottom-up policy development process. | BC, ITIC, Heritage, SIIA, EC, C. Gutiérrez | WS1 | - |
[Alt:] Refer any board decision to an independent review panel. The CWG believes this should be binding for IANA functions. | BC, ITIC, Heritage, SIIA, EC, Mueller, CWG | WS1 | (ATRT2 9.2) |
Approve changes to ICANN bylaws or Articles, with 2/3 majority | BC, ITIC, SIIA, Hutty | WS1 | - |
Approve annual proposed ICANN budget [vote threshold?] | BC, ITIC, USCIB | WS1 | - |
Recall one or all ICANN Board members [vote threshold?] | BC, Avri Doria, NCSG | WS1 | - |
Bring the Affirmation of Commitments (incl the Reviews) into the ICANN bylaws, with these amendments: | BC, USCIB, SIIA, Verizon, Morris | WS1 | - |
Affirmation Review Teams get access to all internal documents | Doria, MPAA, CIS, Morris | WS2 | |
Affirmation Accountability & Transparency Review Team could recommend sunset of original reviews and create new reviews | BC, USCIB | WS2 | |
Change Affirmation reviews from “in the public interest” to “for protection and advance of human rights and internet freedoms” | NCSG, Robin Gross [Opposition noted] | WS2 | - |
Change bylaws for Reconsideration Process: trigger when board acts arbitrarily or capriciously; make decisions subject to Independent Review | WS1 | - | |
Create a contract between ICANN and Registries & Registrars, with Registrants as 3rd party beneficiaries. Contract lets ICANN impose rules on others only when supported by consensus of affected parties. Disputes go to independent arbitration panel that could issue binding decisions. | David Johnson | WS1 | - |
Replace Affirmation with accountability contract between ICANN and ‘Contract Co.’ | Guru Acharya | WS1
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Independent certification for delegation & re-delegation requests | CWG | WS1 | - |
Independent Appeals Panel for contested root zone changes & WHOIS | CWG | WS1 | - |
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Accountability Suggestions from public comments and posts | Supported by | WS | ATRT Ref. |
Require ICANN to operate under rule of law in jurisdictions that support effective redress | MPAA [opposition noted] | WS1 | |
Require one-third of board members to devote full time to ICANN | Spain | WS2 | - |
Separate policy functions from root zone management functions | Heritage, Google, USCIB, Mueller, Verizon | WS1 | - |
Allow NomCom to select and retain Ombudsman | Morris | WS2 | - |
Have Transparency International conduct audit of all SOs and ACs | Morris [opposition noted] | WS2 | - |
Severely limit ICANN ability to deny disclosure/transparency requests | SIIA, Siva | WS2 | (ATRT1 7.1, 7.2, ATRT2 5) |
ICANN to undergo annual audit for transparency and achievement of goals | ITIC, Heritage, Google, Spain | WS2 | Berkman 2010 |
Make all board deliberations transparent (with minimal redaction) | Siva, Robin Gross, Internet Society of China, BC | WS2 | (ATRT2 9.4) |
Require all Supporting Organizations, including Numbers and Protocol entities, to have accountability and transparency mechanisms aligned to those of ICANN | Morris, Fiona Asonga, Carlos Gutiérrez | WS2 | - |
Improve mechanism to obtain transparency of ICANN documents (e.g. FOIA) | USCIB, CIS, Verizon | WS2 | (ATRT2 9.4) |
Establish an Open Data Policy and develop an Open Data action plan, where ICANN documents are open by default. | ITIF, W. Donkor | WS2 | (ATRT2 9.4) |
Equal footing of stakeholders: rethink the separation of SOs and ACs. At least Users (if represented in ALAC) and Governments (GAC) deserve equal footing with commercial interests in policy making. | Carlos Gutiérrez | WS2 | - |
Equal footing in policymaking: differences between contracted and non-contracted parties are blurred with new gTLDs. The representativeness of non-commercial Stakeholders, vis a vis ALAC and GAC remains a question. Academic accreditation does not seem related to the issues discussed in the IANA Stewardship transition and some of the newer PDPs. If there is equal footing, the GNSO houses have to be rebalanced as per above | Carlos Gutiérrez | WS2 | - |
Structural and/or Organizational separation between a) Policy Making, b) Operations and c) Compliance functions. | Carlos Gutiérrez | WS2 | - |
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[1] California Nonprofit Corporation Law expressly authorizes non-profit organizations to have Members with ultimate authority to control the organization. Under Cal. Corp. Code § 5310 “A corporation may admit persons to Membership, as provided in its Articles or Bylaws”. California law recognizes that Members may reserve the right to approve nonprofit actions and oversee the Board of Directors. (§ 5210) A Board of Directors’ authority to conduct the affairs of a nonprofit may be limited by the rights of the Members specified in the law or in the nonprofit corporation’s Articles or Bylaws.
Although ICANN does not currently have Members under Article XVII of its Bylaws, ICANN’s Articles of Incorporation expressly anticipate that ICANN may have Members: “These Articles may be amended by the affirmative of at least two-thirds of the directors of the Corporation. When the Corporation has Members, amendments must be ratified by a two-thirds (2/3) majority of the Members voting on any proposed amendment.” (Section 9)
[ 2 ] Regarding the ATRT reference column. Very few of the specific recommendations in this list have a corresponding entry in ATRT1 or ATRT2 documentation. In some cases the topic was discussed but with different outcome. Also ATRT Recommendation 5 and 9 recommended several ongoing activities related to improving the appeals, transparency and ombudsman activities, that did not mention specific remedies, but rather recommended that a community wide process be convened to discuss those issues in detail. The Staff summary of prveious comments was more general and this on that table it was easier to indicate the related area of the ATRT that dealt with that kind of issue. It is recommended that both this table and Issues Identified During Public Comment be consulted for a fuller picture.–Avri Doria
Links to sources cited in the table:
GNSO Joint Statement, London, 26-Jun-2014
Staff summary of accountability proposals taken from public comments, 15-Oct-2014
ITIF post of Key Principles, 26-Jul-2014
Public comments on enhancing ICANN Accountability, 7-May thru 30-Jul, 2014
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and Stress Tests, 27-May-2014
Google comments, 28-May-2014
SIIA comments, 30-May-2014
Heritage Foundation comments, 20-Jun-2014
Public comments on enhancing ICANN Accountability, 6-Sep thru 13-Oct, 2014
ITIC Principles, 27-Sep-2014
CDT Endorsement of ITIC principles, 4-Aug-2014
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13-Sep-2014
Op-Ed from ITIF regarding permanent cross-community group as ultimate authority, 17-Dec-2014
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by David Johnson, 19-Dec-2014
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[1] California Nonprofit Corporation Law expressly authorizes non-profit organizations to have Members with ultimate authority to control the organization. Under Cal. Corp. Code § 5310 “A corporation may admit persons to Membership, as provided in its Articles or Bylaws”. California law recognizes that Members may reserve the right to approve nonprofit actions and oversee the Board of Directors. (§ 5210) A Board of Directors’ authority to conduct the affairs of a nonprofit may be limited by the rights of the Members specified in the law or in the nonprofit corporation’s Articles or Bylaws.
Although ICANN does not currently have Members under Article XVII of its Bylaws, ICANN’s Articles of Incorporation expressly anticipate that ICANN may have Members: “These Articles may be amended by the affirmative of at least two-thirds of the directors of the Corporation. When the Corporation has Members, amendments must be ratified by a two-thirds (2/3) majority of the Members voting on any proposed amendment.” (Section 9)