In my previous post, I briefly summarised the progress made by Arun Mohan Sukumar heads the Cyber Initiative at the Observer Research Foundation, New Delhi, and is a participant in the Cross-Community Working Group on Enhancing ICANN Accountability. You can follow him on Twitter@arunmsukumar.

At the ICANN 54 meeting in Dublin last week, the IANA transition process reached a crucial breakthrough: the group tasked with recommending measures to elicit accountability from ICANN broadly agreed on the legal vehicle to enforce them. There was a sharp difference of views between the ICANN Board of Directors and theCross-Community Working Group on Enhancing ICANN Accountability (CCWG) in the days leading up to the meeting. Although the CCWG proposed turning ICANN into a membership organization that would allow the ICANN community to remove any or all of the board and modify the corporation’s budget, the Board argued such a “radical” restructuring could potentially destabilise its governance. The Dublin meeting reached a modus vivendi, with both sides agreeing to a proposal that will largely mirror ICANN’s existing structure, while offering additional checks on the Board’s decision-making powers.

The CCWG was created late last year, and its recommendations are one part of the package the U.S. National Telecommunications and Information Administration (NTIA) will consider as part of the IANA transition process. Although the consensus reached in Dublin is good news to make ICANN accountable, there is still one major hurdle to address: managing governments’ relationship with ICANN after the IANA transition.

In March 2015, a sub-group of the CCWG was created to perform stress tests—testing ICANN’s governance mechanisms against crisis scenarios—and provide recommendations. For instance, the CCWG accepted a recommendation that empowers ICANN’s communities to remove Board members and block ICANN’s annual budget if ICANN were to be engulfed by a major corruption scandal like the one that affected FIFA. Among the thirty-six stress tests conceived by the sub-group was a scenario where some governments could potentially take control of ICANN. The Governmental Advisory Committee (GAC), currently comprising more than 140 countries, has a special relationship vis-à-vis the ICANN Board. Although the GAC’s counsel is not binding, the ICANN Board is required to take such advice into account and “find a mutually acceptable solution” on public policy matters. However, the GAC offers such advice only if there is consensus among governments within the committee. In cases where a small minority of governments objects to the GAC’s advice, those objections are communicated to the Board.

Stress Test 18 envisages a future instance where GAC rules are changed to allow for majority voting. In such a situation, a dominant number of governments could bulldoze their way through the GAC, and demand that the ICANN Board follow its advice. To prevent this, the CCWG suggested ICANN bylaws be changed to make the Board answerable only to GAC advice that is supported by consensus. Given that Stress Test 18 constrains the GAC, it has got governments up in arms and threatens to stall the IANA transition altogether. Several countries, notably Brazil, Spain, Denmark and Argentina, see the proposed modification as unacceptable.

The GAC’s Dublin communiqué indicates the committee is split down the middle: while some prefer GAC advice that reflects consensus, others see Stress Test 18 as intrusive and tampering with the way GAC makes decisions. To complicate matters further, the NTIA has suggested that the U.S. government considers the Stress Test “both appropriate and necessary”. The Chairman of the U.S. Senate Committee on Commerce, Science and Transportation weighed in on the accountability debate ahead of Dublin, stressing in a letter to the ICANN board that “community empowerment over government control” would be the “bedrock of Congressional support” for the IANA transition.

To be sure, the chances of government capture as conceived by the stress test are slender. It is unlikely that the United States, European Union or Brazil is simply going to roll over and allow for changes to the GAC’s operating procedures. Majority voting in the GAC would render it akin to a United Nations committee, a scenario that most countries are keen to avoid. The GAC’s institutional culture is different from that of a conventional inter-governmental body: GAC veterans, unlike their counterparts in New York or Geneva, are well-versed in the multistakeholder policy development process at ICANN. The pulls and pushes of international politics still apply, but as a collective, the GAC has come to accept its limited role in ICANN’s governance.

The issue is controversial because some governments see the U.S. support for Stress Test 18 as a strategy to limit their influence while maintaining its own privileged position. Indeed, the U.S. government could well re-take contractual oversight of IANA functions after the transition is complete. This eventuality is more likely than majority voting at the GAG given that ICANN will continue to be legally rooted in the United States. On the other hand, Stress Test 18 has support from ICANN’s business and civil society stakeholders, because it insulates the corporation from political processes the WSIS+10 review.

Stress Test 18 now threatens to invite the traditional conflict between multistakeholder and intergovernmental processes to ICANN’s turf. While the proposal to modify GAC’s operating principle is well-intentioned, the CCWG should evaluate whether it is trying to fix a system that isn’t broken. It is important that ICANN’s relationship with governments is carefully balanced with other constituencies after the IANA transition, but the GAC already operates under its own system of political checks. As it heads into the final stages of the proposal, the CCWG would do well to assess the real risk of governments capturing ICANN’s policymaking before pushing ahead with Stress Test 18.

Accountability (CCWG-Accountability) in Dublin. This group has had a busy few weeks since then, as they rush to finalise decisions over the draft proposal that will be open to a public comment period, starting on 15th November. Overseveral phone calls, the CCWG-Accountability and the Working Party on Community Enforcement (WP1) within it have worked to further develop what is now known as theDublin Approach. This post analyses the developments made in community enforcement since the meeting in Dublin. While the Dublin Approach was just a recommendation, it has since been discussed and debated until the CCWG made a decision about what exactly would go into the draft proposal. This group is working on a very tight schedule to ensure that the proposal is approved by the Chartering Organizations and sent to the ICANN Board for transmission to the NTIA, all in time for the transition next September. The entire transition process gets held up without a finalised accountability proposal.

One of the biggest differences between the 2nd draft proposal and the Dublin Approach is the preference for the Sole Designator model, which is the reference model that shall be seen in the 3rd draft proposal. A comparison between the membership model and sole designator model can be found here. However, not everyone is sold on this model: the biggest criticism comes from those who think that this model is statutorily weaker, and dilutes the community powers by making it more difficult to enforce them.

The other difference between the 2nd draft proposal and the Dublin Approach lies in the change in decision model from a voting model to a consensus model. This was proposed in Dublin, and has been debated since, especially within WP1. While the 2nd draft proposal recommended a weighted voting system, the Dublin Approach opts for a consensus-based model where each participating Supporting Organisation/Advisory Committee (SO/AC) gets a single voice in the process. As I described in my previous post, the proposed consensus modelgives each SO/AC the opportunity to either support or oppose the exercise of a community power. Only upon meeting the required threshold would it be possible to move to the next step in the Escalation Process. Proponents of this model argue that this system gives greater credence to oppositions from SO/ACs, as more than one opposition would stop the process, irrespective of the number of voices in support, and is therefore different from a voting model. Many nevertheless believe that this is still a voting process, just termed differently.

The change to a consensus model also means that the weighted/fractional voting system proposed in the 2nd draft has been dropped in favour of a single decision system wherein each SO/AC will decide its position internally through a process of its choosing, and express the outcome of this process as its decision. This has been the subject of long debates within WP1, as a single decision essentially means that each participating SO/AC has just one voice in the decision making process. In light of the diversity within each chartering organization, many argue that not factoring in multiple voices would result in tyranny of the majority, and move away from the direction backed by public comments. WP1 did consider the possibility of incorporating split decisions in the consensus system, with several models on the table:

Retaining the split proposed in the second draft proposal (5 votes each for GNSO, ASO, ccNSO, ALAC and GAC and 2 votes each for RSSAC and SSAC)[1];
Giving SOs greater influence than the ACs;
Reduced influence of GAC; and
A new proposal of adopting the board voting structure as the relative decisional weight in the community decision making structure, in order to keep intact the existing power structure (2 for GNSO, ccNSO, ASO, and 1 for ALAC).

However, WP1 ultimately recommended the single decision model to CCWG on the reasoning that a split vote would be too complex for a consensus model. Further, each participating organization has equal decision-rights.

Participating SO/ACs:

Since SSAC announced that it does not wish to participate in the decision making process, but retain an advisory role, it cannot be forced to participate. It is anticipated that RSSAC will follow suit, but it hasn’t made an announcement either way. Should it choose to opt out as well, these two ACs can advice other SO/ACs in the Community Forum. GAC has made it clear that it wants to retain the right to opt in. Therefore, it is expected that GNSO, ASO, ccNSO, ALAC and GAC will participate in the decision making consensus process, with each having an equal say. However, each organization has the right to participate or not participate in any decision, the process for which will be laid out in the proposal.

Potential issues going forward:

The Third Draft Proposal shall be opened for public comments at the same time as it is submitted to the Chartering Organizations for initial feedback. Concerns have been raised about this:

Since the 3rd proposal is significantly different from the previous one, there is a chance that the public does not support the changes. At this point, even if the SO/ACs approve it, the proposal would have to be reworked to address the concerns raised in the comment period.
The Chartering Organizations have the option of rejecting portions of the proposal. In such a situation, they must convey in writing the reasons for such rejection, and the Co-chairs of the CCWG have the option of developing a supplemental proposal to address these concerns. This has the potential to delay the entire timeline, as the supplemental proposal could again be opened to a public comment period. However, In order to avoid this at a later stage, CCWG has been working close with the Chartering Organisations, so their concerns can be addressed at the public level, before the draft is finalised. It must be remembered though, that the CCWG charter does not require unanimous approval of the Chartering Organisations in order to send the proposal to the Board.

With developments taking place on an almost-everyday basis, these are interesting times for ICANN. CCWG shall open the comment period to the public for 35 days, starting from the 15th of November.

[1] Generic Names Supporting Organisation (GNSO)

Adress Supporting Organisation (ASO)

Country Code Names Supporting Organisation (ccNSO)

At-Large Advisory Committee (ALAC)

Governmental Advisory Committee (GAC)

Root Server System Advisory Committee (RSSAC)

Security and Stability Advisory Committee (SSAC)

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