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Blogs 

 

Most Recent Blog Update 

CCWG-Accountability: On the road to Marrakech, Part 2

Posted on February 12, 2016 by Aarti Bhavana

 

Recommendations 6 & 12

In the weeks leading up to the ICANN 55 Meeting at Marrakech, we are doing a series of posts tracking the CCWG-Accountability process. The first post in this series, analysing Recommendations 1 & 2, can be read here. This post examines Recommendation #6: Reaffirming ICANN’s Commitment to Respect Internationally Recognised Human Rights and Recommendation #12: Committing to Further Accountability Work in Work Stream 2. It also studies the process of developments in these recommendations, since the 3rd draft proposal was opened for public comments.

Recommendation #6: Reaffirming ICANN’s Commitment to Respect Internationally Recognized Human Rights

The 3rd draft proposal recommended reaffirming ICANN’s commitment to human rights through two bylaws: one, a draft Bylaw which would clarify ICANN’s obligation to respect internationally recognised human rights, and the other, an interim bylaw that would commit to the development of a framework of interpretation for the implementation of the draft bylaw.  However, this approach was met with some resistance.

a. Human Rights and the ICANN Board

In its comments, the Board stated that while it is ‘committed to upholding human rights’, it disagreed with the staged approach proposed in the 3rd draft proposal. It feared that theproposed language could be used to expand ICANN’s obligations and increase the risk of unintended consequences such initiating the Independent Review Process (IRP) or litigation on human rights grounds. Leaving issues open until the approval of the Framework of Interpretation (FOI) could result in courts and binding IRP decisions creating precedent for what ICANN’s rights commitments are. A rather surprising aspect of the Board’s comments was the reference to evaluate this recommendation on grounds of Global Public Interest,[1] if its objections were not addressed.

The Board suggested holding off on a human rights bylaw until the FOI was approved. It also recommended developing a Human Rights Statement with the community, in a top-down manner.[2] Crucial details such as whether a human rights commitment should be included in the bylaws or elsewhere would be discussed in Work Stream 2.

b. A shot at a compromise

Shortly after receiving the Board’s comments, the CCWG-Accountability attempted to understand the objections made, particularly with reference to Global Public Interest. Some viewed the Board’s response as a way to strong-arm the CCWG into a position acceptable by it, while others worked on ways to address these concerns without altering too much of the original text. Further, contrary to the Board’s position, the CCWG lawyers clarified that the language in the 3rd draft proposal would not create additional legal risks.

Against the backdrop of these discussions, the calls[3] set out three ways of moving forward:

  1. Continuing with human rights commitment in Work Stream1 (roughly the 3rd draft proposal approach),
  2. Deferring the discussion to Work Stream 2 (the Board’s approach), and
  3. A compromise position of including a bylaw, which would take effect only after the FOI was approved (dormant bylaw).

In an effort towards cooperation, the co-chairs invited members and participants to consider option C (dormant bylaw), as it was a compromise between the Board’s position and the language set out in the 3rd draft. This was met with some disagreement, as it was felt that CCWG and WP4 had together agreed on option A when it was included in the 3rd draft proposal, and this work should not be disregarded.

In response to the Board’s objections and in the midst of much confusion over the options, it was decided that 3rd draft proposal language will be modified to make the bylaw dormant until FOI is approved. This would address the Board’s concerns over IRP and litigation risks as well, since the bylaw would not be effective until the framework of interpretation was adopted. There was consensus for the compromise option. However, the Board remained steadfast in its position of supporting option B, evoking quite a bit of frustration within the CCWG community. It was decided that unless the Board came up with a bylaw statement acceptable to the community, this compromise language would be finalised.

c. Necessity of inclusion of the HR bylaw

While comments received during the public comments period were largely supportive of the inclusion of human rights, few raised concerns about including a human rights commitment prior to the completion of the Framework of Interpretation, and some felt that this matter should be pushed to Work Stream 2. Another issue raised by a few was that a human rights commitment didn’t belong in the bylaws.

The large majority in favour of including the human rights commitment explained that in the absence of the NTIA oversight, there was no backstop for human rights obligations unless ICANN made such a commitment. This commitment was considered essential to satisfy the NTIA criteria of maintaining the openness of the internet. It was also felt necessary to include this commitment in Work Stream1 as an assurance that the work would continue in Work Stream 2.

Amidst much relief, the Board shifted its position and proposed bylaw language similar to the text agreed by the CCWG-Accountability. After a final call discussing this proposed language, CCWG accepted the Board’s proposal and the recommendation has been finalized. Final drafting is left to the lawyers, and the CCWG breathes a collective sigh of relief as the human rights commitment has been secured.

Recommendation #12: Committing to Further Accountability Work in Work Stream 2

The 3rd draft proposal proposed certain accountability topics for Work Stream 2- a timeline that extends beyond the IANA transition. These topics included mechanisms to enhance ICANN’s transparency, improve diversity at all levels, jurisdiction and accountability, developing a framework of interpretation for the bylaw on human rights, and enhancing the Ombudsman’s role and function. It also proposed an interim bylaw committing ICANN towards implementing CCWG-Accountability Work Stream 2 recommendations.

In its comments, the Board stated its concern over the interim bylaw requiring the Board to commit to implement the CCWG-Accountability Work Stream 2 recommendations in full, as it was felt that this commitment couldn’t be made without evaluating the recommendations first. It was also made it clear that while it supports Work Stream 2 efforts, this was limited only to the extent of the listed topics.

The discussion over this recommendation was fairly short,[4] and it was the first to befinalised. The Board’s concerns were addressed through modifications to the Recommendation. Clarifications were made to the interim bylaw, ensuring that the Board’s obligations would be identical to those in Work Stream 1. The list of topics to be dealt with in Work Stream 2 has been limited to those listed. It was clarified that Work Stream 2 would follow rules similar to Work Stream 1: consensus recommendations would be endorsed by chartering organisations, and if 2/3rds of the Board agrees that a recommendation is not in the global public interest, it would have the option to initiate a special dialogue with the CCWG-Accountability.

Additionally, enhancing Ombudsman’s role and functions has been confirmed and elaborated for Work Stream 2, in response to public comments. Transparency of board deliberations have also been added, as suggested by NCSG in its comments. Finally, appropriate modifications are to be made to portions concerning human rights, keeping with the changes made to Recommendation #6, as detailed above.

—

[1] In its Resolution in October 2014, the Board committed to following certain principles when considering CCWG-Accountability recommendations. One such principle was over Global Public Interest: if, by agreement of 2/3rds of the Board, it was decided that a particular recommendation was not in the global public interest, the Board would initiate a special dialogue with the CCWG over its concerns.

[2] The Cross-Community Working Party on ICANN’s Corporate Social Responsibility to protect Human Rights (CCWP-HR) is currently working on providing inputs for this human rights statement, in the hopes that it will be developed through a bottom-up multistakeholder process.

[3] This recommendation was discussed in calls #76, #78, #80 and #83.

Date:  10 May 2016
Original Post:  https://www.icann.org/news/blog/iana-stewardship-transition-planning-update-volume-2

 

IANA Stewardship Transition Planning Update (Volume 2)
 

Root Zone Management

The Root Zone Management implementation planning track contains projects relating to changes to the Root Zone Management System (RZMS) to remove NTIA's authorization role, parallel testing of the production and parallel test RZMS systems; and the development, and execution of an agreement with Verisign as the root zone maintainer.

Root Zone Management System (RZMS) Parallel Testing

Status update:

It has been one month since the start of the parallel testing period and everything continues to go smoothly. Click here to view Verisign’s daily Parallel Operations Root Zone Management System Comparison Reports of all the root zone files generated.

In addition to Verisign’s daily reports, ICANN has posted the first of three Monthly Reports on RZMS Parallel Testing Progress during the testing period. The report is available on ICANN’s dedicated Parallel Testing landing page.

In the event that no unexplained differences in root zone files are identified between the production RZMS and the parallel test RZMS, the testing period will end successfully on 5 July 2016.

Documents/announcements posted:

Mailing list:

  • None.

Root Zone Maintainer Agreement (RZMA)

Status update:

Discussions between ICANN and Verisign to finalize details of the RZMA are continuing. The two parties have coalesced around many key elements of the agreement and hope to have a final draft by the end of the month.

Once the draft RZMA is finalized it will be made publicly available on icann.org.

Documents/announcements posted:

  • None.

Mailing list(s):

  • None.

 

Stewardship Transition

The Stewardship Transition planning track contains projects to prepare relationship documentation with the operational communities, creation of a Post-Transition IANA (PTI) entity, establishment of a Customer Standing Committee (CSC) and a Root Zone Evolution Review Committee (RZERC), operationalizing the IANA customer service escalation mechanisms and Service Level Agreements (SLAs).

Post-Transition IANA (PTI)

Status update:

ICANN has been working with the Implementation Oversight Task Force (IOTF) on various activities relating to the PTI. Summaries of PTI formation documents (Bylaws, articles of incorporation) as well as the conflict of interest policy have been shared with the IOTF.  ICANN continues to work with the IOTF to finalize the process and timing of review for these documents as well as for the ICANN-PTI contracts.

Documents/announcements posted this week:

  • None.

Mailing list(s):

Customer Standing Committee (CSC)

Status update:

In the CWG-Stewardship proposal, the Domain Names community recommended that a CSC be formed to replace NTIA’s role as it relates to monitoring performance of the IANA naming function. The composition of the CSC will include members and liaisons from all ICANN Supporting Organizations(SOs) and Advisory Committees (ACs).

A Request for Appointment is expected to be sent to SOs and ACs this month to appoint members and liaisons to the CSC using their internal processes.

Documents/announcements posted this week:

  • None.

Mailing list(s):

Root Zone Evolution Review Committee (RZERC)

Status update:

The RZERC Charter (v4) was circulated to the CWG-Stewardship on 4 May 2016. The CWG-Stewardship will discuss the Charter on their 12 May 2016 call, and members and participants of the group are encouraged to provide any comment by 23:59 UTC on 17 May 2016.

Following analysis and incorporation of any input received from the CWG-Stewardship, ICANN will post the Charter for a 30-day public comment period.

Documents/announcements:

Mailing list(s):

 

Accountability Enhancements

The Accountability Enhancements track contains plans to implement enhancements to ICANN’s Independent Review and Reconsideration Request processes, to update ICANN’s governance documents, and to operationalize new community powers defined by the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability).

ICANN's Bylaws

Status update:

ICANN and the community are in the middle of a 30-day public comment period on the new draft ICANNBylaws. Any interested party can submit comments to the public comment forum until 23:59 UTC on 21 May 2016. 

Adoption of the new Bylaws by the ICANN Board is anticipated for on or around 27 May 2016. Once new ICANN Bylaws have been adopted, ICANN will notify NTIA so they can complete their anticipated 90-day review of the IANA Stewardship Transition Proposal.

Documents/announcements:

Mailing list(s):

[4] This recommendation was discussed in calls #74 and #76.