Background:
Following an initial conversation between the co-Chairs of the Cross Community Working Group on Naming Related Functions (CWG-Stewardship) and the co-Chairs of the Drafting Team for the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), both agreed that there was a clear linkage between the work of the two groups. Based on this conversation, the co-chairs of both groups agreed that it would be valuable for the CWG-Stewardship to provide the CCWG-Accountability with a list of issues it identified during its deliberations where the work of both group may overlap.
Since this discussion, the two groups have been regularly liaising and co-ordinating their work.
1) Letter from CWG-Stewardship (10 December)
On 10 December 2014, the CWG-Stewardship co-Chairs delivered a letter to the co-Chairs of the CCWG-Accountability containing three elements that may be specifically relevant to the work of the CCWG-Accountability as follows:
- Section 3.3 – “Independent Review of Board Actions – the CWG-Stewardship may propose that this becomes binding under certain circumstances directly related to IANA; no other changes proposed”. If this were to be included in the final proposal implementation would require a change to the ICANN Bylaws regarding the IRP.
- Section 3.4.3.2 - Independent certification for delegation and re-delegation requests. This is still under consideration by the CWG-Stewardship but would be a replacement for the authorization function for all changes to the Root Zone or its WHOIS Database currently performed by the NTIA. The replacement mechanism would have gTLD requests for delegations and re-delegations authorized by an independent third party and its decision on these matters would be binding on ICANN/IANA. This would probably require modifications to the ICANN Bylaws.
- Section 3.4.3.3 - Independent Appeals Panel – The CWG-Stewardship is proposing that an independent review panel be set up to deal with contested changes to the Root Zone or its WHOIS Database. Although discussions are still ongoing as to the specifics of such a proposal it is generally agreed that such a mechanism should be part of the final proposal and that its decisions would be binding. As such this would also require changes to the ICANN Bylaws.
In addition to these elements the CWG in its public consultation from 1-23 December 2014, requested input on an alternate "ICANN only" proposal that is being considered by a number of participants in the CWG-Stewardship:
Input on a specific (ICANN) alternative solution
The CWG is also seeking input on a specific alternative option which has been raised within the CWG which envisages all NTIA responsibilities being transferred to ICANN. This option would require an increase in ICANN accountability to its constituent communities and require the adoption of binding arbitration mechanisms (such recommendations may be beyond the scope of the CWG and probably rest with the CCWG-Accountability or other groups). Note that this integrated option would impact the future ease or ability to tender for another IANA Functions Operator (other than ICANN). However, to ensure there has been a proper consideration of this option, the CWG, would appreciate input from the community regarding support, or not, for this concept.
If this solution were to go forward it would likely require significant changes to ICANN’s accountability mechanisms and therefore the ICANN Bylaws to ensure that e.g. the ICANN Board could not overrule the MRT in matters related to the performance of IANA Functions or at the very least can be effectively sanctioned for doing so.
2) Response to CWG-Stewardship (19 December)
As an initial response to this letter, on 19 December 2014, the co-Chairs of the CCWG thanked the CWG for their comments and assured that the points made were shared with the group and a preliminary response would be returned in the second half of January.
3) Response to CWG-Stewardship (8 January 2015)
On 08 January 2015, the CCWG-Accountability co-Chairs delivered a high level statement to the co-Chairs of the CWG-Stewardship:
The CCWG-Accountability noted that a significant number of contributions during the two Public Comments on Enhancing ICANN Accountability called for the implementation of independent mechanisms enabling to review and, when appropriate, redress, decisions from the ICANN Board of Directors. It was often noted that these mechanisms should be in place or committed to before the IANA Stewardship Transition takes place. The CCWG-Accountability is therefore considering addressing this need in its Work Stream 1 (WS1). Unless the CWG-Stewardship specifies otherwise, Board decisions that are directly related to IANA Functions could be added to the remit of such independent mechanisms for the review and redress of decisions of the ICANN Board of Directors, which the CCWG-Accountability may address in Work Stream 1. Other issues that were brought up by many and could qualify for being in the remit of such mechanism were decisions broadening or altering ICANN’s mandate as well as recalling one or multiple ICANN Board members. Please note that the legal nature, composition, and specific mandate of this mechanism are yet to be determined.
The CCWG-Accountability acknowledged the expectation for certain internal and / or external review and / or appeals processes to be implemented or committed to prior to the transition and will consider these as part of its work.
Further, they added assurance that the CCWG-Accountability output will adhere to the following considerations;
- Any proposal will address the concern on to whom should ICANN be held accountable.
- Any proposal will address the concern on what should ICANN be held accountable for.
- Any proposal will address the concern on how ICANN or its Board of Directors should be held accountable.
Please note that these statements reflect the current status of deliberations of the CCWG-Accountability and might be subject to change for the reasons mentioned above and further input from the community.
