Lawyers' Analysis Throws Cold Water on ICANN Accountability Plan

By Joseph Wright

Aug. 28 — Proposed accountability enhancements to a key domain name system oversight body may have a destabilizing effect on the organization, according to an impact analysis performed by the Internet Corporation for Assigned Names and Numbers' external counsel.

The analysis by Jones Day LLP asserted that it would be “extremely disrupting and potentially destabilizing to ICANN” if a community proposal to create a mechanism for removing the entire ICANN board of directors were to be adopted. The lawyers also criticized another aspect of the community plan that would permit a proposed community-based statutory corporate member to unilaterally amend ICANN bylaws.

While ICANN's board didn't formally endorse the impact analysis, submitting it to a critical public comment period suggests the board is seeking to moderate a proposal that would write new checks and balances on board authority into the organization's bylaws. Further, Jones Day's assertion that “there is still much work to be done” on key aspects of the proposal throws into question the timetable for the proposal, which must be approved by all relevant stakeholder groups in late October in order to keep the proposed transition of U.S. government oversight of technical Internet functions on schedule for fall 2016.

Last year the National Telecommunications and Information Administration announced its intention to relinquish stewardship of key domain name and number management duties to the global multistakeholder community at the end of its current contract with ICANN. NTIA announced Aug. 17 that it will extend its contract with ICANN until Sept. 30, 2016, in order to allow time for a comprehensive transition proposal and an accompanying accountability proposal to be developed and to gain consensus support.

ICANN's board submitted the impact analysis late Aug. 27 as a public comment on an accountability enhancement plan. That second draft proposal was released Aug. 3 by the working group tasked with identifying accountability enhancements necessary to ensure a smooth transition away from U.S. government oversight.

According to a published e-mail from ICANN board member Bruce Tonkin to the accountability group's co-chairs, “The Board does not endorse this advice — but is simply posting it so that we are transparent about information we have received.”

Independent Review, Vetoes Problematic

ICANN's law firm analyzed each key component of the current proposal against current practices, describing its motivation, potential impact, implementation schedule and possible alternatives. The potential alternatives invariably suggested either maintaining current practices or scaling back the proposal. For instance, it suggested that rather than creating a statutory member model under California corporate law, a designator model with fewer powers could be substituted.

ICANN's lawyers also questioned the proposed extent of modifications to the body's judicial arm, the independent review process. They suggested that making independent review decisions fully binding on ICANN's board could infringe upon its fiduciary obligations, and that language to the contrary in the proposal lacks clarity.

The lawyers also said that proposed community vetoes for budgets, strategic plans and bylaws changes could increase the duration of each process, and repeated vetoes could lead to organizational instability. They also said the provision for a “caretaker” budget, in the event of gridlock, based on the prior year's budget didn't account for the first year of a proposed new ICANN subsidiary that doesn't have a current budget.

The board said it will take the impact analysis and conversations with the working group into account when submitting its final comment before the Sept. 12 deadline. The board already signaled certain concerns about the plan's level of detail, timeframes and alterations to ICANN's delicate balance of stakeholder power in preliminary comments published Aug. 21.

To contact the reporter on this story: Joseph Wright in Washington at jwright@bna.com

To contact the editor responsible for this story: Thomas O'Toole at totoole@bna.com

The Jones Day impact analysis can be found at: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdf5bBqNGP8Fj.pdf