Use Our Plan Or Delay Transition: ICANN Board

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By Joseph Wright

Sept. 14 — The transition of U.S. stewardship over key technical domain name system functions should be delayed to allow for a test period if Internet community-proposed ICANN accountability enhancements are adopted, ICANN's board of directors said in comments released late Sept. 11.

The board's views, and hesitations expressed by other key stakeholders about governments' role post-transition and ICANN's contractual compliance regime, suggest that the Sept. 2016 timeline widely expected for the transition is in serious jeopardy, as it hinged on widespread stakeholder approval of the accountability plan by late October. A separate, detailed IANA transition plan has widespread community support but relies on the timely implementation of the accountability enhancements as well.

The Internet Corporation for Assigned Names and Numbers board also expounded on its own counterproposal that it said reflects many of the accountability working group's goals but with a simpler enforcement mechanism that wouldn't fundamentally alter ICANN's corporate structure.

The working group has proposed creating a community-based statutory “member” under California corporate law to enforce proposed accountability changes such as director recall, annual budget veto rights and the ability to approve changes to certain bylaws designated “fundamental.” The board said it supported retaining ICANN's status as a non-membership public benefit corporation but would allow the community to take the board to binding arbitration for alleged breaches of fundamental bylaws.

“We support enforceability, but have serious concerns about switching the governance structure of the organization prior to transition,” the board said. “We believe that if the Sole Membership Model is the only proposed path forward, it may be prudent to delay the transition until the Sole Membership Model is in place and ICANN has demonstrated its experience operating the model and ensuring that the model works in a stable manner.”

The board submitted its comment following a contentious Sept. 2 teleconference in which it unveiled the broad outlines of its plan and signaled its misgivings with the working group's proposal.

Some respondents, including the U.S. Chamber of Commerce, said they didn't support the board's apparent rejection of the community proposal.

“The Chamber is concerned by recent criticism by the ICANN Board that appears to disregard or fundamentally alter many of the key provisions of the Accountability plan, in particular by rejecting the membership model,” the chamber said. “The CCWG proposal represents a series of compromise positions that incorporates feedback from the ICANN Board and the rest of the multistakeholder community, enjoying broad consensus from across that community. While not perfect, it does achieve key milestones: community empowerment and true accountability through enforceability.”

Accountability, Transition Connected

The U.S. Commerce Department announced March 14, 2014, its intention to transition the last remnants of U.S. oversight over the Internet Assigned Numbers Authority (IANA) functions, contingent on the global multistakeholder community drafting an acceptable transition plan. ICANN's stakeholders have answered the call with a year-long drafting effort that has resulted in a plan to move oversight into an ICANN subsidiary with the ability the re-bid the IANA functions contract if ICANN fails to meet service level expectations.

Along with the transition plan, however, ICANN's community insisted on a parallel effort to enhance ICANN's organizational accountability. That insistence led to separate transition and accountability working groups working in parallel on two proposals with mutual dependencies — the latter known as the Cross-Community Working Group (CCWG) on Enhancing ICANN Accountability.

Congress has also questioned ICANN's accountability in a series of hearings, and offered an endorsement for the accountability working group by writing acceptance of its outputs into the Domain Openness Through Continued Oversight Matters (DOTCOM) Act. The DOTCOM Act would require the Commerce Department certify that any transition plan meet the department's own criteria and embody the accountability group's proposal. The DOTCOM Act passed the House June 23, but it is currently on hold in the Senate.

ICANN's board also suggested that the accountability working group should not continue after the IANA transition. The CCWG currently plans a second workstream to deal with desirable but not urgent accountability concerns that it believes are not necessary pre-conditions for U.S. relinquishment of its supervisory role over ICANN.

The board said that it supports the idea of “continuous improvements,” and enshrining in ICANN's bylaws a requirement that those improvements be consistent with the Commerce Department's IANA transition criteria, but would like to see them conducted via “the utilization of existing mechanisms.”

“The Board is concerned that treating areas that are naturally part of continuous improvements work as a part of the conditions for the IANA Stewardship Transition may serve as a bar to a successful conclusion of the IANA Stewardship Transition effort,” it said.

Other Potential Holdups

The board wasn't the only stakeholder to find fault with the accountability proposal in a public comment period that ended Sept. 12. Those views reflect the reality that the proposal has become another venue for ongoing battles within the organization, such as the role of governments and the strenuousness of ICANN's contractual compliance.

ICANN's Governmental Advisory Committee, as currently constituted, provides national governments a mechanism for providing advice on public policy issues with no voting role in ICANN. The accountability proposal would allocate votes within the community enforcement mechanism to various groups, including the government representatives — although the governments have yet to determine whether they would choose to participate on the voting level if invited to do so. The GAC said so in its own comment, although it said it reserved the right to participate or not at its own discretion.

ICANN's Registries Stakeholder Group said the governments should not have a voting role, at least on top of its current prerogatives. Consensus government advice on public policy issues currently receives deference, as ICANN's board must engage and consult with the governments on the subjects of advice and must provide formal justifications if it chooses to act contrary to GAC advice. The registries said community voting and deference should be mutually exclusive, and that the GAC should give up the latter privilege if it wants to cast a vote in the community mechanism.

ICANN's Intellectual Property Constituency balked at two “stress tests” in the proposal. Those hypothetical scenarios ask what would happen if ICANN stepped up its contractual enforcement efforts to the point it terminates some domain name registrations or even cancels accreditation of one or more domain name registrars. The stress tests as written say the consequence of ICANN doing so would be, “ICANN effectively becomes a regulator of conduct and content on registrant websites,” and that affected registrars could seek independent review of the enforcement action.

Intellectual property interests said the accountability plan should specify that contractual compliance efforts do not constitute content regulation.

The 2013 update to the standard ICANN Registrar Accreditation Agreement included a controversial provision requiring registrars to “take reasonable and prompt steps to investigate and respond appropriately to any reports of abuse.” The reasonableness of investigations and appropriateness of responses have pitted registrars against intellectual property interests and law enforcement. Registrars want to avoid policing users as much as possible, while IP and law enforcement want registrars to report to their abuse reports by shutting down what they see as rogue sites.

The CCWG will hold a face-to-face meeting in Los Angeles Sept. 25-26 to consider comments and next steps.

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 accountability plan comments forum can be found at: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/

The board's comment can be found at: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/msg00045.html

The U.S. Chamber of Commerce comment can be found at: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfvVogQFXUY7.pdf

The GAC comment can be found at: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfAOToOkkDUn.pdf

The registries' comment can be found at: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfWwl3iO4Lfi.pdf

The Intellectual Property Constituency comment can be found at: http://forum.icann.org/lists/comments-ccwg-accountability-03aug15/pdfpQ8LoHi7vK.pdf