Cross Community Working Group on Enhancing ICANN Accountability

The Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) was launched as part of the IANA Functions Stewardship Transition to develop and improve accountability mechanisms within ICANN and its constituent organizations.

Background

The IANA Functions Stewardship Transition was spurred by the NTIA's announcement in March 2014 that they intended to "transition key internet domain functions to the global multistakeholder community." At the time, ICANN was already serving as a contractor to the NTIA to perform those functions. The transition planning required the development of a plan that satisfied NTIA's stated requirements:

• Support and enhance the multistakeholder model;
• Maintain the security, stability, and resiliency of the Internet DNS;
• Meet the needs and expectation of the global customers and partners of the IANA services; and
• Maintain the openness of the Internet.

ICANN initiated discussion with the community around the topic of enhancing ICANN accountability, and proposed a working group to respond to accountability issues, in May 2014. Before the CCWG was officially formed, public comment was sought on ICANN's "Enhancing ICANN Accountability" brief on its website. A second round of public comment occurred regarding ICANN's posting on process and next steps in August 2014. In addition, the (Second Accountability and Transparency Review) presented its final report and recommendations in 2014, adding to the volume of community input and policy recommendations regarding accountability.

The CCWG-Accountability was established to develop ICANN-level accountability mechanisms to ensure that the NTIA's criteria were met, as well as to validate and strengthen ICANN's accountability to its stakeholders. As the CCWG's charter makes clear, community support for any transition proposal required improved accountability measures:

During discussions around the transition process, the community raised the broader topic of the impact of the change on ICANN's accountability given its historical contractual relationship with the United States and NTIA. Accountability in this context is defined, according to the NETmundial multistakeholder statement, as the existence of mechanisms for independent checks and balances as well as for review and redress. The concerns raised during these discussions around the transition process indicate that the existing ICANN accountability mechanisms do not yet meet stakeholder expectations. Recent statements made by various stakeholders suggest that current accountability mechanisms need to be reviewed and, if need be, improved, amended, replaced, or supplemented with new mechanisms (see for instance ATRT recommendations) in light of the changing historic contractual relationship with the U.S. Government.Considering that the NTIA has stressed that it is expecting community consensus regarding the transition, a failure to meet stakeholder expectations with regards to accountability may create a situation where NTIA does not accept the IANA transition proposal as meeting its conditions. Thus reviewing ICANN’s accountability mechanisms was considered to be crucial for the transition process.

The chartering organizations for the working group were the ALAC, the ASO, the ccNSO, the GAC, the GNSO, and the SSAC.

Dependencies and Work Streams

The IANA Transition was coordinated by the IANA Stewardship Transition Coordination Group (ICG), whose job was to gather, assess, and consolidate proposals from the three operational communities affected by the work performed by IANA: names, numbers, and protocols. The IETF's IANAPLAN Working Group created the protocol proposal; the Regional Internet Registries assembled the CRISP Team to draft the proposal for the numbers community, and a number of chartering organizations within the ICANN community chartered the IANA Stewardship Transition Cross Community Working Group (CWG-Stewardship) for the development of a proposal for the names community. The functions surrounding numbers and protocols were, in the eyes of the respective operating communities, comparatively straightforward, as were the requirements for oversight. In the names operational community, however, there were multiple larger issues, including ICANN's accountability to fulfill its commitments to stakeholders and the global public interest. As a result, the CWG-Stewardship's transition proposal included both accountability proposals as they related to IANA functions, and a number of dependencies upon actions or decisions of the CCWG-Accountability working group. The CCWG-Accountability charter described the interrelationship between the two working groups in this way:

This process on Enhancing ICANN Accountability is taking place alongside a parallel and related process on the transition of the stewardship of the IANA functions through the CWG to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (hereinafter CWG-Stewardship). The CWG-Stewardship’s scope is focused on the arrangements required for the continuance of IANA functions in an accountable and widely accepted manner after the expiry of the IANA Functions Contract. Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship. Nevertheless, the two processes are interrelated and interdependent and should appropriately coordinate their work.

To facilitate a smooth and swift transition of the IANA functions stewardship, the CCWG-Accountability divided work into two streams. Work Stream 1 addressed accountability issues that had to be addressed and resolved prior to the transition of the IANA stewardship from NTIA to the global multistakeholder community. Work Stream 2 focused on "those mechanisms for which a timeline for implementation may extend beyond the IANA Stewardship Transition."

Transforming Contractual Obligations into Institutional Mandates

A common concern raised in the wake of the NTIA's announcement was how to maintain ICANN's accountability to the global Internet community once there was no longer a contract for services between NTIA and ICANN. Similar concerns were raised in relation to the Affirmation of Commitments, which was expected to be terminated either alongside the expiration of the NTIA contract or in the aftermath of the transition of IANA stewardship functions. The working group's charter included an examination of how to ensure ICANN's accountability to the multistakeholder community in the absence of such legal safeguards.

Work Stream 1

Work Stream 1 (WS1) held its first meeting in December 2014. The members of WS1 were appointed from the chartering organizations: ALAC
Leon Sanchez (Latin America) – Co-Chair
Sebastien Bachollet (Europe)
Tijani Ben Jemaa (Africa)
Alan Greenberg (North America)
Cheryl Langdon-Orr (Asia/Asia Pacific)

ASO
Fiona Asonga
Athina Fragkouli
Izumi Okutani
Jorge Villa

ccNSO
Mathieu Weill (.FR, European Region) – Co-Chair
Jordan Carter (.NZ, AP Region)
Eberhard Lisse (.NA, African Region)
Roelof Meijer (.NL, European Region)
Giovanni Seppia (.EU, European Region)

GAC
Par Brumark (Niue)
Olga Cavalli (Agentina)
Alice Munyua (African Union Commission)
Suzanne Radell (USA)
Julia Wolman (Denmark)

GNSO
Thomas Rickert (GNSO Council, Europe Region) – Co-Chair
James Bladel (RrSG, North America Region)
Becky Burr (RySG, North America Region)
Steve DelBianco (CSG, North America Region)
Robin Gross (NCSG, North America Region)

SSAC
Lyman Chapin
Julie Hammer

Others
Bruce Tonkin - ICANN Board Liaison
Samantha Eisner - ICANN Staff Representative

Faced with a number of issues to address, the WS1 team divided into several work parties: legal, IRP implementation oversight, community empowerment, review & redress, emerging issues, and stress testing. Each group addressed facets of the identified work areas for the CCWG-Accountability project as a whole. During the course of its work, it became apparent that a work party should also be devoted to human rights issues.

Work Stream 1 drafts, meetings, work party activities, and other information can be found in their workspace archive.

WS 1 Drafts and Public Comments

The first draft of the WS 1 Report was published for public comment in May 2015. The draft emphasized that the proposals were not the result of consensus; rather, they were a snapshot of the working group's thinking to date. The proposal sought community feedback on the direction of Work Stream 1, as well as ideas or suggestions that may not have been covered. The draft proposal contained the following principal recommendations:

• Revise the Mission, Core Values, and Commitments sections of the Bylaws;
• Designate certain Bylaws as "Fundamental" and require a 75% supermajority to change those Bylaws;
• Improvements the Independent Review Panel process;
• Improvements to the reconsideration process;
• Create a mechanism (using an SO/AC "membership" model) to empower the ICANN community, and imbue the community with the power to:
  • reconsider/reject budget or strategy/operating plans;
  • reconsider/reject changes to non-Fundamental Bylaws;
  • approve changes to Fundamental Bylaws;
  • recall individual ICANN directors; and
  • recall the entire ICANN Board;
• Incorporate the commitments contained in the Affirmation of Commitments into the ICANN Bylaws; and
• Revise the Bylaws to ameliorate problems discovered via stress testing (specifically, require the Board to respond to Advisory Committee advice, and to consult with the GAC and find mutually acceptable solutions for consensus-based GAC advice). The draft proposal sought responses to specific aspects of the proposal, as well as general comments and feedback regarding the direction of the working group's efforts and work product to date.

Empowered Community: Mechanisms

The question of exactly how to empower the community to support and enforce ICANN's mission and core values was a subject of discussion during the creation of the first draft. In the lead-up to ICANN 52 in Singapore, Work Party 1 had generated a number of model mechanisms for consideration:

• A "community veto" utilizing the existing SO/AC structures, as proposed by Robin Gross in a post on CircleID. The proposal suggested that an "empowered community" could be established by leveraging each of the existing SO and AC decision-making procedures, allowing those organizations to collect a vote of its membership and cast an organizational vote accordingly, with the majority of SOs and ACs required to overturn a board decision, recall a member, and other enumerated powers.
• A permanent cross community working group, with elected or appointed members from each SO and AC, "that stands ready to vote on challenges or initiatives filed by any AC/SO/SG."
• Appointed delegates: under the laws of California governing nonprofit organizations, a corporation may provide in its bylaws for delegates having some or all of the authority of members (as defined by statute) without actually having named members (or being a "membership" non-profit organization as defined). The delegates would act as a council similar to the permanent CCWG.
• Amendment of the ICANN Bylaws to name each SO, AC, and SG as a "member" of the corporation (as defined by California statute), which would, among other things, permit stakeholders to file member derivative lawsuits against ICANN for decisions made in contravention of its core mission or values. Grant members, through consensus or some specific majority, powers to veto certain board decisions or actions, recall board members, or contest policy.
• Create a two-tiered board structure where the ICANN community's representatives sit as a Supervisory Board and have specific powers of review or recall, and the ICANN Board as currently composed maintains its role of strategic and fiscal governance.

In addition, outside legal counsel for the working group provided another option based on the California corporations code. Section 5220 of the code provides for designated board seats, to be selected by one or more "designators." Directors can be seated on the board by a designator without a vote of the members. Outside counsel noted, however, that the designator model would not be able to fulfill all the goals of the empowered community outlined by Work party 1. The first draft proposal focused on a "Reference Mechanism" based on the membership model when presenting its plan for the ICANN empowered community. It acknowledged and briefly discussed each of the other models, as well as a proposal from outside legal counsel regarding the creation of designated board seats, with SOs and ACs appointed as "designators" for those seats. After its discussion of the options, the report provided the following conclusion:

None of the mechanism possibilities should be considered “off the table”. The work of the CCWG-Accountability has proceeded quickly, and our counsel are rapidly becoming familiar with the complexities of ICANN’s history and current approach to dealing with many of these matters.

That said, the CCWG-Accountability is clearly of the view that the SO/AC Membership Model is the currently preferred approach, and relies on this in much of what follows.

How the Reference Mechanism operates (e.g., whether the votes are “cast” by the SOs and ACs as organized through a Membership model, whether there is some community group where there are representatives, how the community’s decisions are implemented through those SOs and ACs that are Members, and/or model rules for the unincorporated associations) is an important implementation detail that will be developed by the CCWG-Accountability and open for thorough community consultation in our second Public Comment report.

Public Comment on the First Draft

Public comment on the draft was substantial. The time period for comment was extended to accommodate for delays in delivering translations of the draft proposal. The comments were largely supportive of the direction the CCWG was taking, although there were concerns raised regarding certain aspects of the draft, as well as new ideas and input that the working group had not yet considered in the course of its work to date. Some commenters did disagree with specific portions of the proposal, although it was notable that those dissenting voices were in the minority in each issue area. The ICANN board's comment applauded the broad themes of the document, but had many questions and concerns about implementation:

One of the analyses that we do not see within the report is a something akin to a regulatory impact analysis, where the costs, benefits and alternatives to proposals are weighed to assure that the design of the solution for each issue is the most efficient, least burdensome on the community, and most cost-­effective solution. This seems a separate exercise from the stress test work that is reflected in the report. That stress test, or contingency planning, work builds from the identification of stressors or situations that ICANN may face, and then considers how the proposed solutions assist ICANN in being more accountable when those situations arise, however unlikely. This is valuable work in considering that the CCWG-­Accountability is working towards the crucial issues. What seems to be the necessary next step, however, is considering whether the mechanisms that are proposed as solutions are themselves capable of withstanding contingencies and stressors. In this regard, the Board presumes there will be an impact analysis. It is currently working on a series of questions to assist in performing that impact analysis.

The board went on to highlight the report's Reference Mechanism for the empowered community, expressing doubts that such a radical change would have only the intended consequences, and advocating for a comprehensive review of the risks associated with such a change.

ICANN 53

The public comment period on the first draft proposal closed a week before ICANN 53 in Buenos Aires. Much of the programming at the meeting was directed at the IANA transition. At its first work session at ICANN 53, the CCWG discussed the promised impact analysis questions that were received from the board the night before. During the lead-up to the conference, the CCWG-Accountability listserv had grown increasingly contentious around issues of accountability and the ICANN Board's self-interests in responding to the first draft. Steve Crocker stepped into one such conversation and made some remarks regarding what he perceived as misplaced animosity toward the board. At the beginning of June, Jonathan Zuck pleaded for a level-headed, task-oriented approach to continuing the work of the working group. The temperature was not exactly lowered during the first work session at the conference. There were exasperated exchanges around the impact analysis questions posed by the board. One outcome of the first working session was the abandonment of the "membership" reference model. The working group drafted language for its report to the community in the aftermath of the meeting to that effect.

Also during the lead-up to the main meeting content, the CCWG met with the ICANN Board to discuss their draft proposal. The conversation addressed the board's public comments on the draft report, the questions that were subsequently submitted by the board as part of their proposed impact analysis, and the CCWG's internal conversations regarding the comments. Thomas Rickert also reported that, after the team's working session on the previous Friday, the Reference Mechanism membership model had been scrapped:

So what we did last Friday was sit together and there were multiple opportunities options on the table on how we could move forward. All those individuals in our group that wanted to present their vision of how we could operationalize accountability [got] their time slot to briefly be as persuasive as they could in terms of what they would like us to do.
So everybody was heard, no interruptions, no criticism. They would talk one after the other and could do their sales pitch, basically; or elevator pitch or whatever you might call it. After that we said, okay, there’s a lot of common ground in this. Let’s revisit our list of requirements for an accountability architecture and see whether this still stands after the public comment period has been conducted. We found out that there were some points that we could clearly rule out, some options that we could clearly rule out. So this reference model is off the table. We’re not doing it. We’ve listened to you. We’ve read the comments that we got. It’s off the table. Forget about it. So we’ve now entered our discussions into a new phase where we had other models and we’re now in the process of merging the other options and take the best of our words, if you wish.

Also at ICANN 53, the CWG-Stewardship and CCWG-Accountability held a joint town hall on June 22, 2015 to provide updates to and receive input from the community. Questions about the membership model were raised, as well as other aspects of the draft proposal.

Second Draft Proposal

Work Stream 1's second draft proposal was published in August 2015. The second draft acknowledged community support for the building blocks of the WS 1 proposals - principles (commitments and core values), empowered community, structure and accountability of the ICANN Board of Directors, and independent appeals and review mechanisms. The proposed improvements and changes were structured along these building blocks.

Proposal	Associated Building Blocks	Changes from First Draft Proposal
Amendments to ICANN Bylaws	Principles; ICANN Board	Minimal - still focused on incorporating Affirmation of Commitments into bylaws and other amendments to accommodate other proposals and reforms. "Fundamental" Bylaws proposal still intact.
Empowered Community: Powers	Empowered Community	Community can reject operating plan and budget (strategic plan no longer included); refinement on recall of individual directors (appointing body may recall their director)
Empowered Community: Mechanism	Empowered Community	New model, still focused on a "membership" nonprofit organization but with a single member, the ICANN community, rather than SO/AC/SGs as members;
Reforms to IRP and Reconsideration Process	Independent Appeals/Review	Minimal
Work Steam 2 Elements	All	Added some topics for consideration for WS 2 post-IANA transition

The second draft described 37 scenarios that were utilized for stress testing the proposals in the draft, both as they related to accountability mechanisms, and to the NTIA criteria for the ICG's transition proposal.

Revised Model for the Empowered Community

In its deliberations around the EC model, Work Party 1 devised another membership-based structural change to ICANN's organization and bylaws.