ICANN Accountability

ICANN Accountability became a primary focal point of the ICANN community shortly after the NTIA announced its intent to transition stewardship of the IANA functions to the global multistakeholder community. ICANN , already bestowed with the IANA functions contract and coordination of the DNS, was asked to kick-start a mutistakeholder process aimed at developing a proposal for the transition. During the early stages of this process, the community raised concern over the outlook of ICANN’s accountability following the transition.

From the days of ICANN’s infancy, a high degree of accountability was set in place by contractual relationship between ICANN and the United States government. The renewal process of the IANA functions contract has historically served as a backstop to ICANN accountability. The impending relinquishment of this role by the US government, created the opportunity and the necessity to examine the efficacy of existing accountability mechanisms.

In late 2014 the need for Accountability evaluation gave way to the creation of the CCWG-Accountability (CCWG), a cross-community working group created by SOs and ACs to determine how the current mechanisms in place could be strengthened to compensate for the absence of the US Government. The CCWG immediately began working on the developing proposed reforms to the accountability mechanisms currently in place, publishing its First Draft Proposal in May 2015. Enhancing ICANN Accountability is inherently intertwined with the IANA Stewardship Transition. In fact, there may not be any specific topic surrounding the transition that carries more weight than the outcome of the process for Enhancing ICANN Accountability.

CCWG-Accountability

The CCWG-Accountability was developed in response to a community that did not believe that ICANN’s Board’s proposal adequately met the needs of the global multistakeholder community. The accountability process that was originally designed by ICANN received unfavorable public comments, resulting a revised proposal. After the revised version, suggesting a two-tier working group, once again received a negative response during the public comment period, ICANN stakeholders submitted a joint rejection letter to the ICANN Board demanding a community-driven approach.

The joint letter combined with reiterated demands for accountability improvements at an ICANN Town Hall Session at the United Nations Ninth Internet Governance Forum (IGF) and favorable comments coming from the NTIA, led the board to concede at ICANN 51 in Los Angeles that accountability and the IANA Transition are ultimately intertwined. Based on strong community sentiment, the structure originally proposed by ICANN, the CCG/Coordination Group, was adapted into the CCWG-Accountability, which became the vehicle for creating proposed improvement to the mechanisms already in place.

In May 2015, the CCWG submitted their First Draft Proposal, which proposed SO/ACs as Members of ICANN, giving them the ability to exercise certain accountability powers. This comments on this initial proposal expressed concerns with the individual SO/AC roles and legal personality required under this model.

In responding the raised concerns, the CCWG met in Paris for a Face-to-face meeting and united around the Sole Member Model, which presented SOs and ACs as a single member of ICANN. This model was then developed into the CCWG’s Second Draft Proposal, which introduced the Community Mechanism as a Sole Member (CMSM) model.

The second proposal was met with significant resistance by ICANN’s board, which provided an alternative proposal in the form of the Multistakeholder Enforcement Mechanism (MEM) model. This led to the CCWG to call for a Face-to-Face meeting in Los Angeles. At this meeting the board drew a “red line,” communicating that it could not accept a model involving Membership. Accordingly, CCWG participants began exploring alternative options, including considering a “designator” model. However, the Board asserted that like the Membership model, a designator model was unacceptable.

There will be no final proposal available for review at ICANN 54 in Dublin.

Summary of Proposed Changes, November 2015

In a blog post from 15 November 2015, ICANN outlined a summary of changes proposed by the CCWG. They are as follows:

• A revised Mission statement for the ICANN Bylaws that sets out what ICANN does. This Mission statement clarifies but does not change ICANN's historic mission

An enhanced Independent Review Process and redress process with a broader scope and the power to ensure ICANN stays within its revised Mission New specific powers for the ICANN community that can be enforced when the usual methods of discussion and dialogue have not effectively built consensus including the powers to:

• Reject ICANN Budgets, Operating Plans or Strategic Plans
• Reject changes to ICANN's Bylaws
• Approve changes to new Fundamental Bylaws (see below)
• Remove an individual ICANN Director from the Board
• Recall the entire ICANN Board

An additional new power that gives the community a say in decisions about the IANA Function Reviews and any separation of the IANA Names Functions.

All of these community powers can only be exercised after extensive community discussions and debates through processes of engagement and escalation. The process of escalation provides many opportunities for the resolution of disagreements between the parties before formal action is required.

The accountability elements outlined above will be supported through:

• Additions to the ICANN Bylaws to create an Empowered Community that is based on a simple legal vehicle that will act on the instructions of ICANN stakeholder groups to exercise the Community Powers. The Empowered Community is granted the status of a Designator (a recognized role in law) and has the standing to enforce the Community Powers if needed.
• Core elements of ICANN's governing documents (the Articles and Bylaws) being categorized as Fundamental Bylaws that can only be changed with agreement between the ICANN community and the ICANN Board.

In addition, further proposed changes include:

• A recognition of ICANN's respect for Human Rights
• Incorporation of ICANN's commitments under the 2009 Affirmation of Commitments with the United States Department of Commerce into the Bylaws, where appropriate

Improved accountability and diversity for ICANN's Supporting Organizations and Advisory Committees

• A commitment to discuss additional accountability improvements and broader accountability enhancements in 2016, following implementation of this core set of accountability improvements

To develop these recommendations to improve ICANN's accountability, the Working Group:

• Relied on suggestions and proposals generated inside the Working Group and by the broader Internet multistakeholder community
• Conducted public comment periods to gather feedback on earlier drafts and discussed iterations of its recommendations across the world at ICANN meetings and through online webinars
• Rigorously "stress tested" ICANN's current and proposed accountability mechanisms to test their strength against problematic scenarios the organization could potentially face
• Engaged two external law firms to ensure the legal reliability of the proposed accountability enhancements
• Made the minimum enhancements to ICANN's accountability necessary to meet the baseline requirements of the community, as required for the IANA Stewardship Transition
• Met the requirements of the group that developed the IANA Stewardship Transition proposal for the Domain Names community
• Met the requirements of the U.S. National Telecommunications and Information Agency for the IANA Stewardship Transition