December 18, 2015 | Testimony on Internet And Technology
On November 30, 2015, the Cross-Community Working Group on Accountability (CCWG-Accountability) published its Draft Proposal on Work Stream 1 Recommendations (Draft Proposal) for public comment. The Draft Proposal is the third report submitted by the CCWG-Accountability for public comment. This comment reflects the positive and negative observations of Brett Schaefer and Paul Rosenzweig of The Heritage Foundation (Heritage) to the Draft Proposal. Heritage is a research and educational institution—a “think tank”—focused on U.S. domestic and international public policy and is a member of the Non-Commercial Users Constituency of the Generic Names Supporting Organization.
To begin with, we believe that the entire process by which the Draft Proposal was created calls into question the validity of the work product and its utility and representativeness. The consideration of new accountability measures has been characterized by a rush to resolution under what appear to be self-imposed deadlines based on perceived political conditions. As National Telecommunications and Information Administration (NTIA) has emphasized over and over again, the U.S. government “has not set any deadline for the transition.” We strongly believe that it is better to get this process done right than it is to get it done on time.
Indeed, this third CCWG-Accountability report to the community represents a complete revision of the proposed oversight mechanism of ICANN—yet this novel approach has not been fully vetted by the community and is now being subject to a truncated 21-day comment period, with the CCWG-Accountability co-chairs urging all commentators to preferentially submit their comments through their supporting organizations and advisory committees (SOs and ACs).
We reject that limitation. This novel proposal still has many open questions that require answers. Indeed, even as we write this comment a vibrant debate continues to occur on the CCWG-Accountability discussion list over exactly how, if at all, the proposed revised Mission Statement will effect existing contractual obligations. This week, it was suggested that this legal question be certified to outside lawyers for answers even though that fundamental question must be answered before the transition moves forward. The Board also submitted detailed comments this week (discussed further below) on the Draft Proposal that, if accepted by the community, would reflect a further fundamental transformation of the accountability proposals.
We recognize that uncertainty about certain specifics in the Draft Proposal during the public comment period may aid in moving the process forward in order to meet a predetermined timeline. But that ambiguity is a critical failure that raises questions about the legitimacy of the CCWG-Accountability process. Moreover, the specific language of new and amended bylaws to implement outlined reforms of Internet Corporation for Assigned Names and Numbers (ICANN) remains at the conceptual stage and has yet to be drafted by CCWG-Accountability legal advisers. Asking the community to give its final support or opposition to an incomplete product is unacceptable.
According to the chairs of the CCWG-Accountability, “The CCWG-Accountability considers this Draft Proposal to be the Final proposal unless significant concerns are raised by Chartering Organizations. As the case may be, the CCWG-Accountability might then amend the proposal to address these and post a supplementary report for approval by the Chartering Organizations.” Thus, even though there may be a number of significant objections and concerns raised by individuals, civil society, and businesses during this public comment, there are no plans for another draft to be opened for public comment.
We urge individual members of the ICANN community along with the SOs and ACs to demand that this document be treated as a provisional draft until all outstanding issues are settled, including specific language for bylaw revisions, and instruct the CCWG-Accountability to provide a final draft for public comment that incorporates comments on the Draft Proposal from the ICANN community, the chartering organizations, and the Board of Directors. In our judgment, these process flaws are so significant that the community should insist that final approval of the transition be deferred to ICANN 56. More to the point, if unremedied, these process flaws alone are sufficient for us to urge rejection of the transition, notwithstanding our substantive views on the merits of the transition proposal.
With regard to the substance of the Draft Proposal we begin by expressing an overarching concern with the significant shift away from the “Sole Member” model to the “Sole Designator” model.
We strongly prefer an ICANN governance model based on membership, which was the basis for CCWG-Accountability’s Second Draft Proposal. Under California law, membership would legally grant powers sought by the community as necessary for holding ICANN accountable after the historical contractual relationship with the U.S. government expires. These legal powers would make accountability and enforcement direct and independent of the bylaws.
By contrast, under the designator model, the community would have only one statutory power—its ability to replace individual directors or the entire Board. Enforcement of other powers is indirect and reliant on the threat of removing directors or on mechanisms and measures incorporated into the bylaws, which could be amended, weakened, or eliminated.
That said, the Draft Proposal is greatly improved from earlier drafts in clarity, specificity, and accountability measures. In particular, we note positively the incorporation of the right of inspection for the designator, generally referred to in the draft as the “Empowered Community,” into the bylaws along with the powers to oppose the annual operating plan and budgets and the five-year strategic plan and five-year operating plan. The right of inspection is a critical patch to address the differences in legal authority created by the shift from a membership model to a designator model. This issue is vitally important and we strongly support its inclusion in the Draft Proposal.
The Independent Review Process (IRP) is more developed and detailed, which is a significant improvement. We note that resolution of claims that ICANN has not met the requirements of the Documentary Information Disclosure Policy (DIDP) is to be included among the scope of issues subject to the IRP process. We are concerned that resolving these DIDP claims through the IRP could be interpreted as restricting such appeals uniquely to the Empowered Community. Appeal of DIDP decisions should be open and available to individuals, groups, businesses, and individual SOs and ACs, especially those who made the original DIDP request. DIDP appeals should not be subject to the engagement, escalation and enforcement staircase nor should they require support from the Empowered Community at any threshold.
We also endorse the specific inclusion of a review of DIDP policies as a work stream 2 objective, but note with concern the absence of a specific requirement to implement public disclosure of ICANN interactions with government officials on public policy–related issues. This was agreed in the CCWG-Accountability to be a specific objective in work stream 2 and must be corrected.
We appreciate the specificity and detail spelled out in most of the engage, escalate, and enforce process. However, we are concerned about lack of clarity on what exactly are the Board’s obligations on community engagement and the very tight time frame for specific steps within the process. Specifically, we question whether one or two weeks is sufficient for communicating concerns to the community (many of whom perform their duties in their spare time) and coalescing support for action. We strongly recommend expanding the time periods for each of the escalation steps.
Members of the Board, in their individual capacity, and the Board, in its corporate capacity, profess continued support for the transition and admiration for the work done by the CCWG-Accountability. While professing such admiration, however, the Board has identified several “fundamental” concerns that it views as “not in the global public interest.” In its comments to the community on the Draft Proposal the Board has suggested that these provisions be modified.
As an initial matter, the community should challenge the Board’s self-appointed authority to define the “global public interest.” There is no existing definition of “global public interest” (as the Board acknowledges) so the assertion of a superior understanding is little more than a self-serving opinion that the 16 members of the Board are wiser than the community and thereby qualified to substitute their judgment for that of the CCWG-Accountability and the broader ICANN community. This assertion is highly dubious. The community, acting through the CCWG-Accountability, is at least as capable (arguably more capable given its broader participation and representation of the ICANN community) of discerning the true global public interest than the Board. In fact, the unjustified assertion by the Board of its “global public interest” judgment is a use-case example for why greater accountability is required.
The community should recognize the Board’s intervention precisely for what it is—a last minute attempt to retain power and veto true accountability. More to the point, the community should recognize that the Board’s threat to delay or frustrate the transition based on an asserted global public interest is in violation of its explicit promise not to intervene in this manner. ICANN has committed to presenting a proposal to the NTIA even if it lessens the Board’s power or authority. The ICANN community should hold the Board to that commitment and reject the Board’s last-minute efforts to weaken oversight of its functions and activities. On this issue, the community should understand that its views ought to prevail over those of the Board, which has an inherent conflict of interest on matters that could impinge on its power or freedom of action.
On the merits, several of the Board’s proposals and concerns should be rejected. We note in particular the following:
In addition, we were surprised to see that the Board expressed support for recommendation 11, which would increase the threshold for Board rejection of Government Advisory Committee (GAC) advice from a simple majority to a two-thirds majority considering that ICANN CEO Fadi Chehade testified to the U.S. Senate that the Board opposed such a change.
Finally, a concern that we have held since the NTIA first announced its intent to end America’s historical contractual arrangement with ICANN is the issue of the role of governments in any revised ICANN governance structure. Resolving that issue is critical to fulfillment of the NTIA’s requirement that the transition proposal not “replace the NTIA role with a government-led or intergovernmental organization solution.”
In our judgment the Draft Proposal does not go far enough in ensuring that governments do not enhance their authority within ICANN as compared to the status quo.
Annex 11 paragraph 1 of the Draft Proposal recommends amending Article XI, Section 2 (j) of the ICANN bylaws to state:
The advice of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a vote of two-thirds of the Board, and the Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.
We welcome and support as a significant improvement over the second CCWG-Accountability draft the changes to limit special consideration of GAC advice by the Board to consensus advice and defining that advice as general agreement without formal objection.
While we understand that the two-thirds majority of the Board threshold to reject consensus GAC advice was agreed to by the Stress Test 18 working group after lengthy and difficult negotiations, we are concerned that the inclusion of that change in the Draft Proposal would be an affront to the U.S. Congress, which was assured by ICANN CEO Fadi Chehade at a February 2015 Senate hearing that requiring a two-thirds Board majority to reject GAC advice was “off the table.” We believe that this change needs to be reversed to honor commitments made to Congress by Mr. Chehade on a matter that that has drawn close attention by that body.
Moreover, there are a couple of additional areas of remaining concern must be addressed:
In addition, following the suggested bylaw text in Annex 11 is paragraph 2 which states:
The Governmental Advisory Committee has the autonomy to refine its Operating Procedures to specify how objections are raised and considered (for example, disallowing a single country to continue an objection on the same issue if no other countries will join in an objection). When transmitting consensus advice to the Board for which the Governmental Advisory Committee seeks to receive special consideration, the Governmental Advisory Committee has the obligation to confirm the lack of any formal objection.
It is unclear if this paragraph is intended solely to help clarify the intent of the amended bylaw in the Draft Proposal or if it would be included in the bylaws. If the later, we strongly object to the inclusion to the example in parentheses as it implies, seemingly in approving terms, a roadmap for evading the bylaw language restricting the Board’s special treatment of consensus GAC advice. Specifically, the GAC is obligated “to confirm the lack of any formal objection.” But it also states that the GAC could disallow “a single country to continue an objection on the same issue if no other countries will join in an objection.” It is appropriate for the GAC to define consensus for its internal processes, but when communicating advice to the Board, the GAC should not be able to assert that consensus has been achieved when it has not. Even if only one country objects to GAC advice sent to the Board, the GAC must make the fact of that objection clear to the Board when communicating that advice.
To address our concerns, we recommend the following amended text:
The advice views of the Governmental Advisory Committee on public policy matters shall be duly taken into account, both in the formulation and adoption of policies. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice it shall so inform the Committee and state the reasons why it decided not to follow that advice. Any Governmental Advisory Committee advice approved by a full Governmental Advisory Committee consensus, understood to mean the practice of adopting decisions by general agreement in the absence of any formal objection, may only be rejected by a majority vote of two-thirds of the Board. In the event that the ICANN Board determines to take an action that is not consistent with the Governmental Advisory Committee advice, it shall so inform the Committee and state the reasons why it decided not to follow that advice., and the Governmental Advisory Committee and the ICANN Board will then try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution. As with all Board decisions, those based on Governmental Advisory Committee consensus advice shall be subject to appeal through the Independent Review Process.
If paragraph 2 in Annex 11 is to be included in the bylaws, we recommend the following edited version:
The Governmental Advisory Committee has the autonomy to refine its Operating Procedures to specify how objections are raised and considered (for example, disallowing a single country to continue an objection on the same issue if no other countries will join in an objection). W However, when transmitting consensus advice to the Board for which the Governmental Advisory Committee seeks to receive special consideration, the Governmental Advisory Committee has the obligation to confirm the lack of any formal objection.
It is important to note, however, that these changes would be insufficient in that they would not preclude GAC participation in the Empowered Community. Such participation would represent an expansion of GAC authority in ICANN by granting it powers that it does not currently possess.
Combined with the preservation of the GAC’s current privileged status as an advisory committee that can oblige the Board to “try, in good faith” to find a mutually acceptable solution in the case of disagreement about GAC advice, the Draft Proposal would represent a clear increase in government influence in ICANN for several reasons:
ICANN cannot be viewed in isolation. The power of governments means that they can put pressure on individuals, businesses, registrars and registries, ICANN, the Board, and the SOs and ACs that is not reciprocal. As U.S. Secretary of Commerce Penny Pritzker warned at ICANN 51,
We all know that multistakeholder governance, and institutions like ICANN, are under intense and unprecedented pressure and scrutiny. Yet we are confident that the multistakeholder model offers the greatest assurance that the Internet will continue to thrive. And we must work together to ensure that the Internet remains an engine for economic growth, innovation, and free expression. We must continue to work hard to sustain multistakeholder governance, because it has enemies who want to reduce Internet governance to a meeting of governmental technocrats promoting narrow national interests.
If the NTIA’s principle of not replacing the current U.S. role with a government-led solution is to be meaningful, the ICANN community must be insulated from government influence to the extent possible. The community cannot be shielded from government influence outside ICANN, so it must be extensively protected within ICANN. Allowing the GAC to participate in the empowered community in anything other than an advisory role is contrary to this goal.
We understand, and appreciate, that the members of the GAC have yet to determine a unified position on the question of their participation in the Enhanced Community. However, in our view, the Draft Proposal sets the stage for enhanced government influence and authority within the post-transition ICANN.
The failure to forestall this possibility could threaten the transition. A 2014 letter from Senator John Thune (R–SD) and Senator Marco Rubio (R–FL) made clear that, from their perspective, government influence should not be expanded in the transition:
First, ICANN must prevent governments from exercising undue influence over Internet governance. In April we led 33 Senators in a letter to NTIA regarding the IANA transition. We wrote that “[r]eplacing NTIA’s role with another governmental organization would be disastrous and we would vigorously oppose such a plan. ICANN should reduce the chances of governments inappropriately inserting themselves into apolitical governance matters. Some ideas to accomplish this include: not permitting representatives of governments to sit on ICANN’s Board, limiting government participation to advisory roles, such as through the Government Advisory Committee (GAC), and amending ICANN’s bylaws to only allow receipt of GAC advice if that advice is proffered by consensus. The IANA transition should not provide an opportunity for governments to increase their influence.
Secretary of Commerce Penny Pritzker echoed those sentiments at ICANN 51, stating that the goal of the U.S. was to make ICANN accountable to the “customers of the IANA functions and to the broader Internet community,” and that the U.S. would oppose at every turn “proposals to put governments in charge of Internet governance.” Likewise, Senator Thune and Senator Brian Schatz (D–HI), in a bipartisan letter to the Chair of the ICANN Board, noted, “It is no exaggeration to say that community empowerment over government control is the bedrock for Congressional support of the multistakeholder system of Internet governance.”
We strongly believe that an acceptable proposal that preserves the privileged advisory role of the GAC to the Board must not allow the GAC to be a decisional participant in the Empowered Community. Specifically, the GAC role must be limited to a non-decisional advisory role in the Empowered Community similar to that which has been voluntarily adopted by the Security and Stability Advisory Committee (SSAC) and the Root Server System Advisory Committee (RSSAC).
On this substantive matter, as with our concern about the process that we noted at the outset, our views are that the Draft Proposal is fundamentally flawed. Unless this matter is resolved, we regretfully must oppose this proposal.
 ICANN, “CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations,” November 30, 2015, https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-work-stream-1-recs-30nov15-en.pdf (accessed December 17, 2015).
 Assistant Secretary Lawrence E. Strickling, “Preserving the Multistakeholder Model of Internet Governance,” testimony before the Committee on Commerce, Science, and Transportation, U.S. Senate, February 25, 2015, https://www.ntia.doc.gov/speechtestimony/2015/testimony-assistant-secretary-strickling-senate-committee-commerce-science-and- (accessed December 17, 2015).
 ICANN Board of Directors, “ICANN Board Comments on Third CCWG—Accountability Draft Proposal on Work Stream 1 Recommendations,” December 14, 2015, http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30nov15/pdfqWpXzRecih.pdf (accessed December 17, 2015).
 “CCWG-ACCT Co-Chairs letter: Accountability Draft Report,” December 9, 2015, https://community.icann.org/pages/viewpage.action?pageId=56986053 (accessed December 17, 2015).
 ICANN Board of Directors, “ICANN Board Comments on Third CCWG—Accountability Draft Proposal on Work Stream 1 Recommendations.”
 ICANN CEO Fadi Chehade promised the Senate that “if the stakeholders present [ICANN] with [such] a proposal [w]e will give it to NTIA, and we committed already that we will not change the proposal.” Hearing, Hearing on Preserving the Multistakeholder Model of Internet Governance, Committee on Commerce, Science and Transportation, U.S. Senate, February 25, 2015, http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multistakeholder-model-of-internet-governance (accessed December 17, 2015).
 ICANN Board of Directors, “ICANN Board Comments on Third CCWG—Accountability Draft Proposal on Work Stream 1 Recommendations,” p. 3.
 Ibid., pp. 6–7.
 Ibid., pp. 12–13.
 Ibid., p. 26–27.
 Ibid., p. 25.
 Hearing, Hearing on Preserving the Multistakeholder Model of Internet Governance.
 National Telecommunications and Information Administration, “NTIA Announces Intent to Transition Key Internet Domain Name Functions,” March 14, 2014, https://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions (accessed December 17, 2015).
 ICANN, “CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations: Annex 11 – Recommendation #11: Board Obligations with Regards to Governmental Advisory Committee Advice (Stress Test 18),” November 30, 2015, https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-11-01dec15-en.pdf (accessed December 17, 2015).
 Senator Fischer asked Mr. Chehade directly about a proposal to require a two-thirds vote to reject GAC advice. Mr. Chehade responded that such a requirement “would be incongruent with the stated goals. The board has looked at that matter and has pushed it back, so it’s off the table.” Senator Fischer followed up and asked, “It’s off the table?” Mr. Chehade reaffirmed, “It’s off the table.” Hearing, Hearing on Preserving the Multistakeholder Model of Internet Governance, exchange beginning at the 1:12:23 mark of the video record, http://www.commerce.senate.gov/public/index.cfm/2015/2/preserving-the-multistakeholder-model-of-internet-governance (accessed December 17, 2015).
 “U.S. Secretary of Commerce Penny Pritzker Delivers Remarks at the Internet Corporation for Assigned Names and Numbers Meeting in Los Angeles,” October 13, 2014, https://www.commerce.gov/news/secretary-speeches/2014/10/us-secretary-commerce-penny-pritzker-delivers-remarks-internet (accessed December 17, 2015).
 As detailed in the table on page 22 of the Draft Proposal, paragraphs 89 through 123, those powers include rejecting a proposed Operating Plan/Strategic Plan/Budget, approving changes to Fundamental Bylaws and Articles of Incorporation, recalling the entire Board of Directors, and rejecting ICANN Board decisions relating to reviews of IANA functions, including the triggering of Post-Transition IANA separation.
 Senator John Thune and Senator Marco Rubio, letter to Dr. Stephen Crocker, Chairman ICANN Board of Directors, July 31, 2014, https://www.icann.org/en/system/files/correspondence/thune-rubio-to-crocker-31jul14-en.pdf (accessed December 17, 2015) (emphasis added).
 “U.S. Secretary of Commerce Penny Pritzker Delivers Remarks at the Internet Corporation for Assigned Names and Numbers Meeting in Los Angeles.”
 Senator John Thune and Senator Brian Schatz, letter to Dr. Stephen Crocker, Chairman, ICANN Board of Directors, October 15, 2015, https://www.icann.org/en/system/files/correspondence/thune-schatz-to-crocker-15oct15-en.pdf (accessed December 17, 2015).