2015-12-20

ICANN CCWG Accountability Proposal: CWG Legal Counsel Approval

Background: The Third Draft Proposal of the Cross Community Working Group to Enhance ICANN Accountability (CCWG-Accountability) is currently open for public comment until 21 Dec 2015 23:59 UTC, more info here. The ICANN [Domain] Names community's CWG-Stewardship proposal for the IANA stewardship transition has dependencies on the CCWG-Accountability final proposal.

"... the CWG Stewardship response to the ICG [IANA Stewardship Transition Coordination Group] is expressly conditioned on the CCWG Accountability proposal ... We [will] ... utilise the services of [independent legal counsel] Sidley Austin to confirm that the CCWG Accountability proposal does indeed meet the conditionality requirements of the CWG Stewardship....  in two stages: 1. Review the CCWG proposal put out for public comment and then submit confirmation to the public comment that the CCWG proposal does meet the CWG conditionality (if indeed it does) and 2. Confirm that the final proposal (to be prepared following the public comment period) continues to meet the CWG conditionality (if indeed it does). We believe that by working in this way, we will be able to A. Assist the CCWG by clearly communicating our position at the key stages. As we have done throughout the course of their work B. Assist the CCWG chartering organisations at key stages of their processes such that the they will be able to review the proposal and make their respective decisions with clear knowledge of the CWG position...." -- Lise Fuhr & Jonathan Robinson Co-chairs, CWG Stewardship, November 27, 2015 (emphasis added)

Independent Legal Counsel's response included in the proposed final version of the CWG comment letter posted December 20, 2015 (see conclusions below, emphasis added):

1. Community Empowerment Mechanism -- Conclusion – We believe that the community powers and community empowerment mechanism contemplated by the Third Draft Proposal adequately satisfy the CWG-Stewardship requirements relating to the community empowerment mechanism. Although the community powers are in some cases less direct than in the Sole Member model contemplated by the Second Draft Proposal, we believe the CWG-Stewardship requirements can be met through the community powers and community empowerment mechanism contemplated by the Third Draft Proposal. The CCWG-Accountability Third Draft Proposal requires that the community “follow the engagement and escalation processes described in the proposal before exercising any of the community powers.” This is a reasonable requirement but it creates a dependency on the usability of the engagement and escalation processes. If the community and in particular the SOs and ACs are unable to reasonably meet the requirements of those processes, then the community powers will lose their value. The very specific time requirements for various SO and AC actions in the escalation processes may be impossible or at best very difficult to meet; if more than one SO/AC cannot act within the tight time limits, the process will be halted. The CWG-Stewardship recognizes that the escalation processes need to happen in a timely manner but they must also allow sufficient time to accommodate the diverse and complex makeup of SOs and ACs. A key question that should be asked of SOs and ACs is this: what is the minimum time they need to respond to a critical issue that is also very time sensitive? To be more specific, can they respond in 7 days without compromising their bottom-up, multistakeholder model? If they cannot, then the CCWG-Accountability recommended empowerment mechanisms do not meet the CWG-Stewardship requirements. This should not be a hard problem to solve. Time restrictions that are deemed to be too short could be lengthened a little and/or the restrictions could be defined in a more flexible manner to allow for brief extensions when reasonably required.

2. ICANN Budget and IANA Functions Budget -- Conclusion – Similar to our conclusion in our response on the Second Draft Proposal, overall we believe that the Third Draft Proposal’s specifications with respect to the community power to reject budgets is both necessary and consistent with the requirements of the CWG-Stewardship final transition proposal; however, we require that the CCWG-Accountability proposal or the implementation process address the matters that are not sufficiently specified in the Third Draft Proposal (i.e., those relating to budget transparency, grounds for rejection of a budget/plan, timing of budget preparation and development of the caretaker budget, each of which were described in the Second Draft Proposal). In addition, we note, that the CWG-Stewardship (or a successor implementation group) is required to develop a proposed process for the IANA Functions Operations-specific budget review. We require that the proposal specifically acknowledge this.

3. IFR [IANA Function Review]-- Conclusion – We believe that the Third Draft Proposal adequately satisfies the CWG-Stewardship requirement relating to the IFR. The community’s ability to reject ICANN Board decisions on recommendations resulting from an IFR or Special IFR will meet the CWG-Stewardship requirements, provided that the final version of the CCWG-Accountability proposal provide that the right to reject can be exercised an unlimited number of times. 

4. Customer Standing Committee (CSC) -- Conclusion – We believe that the Third Draft Proposal adequately satisfies the CWG-Stewardship requirement relating to the CSC, provided that the ICANN Bylaw drafting process will continue to include involvement by the CWG-Stewardship (or a successor implementation group).

5. Post-Transition IANA (PTI) -- Conclusion – We believe that the Third Draft Proposal adequately satisfies the CWG-Stewardship requirement relating to PTI, provided that the ICANN Bylaw drafting process and related PTI governance documents will continue to include involvement by the CWG-Stewardship (or a successor implementation group).

6. Separation Process [future potential separation of IANA functions operator from ICANN] -- Conclusion – We believe that the Third Draft Proposal adequately satisfies the CWG-Stewardship requirements relating to the separation process. The community’s ability to reject ICANN Board decisions on Special IFR/SCWG recommendations, which would include the selection of a new IANA Functions Operator or any other separation process will meet the CWG-Stewardship requirements, provided that (i) the final version of the CCWG-Accountability proposal provide that the right to reject can be exercised an unlimited number of times, and (ii) the ICANN Bylaw drafting process and related the Separation Process will continue to include involvement by the CWG-Stewardship (or a successor implementation group).

7. Appeals Mechanism -- Conclusion – As we noted in our comment letter to the Second Draft Proposal, the Third Draft Proposal does not explicitly address the CWG-Stewardship requirement that an independent review process be available for claims relating to actions or inactions of PTI. This requirement could be addressed in a number of ways. For example, a provision could be added to the ICANN Bylaws that would require ICANN to enforce its rights under the ICANN-PTI Contract/Statement of Work (SOW), with a failure by ICANN to address a material breach by PTI under the contract being grounds for an IRP process by the Empowered Community (after engagement and escalation). Another approach would be to expand and modify, as appropriate, the IRP process currently contemplated by the Third Draft Proposal to cover claims relating to actions or inactions of PTI, with the ICANN Bylaws and PTI governance documents expressly confirming that the IRP process is binding on PTI (which provisions would be Fundamental Bylaws that could not be amended without community approval). Regardless of approach, the CWG-Stewardship requires that this dependency be addressed in the final CCWG-Accountability proposal in order for the CWG-Stewardship to confirm that the conditions of the CWG-Stewardship final transition proposal have been adequately addressed.

8. Fundamental Bylaws -- Conclusion – We believe that the Third Draft Proposal adequately satisfies the CWG-Stewardship requirements relating to Fundamental Bylaws.

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