NTIA Vetoes Compromise Proposal on GAC Advice to ICANN Board

Compromise proposal under consideration by CCWG-Accountability 23 Nov 2015
Above right: Stress Test 18 "Compromise proposal" under consideration by CCWG-Accountability 23 Nov 2015
In a "last minute" move by the US Government (US Department of Commerce's NTIA), the "Compromise Proposal" (see above) under consideration by CCWG-Accountability (Cross Community Working Group on Enhancing ICANN Accountability, which is part of the total IANA Stewardship Transition process announced March, 2014, by NTIA), dealing with ST18--GAC advice to the ICANN Board--was effectively vetoed via email sent to the CCWG mail list on November 25, 2015 (emphasis and links added):

"Hello everyone, Assistant Secretary Strickling has asked that I share this with the CCWG.  Best regards, Suz (Suzanne Radell of NTIA, US Department of Commerce).

"NTIA Statement on Stress Test 18, November 25, 2015

"NTIA has been closely following the discussions in the CCWG-Accountability, including the recently concluded small group on stress test 18.  As has been the case throughout the work of the CCWG, we are impressed by the time and dedication so many of you are putting into these important discussions.  We thank everyone for their efforts as the group works to finalize the proposal for publication on November 30. 

"NTIA has long believed that governments, like all stakeholders, have an important role to play within multistakeholder processes, including ICANN.  Our position on that has not changed.  As the CCWG finalizes its proposals for enhancing ICANN’s accountability, we feel we should reiterate our view, as we stated last July, that ICANN preserve and clarify the current practice of the Board  in responding to advice it receives from the Governmental Advisory Committee (GAC). Specifically, ICANN should amend its Bylaws to clarify that the Board is required to enter into a formal consultation process with the GAC only where it receives GAC advice that is consensus advice based on the current definition within the GAC’s Operating Principles, that is, advice to which no GAC member has raised a formal objection

"We want to make clear that nothing about this proposal is intended to limit how the GAC determines what advice it submits to the Board.  As the Bylaws make clear, the Board is obligated to duly take all GAC advice into account.  However, it is not practicable for the Board to give GAC advice special consideration unless it is consensus advice as currently defined in the GAC Operating Principles.  Anything less than consensus places the Board in the awkward, if not impossible, position of trying to choose between governments with conflicting opinions.  NTIA sees any deviation from the current standard of consensus as introducing instability into the system while also inadvertently diminishing the important role of governments.  Accordingly, every time the GAC provides consensus advice that it expects to trigger the special Bylaws consideration from the Board, it must be unambiguous and consistent with the current definition in the Operating Principles.  Asking the Board to interpret any other threshold of support seems counter to the spirit of the CCWG’s efforts to empower the community in a clear and consistent manner.  It also undermines the work done to implement the relevant recommendations of ATRT1 to fix what the community diagnosed as a dysfunctional Board-GAC relationship.

"We are aware that some countries are concerned that the current GAC Operating Principles could lead to a single-country veto of GAC advice to the detriment of other countries.  We too share that concern.  But the right place to deal with that issue is not at the last minute in the CCWG but in a more reasoned and full discussion of this issue within the GAC.  NTIA stands ready to participate in and contribute to such a discussion to resolve that concern at the appropriate time and place."

Reactions from CCWG members and participants included the following:

As long as we do as we are told, I am sure we can achieve a result that  is acceptable to NTIA. What is obvious to me now, is that not only did the NTIA want a solution that was not dominated by governments, a goal I strongly agree with, they also did not want a solution where the GAC stands with equal footing as a stakeholder, which makes me uneasy. But we can be thankful, at least we now know what we must do if we want approval. Before now there was ambiguity because as long as the  solution did not give government primacy I thought we would be ok. Now I realize we can't even have equality. This is not disarray but well ordered.  We had one serious issue pending and now that has been taken off the table. We can expect that GAC will not be able to approve of the accountability proposal as I expect that [there] will be at least one [or] more member[s] of the GAC disappointed enough to formally object to the solution as constrained by NTIA. So as long as the solution is acceptable to all the SOs and to ALAC, ... [we’ll] still be ok with the latest NTIA condition, we should be successful at reaching the end of the discussion.  We also have a good indication of the power of NTIA over ICANN as a  backstop for any who doubted that power.  Anytime the US speaks, ICANN jumps. We should rejoice and be thankful as we have less to decide upon. -- Avri Doria, active stakeholder in ICANN and GNSO since 2005, recipient of the ICANN Multistakeholder Ethos Award (given for the first time at ICANN 50, June 2014); also active in IGF, IETF, ISOC, and other groups.

CCWG-Accountability met on Thanksgiving morning, November 26, 2015 (UTC 14:00). Notes, transcript, and recording may be found on the wiki page. The provisions now dealing with ST18 are summarized here. The CCWG-Accountability third draft proposal is scheduled to be published for public comment on November 30, 2015. The comment period is scheduled to close December 21, 2015.

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