ICANN Posts Draft of New Bylaws For Public Comment Until May 21

Tentative Timeline for IANA Stewardship Transition:

Tentative Timeline for IANA Stewardship Transition (source: DomainMondo.com)

ICANN has posted a draft of its new bylaws for public comment until May 21, 2016, 23:59 UTC which is 7:59 P.M. ET (US), time converter here.

According to the ICANN posting:

• The Public Comment period seeks community input on the Draft New ICANN Bylaws developed to reflect the recommendations contained in the proposals by the IANA Stewardship Transition Coordination Group (ICG) and Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) as provided to the ICANN Board on 10 March 2016 and transmitted to NTIA. (See Resolutions 2016.03.10.12-15 and 2016.03.10.16-19);

• The new ICANN Bylaws have been drafted in collaboration by the ICANN legal team and the external counsels to the CCWG-Accountability and Cross Community Working Group Names (CWG-Stewardship), including review periods by all of the involved community groups and the ICANN Board. The legal teams support that the Draft New ICANN Bylaws are consistent with the community proposals relating to the IANA Stewardship Transition;

• The Draft New ICANN Bylaws public comment period from 21 April – 21 May 2016, allows any interested party to review and provide feedback on the Bylaws. This timeline allows for comments to be analyzed and incorporated in time for the ICANN Board to consider, prior to adoption of the New ICANN Bylaws on or about 27 May 2016. Once New the ICANN Bylaws have been adopted, ICANN will notify NTIA. NTIA has stated that it needs to see that changes to the Bylaws have been adopted sufficient to implement the Transition Proposals before NTIA can complete its review of the Transition Proposals;

• Once adopted, the Bylaws are expected to go into effect in the event NTIA approves of the IANA Stewardship Transition Proposal and the IANA Functions Contract expires (current expiration date is September 30, 2016).

• Public Comment webpage
• Redline Comparison of Draft New ICANN Bylaws to Current Bylaws [PDF, 2.62 MB] also embedded below
• Draft New ICANN Bylaws [PDF, 1.37 MB]
• ICANN's Current Bylaws
• IANA Stewardship Transition Implementation Website
• ICG Proposal [PDF, 2.32 MB]
• CCWG-Accountability Proposal [PDF, 6.03 MB]
• Mapping chart provided by CCWG Counsel (see embed further below)
•  ICANN Announcement

Redline Comparison of Draft New ICANN Bylaws to Current Bylaws:


Below is a chart that maps the CCWG-Accountability Final Supplemental Proposal to the April 20, 2016 draft Bylaws, prepared by Counsel to the CCWG:



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DISCLAIMER

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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DISCLAIMER

XYZ's Gateway, Supplementary Registration Proxy Service for its gTLDs

Effective 10 Dec 2015 23:59 UTC, the proposed launch of supplementary registration proxy service for gTLDs operated by XYZ.COM LLC is OPEN for Public Comment until 19 Jan 2016 23:59 UTC:

From the ICANN website:

 "Purpose: This public comment period is to gather community input on the proposed amendments to .XYZ, .COLLEGE, .RENT, .THEATRE, .PROTECTION, and .SECURITY Registry Agreements to allow XYZ.COM LLC, the Registry Operator of these six TLDs, to offer a new registry service, which is a proxy service that will provide secondary gateway access toSRS/EPP, RDDS (via Whois – port 43 –, web-based Directory Service, RDAP, or any combination of the three), or both for the purposes of operating these TLDs in local domain name markets.

"These Registry Agreement amendments are intended to implement the proposed new registry service for XYZ, .COLLEGE, .RENT, .THEATRE, .PROTECTION, and .SECURITY TLDs, which was submitted and evaluated through the Registry Services Evaluation Policy (RSEP) process.

"Current Status: As required by the Registry Services Evaluation Policy (RSEP), ICANN has undertaken a preliminary determination on whether this RSEP proposal might raise significant competition, security or stability issues. ICANN's preliminary review (based on the information provided) did not identify any such issues.

"ICANN is seeking public comments on the proposed Registry Agreement amendments that will allow XYZ.COM LLC to implement a Supplementary Registration Proxy service for .XYZ, .COLLEGE, .RENT, .THEATRE, .PROTECTION, and .SECURITY TLDs."

According to ICANN, "XYZ.COM LLC submitted an RSEP request to offer a similar service initially on 26 August 2015 and then on 9 October 2015, respectively, however the Registry Operator withdrew these requests to clarify the description of the service."

For more information: Launch of Supplementary Registration Proxy Service for gTLDs Operated by XYZ.COM LLC - ICANN

See also:
RSEP Webpage: https://www.icann.org/resources/pages/rsep-2014-02-19-en
RSEP Policy: https://www.icann.org/resources/pages/registries/rsep/policy-en
XYZ.COM LLC RSEP Request: https://www.icann.org/en/system/files/files/rsep-2014159-xyz-et-al-request-02dec15-en.pdf [PDF, 23 KB]

Although not mentioned by ICANN in its public comment notice, the purpose of the proposed service is to meet requirements of Chinese law, for domain name registrants, registrars, and the registry operator (XYZ) in China:

"4. Chinese Gateway. Subject to all of the terms of this Agreement, Registry Operator may offer to Chinese registrars an EPP gateway to be used by ICANN-accredited registrars located in China so that Registry Operator and the Chinese registrars may comply with applicable local Chinese laws." Source (pdf)

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DISCLAIMER

CCWG Steamroller! ICANN 'Chattering' Organizations In Parallel Universe!

CCWG-Accountability Triumvirate (L-R): Mathieu Weill, Thomas Rickert, Leon Sanchez (ICANN.org photo)

You have to hand it to those CCWG guys--Mathieu, Thomas and Leon--they re-started the Steamroller that Thomas Rickert had test driven in LA, and look at what was accomplished in just a few hours at ICANN 54 today--after realizing the proposed 'Single Member Model' was DOA Dublin--the CCWG is now well on its way to:

1. Sole Designator Model replacing Single Member Model as the "reference model" for the final phase of CCWG-Accountability's work;
2. A New Timeline that delivers "Final Report" to the ICANN Board mid-January, 2016:

In order to accelerate the process, the timeline provides for "parallel" feedback from the ICANN Chartering Organizations (a/k/a Chattering Organizations) at the same time as the Report goes out for 3rd Public Comment. As commented by two people active in CCWG-accountability's work near the end of today's session:
We have a habit of fantasy timelines in this group...
We have a habit of wasting time and turning those fantasy timeline predictions into self fulfilling predictions.

Video, audio, and transcript of today's CCWG-Accountability's session will be posted here.

UPDATE: At the ICANN 54 Public Forum on October 22, 2015, Leon Sanchez, Co-chair reported a summary of key decisions and agreed-upon next steps:

• on the sole designator as referenced model for enforcement, the group reached broad agreement to move forward with the sole designator as the new reference for the model for the next draft proposal. 
• the group will next attempt to finalize patching the model to alleviate any outstanding concerns on the next draft proposal. 
• decision-making model. the group begun defining a consensus-based decision, make and model, which includes a community consultation period. discussions on the topic were informed on the second draft report about unintended concentration of power. 
• on the independent review process, the group confirmed support for the proposed IRP enhancements and is now moving into the implementation phase. to spearhead this phase, a drafting subgroup with expert support will be constructed to develop and draft bylaws and detailed operating procedures. 
• on the community power that refers to review and reject of the budget and operating plan, the group has identified a balanced process and approach for the one-year operating plan and budget which was an outstanding item coming into Dublin. 
• on the community power of recalling individual board directors, the group confirmed a decision method for removal of a director appointed by the nominating committee and a separate decision method for removal of a director appointed by an advisory committee or supporting organization. 
• in the mission and core values, the group confirmed its support for clarification of the mission statement and articulation of the commitments and core values. an example of our clarification includes icann's ability to enforce agreements with contracted parties subject to reasonable checks and balances. 
• on human rights, the group reached consensus to include a general human rights commitment into the bylaws. however, further work is needed on language and has been tasked to the human rights working party. 
• on the incorporation of affirmation of commitments into the bylaws, the group finalized outstanding details of the incorporation of the aoc review into the bylaws. there is high confidence that these bylaws are nearly ready for consideration in terms of implementation. 
• as regard to version 2, the group adopted a focused list of work stream 2 items, with an emphasis on transparency retirements. there was also broad agreement to bring some of these transparency requirements into work stream 1, in consideration of the discussions around the sole designator enforcement model. 
• .... the current time line proposes posting a high-level overview of recommendations and a summary of changes from the second draft proposal for a 35-day public comment period. on 15 november 2015. Alongside the 35-day public comment, the ccwg accountability will submit these resources to the chartering organizations for initial feedback. 

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DISCLAIMER

CCWG-Accountability and ICANN Board Meeting in LA Sept 25-26

The public comment period is now closed on the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) 2nd Draft Report (Work Stream 1)--review all comments submitted here.

The ICANN Board of Directors and the CCWG-Accountability will be having a face-to-face meeting in Los Angeles, September 25-26, 2015.

Steve Crocker, ICANN Board Chairman, wrote a posting on the ICANN website, with an update about the Board's response to the CCWG's 2nd Draft Proposal:

ICANN Board Submits Final Comments to CCWG-Accountability Public Comment -Sept 11, 2015- Steve Crocker, ICANN Board Chairman: "... after weeks of extensive dialogue with the community, the ICANN Board has submitted its final input to the CCWG-Accountability 2nd Draft Proposal Public Comment forum. The Board is proceeding in accordance with the principles we outlined in our 2014 resolution addressing what the Board would do in the event it disagreed with a CCWG recommendation.

"The elements of the Board submission are:

• A brief summary of its public comment input
• A comments matrix of forty-seven CCWG-Accountability proposal elements and their assessment by the ICANN Board
• A short memo describing a proposed approach for community enforceability for consideration
• A twenty-question FAQ of the proposed approach for community enforceability

"As we have stated previously, the Board supports the improvements to ICANN's accountability contained in the CCWG-Accountability's 2nd Draft Proposal. We endorse the goal of enforcability of these accountability mechanisms, and we believe that it is possible to implement the key elements of the proposal. We want to work together to achieve the elements of the proposal within the community's timeline while meeting the NTIA requirements.

"We have heard some concerns from the community regarding the Board's intent in presenting new ideas for the CCWG's consideration. The contributions by the Board are not meant to be a "counter proposal," but rather as suggestions for consideration to build upon the CCWG's impressive work. We encourage the community to read not only ours, but all comments submitted to the public comment forum... we hope to continue this dialogue in Los Angeles later this month at the CCWG-Accountability face-to-face meeting [Sept 25-26, 2015].

• Summary of Board Input[1].pdf
• Comments Matrix and Notes on Proposed Elements.pdf
• Memo on Proposed Approach for Community Enforceability.pdf
• Frequently Asked Question Regarding Approach for Community Enforceability.pdf

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DISCLAIMER

ICANN CEO Fadi Chehadé video, IANA Transition, ICANN Accountability

"A Community Message from Fadi Chehadé"

Published by ICANN, May 6, 2015 - "Following the posting of draft proposals for public comment by Cross Community Working Groups on the IANA Stewardship Transition (CWG-Stewardship) and on Enhancing ICANN Accountability (CCWG-Accountability), ICANN President and CEO Fadi Chehadé reflects on these accomplishments and gives his view of the road ahead."

Apparently the above video was issued in response to recent concerns about the draft proposals as well as ICANN staff's reactions and responses--see below:

Danger. ICANN is now refusing to recognize IETF's right to move its protocol registry (#IANA) to another operator. http://t.co/Yzv6o25rvn

— Milton Mueller (@miltonmueller) April 30, 2015

Will ICANN staff wreck the IANA transition process to preserve its monopoly on IANA functions provision? http://t.co/jXEVJppe9d

— Milton Mueller (@miltonmueller) April 28, 2015

Draft proposals are available for public comment here: https://www.icann.org/public-comments

See also: ICANN: IANA Stewardship Transition and Enhancing ICANN Accountability information: Links to public comments websites:

• CWG-Stewardship: https://www.icann.org/public-comments/cwg-stewardship-draft-proposal-2015-04-22-en - Close Date 20 May 2015 23:59 UTC

• CCWG-Accountability: https://www.icann.org/public-comments/ccwg-accountability-draft-proposal-2015-05-04-en + graphical supplement- Close Date 3 Jun 2015 23:59 UTC

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