[cooperation-wg] CCWG Second Draft Report - Numbers Related Analysis

Dear colleagues,

I would like to remind you that the Cross Community Working Group on
Enhancing ICANN Accountability (CCWG) has published CCWG-Accountability
second Draft Report that can be found here:
https://community.icann.org/pages/viewpage.action?pageId=53783460

Comments can be sent through this webpage:
https://www.icann.org/public-comments/ccwg-accountability-2015-08-03-en
The comment period closes on 12 September 2015 at 23:59 UTC.

The ASO representatives to the CCWG encourage the Number Community to
review and give feedback on any specific points in the second Draft
Report.

At the same time we would like to provide you with a follow-up on the
numbering-related matters highlighted in our analysis of the first Draft
Report (see communication from 15 May 2015
https://www.ripe.net/ripe/mail/archives/cooperation-wg/2015-May/000753.html
and ASO representatives submission to the CCWG on 12 June 2015
http://mm.icann.org/pipermail/accountability-cross-community/2015-June/003354.html).
 We would also like to highlight the principle amendment introduced in
the second Draft Report (section 7 below).


1. Revised Mission

The CCWG suggests clarifications on the description of ICANN’s mission
(more details in section 3.2 of the second Draft Report). With regards
to the coordination of policy development for Internet number resources,
the description reads as follows:

“In this role, with respect to IP addresses and AS numbers, ICANN’s
Mission is described in the ASO MoU between ICANN and RIRs” (p 29, para
181).

The description was provided by the ASO representatives during the
drafting process for the first Draft Report and the ASO representatives
requested that the Number Community confirm its accuracy during the
previous public consultation. Support was expressed for this definition.


2. Revised Commitments and Core Values

The CCWG proposes an amendment to one of the core values of the Bylaws.

In the first Draft Report (p 25, para 89) the proposed amendment read as
follows:

“Employ open, transparent and bottom-up, [private sector led
multistakeholder] policy development processes that (i) seeks input from
the public, for whose benefit ICANN shall in all events act, (ii)
promote well- informed decisions based on expert advice, and (iii)
ensure that those entities most affected can assist in the policy
development process;”

After the public consultation period ASO representative’s communicated
to the CCWG the following comment:

“With regards to ICANN’s core values in the Bylaws and in particular
page 25, paragraph 89, the RIR community notes that the term "private
sector led multistakeholder" (and similar terms) have been used by the
NTIA in describing ICANN, but the RIRs describe their policy development
processes using terms  such as "inclusive, open, transparent and
bottom-up". These different descriptions are compatible, provided it is
understood that "private sector led" does not exclude government
participation.“

In the second Draft Report the proposed amendment has been altered and
now reads as follows (p.31 para 205):

“Employ open, transparent and bottom-up, multistakeholder policy
development processes, led by the private sector, including business
stakeholders, civil society, the technical community, and academia that
(i) seek input from the public, for whose benefit ICANN shall in all
events act, (ii) promote well-informed decisions based on expert advice,
and (iii) ensure that those entities most affected can assist in the
policy development process;”

Do you have any comments with regards to this amended description?


3. U.S. Headquarters as part of the Fundamental Bylaws

As in the first Draft Report, the CCWG proposes in the second Draft
Report the incorporation of some ICANN accountability-related provisions
from the Affirmation of Commitments into the Bylaws (in particular
regarding ICANN’s Mission and Core Values). The CCWG suggested defining
these provisions as "Fundamental Bylaws". The concept of Fundamental
Bylaws is described in section 4 (pp 34-37) of the second Draft Report.
The main difference with the common Bylaws provisions is that while the
Board could propose a change to this Bylaws provision, Supporting
Organizations and Advisory Committees (SO/ACs) with voting rights could
block the proposed change (by a 66% vote). On the other hand any change
to Fundamental Bylaws would require approval by SO/ACs with voting
rights (75% vote).

One of these provisions requires that ICANN “remains headquartered in
the United States of America”. The CCWG noted that this provision exists
already in current ICANN Bylaws, at Article XVIII Section 1:
“OFFICES.
The principal office for the transaction of the business of ICANN shall
be in the County of Los Angeles, State of California, United States of
America. ICANN may also have an additional office or offices within or
outside the United States of America as it may from time to time establish.”

In the first Draft Report the CCWG considered whether this provision
should also be listed as a Fundamental Bylaw, since it has been
suggested that the rest of Affirmation of Commitments provisions be
incorporated in the Fundamental Bylaws.

After the public consultation period, the ASO representatives
communicated to the CCWG the following comment:

“There is general support the introduction of Fundamental Bylaws.
Regarding, the list of Bylaws that should become Fundamental Bylaws,
most of them indeed contain fundamental principles. However, the RIR
community does not believe that the requirement for ICANN to remain in
the United States of America is fundamental, but rather is an
administrative issue.”

The second Draft Report does not propose that Article XVIII be
designated as Fundamental Bylaw, and provides the following justification:

“Three considerations suggest that CCWG not propose Article XVIII be
designated as a  Fundamental Bylaw:
First, public comment on the first draft was evenly split on the
question of whether to designate  Article XVIII a Fundamental Bylaw.
Supporting this designation were several commenters from the Commercial
Stakeholders Group of GNSO. Governments were among those expressing
strong opposition.
Second, the Community Mechanism as Sole Member must approve with 2/3
vote any change to ICANN’s Articles of Incorporation, which now state
that ICANN is a California Nonprofit Public Benefit Corporation.
Third, the Community Mechanism as Sole Member could block any proposed
change to ICANN Bylaws Article XVIII, which states ‘The principal office
for the transaction of the business of ICANN shall be in the County of
Los Angeles, State of California.’ “

Do you have any comments in relation to this?


4. Appealing Mechanisms

The CCWG has proposed enhancements to the two appealing mechanisms
described in ICANN Bylaws, i.e. the Independent Review Panel and the
Reconsideration process.

After the public consultation period ASO representatives communicated
the following to the CCWG:

“…the RIR community stresses that there are separate, well-established
appeal mechanisms for disputes relating to Internet number resources. In
particular there is:
1. An arbitration process described in the ASO MoU for disputes relevant
to the global policy development process
2. An arbitration process described in the draft Service Level Agreement
between the five RIRs and IANA Numbering Services Operator for disputes
relevant to the IANA numbering services.
3. A bottom-up process for any concerns that a third party may have
relating to Internet number resources issues.

Imposing different appeal procedures than the ones agreed upon and used
by the numbers community would be contradictory to the bottom-up
principle. Therefore, it is strongly suggested that disputes relating to
Internet number resources be excluded from the scope of the proposed
appeal mechanisms.

Additionally the ASO representatives noted that it was requested by the
CWG that decisions regarding ccTLD delegations or revocations would be
excluded from standing, until relevant appeal mechanisms have been
developed by the ccTLD community, in coordination with other parties.

Considering the above, the ASO representatives would propose that any
appeal mechanism developed by the CCWG should not cover disputes
relating to Internet number resources.”

Accordingly, in the second Draft Report there is a clear exclusion of
the disputes related to Internet number resources with regards to the
Independent Review Process (IRP) (p. 40 para 9):

“Exclusions; Numbering Resources:
The Address Supporting Organization has likewise indicated that disputes
related to Internet number resources should be out of scope for the IRP.
As requested by the ASO, decisions regarding numbering resources would
be excluded from standing.”

However in the section describing the amendments with regards to the
Reconsideration Process the relevant paragraph reads as follows (p. 44
para 275):

“Disputes related to Internet number resources are out of scope of the IRP.”

It is our understanding that the intention is to exclude disputes
related to Internet number resources from the scope of the
Reconsideration Process, as this section is about the Reconsideration
Process and not about the IRP. A correction to clarify this would be
appropriate. The ASO representatives will comment appropriately to the CCWG.

5. Powers

In the second Draft Report there are no changes in the community powers
suggested by the CCWG. The powers are as follows:

- Reconsider/reject budget or strategy/operating plans (section 7.1 of
the second Draft Report, pp 55-57) [We would like to note that this
power was listed as one of the expected accountability mechanisms by the
CWG-Stewardship]
- Reconsider/reject changes to ICANN Standard Bylaws (section 7.2 of the
Second Draft Report pp 57-58)
- Approve changes to Fundamental Bylaws (section 4.5 of the second Draft
Report p 37)
- Remove individual ICANN Directors (section 7.3 of the second Draft
Report pp 58-60)
- Recall the entire ICANN Board (section 7.4 of the second Draft Report
pp 60- 63)

6. Community Mechanism as Sole Member Model

The first Draft Report suggested that these powers would be exercised by
changing ICANN’s structure into a membership-based organisation, with
the SO/ACs as the members (Membership Model). An alternative model was
also investigated, whereby the SO/ACs would become designators
(Designator Model).

During the public consultation and thereafter, objections were expressed
to both of these models. As a result of further discussions and
consultations, the second Draft Report introduces a new structure called
the Sole Membership Model.

This new model is understood to have the following benefits:

- It provides the required legal enforceability that the Designator
Model and Membership Model could not.
- It removes the problematic requirement for some SOs and ACs that they
become legal persons, whether to participate as a member in the
Membership Model or to enforce rights in both the Membership Model and
Designator Model.
- It avoids the problem of different statutory rights between SOs and
ACs that become members and SOs and ACs that were not members,
associated with the Membership Model.
- By allowing action only upon support of the community through the
Community Mechanism, it limits the issues related to the statutory
rights of members associated with the Membership Model, which would
allow members to dissolve ICANN and bring derivative suits.

The details of the Sole Membership Model can be found in section 6 (pp
47-53). The following aspects of the model are worthy to be highlighted:

- SO/ACs are not required to have a legal personhood.
- SO/ACs would participate directly in the Sole Member by providing
instructions to the Sole Member to exercise the community powers.
- In order to instruct the Sole Member, SO/ACs may choose to have voting
rights. Voting rights will be allocated votes in the following way:
o ASO, GNSO and ccNSO, 5 votes each
o GAC and At-Large, 5 votes each
o SSAC and RSSAC, 2 votes each
Early indications are that the ASO, ccNSO, GNSO and ALAC would be the
initial set of voting participants in the Sole Member (with remaining
and future SOs and ACs able to opt-in to voting participation). There is
no requirement or expectation that a participating SO or AC cast all its
votes identically for a given issue (meaning all 5 in support or all 5
against).
- For Director removal, Directors appointed by an SO could only be
removed by that specific SO or community. The Sole Member would merely
implement their decisions.

Do you have any comments with regard to this model?

Thank you,

Athina Fragkouli
ASO representative to the CCWG-Accountability