By Aarti Bhavana

Recommendations 8 and 9

In the final post in the series tracking CCWG-Accountability progress, we examine the remaining recommendations, Recommendation #8: Fortifying ICANN’s Request for Reconsideration Process, and Recommendation #9: Incorporation of the Affirmation of Commitments. This post traces the developments made in this recommendation since the third draft proposal was opened to public comments in December 2015.

Recommendation #8: Fortifying ICANN’s Request for Reconsideration Process

The current ICANN bylaws already provide for Request for Reconsideration, a process that allows any person or entity to submit a request for the review of an ICANN action or inaction. In the second draft proposal, CCWG-Accountability proposed several measures to fortify this process, such as expanding the scope of permissible requests, increasing the time for filing such requests and transparency-enhancing measures in the decision-making process. These recommendations have been incorporated in the third draft proposal, unchanged. Further, the much-criticised Document and Information Disclosure Policy (DIDP) shall be discussed in Work Stream 2.

At the end of the public comment period, the discussions^[1] started with the acknowledgment that certain issues needed to be addressed during the implementation stage:

1. That this process is not regarded in isolation, rather a cog in the larger system;
2. Ensuring that the reconsideration requests be fully communicated to the public, in a transparent manner;
3. The role of the ombudsman elicited two kinds of comments: one, that such an independent party should provide an initial assessment to the Board on the merit of all Reconsideration request, and two, concern that the Ombudsman is not adequately equipped or knowledgeable to do a substantive evaluation.

On the final point, Chris LaHatte, the ICANN ombudsman outlined the functions of the ombudsman. Subsequently, an additional step has been added to the process, where the Ombudsman provides an assessment on all Reconsideration Requests, giving due attention to fairness. CCWG-Accountability also propose reforms to increase the transparency of the entire process.

Finally, the Address Supporting Organisation (ASO) also clarified that disputes related to Internet number resources, protocols and parameters are out of scope of the Request for Reconsideration Process.

None of these comments or clarifications attracted much of a debate, and this recommendation was finalized smoothly, with a final suggestion from CCWG-Accountability legal counsel: with the addition of a rebuttal opportunity to the Board Governance Committee’s (BGC) recommendation to the Board, the time frames provided earlier were creating some inconsistency. In order to rectify that, a slight adjustment was suggested to these time frames, and the recommendation stands finalized.

Recommendation #9: Incorporation of the Affirmation of Commitments

The Affirmation of Commitments (AoC) is a 2009 bilateral agreement between ICANN and the NTIA. After the termination of the IANA agreement, the AoC will be the next target for elimination, as it is the last remnant of NTIA oversight. While the elimination of the agreement is simple enough (can be terminated by either party after giving 120-days’ notice), there are some provisions worth preserving. To do so, the CCWG-Accountability recommends adding certain ICANN commitments from the AoC to the bylaws. This also includes four types of review processes to ensure that Community Reviews are an integral part of the accountability and transparency framework. Following the adoption of these new bylaws, it was recommended that the AoC be mutually terminated. A major change brought in through the 3rd draft proposal was the recommendation that Section 8b (Article XVIII of the existing bylaws, which states that the principal office of ICANN shall remain in California) not be made a fundamental bylaw, but be incorporated as a standard bylaw. This provides greater flexibility, should ICANN’s location ever be changed.

The public comments raised a few issues, one of which was that with the exception of ATRT, reviews should be defined by the community, and not the AoC provisions. Some comments also opined that WHOIS reviews should not be included in the bylaws.

At the end of the meetings discussing this recommendation,^[2] it was decided that all AoC reviews should be incorporated in the bylaws. Competition, Consumer Trust and Consumer Choice reviews were reintroduced as well. The commitment to WHOIS review was modified to a commitment to a future Registration Directory Services (RDS) review, to reflect the likelihood of WHOIS being replaced by the new RDS. Further, despite some support for making Article XVIII of the existing bylaws (which describes ICANN’s place of incorporation) a fundamental bylaw, it was concluded that it would remain a standard bylaw, as changes to standard bylaws and Articles of Incorporation require approval from the Empowered Community. The Board made some suggestions regarding AoC reviews operational standards, which will be developed in the implementation stage, but only to the extent of implementation details. Finally, as per CCWG-Accountability lawyers’ suggestion, the term ‘diversity’ has been clarified to refer to geography, skills, gender, etc., with the idea that chairs of participating SO/ACs retain some flexibility of factors when selecting Review Team members.

The supplemental draft proposal has been finalized as a whole, and even been approved both by CWG- Stewardship and SSAC. We hope to hear from the other chartering organizations in the next few days, so the proposal can be transmitted to NTIA to continue the transition process. In the meantime, CCWG-Accountability will get busy with Work Stream 2 issues, starting from the Marrakech meeting itself.

^[1] This recommendation was discussed in Meetings #79 and #81.

^[2] This recommendation was discussed in Meetings #78 and #80.