By Gangesh Varma

Recommendation #5:

The next post in our series tracking the development of the CCWG Accountability Proposal is on Recommendation #5: Changing Aspects of ICANN’s Mission, Commitment and Core Values.  The CCWG Accountability through Recommendation 5, proposed changes to the ICANN bylaws to ensure that the ICANN Bylaws reflect the measures proposed in the recommendations of the CCWG Accountability under Work Stream 1.

ICANN’s bylaws currently include its mission statement, a statement of core values and a non-discriminatory treatment provision. The comments from the community indicated that bylaws as it stands would need to be strengthened and enhanced. This was a necessary step to improve ICANN’s accountability to the global internet community and its stakeholders, acriteria set by the NTIA and a requirement of the ICG proposal.

Based on the comments and inputs from the community, the CCWG Accountability found that these existing provisions in the bylaws are weak and could lead to excessive discretion by decision makers within ICANN. It also noted that the current bylaws do not reflect the key elements of the Affirmation of Commitments. The CCWG Accountability recommended that ICANN’s mission statement be clarified to define its limited scope. It further observed that these changes once made to the bylaws should not be easily amended by the Board. Thus, the CCWG Accountability through Recommendation 5 proposed to modify ICANN’s mission statement, and to divide the Core Values into Commitments and Core Values. This Recommendation addresses numerous changes and each of these was extensively discussed and debated. Some of the key discussions on changes were around the following themes:

On Competition and Consumer Trust:

There was considerable interest in including consumer trust as part of the core values which can be illustrated through the comments of the ALAC (at pg.4) and the USCIB (at pg.5). The concept in the ICANN universe has its origins in the preamble of the AoC as a description of ICANN’s role and as a review commitment with respect to expansion of TLDs. Given this context of a limited application in its origin, the key consideration was whether this could be expanded into a generalised consumer trust obligation on ICANN. In order to understand the intention of the drafters of the AoC, the group sought clarifications from the NTIA. In response, it clarified that the reference to consumer trust in the AoC was limited to the expansion of new gTLDs. It was finally decided that the language of the 3rd Draft proposal will be retained, where core values will not refer to consumer trust but it will be included as part of the AOC reviews.[1]

On GAC Advice and Scope of ICANN’s agreements with contracted parties – Public Interest Commitments and Contract Provisions:

Comments from some governments and the GAC focussed on the effect that changes made under this recommendation will have on the Board’s ability to accept and implement GAC advice on aspects that affect public policy.[2] To address the concern of GAC members, the Commitments as envisaged under the Proposal provides  that ICANN shall employ open, transparent and bottom-up, multistakeholder policy development processes “while duly taking into account the public policy advice of governments and public authorities”.[3]

The Board in its comments highlighted that while it would support the recommendations on core values and commitments, it would support modifying the Mission statement only with emphasis on clear and concise language. The Board’s concerns with the Mission statement were twofold. One, ICANN’s operational and policy role and second, contractual enforcement. The Board argued that the Mission Statement did not adequately reflect the operational role of ICANN, and focussed only on its policy development role. On the issue of contractual enforcement, the Board contended that the “grandfathering approach” and discussions relating to it resulted in text proposals that lacked clarity. While conceding that ICANN is not a regulator and should not regulate content, many comments also pointed out that the issues identified in the Registrar and Registry Agreements (the “picket-fence”) must be considered within the scope of ICANN’s Mission. This was reflected in the final proposal as part of the ‘note to drafters’.[4] Many comments expressed concern that the restrictive scope of ICANN’s Mission should not affect ICANN’s ability to negotiate, enter into and enforce agreements including public interest commitments (PICs) with contracted parties. In order to address concerns regarding Public Interest Commitments and other contract provisions in RAAs, etc. the CCWG clarified with a note on a ‘grandfathering approach’ to drafters. It also clarifies that grandfathered terms and conditions (including PICs) can be renewed until the expiration date of any such contract following ICANN’s approval of new/substitute form of Registry Agreement or RAA.

Global public interest was also among the many contested topics during the discussions. Addressing the myriad concerns that were raised, the CCWG proposal specifically provides that ensuring that a bottom-up, multistakeholder policy development process is used to ascertain the global public interest is one of ICANN’s core values. ICANN 55 has a special session on exploring the “public interest” within ICANN’s remit. This recommendation saw the amalgamation of some of the most crucial debates surrounding ICANN,and the transition. Recommendation #5 will be the foundation of ICANN’s future as it designs a legal framework within which the institution will operate.

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[1] See transcripts of call #78. Discussions from pg. 54-61.

[2] See comments submitted by GAC, and most government comments to the 3rd Draft Proposal such as Denmark, New Zealand

[3] See the final text of Section2.5 of Commitments as provided in details of Recommendation 5 under Annex 05 at pg.11.

[4] As noted in Annex 05, the language proposed in this recommendation are conceptual in nature at this stage. The final language revising the Articles of Incorporation and Bylaws will be drafted by the ICANN Legal Team and external legal counsel.