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Accountability Group Charter Sets the Bar Too Low

Philip S. Corwin

In mid-August ICANN staff attempted to impose their own proposal for the process that will determine what overall new ICANN accountability measures should accompany the proposed IANA functions transition — and thereby replace the restraining and corrective oversight role that the U.S. has played through periodic reevaluation of ICANN performance in conjunction with re-awarding of the IANA contract.

In united reaction against that attempt, the ICANN community sent an unprecedented joint letter to CEO Fadi Chehade and the ICANN Board that strongly questioned the "Enhancing ICANN Accountability and Governance — Process and Next Steps" document published by ICANN staff. Three days later the Business Constituency, Registry Stakeholders Group, and Non-Commercial Stakeholders group submitted a formal Reconsideration Request to the Board.

Bowing to that community pressure, on September 5th ICANN opened a 21-day comment period on its staff proposal. Act One of the drama ended when, on October 10th, the eve of the ICANN 51 meeting in Los Angeles, ICANN published a revised Accountability Process document that ditched its original two-group model and bowed to community demands for a single Cross-Community Working Group (CCWG). ICANN 51 proceeded with broad discussions of how to make ICANN more accountable to the broader Internet community.

On November 5th ICANN announced that "the Drafting Team that was formed by the ICANN community to develop a charter for the Enhancing ICANN Accountability Cross Community Working Group (CCWG) distributed a charter for adoption by chartering organizations".

Unfortunately, and with all respect to the Drafting Team members who labored hard, fast, and in good faith to reach consensus on this proposed Charter, it fails to adequately capitalize on the opportunity created by the community's united actions over August and September, and should not be adopted by the chartering organizations absent strengthening revisions.

The Charter's major deficiencies are:

  • Letting the arguably unrealistic goal of meeting a September 2015 deadline for transition of the IANA functions dominate its proposed timeline and approach to required deliverables.
  • Adopting a dual work stream approach that almost surely puts off the major accountability issues and decisions until after the IANA transition takes place, at which point the community's unity may well dissipate and its leverage vis-à-vis ICANN will be permanently diluted.
  • Preserving the ability of ICANN's Board to reject the most important accountability reforms by simply remaining intransigent.

This article addresses each of these deficiencies.

Before that analysis proceeds, however, it is important to understand why a strengthened Charter is so important. The Charter is essentially the Constitution of the CCWG and the accountability process it will oversee. As events unfold and pressure inevitably builds on the CCWG to complete sufficient work to allow the IANA transition to be consummated it will be the precise words of the Charter that determine whether it has met the minimum stated criteria for the tasks it most complete prior to that paradigm shifting event.

The Drafting Team ultimately decided that it was not its proper role to determine which accountability measures must be in place prior to the transition, and which must merely be contemplated or committed to but fully implemented and stress-tested post-transition. I have received feedback from two members of the Drafting Team indicating that more explicit language requiring robust community accountability mechanisms to be fully developed and at least assured of implementation prior to the transition's occurrence had been included in earlier drafts — but it had later been deleted on the assumption that the CCWG and the broader community would remain united on that goal.

With all respect to the members of the Drafting Team and their hard work under a compressed deadline, wishing does not make it so. It is much easier to be united in opposition to something than in pursuit of complex policy development; and we may well have already passed the high water work of community cohesion, with factions likely to develop as the CCWG gets into the difficult details of its work of creating and prioritizing robust accountability mechanisms. 

That is why it is critically important that the Charter be based upon a realistic timeline, that key accountability determinations are required to be made prior to the IANA transition, and that deadlocks between the Board and community be resolved in some acceptable manner' so that the views of ICANN's global stakeholders cannot simply be rejected.

Timeline

The Charter makes clear that the CCWG's timetable and the structuring of its work are based predominantly upon the goal of meeting a September 2015 deadline for the IANA transition. That decision was made notwithstanding repeated statements from ICANN officials and the head of the NTIA that this target date is merely a goal and not a deadline, and that the two-year extension of the IANA contract that would occur if the transition is then incomplete would in no way indicate that the remaining work on transition mechanics and accountability mechanisms are expected to take another twenty-four months.

On this key point the Charter says:

The goal is for the transition proposal regarding the IANA functions to be communicated to NTIA in a timeframe which is consistent with the expiration date of the current IANA Functions Contract, which is set at 30th September 2015. The CCWG-Accountability will therefore work as expeditiously as possible to identify those mechanisms that must be in place or committed to before the IANA Stewardship Transition in light of the changing historical contractual relationship with the U.S. Government (Work Stream 1) and those mechanisms for which a timeline for implementation may extend beyond the IANA Stewardship Transition (Work Stream 2)...

This process on Enhancing ICANN Accountability is taking place alongside a parallel and related process on the transition of the stewardship of the IANA functions through the CWG to Develop an IANA Stewardship Transition Proposal on Naming Related Functions (hereinafter CWG-Stewardship). The CWG-Stewardship's scope is focused on the arrangements required for the continuance of IANA functions in an accountable and widely accepted manner after the expiry of the IANA Functions Contract. Accountability for the administration of the IANA functions (i.e., implementation and operational accountability) is not within the scope of the CCWG-Accountability as it is being dealt with by the CWG-Stewardship. Nevertheless, the two processes are interrelated and interdependent and should appropriately coordinate their work

The co-chairs of the CCWG-Accountability will discuss and determine, along with representatives of the ICG, the CWG-Stewardship, and other groups developing the IANA Stewardship proposal, the most appropriate method of sharing information and communicating progress and outcomes, particularly in relation to Work Stream 1. (Emphasis added)

As can be seen, the decision to divide the CCWG's task into two separate Work Streams is implicitly based on the perception that September 2015 is a goal with attributes of a deadline, and that its distinct work is related to and interdependent with that of the separate CWG-Stewardship group that is focused on technical aspects on the IANA functions and related administrative accountability issues.

But is it realistic to think that the necessary work on ICANN accountability can be completed in an acceptable and coherent fashion to permit a September 2015 transition? On that subject, let's refer to the "IANA Stewardship Transition Coordination Group Process Timeline” that was announced by the IANA Stewardship Transition Coordination Group (ICG) more than two months ago, on September 8th, and is driving the work of the CWG-Stewardship Group (in which the author is participating) at breakneck speed. The ICG's timeline "is designed for the transition to take place before the expiration of the IANA Functions Contract on 30 Sep 2015" and thereby accepts that date as a deadline. That timeline requires the various CWG drafting groups to submit proposals to the ICG by mid-January 2015 (which in turn requires that draft proposals be put out for public comment by early December, less than a month away!), and for a final proposal to be delivered to NTIA no later than July 31st so that it can complete its necessary administrative steps prior to the September 30th phase one expiration date of the current IANA contract.

That Timeline document notes that, "The ICG is acutely aware of the challenges presented this transition timeline" and "this timeline is aggressive". Given that the Accountability CCWG is already several months behind the CWG-Stewardship Group, and has yet to have its Charter approved and members appointed, much less embark on organizational and substantive work, one can only conclude that meeting its timetable will be supremely challenging and that its own timeline is hyper-aggressive.

Now it is true that the IANA transition work involves two groups, the CWG and the ICG, while the accountability work is centered in a single CCWG. On the other hand, the work of the CCWG is more open-ended and complex, more politically charged, and more important to the future accountability of the technical administrator and related policy determination entity for the entire DNS. Further, the CCWG is pledged to employ specially designed and as yet nonexistent stress tests in its work, with the Charter noting, "CCWG-Accountability must structure its work to ensure that stress tests can be (i) designed (ii) carried out and (iii) its results being analyzed timely before the transition." Can meaningful stress tests really be designed, implemented, and analyzed in the proposed timeframe? It is highly doubtful.

Anyone who has ever participated in an ICANN Policy Development Process (PDP) WG is aware that they generally require about a year or even more from inception to issuance of a draft report and recommendations — and that is for far more focused and less important inquiries than creation of strengthened and long-lasting accountability measures for ICANN itself. Another comparative example is the development of the Applicants' Guidebook for the new gTLD program, which took an unexpected three years before final adoption — and that process still missed key issues like name collisions, and created top level rights protection and string similarity dispute mechanisms of questioned effectiveness. 

Certainly the work of the CCWG should proceed as expeditiously as possible. But, given those examples, is it realistic to think that it can consider and agree upon and stress test a comprehensive set of requisite accountability enhancements in the eight month period from December 1, 2014 through July 31, 2015? This author thinks not, and the CCWG Charter indicates the same conclusion in its adoption of a dual Work Stream process that appears to assign the majority of its work to the post-Transition period.

It would be better to admit that up front rather that baseline accountability mechanisms are very unlikely to be agreed upon and stress tested in the time period between now and next September — rather than embark upon a bifurcated and unnecessarily hasty process that is almost guaranteed to leave important matters unresolved prior to the IANA transition, while missing important aspects of those matters that are hastily addressed in that truncated time period.

Dual Work Streams

The desire to meet an almost surely unrealistic timeline in turn resulted in the Drafting Team adopting ICANN's October 10th suggestion "that the CCWG has two work steams: one focused on accountability in light of ICANN's changing historical relationship with the U.S. Government; and the second, on the broader accountability issues the community would like to bring to the forefront." This dual track approach was also supported by the NTIA.

As described in the Charter:

In the discussions around the accountability process, the CCWG-Accountability will proceed with two Work Streams:

  • Work Stream 1: focused on mechanisms enhancing ICANN accountability that must be in place or committed to within the time frame of the IANA Stewardship Transition;
  • Work Stream 2: focused on addressing accountability topics for which a timeline for developing solutions and full implementation may extend beyond the IANA Stewardship Transition.

The CCWG-Accountability will allocate issues to Work Stream 1 and Work Stream 2. Some issues may span both Work Streams.

Suggested questions to be considered as part of Work Stream 1 include, but are not limited to: 

  • What would be the impact of NTIA's transition of the IANA Functions Contract in ensuring ICANN's accountability and what potential accountability concerns could this cause?
  • What enhancements or reforms are required to be implemented or committed to before the NTIA Stewardship Transition?
    • How will these enhancements or reforms be stress-tested?
  • What enhancements or reforms must be committed to before the NTIA Stewardship Transition, but could be implemented after.
    • If the implementation of enhancements or reforms are to be deferred, how can the community be assured they will be implemented?
    • How will these enhancements or reforms be stress-tested?

Suggested questions to be considered as part of Work Stream 2 include, but are not limited to:

  • What enhancements or reforms can be addressed after the NTIA Stewardship Transition?
    • If there are enhancements or reforms that can be addressed after NTIA disengages, what new or existing processes ensure they will be addressed and implemented?
    • How will these enhancement or reforms be stress-tested?

Suggested questions to be considered as part of both Work Stream 1 and 2 include, but are not limited to:

  • What mechanisms are needed to ensure ICANN's accountability to the multi-stakeholder community once NTIA has disengaged from its stewardship role?
  • What enhancements or reforms are needed to ICANN's existing accountability mechanisms?
  • What new accountability reforms or mechanisms are needed?
  • If accountability enhancements and reforms are made through changes to ICANN's Articles of Incorporation or By-Laws, how can the community be assured that those changes will be permanent, or not subject to unilateral amendment by the ICANN Board at a later date?

(Emphasis added)

Parsing this language, one finds that the only tasks that must be completed prior to the IANA transition are the Work Stream 1 are the construction of certain undefined baseline accountability mechanisms — but that even a great deal of the Work Stream 1 work can be left uncompleted at the time of Transition. In this regard, the Charter states, "Work Stream 1 may identify issues that are important and relevant to the IANA stewardship transition but cannot be addressed within this time frame, in which case, there must be mechanisms or other guarantees that can ensure that the work would be completed in a timely manner as soon as possible after the transition." (Emphasis added)

In other words, it contemplates leaving even "important and relevant" issues related to the transition unaddressed by September 2015 — and yet the CCWG would still have fulfilled its minimum responsibilities under the Charter and the IANA functions could well be permanently transferred to ICANN at that time. This is simply too low a bar for initial success, and it appears to have been set so low out of timing rather than substantive considerations.

If Work Stream 1 issues can be left unaddressed at the time of the transition, what is the prospect for those enhancement and reform matters that are delegated to Work Stream 2? While it will be up to the CCWG to determine its division of these labors, it is likely that the critical and central question of "What mechanisms are needed to ensure ICANN's accountability to the multi-stakeholder community once NTIA has disengaged from its stewardship role?" will fall into that second category simply because it is the most complex and politically charged issue on the table; as well as the substantial stress-testing design, implementation and analysis that would be related to its final details and adoption.

The dual Work Stream approach to the CCWG's responsibilities seems based far more on timing considerations that on getting requisite accountability mechanisms completely designed and at least fully committed to prior to the IANA transition. It should be set aside and replaced by a unitary approach that provides flexible discretion to the CCWG but also sets a substantially higher bar for the accountability work that must be completed prior to the transition.

Resolution of Board-CCWG Disputes

Regardless of when the most important accountability debates are completed or what recommendations are made, the key question for the global multistakeholder community remains "Can ICANN be forced to agree to oversight of its decisions?" As one writer recently observed and documented, "ICANN's core — staff and board — already has an answer to this question, and...it's that ICANN doesn't need an overlord at all."

Indeed, ICANN's Board has taken the position that, under California law relevant to its non-profit corporation status, it cannot be second-guessed by any third party. There is substantial reason to question that self-serving legal analysis and thereby provide the foundation for truly independent and binding third party review of Board decisions. Effective "corporate governance" accountability mechanisms that involve ICANN's internal stakeholders may also be feasible. But there's no denying that ICANN has been quite firm in taking the position that no entity but the Board itself can reconsider and revise a Board decision, and it's hardly likely to be more flexible on that question once the IANA transition has taken place and the U.S. has permanently relinquished its oversight role.

On the likely assumption that most of the really consequential and thereby controversial accountability proposals wind up in Work Stream 2 and are consequently developed and proposed post-transition, what does the Charter have to say about the process for their consideration and acceptance by ICANN's Board? Unfortunately, it's not encouraging.

After describing the standards and means by which the CCWG will achieve either Full Consensus or mere Consensus in regard to finalizing a Board Report, the Charter agrees to accept the proposed dispute resolution process that the Board articulated on the final day of the ICANN 51 meeting in Los Angeles:

Board consideration and interaction with CCWG-Accountability and chartering organizations

It is assumed that after submission of the Board Report, the ICANN Board of Directors will consider the Proposal(s) contained in this Report in accordance with the process outlined in its resolution of 16 October 2014:

Resolved (2014.10.16.17), the Board commits to following the following principles when considering the Cross Community Working Group Recommendations on Enhancing ICANN Accountability and Governance:

  1. These principles apply to consensus-based recommendations from the Cross Community Working Group on Enhancing ICANN Accountability and Governance.
  2. If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board.
  3. The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution.
  4. The CCWG will have an opportunity to address the Board's concerns and report back to the Board on further deliberations regarding the Board's concerns. The CCWG shall discuss the Board's concerns within 30 days of the Board's initiation of the dialogue.
  5. If a recommendation is modified through the CCWG, it is returned back to the Board for further consideration. The CCWG is to provide detailed rationale on how the modification addresses the concerns raised by the Board.
  6. If, after modification, the Board still believes the CCWG Recommendation is not in the global public interest to implement the CCWG Recommendation, the Board may send the item back to the CCWG for further consideration, again requiring a 2/3 vote of the Board for that action. Detailed rationale for the Board's action is again required. In the event the Board determines not to accept a modification, then the Board shall not be entitled to set a solution on the issue addressed by the recommendation until such time as CCWG and the Board reach agreement.(Emphasis added)

There are two key aspects to those Board Principles:

  1. The Board, notwithstanding its corporate duty to put ICANN's organizational interests and priorities over those of the global multistakeholder community, will be the final arbiter of what accountability measures are inconsistent with the highly subjective standard of "not in the global public interest" — even though the recommendations will have been made by a CCWG that represents the global Internet community.
  2. While the Board cannot impose its own "solution" on any disputed matter, all it has to do to kill any given recommendation is for two-thirds of its members to remain intransigent and reject it even after further modification by the CCWG.

In other words, the Board still retains ultimate discretion to cherry pick amongst and discard any CCWG accountability recommendation it does not agree to under an extremely broad and subjective standard, even though that unbridled discretion was a key issue in the community's mid-August pushback against the original accountability process proposal. 

This means that even if the CCWG obtains ICANN's prior approval to retain legal experts on the subject of California corporation law, and those experts convincingly refute ICANN's position that no outside review mechanism can be binding upon the Board, the Board remains free to stick to its current position and will prevail by default. As the Charter's adopted timeline and dual Work Stream approach almost guarantees that such disputes will arise after the IANA transition has occurred, the community is unlikely to have the necessary leverage to compel the Board to accept such CCWG recommendations.

Conclusion

Unified action by the entire ICANN community has provided it with an unprecedented and one-time-only opportunity to ensure that a post-IANA transition ICANN is adequately accountable for the foreseeable future. But the proposed Charter for the Accountability CCWG is not adequate to the task. Its adoption of an unrealistically compressed timeline tied to an unnecessary September 2015 deadline has in turn led to adoption of a dual Work Stream approach that will likely leave its most important work unfinished by that date. And its acceptance of the Board's unmodified Principles regarding Board-CCWG disagreement grants the Board the upper hand in any dispute and will likely result in rejection by gridlock of any meaningful proposals for binding independent review processes that can override the Board.

The result of this flawed approach will be that, if the CWG-Stewardship group has completed its work by July 2015, the CCWG will be under intense internal and external institutional and political pressure to agree that it has "done enough" to meet the woefully low bar set by this Charter for Work Stream 1 mechanisms, with decisions on all remaining work deferred for later.

But once the transition has transpired the urgency will be gone, community cohesion may erode, and IANA-related leverage will be forfeited. And even if worthwhile recommendations emerge post-Transition the Board will retain ultimate authority to reject any and all through intransigence. Therefore, a vitally important and historic opportunity for lasting and meaningful ICANN accountability may be squandered unless this Charter is further considered and strengthened prior to final adoption and commencement of the CCWG's work.

The only way to avoid this unfortunate result is to raise the bar for what the CCWG must deliver and what the Board must accept prior to the transition's occurrence, and to create a deadlock resolution methodology that does not grant ultimate decisional veto authority to the Board.

One can expect contrary arguments saying that we must simply have faith in the commitment of those appointed to the CCWG as well as continued community cohesion on strong accountability — and there is simply insufficient time for consideration of further amendments to and their adoption in the Charter. But adhesion to an unduly compressed timeline is already the major flaw at the heart of this document and the process it proposes, and refraining from revisions to save a few weeks now may only compound the ultimate long-term erosion of the opportunity at hand.

By Philip S. Corwin, Founding Principal of Virtualaw LLC, a Washington, DC Law and Public Policy Firm – He also serves as Of Counsel to the IP-centric law firm of Greenberg & Lieberman. Views expressed in this article are solely his own. Visit Page
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Share your comments

I continue to be amazed that people Ian Peter  –  Nov 10, 2014 10:41 PM PDT

I continue to be amazed that people want more time than 18 months for the transfer of some fairly simple administrative functions to ICANN and cannot accept the political reality that a failure to accomplish this transfer within 18 months will be seen by political opponents as an indication of the unsuitability of ICANN to carry out these functions.

The most bureaucratic of governments would probably be able to do this in three months. If ICANN's processes are such that it cannot make fairly simple administrative changes before September 2015, then it must expect widespread discussion about its unsuitability to take on these tasks.

I believe that any failure to meet the September 2015 timeframe may see the end of the process and in any case is likely to be seen as a mark of gross incompetence. A great pity since it has taken so long to create the possibility of an IANA transition.

I am likewise amazed... Philip S. Corwin  –  Nov 10, 2014 10:54 PM PDT

...that some people think that all that is in play is the "transfer of some fairly simple administrative functions" — and not necessarily to ICANN, as that has yet to be determined by the CWG-Stewardship.

Nor is it ICANN the organization taking on these tasks — it is the ICANN community. Which in my experience is quite competent when adequate time is allowed to build informed consensus.

Thoughtful, well-written article, Phil. I do not John Poole  –  Nov 11, 2014 12:30 AM PDT

Thoughtful, well-written article, Phil. I do not understand the IANA ICG's and now the CCWG-Accountability's "rush" to meet an artificial September 2015 deadline when NTIA/Department of Commerce has repeatedly said there is no problem extending the time frame.  Isn't it better to have a substantive end result which has lasting value and broad community support, than a top-down result with little community support? It appears that framing these processes by this "artificial time deadline" is being used as a way to manipulate the community into accepting outcomes which maintain the status quo because "we are running out of time" to consider better alternatives. Unless there is a sea-change, when all is done, the best that will be said of the IANA transition and ICANN Accountability processes is: "Well, they had to meet a deadline and did the best they could under the circumstances."

Searching for perfect accountability? Michael Roberts  –  Nov 12, 2014 11:23 AM PDT

I think the lawyers are leading us down a primrose path that will turn out to be a dead end.

Corporate governance, in the U.S. or elsewhere, embodies checks and balances that are intended to ensure good performance.  That they sometimes fail is no surprise.  Lots of things humans do are less than admirable.

In months of commentary in numerous fora, we have yet to see evidence of any "external" accountability mechanism that shows promise of being workable and an improvement on the extensive protections currently in place.  Instead, we get demonizing comments about the members of the ICANN Board.

I fully concur with Ian's comments.  More rhetoric and more ad hoc committees aren't going to improve the result.  It's time to "show us the beef." There has been a lot of intellect already applied, so there should be some substance.  The lack of it raises the question of whether there will be any when the smoke clears.

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