[cooperation-wg] CCWG Third 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 a third Draft
Report, available here:
https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-work-stream-1-recs-30nov15-en.pdf

Comments can be sent via this webpage:
https://www.icann.org/public-comments/draft-ccwg-accountability-proposal-2015-11-30-en

The comment period closes on 21 December 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 to highlight the principle amendments
introduced in the third Draft Report and provide you with an update on
the numbering-related matters highlighted in our analysis of the second
Draft Report (see communication from 9 September 2015:
https://www.ripe.net/ripe/mail/archives/cooperation-wg/2015-September/000785.html).


1. Community powers

In the third Draft Report there are no changes in the community powers
suggested by the CCWG. The powers are as follows (see ANNEX 01 -
https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-1-30nov15-en.pdf):

- Reject ICANN Budgets, Operating Plans or Strategic Plans [We would
like to note that this power was listed as one of the expected
accountability mechanisms by the CWG-Stewardship]
- Reject changes to ICANN’s Bylaws
- Approve changes to new Fundamental Bylaws and Articles of Incorporation
- Remove an individual ICANN Director from the Board.
- Recall the entire ICANN Board
- Initiate a binding Independent Review Process (where a panel decision
is enforceable in any court recognizing international arbitration results)
- Reject ICANN Board decisions relating to reviews of IANA functions,
including the triggering of Post-Transition IANA separation [We would
like to note that this power refers to the CWG-Stewardship transition
proposal]

2. Sole Designator Model

The second Draft Report suggested that these powers would be exercised
by changing ICANN’s structure, and introduced a structure called the
Sole Membership Model.

During and following the public consultation, objections to this model
were expressed. As a result of further discussions and consultations,
the third Draft Report introduces a new structure called the Sole
Designator Model.

The details of the Sole Designator Model can be found in ANNEX 01
(https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-1-30nov15-en.pdf).

The following aspects of the model are important to highlight:

- To implement the “Sole Designator” model, ICANN’s Supporting
Organizations and Advisory Committees would create a unified entity to
enforce their Community Powers. This unified entity will be referred to
as the “Empowered Community”. SO/ACs are not required to have a legal
personhood.
- Under California law, the Sole Designator has the right to appoint and
remove ICANN Board directors, whether individually or the entire Board.
Please note that Directors appointed by an SO may only be removed by a
decision of that specific SO. The Sole Designator would merely implement
their decisions.
- If the ICANN Board refused to comply with a decision by the Empowered
Community to use the statutory rights, the refusal could be petitioned
in a court that has jurisdiction to force the ICANN Board to comply with
that decision.
- Details of the Community Process defined (including thresholds to
start the process and to exercise community power) are described in
ANNEX 04
(https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-4-30nov15-en.pdf)

Do you have any comments with regard to this model?


3. Revised Mission

The third Draft Report suggests clarifications on the description of
ICANN’s mission (more details in ANNEX 05 -
https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-5-30nov15-en.pdf).

ICANN's mission with regards to Internet number resources, is described
as follows:

“ Coordinates the allocation and assignment at the top-most level of
Internet Protocol ("IP") and Autonomous System ("AS") numbers. ICANN’s
Mission is described in the ASO MoU between ICANN and RIRs.” (ANNEX 5
p8,
https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-5-30nov15-en.pdf).

The description is in line with the feedback 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 first public consultation. Support was expressed
for this definition.


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

In the third Draft Report (as in the first and second Draft Report) the
CCWG proposes 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 ANNEX 03
(https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-3-30nov15-en.pdf)
of the third 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 the provisions of the AFfirmation of Commitments 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.”

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.

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 third Draft Report provides that two considerations suggest that the
CCWG-Accountability should not propose that Article XVIII be designated
as a Fundamental Bylaw:

- Public comment on the first and second 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 Empowered Community 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.” (ANNEX 3, p 6, para 25 -
https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-3-30nov15-en.pdf)


5. 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.

The ASO representatives have 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.

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 third Draft Report (as well as 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)
(ANNEX 07, para 22 -
https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-7-30nov15-en.pdf):

“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 annex describing the amendments with regards to the
Reconsideration Process the relevant paragraph reads as follows (ANNEX
08, para 8 -
https://www.icann.org/en/system/files/files/draft-ccwg-accountability-proposal-annex-8-30nov15-en.pdf):

“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.


Thank you,

Athina Fragkouli
ASO representative to the CCWG-Accountability