The ICANN Board directed the initiation of the Fundamental Bylaws amendment process on 3 February 2017. The proposed Fundamental Bylaws change is to move one of the responsibilities of the Board Governance Committee (BGC) to a new one. The new board committee will be named the Board Accountability Mechanisms Committee. It will handle ICANN's Reconsideration Request process, a key ICANN accountability mechanism, as deemed appropriate by the Board.
The Reconsideration Request process responsibilities is one of ICANN 's fundamental bylaws which can only be amended if approved by both the ICANN Board and ICANN's Empowered Community (EC). The EC was incorporated in accordance with California law to legally enforce community powers, following the transition of the Internet Assigned Numbers Authority (IANA) functions stewardship.
The proposed fundamental bylaw change was approved by the ICANN Board on 18 May 2017 after the public comment period. The next step as mandated by the bylaws will be for the EC to consider whether it supports the proposed change. The EC consists of five decisional members: Address Supporting Organization (ASO), County Code Names Supporting Organization (ccNSO), Generic Names Supporting Organization (GNSO), At-Large Advisory Committee (ALAC), and Government Advisory Committee (GAC).
The Community Forum at the ICANN59 policy meeting was the first to be held in an ICANN meeting. In consolidation of their position and follow-up as members of the EC, GAC scheduled two sessions in an attempt to finalise the GAC principles and procedures for exercising this role.
In both sessions, GAC member discussions focused on the briefing paper that was initiated at ICANN55 and discussed in depth at ICANN58. It includes the following GAC principles and procedures. During the two sessions, GAC agreed to consider them as an interim procedure to be finalised by the ICANN60 meeting in Abu Dhabi.
1. GAC Chair to continue to represent GAC in the EC administration
There was agreement that Thomas Schneider, the current GAC Chair, would continue as the representative in the EC for the ICANN59 Community Forum. It was emphasised that anyone taking this role is acting as a messenger to convey the GAC decisions and vice versa, on issues such as the fundamental bylaws amendment, at the EC.
Other points that were raised on this point and kept for later discussions were about the length or duration of this role. And it was said that it is important whoever takes this role be an informed member and the expectations of this role should be documented in writing. A suggestion of involving more members at the EC level in addition to the GAC Chair was raised due to the intersessionally issues.
2. Proposed Principles for GAC participation in the EC
GAC agreed to test drive the following as interim principles for this instance until further discussion and adoption by the Abu Dhabi meeting:
- Due to the novelty of this process, adopt a flexible approach and make changes as necessary.
- Engage in issues of any potential public policy impact.
- Participate in early stages with a view to assisting resolution of the issue at hand wherever possible.
- Approach each case on its merits.
Regarding the expected decisional role of GAC operation in the EC, GAC still needs to put in place specific procedures for exercising its rights and obligations in the EC. And it also has to decide a mechanism for supporting or declining petitions at the Community Forum platform.
3. Application of principles to the Community Forum on proposed changes to fundamental bylaws
It was agreed that GAC must have active participation at the EC from the early stages to avoid escalation of a particular issue. GAC members need to make their voice heard. Adopting a flexible approach was advised, given the untested nature of the EC.
4. GAC Procedures for engagement in stages 1, 2, and 3 of the escalation process
The GAC Secretariat will keep the community informed of any developments at the EC, given the fact that e-mails, correspondence, and EC deliberations are now open. Active participation is desirable to avoid escalation, and allow some flexibility. Draft responses will be prepared by GAC leadership for GAC to adopt one of the positions available under the bylaws: support approval, or reject approval, or abstain. Such decisions will normally be provided in written procedures at per GAC practices. For example, if three or more GAC members object, then a full GAC discussion will be needed by teleconference or face-to-face meeting within given timeframes.
On how to agree on a position for EC discussions, there was a suggestion to follow the rule of simple majority, as participation in the EC does not constitute GAC advice. The reasoning for such a suggestion was that using a GAC consensus decision within a GAC position at the EC level would complicate the process, because any formal objection would trigger a full GAC discussion. If a consensus position is not possible, then GAC will abstain from the exercise of the power in question.
GAC must decide on its final position about the fundamental bylaw amendment within 21 days of the end of the ICANN59 meeting.
5. GAC procedures for engagement in stage 4 of the escalation process. Proposed for agreement by GAC at ICANN60.
It was agreed to continue the GAC discussions and work towards finalising its procedures for stage 4 by the end of ICANN60 in Abu Dhabi.
6. GAC advice to the ICANN Board. Proposed for agreement by GAC at ICANN60.
At their two previous meetings, in Hyderabad and Copenhagen, GAC members started discussing whether and how the GAC should adopt procedures for preparing three possible types of advice to the Board: GAC consensus advice (fulfilling the requirements in the new ICANN bylaws for consensus advice being adopted with no formal objection, and which should be duly taken into account by the Board, and may only be rejected by a vote of no less than 60% of the Board; in case of rejection, the Boar would have to engage with the GAC and try to find a mutually acceptable solution); GAC advice (may receive one or more formal objections, but shall still be duly taken into account by the Board; if the Board takes action inconsistent with GAC advice, it should states the reasons for doing so); and conveying a range of views to the Board (as per GAC Operating Principles).
GAC members will continue discussions on finalising a position on the procedures for preparing different categories of advice by the end of the ICANN60 meeting.
The second session ended with an agreement to continue discussions by e-mail to determine the GAC position on the change to the fundamental bylaws within the given 21 days and formulate GAC participation procedures at the EC by the Abu Dhabi ICANN60 meeting.