The change in the historic contractual relationship with the US government also triggered a broader accountability discussion within ICANN, responding to a set of concerns from the community related to the current and future role of ICANN. Following the accountability discussions at ICANN 49, in May 2014 ICANN published a proposed process on Enhancing ICANN Accountability, inviting comments from the ICANN community (6 May-27 June 2014, and again 6-27 September 2014) and suggesting the formation of an ICANN Accountability Working Group. The Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) was formed in October 2014 and focuses on two parallel work streams:
- Work stream 1, to be completed before the IANA Stewardship Transition, covering accountability aspects that represent pre-requisites for the IANA transition;
- Work stream 2, which can extend beyond the transition.
Several working group meetings have preceeded ICANN's regular meetings. CWG-Stewardship has also been heavily involved in the accountability. Legal counsel has been sought by the working groups throughout the process. The first draft report of CCWG was published on 4 May 2015 and was followed by a public comment period.
The work on accountability also moved forward with a face-to-face meeting in Buenos Aires preceding ICANN 53, in which the accountability architecture proposed (based on four building blocks: an empowered community, the Board, the Bylaws and the Independent Review Process) was discussed. Subsequently, a second draft report was publised on 3 August, and was again followed by a public comment period.
Discussions continued, both online, as well as during a CCWG face-to-face meeting in Los Angeles, in September 2015, and at the ICANN54 meeting in Dublin, in October 2015. Following these discussions, the CCWG-Accountability's third draft proposal was published on 30 November, and a new public comment period ran until to 21 December 2015. This third draft proposal outlines 12 main recommendations meant to ensure ICANN's accountability towards the broader community:
- Recommendation #1: Establishing an Empowered Community for Enforcing Community Powers
- Recommendation #2: Empowering the community through consensus: engage, escalate, enforce
- Recommendation #3: Redefining ICANN's Bylaws as 'Standard Bylaws' and 'Fundamental Bylaws'
- Recommendation #4: Ensuring community involvement in ICANN decision-making: seven new Community Powers
- Recommendation #5: Changing aspects of ICANN's Mission, Commitments and Core Values
- Recommendation #6: Reaffirming ICANN's Commitment to respect internationally recognised human rights as it carries out its mission
- Recommendation #7: Strengthening ICANN's Independent Review Process
- Recommendation #8: Fortifying ICANN's Request for Reconsideration Process
- Recommendation #9: Incorporation of the Affirmation of Commitments
- Recommendation #10: Enhancing the accountability of Supporting Organizations and Advisory Committees
- Recommendation #11: Board obligations with regards to Governmental Advisory Committee Advice (Stress Test 18)
- Recommendation #12: Committing to further accountability work in Work Stream 2
On 14 December 2015, the ICANN Board of Directors submits its comments on the Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations.
Following the public comment period on the November proposal, discussions continued within the CCWG and, on 23 February, a Supplemental Final Proposal on Work Stream 1 Recommendations was submitted for approval to the CCWG chartering organisations, as an intermediary step preceding the submission of the report to the ICANN Board of Directors. This new proposal keeps the broad 12 recommendations outlined in the November draft, but brings changes to the way in which (some of) these proposals are expected to be implemented.
The most important element of the proposal is the creation of a new entity (called ‘empowered community’) that would have the ability to enforce a set of ‘community powers’ to be entrusted to the multistakeholder community. The new entity, which is to be organised as a California unincorporated association, will be given the role of ‘sole designator’ of ICANN Board members, being able to appoint and remove directors. It is expected that the ‘empowered community’ will be constituted of all existing supporting organisations within ICANN, as well as two advisory committees (the At Large Advisory Committee - representing end users, and the Governmental Advisory Committee).
With regard to the decision making process within ICANN, the proposal requires the ICANN Board to engage in an extensive engagement process with the multistakeholder community before making decisions on: strategic and operating plans, IANA budget, modifications to ICANN bylaws or articles of incorporation, and reviews of the IANA functions. If not satisfied with the results of this process, the empowered community may initiate a so-called ‘escalation process’ through which it would exercise one of its powers:
rejecting ICANN budgets, IANA budgets or strategic/operating plans
rejecting changes to ICANN standard bylaws
approving changes to fundamental bylaws and the articles of incorporation, and approving ICANN’s sale or other disposition of all or substantially all of ICANN’s assets
removing individual ICANN Board Directors
recalling the entire ICANN Board
launching a community Independent Review Process (the aim of this process is to ensure that ICANN only acts within the scope if its limited technical mandate and complies with its bylaws and articles of incorporation)
rejecting ICANN Board decisions relating to reviews of the IANA functions.
As a last resort mechanism, if the Board does not comply with a decision of the community regarding the removal of individual directors or the recall of the entire Board, the community can bring a claim in a court that has jurisdiction to force compliance with the decision.
One sensitive aspect of the proposal is related to the role of governments within the ‘empowered community’. While at that point the Governmental Advisory Committee had not made a decision as to whether it wishes to participate as a decisional participant in the empowered community, the proposal states that, if governments decide to take up such a role, they cannot exercise it when the community challenges the way in which the ICANN Board has implemented GAC consensus advice. This has triggered the discontent of several GAC members, who have filled a minority statement with respect to the third CCWG proposal, expressing their concerns over this matter.
On 29 February 2016, CWG-Stewardship confirms that the CCWG-Accountability supplemental final proposal meets the requirements of the CWG-Stewardship Final Transition Proposal.
After careful reviews, the majority of the the CCWG chartering organisations (ICANN's supporting organisations and advisory committees) decided to approve the supplemental final proposal on accountability recommendations. The Governmental Advisory Committee adopted a more nuanced position, saying that it does not object to the proposal being transmitted to the ICANN Board of Directors. Details here.
On 10 March, in the context the ICANN55 Marrakech meeting, the CCWG Accountability submits its supplemental final proposal on accountability recommendations to the ICANN Board. On the same day, the ICANN Board of Directors submits the 'plan to transition stewardship of key Internet functions' to the US Government. The plan includes both the IANA stewardship transition proposal and the supplemental final proposal on ICANN accountability recommendations.
On 11 March, NTIA acknowledges receipt of the plan to transition stewardship of key Internet functions, and, on 16 March 2016, it announces that it contracted the Berkman Centre at the Harvard College to perform an independent review of the proposals and submit a report no later than 30 June. One day after, on 17 March 2016, the Subcommittee on Communications and Technology in the US Congress hold a hearing on 'Privatizing the Internet Assigned Numbers Authority'.
Following the submission of the report on accountability recommendations under Work Stream 1, the ICANN community started to look into modalities for implementing the initial recommendations, as well as into an additional set of recommendations on issues such as: accountability of ICANN staff, accountability of ICANN constituencies, and jurisdictional aspects. A call for volunteers to contribute to this work (also known as 'work stream 2') was launched in late March. Earlier this month, officials in the US government announced that, as the government reviews the IANA stewardship transition proposal and the accountability proposal, it expects ICANN to adopt the bylaw changes that are required for their implementation. Work stream 2 was luanched with a full-day meeting of the working group, on 26 June (in the context of the ICANN56 meeting). The new areas of work include, among others: additional transparency considerations, diversity across ICANN, accountability of ICANN staff, accountability of supporting organisations and advisory committees, a Framework of Interpretation on respecting human rights within ICANN’s mission and scope, expanding the list of jurisdictions in ICANN’s contracts. etc.