United States: Four Key Takeaways From ICANN 54

Keywords: Internet Corporation for Assigned Names and Numbers, registry operators, brand owners, gTLD applicants

The 54th meeting of the Internet Corporation for Assigned Names and Numbers (ICANN) concluded on October 22, 2015, in Dublin, Ireland. As always, the ICANN community discussed several high-profile topics during the meeting, all of which are relevant to registry operators, brand owners and future new gTLD applicants alike. Topics included ICANN accountability issues, the scope of ICANN's ability to regulate online content and new gTLD program reviews and preparations for subsequent rounds of new gTLDs. In addition, internal discord within the Generic Names Supporting Organization (GNSO) led to a failure to elect a new Chair.

Community Work on Enhancing ICANN Accountability Continues in the Face of Growing Pains

As anticipated, ICANN accountability again dominated community discussions. Indeed, the final schedule for the meeting was adjusted last minute to accommodate additional community sessions dedicated to this subject. There had been recent significant pushback on community proposals from the ICANN Board and its outside legal counsel, as well as the perceived need for the community to address that pushback.

Indeed, the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG) held a full-day session on Friday, October 16, dedicated to reviewing public comments1 received on its Second Draft Report and updating its internal "scorecard"2 tracking the progression of its proposals toward community consensus. As of the Dublin meeting, eight proposals from the CCWG have been categorized as having community support in principle, namely:

  • Fundamental Bylaws in concept;
  • Mechanism for approving Fundamental Bylaw changes;
  • Mechanisms for community rejection of Board-proposed Bylaws changes;
  • Incorporation of the Affirmation of Commitments into the Bylaws;
  • Enhancements to the Independent Review Panel (IRP);
  • A de novo standard of review in IRP proceedings;
  • The scope of topics to be considered in a subsequent work stream; and
  • Need for accountability of Supporting Organizations and Advisory Committees.

In addition, ICANN accountability was a prevalent topic within the Governmental Advisory Committee (GAC), which appeared to take offense at key concerns regarding any accountability proposal, including the risk of capture, the risk of concentrating or reallocating power within a few interest groups, the risk of inadvertently excluding certain stakeholders from community powers, and the risk of decreasing ICANN efficiency. Members of the CCWG met with the GAC to discuss changes to the accountability proposal, geared toward addressing these concerns, including a recommended "community forum" that would replace the previously recommended voting methodology, in the hopes of enhancing community consensus-building and participation. ICANN CEO Fadi Chehadé sympathized with GAC concerns, but offered that the steps made thus far between the CCWG and the Board were promising. Unsurprisingly, many government representatives sought to apply pressure on the CCWG to shy away from reliance on US courts or other mechanisms tied to jurisdiction in the United States; however, keeping ICANN under US jurisdiction is of critical importance for many US-based brand owners and contracted parties, as well as the US National Telecommunications and Information Administration (NTIA).

In addition, significant discussion took place within the GAC, and through GAC members of the CCWG, regarding the semantics to any mandate that ICANN's multi-stakeholder model be "private-sector led." Of course, there are many governments that wish to see greater governmental influence within ICANN; however, the NTIA has made clear that any IANA transition proposal—and therefore, any accountability proposal—must not include a government-led solution.

The GAC also internally disagreed upon a number of CCWG proposals. Most importantly, several GAC members remain opposed to Stress Test Eighteen, which recognizes that the GAC may, in the future, decide to supplant its current definition of consensus (the absence of any opposition) with majority voting to achieve GAC Advice. In response, to avoid the possibility of capture by a minority of government representatives within the GAC, the CCWG has recommended that the ICANN Bylaws require due deference only to Advice achieved through non-opposition (the United Nations definition of consensus) as opposed to any majority voting methodology. Representatives from Argentina and Brazil, among others, remain strongly opposed to this amendment as "simply unnecessary," whereas other representatives, for example from the United States, the United Kingdom, Canada, Japan and Denmark, expressed support for Stress Test Eighteen insomuch as it merely encapsulates the status quo and is already supported widely among the community. Indeed, while both support and opposition was voiced, a shocking number of GAC representatives seemingly failed to comprehend the specific nature of Stress Test Eighteen or the correlating CCWG proposal.

Ultimately, public GAC discussion on the issue ended in apparent stalemate. However, after an explanation and apology from ICANN CEO Fadi Chehadé, the GAC Dublin Communiqué3 stressed maintenance of the status quo, while retaining sovereignty, at an extremely high level, to establish and amend the definition of consensus Advice within the GAC.

Members of the Commercial Stakeholders Group, led primarily by those in the IPC representing copyright interests, continued to push the CCWG to include Bylaws language to the effect that ICANN's mandate must include an explicit ability to enter into, interpret, and enforce its contracts in fulfillment of its public interest mission. In sum, the CCWG merely clarified that language it has included as a proposed revision to the ICANN Mission statement that would prohibit ICANN from regulating services that use the Internet's unique identifiers or the content they carry or provide, is not intended to circumscribe ICANN's contractual enforcement powers.

Finally, after several days of internal discussion and input from the community, the CCWG determined to pursue a "Single Designator Model" (SDM) for exercising community powers in lieu of the previously proposed "Single Member Model" (SMM).

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Footnotes

1  ICANN, Cross-Community Working Group on Enhancing ICANN Accountability (CCWG) Second Draft Report Public Comments, https://www.icann.org/publiccomments/ccwg-accountability-2015-08-03-en (last visited Nov. 12, 2015).

2  ICANN, CCWG Scorecard, https://docs.google.com/spreadsheets/d/1HcUUDn5DHSVo7lLo-FWU_QMa8PGgfZWTP_kGo1EXNQs/edit#gid=321359797 (last visited Nov. 12, 2015).

3  ICANN, GAC Dublin Communiqué (Oct. 21, 2015), available at https://www.icann.org/en/system/files/correspondence/gac-to-board-21oct15-en.pdf.

Originally published 17 November 2015

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