Last Piece of ICANN Plan to End U.S. Internet Oversight Expected

Accountability and Transparency

^{Reproduced with permission from Electronic Commerce & Law Report, 21 ECLR 249 (Feb. 24, 2016). Copyright 2016 by The Bureau of National Affairs, Inc. (800-372-1033) <http://www.bna.com>}

An Internet Corporation for Assigned Names and Numbers working group plans to release late Feb. 19 the last piece of a plan to divest the U.S. from technical oversight of the Internet, ICANN sources told Bloomberg BNA.

The group spent nearly two years developing ways to improve the accountability of ICANN’s board of directors in the absence of Commerce Department oversight. The accountability plan is a required companion piece to the operational details of the transition plan to move technical Internet oversight to ICANN formally. The operational piece was completed in October 2015.

The final hurdle for the plan has been a difficult negotiation over when ICANN’s Government Advisory Committee can participate in accountability mechanisms, such as a last-resort mechanism to remove the entire board.

After the working group releases the plan, it goes to ICANN’s constituent groups, which are likely to approve the proposal during the upcoming ICANN public meeting in Marrakech, Morocco, March 5-10. If the accountability plan is approved, ICANN’s board is expected to submit both parts of the transition plan to the Commerce Department March 10.

Working group co-chair Thomas Rickert, director of the eco Names and Numbers Forum, told Bloomberg BNA in an e-mail early on Feb. 19 that the proposal would be submitted ‘‘in a few hours,’’ adding that ‘‘there might be a delay with the publication if we get last minute change requests.’’

Final Approval Not Guaranteed

Final approval of all 12 recommendations comprising the plan isn’t yet assured, Phil Corwin, who represents the Business Constituency of commercial Internet users in ICANN, told Bloomberg BNA Feb. 19.

‘‘There may still be a problem on some of the GACrelated issues,’’ Corwin said. ‘‘I don’t think we’ll know until we get to Marrakech.’’

The Generic Names Supporting Organization, ICANN’s primary policy-making body, will hold a call Feb. 29 with the working group’s co-chairs to discuss the plan, but won’t vote until the Marrakech meeting, Corwin said.

End of U.S. Oversight Necessitates Changes

In March 2014 the U.S. government announced its intention to turn over to the global Internet community, as embodied in ICANN’s open community, its oversight of the Internet Assigned Numbers Authority functions (19 ECLR 362, 3/19/14). The IANA functions involve the names, numbers and protocols that allow the Internet to function as a global network of networks.

The IANA functions are invisible to ordinary Internet users, and the Commerce Department’s oversight has been largely symbolic. ICANN has been performing the functions under a no-cost government contract for more than a decade.

Despite that, the Commerce Department has always been seen as a backstop that keeps ICANN in check. ICANN stakeholders pushed for the effort to beef up accountability mechanisms for ICANN as part of the transition (19 ECLR 896, 7/16/14). ICANN’s constituent bodies commissioned the working group, known as the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG), to develop that aspect of the transition plan.

New Community Powers

The group has released several drafts of the accountability plan for comment, and the final version is not expected to differ substantially from the latest draft. At the heart of the accountability plan are seven new ‘‘community’’ powers that can be exercised by the corporate, nonprofit, academic and technical community representatives who participate in ICANN (20 ECLR 1710, 12/9/15). Those powers include the ability to:

• reject an operating plan or budget;
• reject a change to ICANN’s bylaws;
• approve changes to ICANN’s articles of incorporation
  or bylaws designated as fundamental;
• remove a director;
• remove the entire board of directors;
• initiate a binding arbitration, known as an independent
  review panel, to challenge a board decision;
  and
• reject board decisions relating to the IANA functions.

Community members can do this through a new ‘‘engagement, escalation, enforcement’’ process. The standards and voting thresholds vary for different community powers.

Not Quite Unanimous

Some CCWG members have already said the plan won’t achieve unanimous support in the CCWG. They registered complaints with specific issues even before the final plan’s release.

Concern about the delicate balance of power for the government representatives who collectively form ICANN’s GAC has been at the heart of much of the controversy throughout the process, and the final report is no exception.

Representatives from France, Portugal and seven South American countries signed onto a minority statement from Argentina representative Olga Cavelli. ‘‘We note that GAC is once again asked to lower its ability to be involved in the post-IANA transition ICANN,’’ Cavelli said in the Feb. 18 statement.

By contrast, Robin Gross, representing Internet users through the At-Large Advisory Committee, objected Feb. 18 that the proposal involves the GAC in new accountability mechanisms at all. Such participation ‘‘would transform its traditional function in ICANN from an ‘advisory’ role to a ‘decisional’ role over ICANN’s policies, operations, and corporate governance matters,’’ Gross said.

BY JOSEPH WRIGHT
To contact the reporter on this story: Joseph Wright in Washington at jwright@bna.com
To contact the editor responsible for this story: Donald G. Aplin at daplin@bna.com