Time to show ICANN who’s boss!

You are in charge of ICANN.
That statement may sound trite — it is trite — but it’s always been true to some extent.
Even if their individual voices are often lost, members of the ICANN community have always had the ability to influence policy, whether through sporadic responses to public comment periods or long term, soul-crushing working group volunteer work.
ICANN only really has power through community consent.
That’s another trite statement, but one which became more true on October 1 last year, when ICANN separated itself from US government oversight and implemented a new set of community-created bylaws.
The new bylaws created a new entity, the “Empowered Community”, which essentially replaced the USG and is able to wield more power than the ICANN board of directors itself.
Indeed, the Empowered Community can fire the entire board if it so chooses; a nuclear option for the exercise of community control that never existed before.
And the EC is, at the ICANN 59 public meeting in Johannesburg at the end of the month, about to get its first formal outing.
What the EC will discuss is pretty dull stuff. That’s why I had to trick you into reading this post with an outrageous, shameless, sensationalist headline.
Before getting into the substance of the Johannesburg meeting, I’m going to first bore you further for several paragraphs by attempting to answering the question: “What exactly is the Empowered Community?”
The EC exists an an “unincorporated association” under California law, ICANN deputy general counsel Sam Eisner told me.
It doesn’t have shareholders, directors, staff, offices… you wouldn’t find it by searching California state records. But it would have legal standing to take ICANN to court, should the need arise.
It was basically created by the new ICANN bylaws.
It comprises the five major constituencies of ICANN — the Generic Names Supporting Organization, the Country Code Names Supporting Organization, the Governmental Advisory Committee, the At-Large Advisory Committee and the Address Supporting Organization.
They’re called “Decisional Participants” and each is represented on a committee called the EC Administration by a single representative.
Right now, each group is represented on the Administration by its respective chair — GNSO Council chair James Bladel of GoDaddy represents the GNSO currently, for example — but I gather that doesn’t necessarily have to be the case; each group can decide how it appoints its rep.
Bladel tells me that each representative only takes action or casts a vote after being told to do so by their respective communities. As individuals, their power is extremely limited.
When the EC makes decisions, there must always be at least three votes in favor of the decision and no more than one vote against. A 3-1 vote would count as approval, a 3-2 vote would not.
This is to make sure that there is a fairly high degree of consensus among stakeholders while also preventing one community stonewalling the rest for strategic purposes.
The EC’s nine powers are enumerated in article 6.2 of the ICANN bylaws.
It can hire and fire an unlimited number of directors, reject the ICANN budget, file Requests for Reconsideration or Independent Review Process appeals, sue ICANN, and oversee changes to the ICANN bylaws.
Most of these powers are reactive — that is, if the ICANN board did something terrible the EC would have to consciously decide to act upon it in some way.
But one of them — approval of changes to Fundamental Bylaws — places the EC squarely in the legislative pathway. Think of it like the Queen of England’s Royal Assent or the US president’s ability to veto bills before they become law.
That’s the role the EC will adopt in Joburg this month.
The ICANN board recently passed a resolution calling for a new board committee to be created to focus on handling accountability mechanisms such as Reconsideration, removing the function from the overworked Board Governance Committee.
Because this requires a change to a Fundamental Bylaw — those bylaws considered so important they need more checks and balances — the EC has been called upon to give it the community’s formal consent.
To the best of my knowledge, the bylaws amendment is utterly uncontroversial. I haven’t heard of any objections or complaints about what essentially seems to be a probably beneficial tweak in how ICANN’s board functions.
But it will be the EC’s first formal exercise of executive power.
So there will be a session at ICANN 59 in which the EC convenes to discuss the board’s resolution and, probably, hear any input it has not already heard.
The exact format of the session seems to be up in the air at the moment, but I gather an open-mic “public forum” style meeting of about an hour is the most likely choice. It will of course be webcast, with remote participation, as almost all ICANN public meetings are.
No votes will be cast at the session — I’m told the bylaws actually forbid it — but the EC will have only 21 days afterwards to poll their communities and formally deliver their verdict. Assuming at least three of the communities consent to the board resolution and no more than one objects, it will automatically become ICANN law.
The next test of the EC, which would prove to be actually newsworthy enough to write about without a clickbait headline, may well be the ICANN budget. ICANN’s financial year ends at the end of June, and the EC has explicit powers to reject it.
The budget often raises concerns from those parties who actually pay into it, and given the difficulties the industry is in right now there may be more concerns than usual.
Anyway, this is the way ICANN works nowadays. It would make for more interesting reading if a triumvirate of Iran, China and Russia now ran the show, but they don’t. You lot do.
Just be glad Donald Trump isn’t holding the reins.
Sorry, that was also trite, wasn’t it.

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Tagged: accountability, bgc, empowered community, ICANN, icann 59, johannesburg, reconsideration, rfr