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Time to show ICANN who’s boss!

Kevin Murphy, June 1, 2017, Domain Policy

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.

Papac named ICANN’s first complaints officer

Kevin Murphy, March 10, 2017, Domain Policy

ICANN has named its first-ever complaints officer.

It’s Krista Papac, a long-time domain industry participant who’s been working for ICANN, most recently as director of registry services and engagement, since 2013.

She’s previously worked for the registries Verisign, ARI (now part of Neustar) and data escrow agent Iron Mountain.

Her job will be to “provide a centralized mechanism to track complaints received about the ICANN organization” and is “an additional way for the ICANN organization to be accountable for and transparent about its performance”.

Her input will come largely from existing accountability mechanisms — the Ombudsman, Requests for Reconsideration, the Independent Review Process, and the contractual compliance department.

She’ll report to general counsel John Jeffrey.

The hire, and the reporting line, has already proved somewhat controversial.

Domain investor trade group the Internet Commerce Association today said that it was skeptical that a complaints officer reporting to the general counsel could be effective.

ICA added in a blog post that, while it has no beef with Papac, it had concerns that an insider had been hired into the role.

How can any individual who has worked for years within ICANN’s [Global Domains Division] be expected to cast prior experience and relationships aside to thoroughly and dispassionately investigate a complaint brought against GDD actions generally, or those of a specific member of the GDD staff?

Papac’s new role follows Jamie Hedlund’s internal move from head of government relations to VP of contractual compliance and consumer safeguards, in January.

Governments still split on ICANN accountability plan, but will not block it

Kevin Murphy, March 9, 2016, Domain Policy

The Governmental Advisory Committee failed to reach consensus on proposals to improve ICANN’s accountability, but has raised “no objection” to them going ahead as planned.

After burning the midnight oil in a tense series of meetings at ICANN 55 in Marrakech last night, the GAC finally agreed to the text of a letter that essentially approves the recommendations of a cross-community accountability working group.

The GAC said, in a letter (pdf) to leaders of the so-called CCWG:

While there are delegations that have expressed support for the proposal, there are other delegations that were not in a position to endorse the proposal as a whole.

In spite of this difference of opinions, the GAC has no objection to the transmission of the proposal to the ICANN Board.

This means that one of the barriers to accountability reform, which is inextricably linked to IANA’s transition away from US government oversight, has been lowered.

The GAC said it could not by consensus endorse the full suite of proposals, however.

The main sticking point was the CCWG’s recommendation 11, which essentially enshrines the GAC’s consensus-based decision-making rules in the ICANN bylaws.

A handful of governments — a bloc of South American nations, plus France and Portugal — are still not happy about this.

There is “no consensus” from the GAC on Recommendation 11, the GAC said.

There is also no consensus on the so-called “GAC carve-out” in Recommendations 1 and 2, which would limit the GAC’s ability to challenge ICANN board decisions alongside the rest of the community.

The accountability plan still needs to be formally endorsed by a couple more ICANN community groups, before it is submitted to the ICANN board for approval, which is expected to happen over the next 48 hours.

ALAC throws spanner in ICANN accountability discussions

Kevin Murphy, October 18, 2015, Domain Policy

The At-Large Advisory Committee has yanked backing for a key ICANN accountability proposal.

The ALAC, on of ICANN’s policy advisory groups, this afternoon voted unanimously “to withdraw support for the Membership model” at ICANN 54 in Dublin.

The Membership model is a proposal out of the Cross Community Working Group on Accountability (CCWG) that would change ICANN’s legal structure to one of formal membership, where a Sole Member gets legal rights to enforce accountability over the ICANN board of directors.

The model has some fierce support in the CCWG, but over the last few days in Dublin the group has started to explore the possibility of a “Designator” model instead.

That would be a weaker accountability model than one based on membership, but stronger than the “Multistakeholder Enforcement Mechanism” proposed by the ICANN board.

ALAC chair Alan Greenberg said in a statement to the CCWG mailing list:

In its formal response to the CCWG-Accountability proposal issued in August 2015, the ALAC said that it could support the model being proposed, but preferred something far less complex and lighter-weight, and that we saw no need for the level of enforceability that the proposal provided. Moreover, the ALAC had specific concerns with the budget veto and the apparent lack of participation of perhaps a majority of AC/SOs.

In light of the reconsideration of a designator model by the CCWG, along with the recommendations of the Saturday morning break-out sessions, the ALAC felt that a revised statement was in order. Accordingly we decided, by a unanimous vote of the 14 ALAC members present (with 1 not present), to withdraw support for the Membership model.

I want to make it clear that this is not a “red line” decision. Should a Membership model become one that is generally advocated by the CCWG, and supported by a supermajority of Board directors (who ultimately MUST support any changes that they will be called upon to approve, else they would be in violation of their fiduciary duty), then the ALAC reserves its right to support such a model.

The move revises the battle lines in the ongoing accountability debate. It’s no longer a simple case of CCWG versus ICANN board.

Dublin is a crunch time for the accountability proposals.

The clock is ticking — if the ICANN community cannot agree on a consensus proposal soon it risks delaying the transition of the IANA functions from US government oversight and possibly killing off the transition altogether.

Yet, while the CCWG is making steady progress cleaning up remaining areas of disagreement, the differences between itself and the board are still as sharp as ever.

DI will be live-blogging ICANN 54

Kevin Murphy, October 16, 2015, Domain Policy

I’m going to be doing something a little different for ICANN’s latest public meeting.

For various tedious reasons I was unable to attend in person ICANN 54, which started in Dublin this morning, so I thought I’d try to make the best of the advantages of remote participation and a friendly time zone to try something new.

Namely, live-blogging.

For those unfamiliar with the concept, a live-blog is essentially a single blog post that is updated and amended in real-time as a quickly developing news story continues to roll.

You can think of it a little like a Twitter feed, but without the restrictions.

If you have your browser open to the live-blog post, the updates should be automatically pushed to you in near real-tie without the need to manually refresh the page.

I say “should” because I’ve never done this before and, despite a bit of testing, the back-end software may not function precisely as I expect.

The auto-refresh function only seems to work, by design, in single-post view. If you’re looking at the DI front page you probably won’t get the auto-updates unless you manually refresh.

It’s all very experimental and I may quickly abandon the idea if it doesn’t seem to be working. Feedback is welcome.

The intention in some cases is to live-blog individual sessions, when they’re important enough to warrant my undivided attention — such as the opening ceremony or the meeting between the ICANN board and the Governmental Advisory Committee.

In other cases, the blog may dip in and out of conflicting sessions depending on what seems most interesting at the time.

While ICANN 54 doesn’t officially start until Monday, long-time ICANN watchers know that the real discussions begin much earlier.

In fact, in Dublin, they’ve already started.

A three-hour session of the community working group tasked with improving ICANN’s accountability, known as the CCWG, showed strong indications this morning that it may be ready to be the first blink in its ongoing confrontation with the ICANN board.

You can expect a lot of coverage of the accountability discussions, which have multiple sessions devoted to them, over the coming seven days.