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ICANN’s Empowered Community to get its first test-drive after appeals panel vote

Kevin Murphy, February 8, 2017, Domain Policy

ICANN’s post-transition bylaws have only been in effect for a few months, but the board of directors wants to change one of them already.

The board last week voted to create a new committee dedicated to handling Requests for Reconsideration — formal appeals against ICANN decisions.

But because this would change a so-called Fundamental Bylaw, ICANN’s new Empowered Community mechanism will have to be triggered.

The Board Governance Committee, noting that the number of RfR complaints it’s having to deal with has sharply increased due to fights over control of new gTLDs, wants that responsibility split out to be handled by a new, dedicated Board Accountability Mechanisms Committee.

It seems on the face of it like a fairly non-controversial change — RfRs will merely be dealt with by a different set of ICANN directors.

However, it will require a change to one of the Fundamental Bylaws — bylaws considered so important they need a much higher threshold to approve.

This means the untested Empowered Community (which I’m not even sure actually exists yet) is going to get its first outing.

The EC is an ad hoc non-profit organization meant to give ICANN the community (that is, you) ultimate authority over ICANN the organization.

It has the power to kick out directors, spill the entire board, reject bylaws changes and approve Fundamental Bylaws changes.

It comprises four or five “Decisional Participants” — GNSO, the ccNSO, the ALAC, the ASO and (usually) the GAC.

In this case at least three of the five Decisional Participants must approve the change, and no more than one may object.

The lengthy process for the EC approving the proposed bylaws change is outlined here.

I wouldn’t expect this proposal to generate a lot of heated discussion on its merits, but it will put the newly untethered ICANN to the test for the first time, which could highlight process weaknesses that could be important when more important policy changes need community scrutiny.

ICANN’s divorce from the US cost $32 million

Kevin Murphy, February 6, 2017, Domain Policy

The IANA transition cost ICANN a total of $32 million, according to documentation released today.

The hefty bill was racked up from the announcment of the transition in March 2014 until the end of 2016, according to this presentation (pdf).

A whopping $15 million of the total went on lawyers.

IANA costs

Another $8.3 million went on other third-party services, including lobbying, PR and translation.

More than half of the overall expenses — $17.8 million — was incurred in ICANN’s fiscal 2016, which ended last June.

Trump nominee open to retaking ICANN oversight role

Kevin Murphy, January 19, 2017, Domain Policy

The incoming head of the US Department of Commerce has indicated that it is unlikely he’ll try to reestablish the US government’s unique oversight of ICANN, at least in the short term.

But at his confirmation hearing in Congress yesterday, Trump nominee for secretary of commerce Wilbur Ross said he’d be open to ideas about how the US could increase its power over ICANN.

He was responding to a question from Ted Cruz, the Texas senator who made halting the IANA transition one of his key concerns last year.

Cruz, framing the question in such a way as to suggest ICANN is now in the hands of an intergovernmental consortium (which it is not) asked Ross whether he was committed to preventing censorious regimes using ICANN to hinder Americans’ freedom of speech.

Ross replied:

As such a big market and really as the inventors of the Internet, I’m a little surprised that we seem to be essentially voiceless in the governance of that activity. That strikes me as an intellectually incorrect solution. But I’m not aware of what it is that we actually can do right now to deal with that. If it exists, if some realistic alternative comes up, I’d be very interested.

His response also mischaracterizes the power balance post-transition.

The US is not “essentially voiceless”. Rather, it has the same voice as every other government as a member of the Governmental Advisory Committee.

Its role is arguably still a lot more powerful than other nations, given that ICANN is now bylaws-bound to remain headquartered in California and under US jurisdiction.

As head of Commerce, Ross will have authority over the National Telecommunications and Information Administration, the agency most directly responsible for dealing with ICANN and domain name issues in general.

NTIA itself will to the best of my knowledge still be headed by assistant secretary Larry Strickling, who handled the IANA transition from the US government side. (UPDATE: this may not be correct)

Ross, 79, is a billionaire investor who made most of his estimated $2.5 billion fortune restructuring bankrupt companies in the coal and steel industries.

ICANN retires Affirmation of Commitments with US gov

Kevin Murphy, January 9, 2017, Domain Policy

ICANN has terminated its last formal oversight link with the US government.

Late last week, ICANN chair Steve Crocker and Larry Strickling, assistant secretary at the US National Telecommunications and Information Administration mutually agreed to retire the seven-year-old Affirmation of Commitments.

The AoC, negotiated during the tail end of Paul Twomey’s leadership of ICANN and signed by successor Rod Beckstrom, laid out ICANN’s responsibilities to the US government and, to a lesser extent, vice versa.

It included, for example, ICANN’s commitments to openness and transparency, its promise to remain headquartered in California, and its agreement to ongoing reviews of the impact of its actions.

Ongoing projects such as the Competition and Consumer Trust Review originate in the AoC.

The rationale for concluding the deal now is that most of significant provisions of the AoC have been grandfathered into ICANN’s revised bylaws and other foundational documents following the IANA transition, which concluded in October.

Reviews such as the CCT and the lock on its California HQ are now in the bylaws and elsewhere, ICANN said in a blog post.

It’s worth mentioning that the US gets a new administration led by Donald Trump in a little over a week, so it probably made sense to get the AoC out of the way now, lest the new president do something insane with it.

The letters from Crocker and Strickling terminating the deal can be read together here (pdf).

States drop IANA transition block lawsuit

Kevin Murphy, October 17, 2016, Domain Policy

Four US states attorneys general have quietly thrown in the towel in their attempt to have the IANA transition blocked.

The AGs of Texas, Nevada, Arizona and Oklahoma unilaterally dropped their Texas lawsuit against the US government on Friday, court records show.

A filing (pdf) signed by all four reads simply:

Plaintiffs hereby provide notice that they are voluntarily dismissing this action pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i).

That basically means the case is over.

The AGs had sued the US National Telecommunications and Information Administration, seeking an eleventh-hour restraining order preventing the IANA transition going ahead.

The TRO demand was comprehensively rejected, after ICANN and organizations representing numerous big-name technology companies let their support for the transition be known in court.

The plaintiffs had said they were considering their options, but now appear to have abandoned the case.

It was widely believed that the suit was politically motivated, an attempt by four Republican officials to stir up anti-Obama sentiment in the run-up to the US presidential election.