GNSO mulls lawyering up over auction fund dispute

The GNSO Council has started discussing bringing in the lawyers over ICANN’s recent handling of issues related to its $200+ million auction fund and Grant Program.

The Council today raised the possibility of deploying the never-before-used Community Independent Review Process, which would involve every major community group ganging up on ICANN’s board in a protracted quasi-judicial bunfight.

Ironically, the beef concerns the way ICANN is trying to stop people invoking its accountability mechanisms, including the IRP, to challenge decisions it makes under its Grant Program, which hopes to distribute $10 million to worthy causes this year.

ICANN policy is that nobody should be able to challenge grant decisions, because that would mean funneling the available funds into the pockets of worthless lawyers, rather than worthy causes. But how it proposes to achieve that goal is in dispute.

The original community recommendation was for a bylaws amendment that specified that the Grant Program was out-of-bounds for IRP and Request for Reconsideration claims, and the board initially agreed, before changing its mind and instead plumping for a clause in the program’s terms that prevents grant applicants appealing adverse decisions.

After community pushback, the board said it would also propose a bylaws amendment, but many believe the amendment it came up with goes way too far and risks making it far too easy for ICANN to wriggle out of its accountability obligations in future.

Leading the fight against the board is the GNSO’s Intellectual Property Constituency, which filed a Request for Reconsideration in November, asking ICANN to reverse its decision to “contract around” its accountability promises and scale back its over-broad bylaws amendment.

But the RfR was thrown out, with the Board Accountability Mechanisms Committee ruling that the IPC had failed to say how it had been specifically harmed by the board’s actions, accusing the constituency of merely “speculating” about possible future harms.

GNSO Councillor Susan Payne, today expressed the IPC’s disappointment with BAMC’s decision on the Council’s monthly conference call.

“We think that’s wrong,” she said. “If you purport to change a fundamental bylaw by using a process that cuts out the GNSO and effectively therefore also its constituencies and stakeholder groups then clearly there’s a harm there.”

She also noted the financial expense of challenging the board’s decisions.

“Constituencies or stakeholder groups will have real difficulty in withstanding the ICANN machine,” Payne said. “It’s a really expensive process to to challenge these kind of decisions. We asked if other constituencies and stakeholder groups would be able to join the IPC in bringing that RfR and no one had the finances to do it.”

The IPC has joined ICANN in a Cooperative Engagement Process — a kind of informal discussion that is often a precursor to an IRP filing — but Payne raised the possibility of ICANN’s Empowered Community filing its own IRP.

Under ICANN’s bylaws, the EC has the special ability to bring a Community IRP and ICANN has to pay for it. It’s never been used before, and it doesn’t look to me like the complex conditions required to trigger it are close to having been met.

The IPC had broad support in principle from the other Councillors speaking in today’s meeting, but some urged caution due to ICANN’s past behavior when the lawyers are called in.

“Once you get into the IRP process, ICANN buckles down, hands it off to their outside counsel, and you really get a nasty litigation fight,” said Jeff Neuman, a liaison on the Council. “You’re talking about years of litigation, outside counsel, and no progress”.

Fellow council member Thomas Rickert of the ISPs constituency suggested looking for a law firm that would handle the IRP on a no-win-no-fee basis before committing further.

While it seems a Community IRP may be unrealistic for now, the fact that it’s even being discussed shows how seriously the GNSO is taking this apparent power grab by ICANN’s board and lawyers.

Jury still out on ICANN’s content policing powers

Key ICANN community groups have refused to come down on one side or the other in the debate about proposed content policing powers, leaving the question up in the air as ICANN considers a major bylaws amendment.

As I reported last month, ICANN is thinking about changing its governing bylaws to permit it to enforce Registry Voluntary Commitments — contract clauses that could include rules on the content of web sites — on registries in future new gTLD application rounds.

ICANN’s board is convinced that it needs to amend the Org’s bylaws, which explicitly prevent it policing content, in order to do this. It is concerned that “there are political, practical, and reputational risks associated with ICANN negotiating and entering into contract provisions that have the effect of restricting content in gTLDs”.

Such an amendment would require the consent of the five-member Empowered Community, to which ICANN answers, and so far there’s little indication that it would be able to secure the three votes needed.

The EC is made up of the ASO, the ccNSO, the GNSO, the ALAC and the GAC, and so far only the ALAC has said that it supports a bylaws amendment. The GNSO is split, with contracted parties dead against the amendment, and would be unlikely to vote in favor. The GAC seems to be on the fence.

The ASO and ccNSO both declined to express an opinion, saying matters related to gTLDs are outside of their remit, but ICANN chair Tripti Sinha pressed the groups to reconsider in letters this March.

Now, both groups have responded by digging their heels in — nope, it’s none of our business, they say.

“The topics addressed in the consultation are outside the scope of the ASO, so we respectfully decline the invitation to provide input at this time,” the ASO said.

“After careful consideration, we still do not see conditions which warrant our participation in the implementation of the next round of new gTLDs,” the ccNSO said.

The ccNSO added that it could only comment on a proposed bylaws amendment if it could see the draft text of the amendment, and that is not yet available.

If ICANN leadership was hoping for clarity on whether a content policing bylaws change is even feasible, it looks like it doesn’t have it yet.