Accountability

22
Jun

Comments Run Overwhelmingly Against ICANN Staff Attempt to Impose URS on Legacy gTLDs

The comment period on the proposed renewal registry agreement for the .Travel legacy gTLD closed on Sunday, June 21st and the comments submitted are overwhelmingly opposed to ICANN staff’s attempt to impose any of the new gTLD rights protection mechanisms, including Uniform Rapid Suspension (URS), on legacy gTLDs through contracting rather than a formal Policy Development Process (PDP).

In addition to ICA’s own comment (reproduced below) opposition to the contracting route were submitted by ICANN’s Business Constituency and Non-Commercial Stakeholders Group as well as the Electronic Frontier Foundation and IP Justice, plus numerous participants in the domain industry. The only outliers supporting this brazen attempt to detour around ICANN’s Bylaws were ICANN’s Intellectual Property Constituency and the Donuts new gTLD portfolio registry operator.

At its opening session on Sunday morning in Buenos Aires, ICANN’s GNSO Council met with senior staff of ICANN’s Global Domains Division (GDD). Many Council members raised their own strong concerns about the staff action and its destructive impact on the GNSO’s role in making gTLD policy. GDD staff provided the weak response that “we did not push anyone to accept” the URS, maintaining that .Travel, .Pro, and .Cat registry operators had all “volunteered” to include it in their proposed renewal agreements. That justification strains credulity given that GDD staff proposed its inclusion as the starting point for registry agreement renewal – and our friends in the registry and registrar community inform us that ICANN staff play serious hardball in closed door contracting negotiations. GDD staff also said they would change their position if the GNSO told them not to seek to impose new gTLD RPMs on legacy gTLDs – which of course will never happen for both procedural and internal political reasons.

The same concerns were raised when the Council met with the ICANN Board on Sunday afternoon, where they received a more sympathetic reception. Several Board members agreed that staff should not initiate policy changes – but there was no firm Board commitment to intervene against the staff action.

So while the battle has been joined its outcome is far from settled. ICA intends to raise this matter again at the Public Forum on Thursday afternoon. As stated in our comment letter, “if the decision is made by staff to retain these RPMs in the .Travel renewal RA following the close of the public comment period, we believe that the proposed final contract must be forwarded to, reviewed by, and voted upon by the ICANN Board”. In other words, the Board needs to “own” the final decision, and in that action demonstrate whether it is truly committed to the bottom-up consensus policy process.

Here’s ICA’s comment letter:

 

 

VIRTUALAW LLC

Philip S. Corwin, Founding Principal

1155 F Street, NW  Suite 1050 Washington, DC 20004

202-559-8597/Direct 202-559-8750/Fax 202-255-6172/Cell

psc@vlaw-dc.com

 

June 21, 2015

By E-Mail to comments-travel-renewal-12may15@icann.org

Internet Corporation for Assigned Names and Numbers

12025 Waterfront Drive, Suite 300

Los Angeles, CA 90094-2536

 

Re: Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement

 

Dear ICANN:

I am writing on behalf of the members of the Internet Commerce Association (ICA). ICA is a not-for-profit trade association representing the domain name industry, including domain registrants, domain marketplaces, and direct search providers. Its membership is composed of domain name registrants who invest in domain names (DNs) and develop the associated websites, as well as the companies that serve them. Professional domain name registrants are a major source of the fees that support registrars, registries, and ICANN itself. ICA members own and operate approximately ten percent of all existing Internet domains on behalf of their own domain portfolios as well as those of thousands of customers.

This letter addresses the Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement that was published for public comment on February 2, 2015.

Summary of Position

The ICA is strongly opposed to the inclusion of new gTLD rights protection mechanisms (RPMs), particularly Uniform Rapid Suspension (URS), in this renewal agreement (RA) for a legacy gTLD.  We believe that this attempt by ICANN contracting staff to create de facto Consensus Policy via individual registry contract, absent a relevant Policy Development Process (PDP), is a glaring example of the type of top down, unaccountable action that should be targeted by enhanced accountability measures accompanying the IANA transition proposal. Contracts with legacy gTLDs can contain and enforce Consensus Policy, but it is an impermissible violation of ICANN’s Bylaws for contracts to attempt to create Consensus Policy.

We strongly urge that Section 2 of Specification 7 of the Renewal Agreement (RA) for .Travel, which contains the URS as well as the Trademark PostDelegation Dispute Resolution Procedure (PDDRP) be deleted in its entirety. Failure to take that action, and the resulting approval of a .Travel RA that contains these RPMs, will constitute a gross and unacceptable violation of ICANN Bylaws. We hope that contracting staff will promptly take the corrective action required on this matter.

However, if the decision is made by staff to retain these RPMs in the .Travel renewal RA following the close of the public comment period, we believe that the proposed final contract must be forwarded to, reviewed by, and voted upon by the ICANN Board. The potential addition of these RPMs to legacy gTLDs through this inappropriate avenue will have a substantial and deleterious effect on ICANN’s policymaking process going forward, will create a new and dangerous precedent whereby de facto Consensus Policy can be created by contractual fiat in violation of ICANN Bylaws, and will substantially and adversely affect third parties around the world consisting of the existing registrants of more than one hundred million legacy gTLD domains.

 

Unaccountable and Uninformed Top Down Policymaking is Unacceptable

On May 13, 2015 I had the honor and privilege of addressing the Subcommittee on Courts, Intellectual Property, and the Internet of the Judiciary Committee of the U.S. House of Representatives. I spoke on ICA’s behalf at the Subcommittee’s hearing on “Stakeholder Perspectives on ICANN: The .Sucks Domain and Essential Steps to Guarantee Trust and Accountability in the Internet’s Operation”.

In my oral statement before the Subcommittee I said the following:

While enhanced ICANN accountability measures are overdue they will operate best only if ICANN’s Board and senior staff embrace a culture of accountability that assumes responsibility for the fallout of ICANN decisions and encompasses early consultation with the multistakeholder community that provides organizational legitimacy.

The current situation regarding the proposed renewal RA for the .Travel gTLD is a perfect illustration that a ‘culture of accountability’ that includes proper deference to the multistakeholder community and to the letter and spirit of ICANN’s Bylaws is presently lacking at ICANN. That is extremely dismaying and disheartening, especially for those who believe in the multistakeholder model (MSM) of governance for the unique experiment in technical DNS management known as ICANN.

When the Applicant Guidebook for the new gTLD program was being drafted I was extensively engaged on ICA’s behalf in the vigorous community debate over its RPMs. Throughout their development by the IRT, STI-RT, and then the full community I repeatedly inquired of other stakeholders as well as ICANN senior staff whether adopting these RPMs as new gTLD program “implementation details” would in any way result in their automatic application to legacy gTLDs like .Com. I received repeated assurances that this would not occur – that the RPMs could be imposed on legacy gTLDs only after their impact and efficacy was fully assessed, and then only via a standard PDP to create new Consensus Policy in conformity with ICANN Bylaws.

The present proposal to impose the URS on .Travel is a betrayal of those assurances and a clear violation of ICANN’s Bylaws. The rationale for this decision – With a view to increase the consistency of registry agreements across all gTLDs, ICANN has proposed that the renewal agreement be based on the approved new gTLD Registry Agreement as updated on 9 January 2014.” – is flimsy and unconvincing. ICANN staff possesses no legitimate authority to create and impose what amounts to Consensus Policy. Proposing that the RA take the new gTLD RA as its starting point is tantamount to creating Consensus Party given the overwhelming negotiating advantage that ICANN has in such a context.

There can be no doubt that this is a staff attempt to create de facto Consensus Policy, as is clearly documented by the fact that the same objectionable provision appears in the proposed renewal RAs for .Cat and .Pro, both released for comment on May 28th. This evidences a deliberate and illegitimate attempt by contracting staff to create a series of precedents that would lead inevitably to the imposition of the URS on major legacy gTLDs such as .Org, .Net and .Com when they come up for renewal, despite the fact that the URS is not an ICANN Consensus Policy. Acting in a manner that is consistent with ICANN’s Bylaws is far more important than consistency of RAs – if that latter principle had been paramount then there would be no RPMs at new gTLDs to begin with because they are inconsistent with the Consensus Policy in effect at legacy gTLDs.

This staff decision is all the more troubling because it was made in an irresponsibly uninformed manner without waiting for a full evaluation and identification of issues concerning the new gTLD RPMs.  On May 1st the public comment period on “Draft Report: Rights Protection Mechanisms Review” (https://www.icann.org/public-comments/rpm-review-2015-02-02-en) closed, and on May 29th ICANN staff issued a “Report of Public Comments” (https://www.icann.org/en/system/files/files/report-comments-rpm-review-29may15-en.pdf) based upon community input. The Background on that Draft Report states that it “is intended to be available to inform the Issue Report requested by the GNSO as well as the independent review of Trademark Clearinghouse recommended by the GAC. In addition, this paper will serve as input to the Review Team on Competition, Consumer Trust, and Consumer Choice to be convened under Section 9.3 of the Affirmation of Commitments, charged with assessing the effectiveness of the safeguards developed for the New gTLD Program.”

None of these additional reviews have been completed. Further, one of the major reasons that the GNSO requested the referenced Issue Report was so that GNSO’s stakeholders could decide whether those RPMs should become Consensus Policy for all gTLDs. And that Issue Report will not even be delivered until late September because policy staff requested a six-month extension of the delivery date so that additional studies and analysis could be conducted – and the GNSO Council granted that request on January 29th of this year. Yet this near-total lack of evaluated data regarding the performance of the RPMs seems not to have mattered to contracting staff.

 

Policy and Implementation Considerations

The recently published Final Report on Policy and Implementation (P&I) (https://community.icann.org/display/PIWG/Final+Report+Redline+Version) is also germane to this discussion. That Report, issued with the full consensus support of its working group, defines a “GNSO Consensus Policy” (p.9) as “A Policy established (1) pursuant to the procedure and required minimum elements set forth in ICANN’s Bylaws, and (2) covering those topics listed in Section 1.2 of the consensus policies and temporary policies specification of the 2013 RAA (see Annex I) or the relevant sections in the gTLD registry agreements (see Annex II). GNSO Consensus Policies, adopted following the outlined procedures, are applicable and enforceable on contracted parties as of the implementation effective date.” (Emphasis added)

The PDDRP and URS both fit within the cited topics but have not been adopted pursuant to the outlined procedures for stablishing Consensus Policies. Therefore, their imposition by contractual fiat on legacy gTLDs is clearly in violation of the procedural path and required minimum elements set forth in the Bylaws.

In addition, the P&I Report adopts as its first principle that “Policy development processes must function in a bottom-up manner. The process must not be conducted in a top-down manner and then imposed on stakeholders”. Yet in this instance we have ICANN staff engaged in imposing policy from the top down, first on registries and through them onto registrars and registrants. This is absolutely unacceptable. The one exception to that first principle, “emergency cases such as where there are risks to security and stability”, bears no relationship to the RPMs at issue.

Finally, the P&I Report states a first standard, which is “As outlined in the ICANN Bylaws, the GNSO is responsible for developing and recommending to the ICANN Board substantive policies relating to generic top-level domains. As such, gTLD policy development should not take place outside of the GNSO.(Emphasis added) That standard has been grossly violated by the proposed RA as it imposes staff-dictated policy decisions on legacy gTLDs absent any GNSO involvement.

 

Unfair Impact on Registrants

Registrants at new gTLDs had clear notice that they would be subject to the new RPMs. Registrants at legacy gTLDs expect that they shall only be subject to Consensus Policy adopted in accordance with ICANN’s Bylaws. The proposed RA is a complete betrayal of that legitimate expectation and is totally at odds with ICANN rhetoric in support of registrant rights. It is also likely to raise legality of enforceability issues if there is any attempt to enforce new gTLD RPMs against registrants at legacy gTLDs absent their adoption via Consensus Policy.

The danger for legacy gTLD registrants is compounded by the fact that the URS that staff is trying to impose today may differ materially from what the URS becomes in the next few years. In this regard, the Report of Public Comments on the “Draft Report: Rights Protection Mechanisms Review” was released on May 29th.

The Report’s URS section makes clear that some parties would like Uniform Rapid Suspension converted into Uniform Rapid Transfer, with additional tweaks that would put domain registrants at a substantial disadvantage in URS proceedings.

Among the ideas suggested for the URS by various commenters were:

  • Adding various forms of domain transfer options, either at the time of the decision or when the domain registration expires.
  • Lengthening the term of the domain suspension beyond the initial registration period.
  • Lowering the “clear and convincing evidence” burden of proof standard to the “preponderance of the evidence” burden used in UDRP actions – combined with changing what needs to be proved from ‘registration and use’ in bad faith to ‘registration or use’.
  • Making the URS a “loser pays” procedure.
  • Eliminating or shortening the current one-year post-decision time period in which a defaulting registrant can file for de novo appeal.
  • Requiring the registrant to pay a response fee in all filings, rather than only in those cases involving 15 or more domains, as set in the current URS rules.

Taken collectively, these suggestions would undo whatever rough balance between rights holders and registrants was achieved in the creation of the URS. They make clear that the URS could be changed in the future to become an accelerated, lower-cost version of the UDRP, with the same burden of proof plus a domain transfer option. Those two changes alone would probably cause a mass shift from UDRP filings to URS by trademark owners – thereby converting the URS from its intended use as a narrow supplement to the UDRP to a complete substitute for it. Registrants would have less time to respond, shorter word limits in which to state their replies, and be denied the option of requesting a three member expert panel. Other potential changes could be adoption of a loser pays requirement, requiring registrants to pay a response fee in all cases, and changing what must be proved by complainant to bad faith registration or use.

ICA is sensitive to some legitimate concerns of trademark owners regarding the effectiveness of the URS and we have suggested means to address those concerns without undermining registrant rights. But proposals such as those listed above illustrate that the staff attempt to put the URS in place at legacy gTLDs via contractual fiat puts the cart far before the horse. We must know what the URS is going to be before we can consider its impact on legacy gTLD registrants and debate whether it should be adopted as Consensus Policy.

It is also a dangerous and destructive approach. If staff can succeed in this effort, and if the URS is then modified for new gTLDs though a non-PDP “implementation” route, that modified URS would automatically take effect at legacy gTLDs with contract provisions such as the one that staff is attempting to impose on .Travel . The result would be a radically different URS effectively put in place at legacy gTLDs absent any compliance with ICANN Bylaws pertaining to Consensus Policy.

Consensus Policy regarding RPMs must be vetted within the community to assure a proper balancing of the interests and rights of both trademark owners and domain registrants.

In order to assure that balance two indispensable steps are necessary:

  • The attempt to impose new gTLD RPMs on legacy gTLDs by contract must be withdrawn in recognition that such action is in violation of ICANN Bylaws. If staff is unwilling to retreat on this initiative then ICANN’s Board must assume responsibility and review all the issues at play, including compliance with the Bylaws, before any legacy gTLD RA with such a provision is made final.
  • Any further modification of the new gTLD RPMs must be considered within the context of a full PDP. We are far past the implementation phase of the new gTLD program. Further, it is clear that the applicability of the RPMs to legacy gTLDs is now primed for discussion. Unless both RPM modifications and legacy gTLD applicability are considered within the PDP framework there is a substantial risk of a bait-and-switch policy process, in which RPMs are made applicable to legacy gTLDs and then substantially altered via a backdoor, non-PDP process.

 

In addition, any suggestion that legacy gTLDs can “voluntarily” adopt new gTLD RPMs that have been proposed by ICANN staff in the course of renewal RA negotiations should be rejected as specious, given the differential in bargaining leverage between a registry operator in need of a RA and ICANN staff with the power to approve or deny it.

 

Conclusion

We appreciate the opportunity to provide these comments on the proposed renewal RA for .Travel.

For all the reasons outlined above, the attempted imposition of new gTLD RPMs on this legacy gTLD are absolutely unacceptable and in gross violation of ICANN Bylaws. They must be stripped out of the RA and reserved for consideration in a future PDP by the full ICANN multistakeholder community.

While much is at stake for legacy gTLD registrants, ICANN’s own credibility is also on the line in this instance. At a time when enhanced accountability measures are being designed, a successful end run around the PDP requirements for establishing Consensus Policy would suggest the need for even stronger accountability measures than those presently under consideration. Fortunately, the accountability process will still be ongoing when ICANN decides whether to withdraw this illicit action or double down in its pursuit.

 

Sincerely,

 

Philip S. Corwin

Counsel, Internet Commerce Association

 

 

 

 

 

 

 

 

 

 

15
Jun

Electronic Frontier Foundation tells ICANN to Delete URS from .Travel

The Electronic Frontier Foundation (EFF) has just told ICANN to drop the notion of applying the Uniform Rapid Suspension (URS) dispute resolution system to .Travel and other legacy gTLDs without undertaking a full Policy Development Process (PDP).

In a June 12 letter, EFF stated:

ICANN should not apply URS to the .travel domain, or to any additional domains, by the unaccountable means of staff inserting new conditions into the renewal of the registry operator’s contract. Rather, the public policy implications of such a move demand that a full PDP be undertaken first.

EFF’s letter also states:

The introduction of the URS, in response to a 2009 recommendation from the new gTLD program’s Implementation Recommendation Team (IRT), was characterized (however dubiously) as an implementation detail of the new gTLD program…The URS never became a consensus policy that would be applicable across all gTLDs…If the URS is to be extended to legacy domains such as .travel, this would place many further domains at risk of rapid suspension, which raises significant free speech concerns. It would also set a bad precedent for the extension of the URS to other legacy domains such as .com, .net and .org as their registries’ contracts come up for renewal.

ICANN contracting staff decided to impose the URS on .Travel based upon the misguided notion that it was more important “to increase the consistency of registry agreements across all gTLDs” than to act consistently with ICANN’s Bylaws. They didn’t even wait for their colleagues in the policy department to deliver the ‘Issues Report on new gTLD RPMs’ to the GNSO Council this coming September. One of the reasons the GNSO Council requested that report was so the GNSO could decide if those RPMs should become Consensus Policy for all gTLDs.

And it’s not just .Travel targeted by this staff power grab. Two weeks after publishing that proposed Registry Agreement (RA) ICANN published the proposed RAs for .Cat and .Pro, which also contain the URS. You can draw a dot-ted line through those registries that brings the URS to .org, .net and .com when they come up for renewal as de facto, staff-determined policy absent any demonstrated community consensus.

And when the URS reaches those big legacy domains, what will it look like? A review of the Report of Public Comments on the “Draft Report: Rights Protection Mechanisms Review” makes clear that if certain interests have their way the URS could be changed in the future to become an accelerated, lower-cost version of the UDRP, with the same burden of proof plus a domain transfer option. The result of transforming URS into URT (Uniform Rapid Transfer) would be more opportunities for domain hijackers and far less due process for domain registrants.

Whether the URS should change, much less if it should become a consensus policy for legacy gTLDs, are important policy decisions that should be decided by ICANN’s multistakeholder community through the standard PDP – not imposed in an unaccountable top down manner by ICANN staff.

EFF has made a valuable contribution to ICANN accountability by expressing its strong opposition to this high-handed attempt to short-circuit proper decision-making procedures. Let’s hope that more organizations and individuals speak out while the public comment period on these RAs remain open — and at the upcoming ICANN meeting in Buenos Aires.

21
May

Act Now — Just Say “No!” to URS at .Travel – Or It Will Travel to .Com

 

On May 12th ICANN posted the “Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement” for a period of public comment ending June 21st.

You’d expect ICANN staff to be on their best behavior right now, during ongoing community efforts to fashion enhanced and binding accountability measures. But instead this proposed Registry Agreement (RA) contains a provision through which staff is trying to preempt community discussion and decide a major policy issue through a contract with a private party. And that very big issue is whether Uniform Rapid Suspension (URS) should be a consensus policy applicable to all gTLDs, including incumbents like .Com and .Net.

The starting point for the proposed new .Travel RA was not the prior .Travel RA but the standard registry agreement for new gTLDs. As explained in ICANN’s announcement:

The current Registry Agreement for .TRAVEL, like other registry agreements, provides for presumptive renewal so long as certain requirements are met. It also provides that upon renewal, changes may be made to the terms of the Agreement.

With a view to increase the consistency of registry agreements across all gTLDs, ICANN has proposed that the renewal agreement be based on the approved new gTLD Registry Agreement as updated on 9 January 2014. In order to account for the specific nature of the .TRAVEL TLD, a Sponsored TLD, relevant provisions in the 5 May 2005 Sponsored TLD Registry Agreement have been carried over to this renewal agreement.

As a result, the proposed renewal agreement for .TRAVEL is similar to the terms of a Registry Agreement for a new gTLD that elected for community TLD status and that is not operated by an intergovernmental organization of a government entity… (Emphasis added)

There is one very big problem with that staff-determined “consistency” approach. It would make all domains at .Travel, a legacy gTLD and not a new gTLD, subject to URS, which is not a consensus policy applicable to all gTLDs.  

To that end, the proposed draft RA for .Travel includes, at p. 78, an amended version of Specification 7 (Minimum Requirements for Rights Protection Mechanisms) with this provision:

Dispute Resolution Mechanisms. Registry Operator will comply with the following dispute resolution mechanisms as they may be revised from time to time:

the Uniform Rapid Suspension system (“URS”) adopted by ICANN (posted at http://www.icann.org/en/resources/registries/urs), including the implementation of determinations issued by URS examiners. (Emphasis added)

This is top-down, staff-driven policymaking at its worst and is thoroughly unacceptable.

It appears that ICANN staff, on its own initiative and with no advance consultation with the community, are attempting to impose an “implementation detail” for the new gTLD program into a legacy gTLD renewal contract.

That would effectively convert the URS into a consensus policy without any community discussion of whether it should be, and set a precedent that could bring the URS to .Com, .Net, .Org and all other legacy gTLDs as their own RAs come up for renewal.

It was well understood at the time that the Rights Protection Mechanisms (RPMs) were debated and created for the new gTLD program’s Applicant Guidebook that they were to be regarded as “implementation details” for the new gTLD program and not as “consensus policy” applicable to all gTLDs. There was actually an extended debate in which IP interests insisted that they were mere implementation of the program’s general commitment to protecting IP rights and therefore did not require an extended policy development process (PDP) to be made applicable to new gTLDs. That dog won’t hunt for incumbent gTLDs like .Com.

As for considering whether the new gTLD RPMs should someday become consensus policy, ICANN recently closed a comment period on a “Draft Report: Rights Protection Mechanism Review” and ICA submitted an extensive comment letter on it. That Draft RPM Report is supposed to be preliminary to a full staff Issues Report on new gTLD RPMs to be delivered to the GNSO Council in late September. Receipt of that Issues Report is expected to inform a discussion of how well all the new RPMs are performing, whether they need to be altered, and – most importantly – whether they should become consensus policies for all gTLDs.

But now ICANN contracting staff, before the policy staff have even delivered their RPM Issues Report, are attempting to preempt that entire consensus policy discussion by imposing the URS on an incumbent gTLD.

This is a prime and disturbing example of top-down, staff-driven policymaking. And it is clear justification for the overdue and badly needed accountability mechanisms that ICANN stakeholders are now fashioning.

We understand that trademark interests would probably support making the URS a consensus policy. We know that many new gTLD registry operators are on the record saying that all the new RA provisions they are subject to, including URS, should be the rules of the road for incumbent registries as well.

As for ICA, we are a long way from establishing our position on that question – but we insist that it occur only after full community debate and consideration of all the potential reverberations of such a decision. That’s what a PDP is for.

This very important decision is one for the entire community to make after informed discussion, not for ICANN staff to make in a manner that preempts the discussion–

  • We need to review the actual performance of the URS, including the quality of arbitration decisions.
  •  We need to see if it is going to be materially changed in any way – especially if it is going to be altered to include a domain transfer option, which could convert it into a $500 vehicle for domain trolls to attempt abusive domain hijacking.

 

  • And, most important, we have to understand how well it meshes with any contemplated changes in the UDRP, since the receipt of the RPM Issues Report may well kick off a policy development process (PDP) on UDRP reform as well.

ICANN needs to hear from the global Internet community, in significant volume, that imposing the URS on an incumbent gTLD is unacceptable because it would mean that ICANN staff, not the community, is determining that URS should be a consensus policy and thereby undermining the entire bottom-up policy process. Domain suspensions are serious business – in fact they were at the heart of the SOPA proposal that inspired millions of emails to the US Congress in opposition.

This is clearly an issue for domain registrants – registrants at new gTLDs knew that their domains were subject to the Trademark Clearinghouse claims notice system and the URS, but registrants at incumbent gTLDs have never been subject to URS and should only become so if the community decides it should become a consensus policy.

But this should also be an issue for every other ICANN stakeholder and global domain registrant who wants to hold the line against staff-driven usurpation of the community’s right to initiate and make policy decisions.

So get your comments in by June 21st if you want to see the community remain in control of this key policy decision rather than have ICANN staff determine it via private contract negotiations. ICA will be commenting against including the URS in this RA, but we need lots of company.  

Here’s what to do:

  • Prepare a comment to ICANN and send it to comments-travel-renewal-12may15@icann.org by June 21st. Your comment can be in the text of the email or attached as a Word, PDF, or similar document type. A draft comment template is provided below that you can use as is or modify to reflect your personal point of view.
  • Besides sending your own comment, contact at least two other individuals who you think are opposed to having ICANN staff use the contracting process to put the URS in place at incumbent gTLDs, provide a link to this ICA post, and ask them to submit their own comments as well. And ask them to do the same to ensure maximum input to ICANN. And it wouldn’t hurt to also contact other trade associations and public interest groups as well as spread the word on social media.

 

 

This initiative can be stopped – but that will be best ensured if ICANN gets lots of comments that oppose including the URS in the .Travel RA.

Act now or be prepared to see the same tactic used to impose the URS on .Com, .Net, .Org and other incumbent gTLDs. Don’t complain then if you’re not willing to take a few minutes and speak up now. 

And here’s that draft template for comments: 

To comments-travel-renewal-12may15@icann.org

Dear ICANN:

I am writing in regard to the Proposed Renewal of .TRAVEL Sponsored TLD Registry Agreement issued for public comment on May 12, 2015.

I am strongly opposed to the inclusion of a modified version of the new gTLD rights protection mechanisms in Specification 7 of the proposed RA, especially Uniform Rapid Suspension (URS).

All the new gTLD RPMs were implementation details of the new gTLD program and are not ICANN consensus policies applicable to all registries and registrars. The URS can become a consensus policy only after a full policy development process (PDP) engaged in by the entire ICANN community of stakeholders. The ICANN community has not even received the new gTLD RPM Issues Report that staff will be providing to the GNSO in September 2015.

Imposing URS on an incumbent gTLD via the contracting process is an absolutely unacceptable staff intervention into the policymaking process. Approval of this draft contract would constitute top-down, staff-driven policymaking in direct violation of ICANN’s stated commitment to the bottom-up, private sector led policy development process.

Therefore, the .Travel renewal RA should be referred for Board consideration only after Specification 7/URS has been removed from the agreement, along with all other provisions derived from the new gTLD RA that are not established consensus policies applicable to incumbent gTLDs.

Thank you for your consideration of my views.

Sincerely,

[Name, title, organization]
23
Apr

Second Draft CWG-IANA Stewardship Proposal Out for Public Comment — April 24th Explanatory Webinar Scheduled

Late on the evening on April 22nd the CWG-Stewardship on the IANA Naming Functions issued its second Draft Proposal for a 28-day public comment period that closes on May 20th. Information about the Proposal can be found in a news announcement and at the public comment page.

ICANN has scheduled a 90-minute explanatory webinar on the proposal on Friday, April 24th at 6:00 and 14:00 UTC. Individuals who wish to participate should refer to the Webinar announcement for registration instructions.

ICA is concerned that the 28-day comment period, cut by thirty percent from the standard 40-day period used for other ICANN matters, may be insufficient to address a document of this importance and length. That is particularly true because several sections of the 90-page draft are marked as “Under Development” or “Draft and Under Development” indicating that this remains an incomplete work in progress.

Indeed, the explanation provided by the CWG notes that, During the Public Comment period, the CWG-Stewardship will continue to assess the implications of the proposed post-transition structure (section IV) and the fulfillment of NTIA requirements (section V). These sections depended largely on the completion of Section III and therefore are in outline form only at this time.” (Emphasis added)

The referenced Section III of the Proposal is the very important “PROPOSED POST-TRANSITION OVERSIGHT AND ACCOUNTABILITY”. In this regard the CWG explains that the critical details will be based on the unfinished work of the separate CCWG-Accountability:

DEPENDENCIES ON THE CCWG-ACCOUNTABILITY

The CWG-Stewardship’s proposal has dependencies on and is expressly conditioned upon the CCWG-Accountability process. Specifically, the proposal requires ICANN accountability in the following respects:

  • Ability for the community to have more rights regarding the development and consideration of the ICANN budget;
  • Empowering the multistakeholder community to have certain rights with respect to the ICANN Board, including the ICANN Board’s oversight of the IANA operations, specifically, the ability to appoint and remove members of the ICANN Board, and to recall the entire Board;
  • The IANA Function Review, created to conduct periodic and special reviews of the IANA Functions, should be incorporated into the ICANN bylaws;
  • The CSC, created to monitor the performance of the IANA Functions and escalate non-remediated issues to the ccNSO and GNSO, should be incorporated into the ICANN bylaws.
  • Accountability processes that the CCWG-Accountability is enhancing, such as the Independent Review Panel, should be made applicable to IANA Functions and accessible by TLD managers, if they wish to take advantage of these mechanisms.
  • All of the foregoing mechanisms are to be provided for in the ICANN bylaws as “fundamental bylaws” requiring community ascent in order for amendment.

The CCWG-Accountability is expected to deliver its own draft proposal for a similarly truncated public comment period later this month. However, the CCWG has penciled in a possible second comment period on the Accountability proposal that could begin around July 1 — while the CWG has no plans for a second comment period on the Stewardship proposal even though the draft that was just published has large holes in it.

The CWG’s current plan going forward is to analyze the comments following the close of the input period and then deliver a final draft for review, consideration and approval by ICANN Supporting Organizations and Advisory Committees around June 8th, with submission to the IANA Coordination Group (ICG) scheduled for just seventeen days later on June 25th.

At some future point the final package assembled by the ICG will have to be reconciled and combined with the final Accountability proposal and delivered to the ICANN Board for review and approval, an event currently projected to occur around August 30th. After that, implementation of those accountability measures required to be in place prior to the IANA transition would start, and the NTIA would review the full package and decide whether it effectively met the principles contained in its March 2014 announcement of the IANA transition.

Congressional appropriations language remains in effect that prohibits the NTIA from facilitating the transition prior to September 30th and requires that it provide Congress with 45 days advance notice of any intent to transfer oversight of the IANA root zone functions.

 

7
Sep

ICANN’s Comment Period on Accountability Process Seeks Scope Limitations

Bowing to unprecedented community pressure in the form of a unanimous letter questioning its staff-developed Accountability Process, as well as a reconsideration request filed with the Board, on September 5th ICANN issued a notice titled “Public Comment Invited: Enhancing ICANN Accountability Process”. The notice opens a 21-day public comment period on that staff proposal.

However, ICANN staff apparently cannot resist asserting some form of top-down control even what that very conduct is at issue, and the notice and accompanying explanation contain attempts to restrict and unduly channel the scope of community comment.

The explanation instructs that the scope of the comments should be narrowly focused:

This public comment period is focused on addressing questions about the design of the Enhancing ICANN Accountability Process – not about the potential solutions or outcomes of the review….issues and solutions are not under discussion here. The question for this public comment discussion is: Are there any final modifications or improvements needed to the Enhancing ICANN Accountability process design to allow for this discussion to proceed?

The question that ends that excerpt clearly asserts that the staff-designed plan should be the starting point for comments focused on “modifications and improvements” to it. But many in the community feel that the staff proposal is unduly complex and deliberately designed to dilute its views, while granting ICANN’s Board excessive latitude to reject any and all recommendations that are eventually produced. A fully open comment period should allow suggestions for replacement of all or part of the staff’s proposed Process. Besides, how can you untangle the design of a process from the issues it is addressing and their potential solutions?

Additionally, notwithstanding its admonition to focus on process, ICANN itself uses the notice to assert limitations on the substance of what may be produced by whatever final Process is ultimately adopted. And it relies on its characterization of statements made by the U.S. government at this past week’s Istanbul IGF meeting as the foundation for that assertion. The explanation asserts:

This process is intended to deal with focused systemic issues caused by the changing historical relationship with the United States, including for example, by stress testing against internal or external captures or takeovers, and safeguards against capture at all levels, which is a pre-condition of the IANA stewardship transition. Statements made by the NTIA since posting clarify that this process is limited to ensuring ICANN remains accountable in the absence of its contractual relationship with the U.S. Government. This process could potentially include an evolution of the AoC, but does not replace or duplicate existing ICANN accountability processes such as the Accountability and Transparency Reviews that deal with routine execution of tasks.

ICANN is an evolving organization with existing review mechanisms that ensure it continues to evolve to events not related to the changing relationship with the U.S. Government.

…In the previous public comment and public sessions, community members have identified many possible solutions of how to enhance ICANN accountability, such as the development of new community driven redress mechanisms. These proposed issues and solutions as they pertain to the changing relationship with the US are expected to be addressed by the process. (Emphasis added)

Likewise, the notice further asserts that a major factor underlying the opening of the comment period was:

The emphasis made by the U.S. government at ICANN’s Town Hall Meeting at the Internet Governance Forum (IGF) in Istanbul that the enhancement of ICANN’s accountability mechanisms be narrowly focused on those related to the IANA Functions Stewardship Transition, that is reiterating its focus is on the changing historical contractual relationship with the US, and that both the transition and accountability processes be delivered simultaneously by September 2015 when the IANA contract expires. (Emphasis added)

It is quite difficult to parse these statements and comprehend what ICANN actually believes is in scope for this comment period. A narrow focus on the termination of the clerical role played by the U.S. in reviewing proposed IANA functions root zone changes seems completely at odds with envisioning comments on the Affirmation of Commitments (AoC). The accountability concerns that drove the recent unprecedented community actions are based in the widely held views of many stakeholders that ICANN’s existing accountability measures are inadequate — and that ICANN may exercise its right to terminate the AoC between it and the U.S. once the IANA transition is completed. Even if AoC termination does not occur, ICANN may face growing pressure to expand the counterparty end of the AoC so that it is no longer an agreement solely between it and the U.S. And, as the AoC is the basis for the periodic Accountability and Transparency Reviews, one cannot discuss one and ignore the other.

Another confusing aspect of the guidance is its concession that new community driven redress mechanisms are within the scope of the Accountability Process. Overall, the coming termination of the unique U.S. oversight tied to periodic re-awarding of the IANA functions contract is the most fundamental change to ICANN since its creation, and a fair and open process would deem almost any suggestion for enhanced accountability as within scope.

So far as U.S. remarks made this past week in Istanbul, the IGF 2014 website does not appear to provide a transcript of the September 2nd Town Hall meeting referenced above, and ICANN’s own IGF webpage contains no mention of the event, so it is not clear whether ICANN’s characterization of Secretary Strickling’s remarks is fully accurate. But it is not unusual for U.S. officials to tailor their remarks for overseas audiences, and the one that gathered in Istanbul would probably equate any extension of the IANA contract beyond September 2015 as indicative that the U.S. may not intend to complete the transition.

In any event, ICANN’s characterization of Secretary Strickling’s remarks is at some considerable variance his last official statement on this subject made in the U.S. and posted at the NTIA website, his July 22nd remarks at the American Enterprise Institute. He told that audience:

We have not set a deadline for this action.  While the current contract with ICANN expires in September 2015, we have repeatedly noted that we can extend the contract for up to four years if the Internet community needs more time to develop a proposal that meets the criteria we have outlined.  In the meantime, our current role will not change…Also this spring, in response to community discussions at its Singapore meeting, ICANN announced a separate process to address ways to improve its overall accountability.  Specifically, this process will examine how ICANN can strengthen its accountability mechanisms to address the absence of its historical contractual relationship with NTIA.  This important accountability issue will and should be addressed before any transition takes place. (Emphasis added)

As can be seen, in those remarks Secretary Strickling reiterated that September 2015 is a goal and not a deadline ( a point he also emphasized in Congressional testimony); and that the accountability process, while separate from the IANA transition discussions, should address ICANN’s “overall accountability” and should be completed before the transition is made final.

There is a transcript of a separate IGF Istanbul session on Core Internet Values in which Secretary Strickling made some interesting observations on the current process:

Now I think as we move forward, our commitment to the multistakeholder process, I hope people feel, has been very concretely demonstrated by our announcement in March to transition out of our remaining role in terms of our stewardship of the IANA functions.  And I do think that this is really putting our many where our mouth is, in terms of the United States support of the multistakeholder process.  We’re watching with great, almost amusement as the community takes this on.  I think it’s a real test to the community of the multistakeholder model and can they organise themselves?  Can they now focus on the important issues and get to consensus?  I think upon the successful completion of this, and I do expect a successful completion, this process will be much stronger for what the community is going through right now as they try to wrestle with all of the different issues that are emerging about how broad the analysis has to be and how they go about bringing together all the different interests of ICANN in one place on what is perhaps the most fundamental Question ICANN has had to face since its creation back in 1998.  (Emphasis added)

Indeed, the ICANN community has organized itself as never before around the fundamental questions of what kind of robust and enforceable accountability measures ICANN requires in the aftermath of U.S. withdrawal from IANA functions oversight, and the design of the process for determining that. And the community has done this in spite of, and in reaction to, continued efforts of ICANN staff to control the structure, scope, and timing of the Accountability Process. The stakes are very high — as Secretary Strickling confirmed, this is “the most fundamental Question ICANN has had to face” since its creation.

So what happens next? True to form, ICANN staff is pressing ahead with its staff-designed Process instead of properly putting it on hold during the comment period, declaring:

The Enhancing ICANN Accountability mechanisms will remain operational through this comment period but will not address the substantive issues of enhancing ICANN accountability in the absence of the U.S. Government contract until the end of the 21-day public comment period. Any changes to the process structure instituted following the 21-day public comment period will be implemented accordingly. (Emphasis added)

Meanwhile, the segments of the community that filed the Reconsideration Request for Board review of staff actions have wisely elected to leave it in place and not withdraw it until they can see whether this comment period results in meaningful alterations of the Accountability Process.

It must be noted that the community is being given only three weeks to comment on an Accountability Process of which it has no clear or common understanding. On September 3rd the same stakeholders that signed the unanimous letter questioning the Process submitted a detailed letter of inquiry asking for specific information about it. That letter contains twenty separate questions, many of which include multiple additional sub-questions, and there is no guarantee that a response will be received from ICANN staff during the comment period. How can one submit final comments on a Process that is not fully understood?

In addition, the comment period closes at midnight on Saturday, September 27th – and the opening meetings of the ICANN 51 meeting in Los Angeles start on Saturday, October 11th, just two weeks to the day after that. So time is very short and the community is unlikely to have detailed answers to its questions about the staff plan until late in the comment period, if then.

Given the present situation the best course for the stakeholders who came together and brought the pressure to obtain this comment period is to continue to press forward and build consensus on key aspects of the Accountability Process they want and the scope of what it should address – and ignore ICANN staff attempts to impose any artificial deadlines or limitations on the scope, or the substance and timing, of the Process. After all, if the community had accepted ICANN’s August 14th process as the fait accompli that staff intended, instead of coming together and pushing back, there wouldn’t even be a public comment period opening now.

 

2
Sep

ICA-Endorsed Session on ICANN Accountability Scheduled for September Third at IGF Istanbul

Although ICA is not in attendance at the Internet Governance Forum meeting currently taking place in Istanbul, Turkey an ICA-endorsed session on “Accountability in Multistakeholder Governance Regime ICANN” will be taking place on the morning of September 3rd. ICA was one of several host organizations that endorsed the proposal for this session, along with CGI.BR of Brazil, the Public Interest Registry, InternetNZ of New Zealand, and the Internet Governance Project.

The session will address the following questions:

  • To whom is ICANN accountable and what are the mechanisms for ensuring that accountability is adequate?
  • In what way do these mechanisms need strengthening or further improvements, particularly in light of NTIA’s announcement to transition out its current role?
  • How do checks and balances on power, such as structural separation of key DNS operations encourage accountability?
  • How have ICANN’s Affirmation of Commitments and the Accountability and Transparency Review Team fostered (or undermined) accountability goals at ICANN?
  • What lessons were learned from the AoC and ATRT processes on achieving accountability under a multi-stakeholder governance regime?
  • What is the role of ICANN’s Ombudsman Office in achieving accountability for the institution?

Panelists at the session will include NTIA head Larry Strickling, VeriSign Vice President Pat Kane, and ICANN Ombudsman Chris LaHatte, along with others from the technical community and civil society. Robin Gross of the IPJustice organization will moderate.

Achieving enhanced accountability for ICANN Board and staff actions is an important component of protecting the rights of domain investors, especially as the U.S. contemplates relinquishing its IANA functions oversight role that put real teeth into enforcement of the Affirmation of Commitments (AoC). ICA will continue to work within the Business Constituency and with other members of the broad ICANN community as the Accountability Process moves forward in order to ensure that any transition of the IANA functions is accompanied by meaningful enhancements of available accountability measures — and perhaps by new means of redress as well.

1
Sep

Stress Test: Reconsideration Request on Accountability Process Filed with ICANN Board

In a rapid follow-up to the unprecedented joint letter sent on August 26th by all members of the ICANN community questioning the proposed Accountability Process imposed by ICANN staff, three of the groups that signed that letter have now submitted a formal Reconsideration Request (RR) to the ICANN Board. The August 29th RR – submitted jointly by the Business Constituency (of which ICA is a member), Registry Stakeholders Group, and Non-Commercial Stakeholders group – requests that ICANN “confer with the community as soon as possible to address these concerns and amend its plan in such a way that the community input is taken into account as the plan goes forward. Specifically, ICANN should make modifications and clarifications to its plan to reflect the widely shared concerns of the community that can reasonably be implemented.”

The RR process is one of three currently available accountability measures available to ICANN stakeholders. The others are an Independent Review Panel (IRP) and the filing of a complaint with the Ombudsman. ICANN’s Board has contended that the findings of an IRP are merely advisory and non-binding, and the Ombudsman has investigatory powers but no authority to make or change policy, administrative or Board decisions. The RR is thus the only means available for requesting that the Board intervene against arbitrary staff action that materially injures the ICANN community.

One of the ideas that have been floated for the evaluation of enhanced accountability measures recommended by the final Accountability Process is subjecting them to a hypothetical “stress test” to determine their likely efficacy. The manner in which ICANN’s Board handles this RR will constitute a real world stress test of the RR’s effectiveness as an accountability mechanism, and will inform the subsequent debate about necessary enhancements.

The RR contains multiple allegations of an extremely serious nature that add up to a searing critique of staff actions. Here is a sampling of the key charges, quoting directly from the RR:

  • We have been materially and negatively affected by the staff’s decision to proceed with their proposed plan finalized in the 22-Aug-2014 ICANN announcement on Enhancing Accountability: Process and Next Steps. The staff-proposed plan did not properly take into account community concerns and did not provide a public comment period whereby the community could provide reaction to the staff plan. By taking this action, we have been materially harmed, as our questions, concerns, and ideas have not been adequately considered in the required multi-stakeholder process. Further, the community has no say in the appointment of the Public Experts Group (“PEG”) or the seven outside “expert” advisors to be appointed by the PEG. Yet, the seven advisors could steer consensus and outcome that will have a direct impact on the community….The staff-imposed plan is a top-down approach that calls into question the fairness of enhancing accountability process and the legitimacy of its decisions. It also creates a disturbing precedent that could embolden future actions by staff or the ICANN Board to circumvent and ignore the bottom-up, multi-stakeholder process.
  • This plan, imposed on the community without transparency and without the opportunity for public comment, creates inconsistency, disregards proper ICANN procedure, injects unfairness into the process, and defeats the purpose of the entire accountability examination.
  • The staff development and imposition of its accountability plan as described above failed to uphold ICANN’s stated core values, mission, and promises that the accountability plan would be community driven and based on the public interest as expressed through a bottom-up process.
  • ICANN neither sought nor supported participation in the development of this plan, and specifically excluded the community from the drafting and decision-making opportunities behind the staff plan.
  • The formulation of staff’s plan went on behind closed doors and excluded the opportunity for the community to influence the plan. The community was not provided with the rationale for the staff plan until after the plan had been posted as final and its implementation had begun.
  • The decision to impose this plan, to which so many in the community were openly objecting, showed a lack of neutrality, integrity, objectivity, and fairness on the part of staff. Staff failed to follow any documented policy and created its own plan without addressing the concerns about its conflict of interest in the matter.
  • Staff failed to include the input of those who are most affected by staff’s accountability plan: the community members who participate at ICANN in hopes of getting a fair opportunity to influence policy in a democratic, open, transparent process.
  • Staff failed to integrate the input obtained from the initial public comment period in the formulation of its plan. Then staff did not provide any opportunity for public comment on its plan once it was finally published. ICANN has failed to be accountable to the Internet community.
  • Staff failed to operate in an open, transparent or fair manner.
  • The views, concerns, needs, and ideas of the community ICANN was established to serve were not adequately considered in the formulation of the staff plan. Nor were ICANN’s Bylaws and promises to operate in an open, transparent, and bottom-up manner followed in this process.

The business sector and civil society have been coalescing around core Principles for the IANA transition and accompanying enhancements of ICANN accountability. The U.S. Congress will be returning from recess next week and will undoubtedly be hearing from Internet-related businesses and public interest organizations in regard to the staff-imposed Accountability Process, which seems designed the type of sweeping reforms contained in those Principles. This may result in sharp questioning of the NTIA – which must sign off on any proposed transition plan, and has publicly stated that it must be accompanied by acceptable accountability measures – about why ICANN has violated its own multistakeholder process and commitment to transparency. Additional Congressional reaction is also possible. As ICANN’s own Governmental Advisory Committee signed the joint letter we expect that many other governments have and will continue to receive similar input.

Meanwhile, ICANN’s CEO and Board Chairman sent an August 28th response to the signers of the August 26th letter. While the tone of their letter is civil it does not commit to any reopening of or revisions to the staff-imposed Process. Indeed, it appears to reiterate that the disgruntled parties should engage with the process as is:

We look forward to receiving your list of clarifying questions and concerns and we will respond in kind. As we have since this process began last spring, we appreciate all of the community comments received to date and encourage broad participation in the Cross Community Group – the key forum for generating the substantive issues this accountability process will address.

The process as outlined and complemented with the information in the FAQs enables the substantive dialogues to begin soon, to remain interrelated with the IANA Functions Stewardship Transition process well underway. (Emphasis added)

ICANN has also indicated its dedication to “full speed ahead” adoption and implementation of the staff-imposed Process through the August 28th publication of a “Call for Candidates: Seeking Advisors to the ICANN Accountability & Governance Coordination Group”. The notice sets a very near-term deadline of September 10th for the submission of nominations so that the Public Experts Group (PEG) – of which NTIA head Larry Strickling is one of four members – can complete the final selection of ”advisors” before the final 2014 ICANN meeting scheduled for October 12th-16th in Los Angeles. As noted above, one of the allegations in the RR is that “the community has no say in the appointment of the Public Experts Group (“PEG”) or the seven outside “expert” advisors to be appointed by the PEG. Yet, the seven advisors could steer consensus and outcome”.

Further questions arise regarding the staff decree that the Advisors are supposed to “bring an external, independent voice to this process to assure that best practices are brought in from outside of the ICANN community”. An accompanying FAQ sheds no light on what it means to be from “outside” the ICANN community, but makes clear that the “Coordination Group should make recommendations based on consensus taking into account advice of the advisors” and that the “advisors are not limited to engaging with the Coordination Group”. So it appears that these Advisors are supposed to have considerable impact on the final report and recommendations, and will have wide latitude to engage with parties outside the Coordination group – including governments and the media – but are to have little or no actual real world experience with ICANN. Many would rightfully ask why individuals who are part of the ICANN community, understand its operations and internal dynamics, and have expertise in relevant areas should be automatically deemed ineligible to act in this advisory capacity? This staff decision seems designed to ensure that the selected Advisors operate in the world of theory rather than actual ICANN practice.

The final sign that ICANN leadership may be circling the wagons and doubling down on the staff plan is its August 29th announcement of a September 2nd “Enhancing ICANN Accountability and Governance Town Hall Meeting” taking place at the IGF meeting in Istanbul. It explains, “The Town Hall Meeting will provide an opportunity for an open dialogue to address and clarify any remaining questions about the Enhancing ICANN Accountability and Governance Process.” (Emphasis added)

It is worth recalling that ICANN’s rationale for separating the IANA transition from the enhanced accountability processes was that the first involved the global stakeholder community while the second was an internal ICANN matter and therefore should be discussed and determined solely within the ICANN community. That rationale was questionable given that ICANN is wide open to participation by anyone. Some suspected that it was adopted in anticipation of trying to push the transition through before any significant accountability improvements were decided, much less implemented. But it is the official rationale put out there by ICANN.

Now that every group within the ICANN community has signed a joint letter expressing concerns about the substance of the fait accompli Accountability Process promulgated by staff as a on August 14th — with that community letter promising additional detailed questions within seven days – that action has become the focus of intense disagreement between ICANN the corporation and its community. This dispute should be resolved internally.

While an ICANN session discussing and taking questions about the proposed Process during the IGF meeting seems unobjectionable, the notion that “all remaining questions” can be answered in a 90-minute session in Istanbul is preposterous. They cannot. There are too many questions to be answered in an environment that may be as much PR event as substantive dialogue. And this is a session at which many members of the ICANN community will not be present, while many in the audience will have little or no understanding of ICANN’s procedures and Bylaws and the events leading up to this impasse.

There can be little doubt that the attempt of ICANN staff to impose an Accountability Process over the objections of and without sufficient input from the ICANN community has introduced tremendous unnecessary stress into the entire relationship between the corporation and its community. How the Board handles this RR will determine whether that stress is relieved in a constructive manner or is further exacerbated. It will also be highly instructive on the questions of whether the present RR process provides any real accountability – and, if not, what should be developed to replace it.

 

The text of the RR follows:

 

Reconsideration Request Form

1. Requester Information

Name: Steve DelBianco, Business Constituency vice chair for policy coordination, on behalf of:

The Business Constituency;

The Registries Stakeholder Group; and

The Non-Commercial Stakeholders Group (NCSG)

Address: 1920 Virginia Ave, McLean, VA 22101 USA

Email: sdelbianco@netchoice.org

Phone Number (optional): +1.703.615.6206

2. Request for Reconsideration of (check one only):

X Staff action/inaction

3. Description of specific action you are seeking to have reconsidered.

We ask the Board Governance Committee (BGC) to reconsider the ICANN staff’s imposition of its

“Accountability Plan”, the final version of which was posted to ICANN’s website on 22-Aug- 2014,

which is also the date that the staff Rationale for the plan was initially posted to the public.

Among others, the community groups represented here had called for a community-developed

Accountability Plan, and yet were not allowed to participate in the drafting of staff’s plan. At the

London ICANN #50 meeting in June, staff promised the community that the plan would be

community-developed, transparent, open, and bottom-up in its formulation. The plan imposed on 22-

Au-2014 had none of those promised attributes.

ICANN staff also failed to take into account the statement of the 4 GNSO Stakeholder Groups at the

London #50 meeting noting ICANN’s conflict of interest and calling for an independent accountability

mechanism to be developed. Indeed staff has not responded in any way to the statement of the 4

GNSO Stakeholders Groups in the London Public Forum in June. In summary:

1. The BCG should reconsider the staff decision to impose a plan of this significance without

allowing a public comment period on the staff-developed plan.

2. The BCG should reconsider the staff decision to impose a plan that failed to address widely

shared community concerns as expressed in numerous public comments, discussions at

ICANN #50, and stated community reactions to the infographic.

4. Date of action/inaction:

The final version of staff’s Accountability Plan was posted to ICANN’s website on 22-Aug-2014,

which is also the date that the staff rationale for the plan was initially posted to the public.

ICANN provided an “Infographic” foretelling certain aspects of its plan to select members of the

community on 14-Aug-2014. Community leaders told ICANN staff at that time that their groups were

not aligned with staff’s plan, and staff responded and stated it was “fixing” its plan. The community

waited for the so-called “fixed” plan, which was posted as Final on 22-Aug-2014, and which did not

address the stated community concerns in any meaningful way. The rationale for this plan was not

provided by staff until the plan was final on 22-August, at which point its implementation was already

Staff did not allow a public comment period for any community discussion, shaping, or even support

to occur for its Accountability Plan prior to its adoption and implementation. Staff did not address the

many concerns that had been expressed about ICANN’s conflict of interest in controlling the process

to hold itself “accountable”. Staff did not clarify the roles in its accountability plan to ensure that

stakeholders are the decision makers in matters they are subject to.

5. On what date did you became aware of the action or that action would not be taken?

On 22-Aug-2014, when staff finally posted the plan and its rationale to its website, and it did not

address community concerns as promised, and its implementation had begun, we became aware that

the plan staff intended to implement would not meet the community’s needs and redress measures

would be required.

6. Describe how you believe you are materially affected by the action or inaction:

We have been materially and negatively affected by the staff’s decision to proceed with their proposed

plan finalized in the 22-Aug-2014 ICANN announcement on Enhancing Accountability: Process and

Next Steps.

The staff-proposed plan did not properly take into account community concerns and did not provide a

public comment period whereby the community could provide reaction to the staff plan. By taking this

action, we have been materially harmed, as our questions, concerns, and ideas have not been

adequately considered in the required multi-stakeholder process.

Further, the community has no say in the appointment of the Public Experts Group (“PEG”) or the

seven outside “expert” advisors to be appointed by the PEG. Yet, the seven advisors could steer

consensus and outcome that will have a direct impact on the community, since the Coordination Group

is directed to make recommendations based upon consensus, taking into account the advice of the

advisors. Worse still, the staff-imposed plan would allow the ICANN Board to reject or selectively

accept recommendations of the Coordination Group, again bypassing the multi-stakeholder process.

The staff-imposed plan is a top-down approach that calls into question the fairness of enhancing

accountability process and the legitimacy of its decisions. It also creates a disturbing precedent that

could embolden future actions by staff or the ICANN Board to circumvent and ignore the bottom-up,

multi-stakeholder process.

7. Describe how others may be adversely affected by the action or inaction, if you believe that

this is a concern.

In addition to an adverse effect upon us, the staff-imposed plan has an adverse effect upon other

constituencies and upon other members of the community. This plan, imposed on the community

without transparency and without the opportunity for public comment, creates inconsistency,

disregards proper ICANN procedure, injects unfairness into the process, and defeats the purpose of the

entire accountability examination. All members of the ICANN community and users of the Internet

have a stake in the outcome of the enhancing accountability process and may be harmed if the process

does not take into account their views and is the result of a staff-imposed plan rather than a

community-driven plan.

8. Detail of Staff Action – Required Information

The staff development and imposition of its accountability plan as described above failed to uphold

ICANN’s stated core values, mission, and promises that the accountability plan would be communitydriven

and based on the public interest as expressed through a bottom-up process.

Specifically, the staff action is in violation of several core values in ICANN’s bylaws, whereby

ICANN promises it will behave in an open, transparent, and bottom-up fashion in the formulation of

the organization’s policies and operations.

In Article I, Section 2 of its Bylaws, ICANN promises to engage with the community in the

development of policy in a bottom-up and open manner at all levels. And in the Section 3 of its

Bylaws, ICANN promises to operate in a transparent and fair manner. Through this staff action,

ICANN has failed in its commitment to the Internet community that it will operate in an open,

transparent, fair, and bottom-up fashion in the formulation of crucial policy.

ICANN Bylaws – Article I, Section 2 – Core Values:

4. Seeking and supporting broad, informed participation reflecting the functional,

geographic, and cultural diversity of the Internet at all levels of policy development

and decision-making.

ICANN neither sought nor supported participation in the development of this plan, and specifically

excluded the community from the drafting and decision-making opportunities behind the staff plan.

7. Employing open and transparent policy development mechanisms that (i) promote

well-informed decisions based on expert advice, and (ii) ensure that those entities

most affected can assist in the policy development process.

The formulation of staff’s plan went on behind closed doors and excluded the opportunity for the

community to influence the plan. The community was not provided with the rationale for the staff plan

until after the plan had been posted as final and its implementation had begun. At several GNSO

Council meetings since June and also during several “community leaders” calls, staff were asked to

engage with the community on the development of the plan and those requests were ignored.

8. Making decisions by applying documented policies neutrally and objectively, with

integrity and fairness.

The decision to impose this plan, to which so many in the community were openly objecting, showed a

lack of neutrality, integrity, objectivity, and fairness on the part of staff. Staff failed to follow any

documented policy and created its own plan without addressing the concerns about its conflict of

interest in the matter.

9. Acting with a speed that is responsive to the needs of the Internet while, as part of the

decision-making process, obtaining informed input from those entities most affected.

Staff failed to include the input of those who are most affected by staff’s accountability plan: the

community members who participate at ICANN in hopes of getting a fair opportunity to influence

policy in a democratic, open, transparent process. Staff kept all decision-making on the development

of the accountability plan behind closed doors and entirely within their control, beginning after the

initial comment period ended in June until the plan was imposed on the community in August.

10. Remaining accountable to the Internet community through mechanisms that

enhance ICANN ‘s effectiveness.

Staff failed to integrate the input obtained from the initial public comment period in the formulation of

its plan. Then staff did not provide any opportunity for public comment on its plan once it was finally

published. ICANN has failed to be accountable to the Internet community through mechanisms such

as the public comment period by failing to consider those comments initially and by failing to permit a

comment period on the plan it developed internally. Providing an advance “infographic” to a small

handful of insiders and asking for their alignment does not meet an acceptable standard for public

ICANN Bylaws – Article III, Section 1 – Transparency

ICANN and its constituent bodies shall operate to the maximum extent feasible in an

open and transparent manner and consistent with procedures designed to ensure

Staff failed to operate in an open, transparent or fair manner. Decisions and drafting were all done

internally by staff with no opportunity for the public to shape the staff plan in any meaningful way.

Staff’s rational was not provided until 22 August, after the plan was already considered final by staff

and its implementation was underway.

9. What are you asking ICANN to do now?

ICANN should confer with the community as soon as possible to address these concerns and amend its

plan in such a way that the community input is taken into account as the plan goes forward.

Specifically, ICANN should make modifications and clarifications to its plan to reflect the widely

shared concerns of the community that can reasonably be implemented.

10. Please state specifically the grounds under which you have the standing and the right to

assert this Request for Reconsideration, and the grounds or justifications that support your

The views, concerns, needs, and ideas of the community ICANN was established to serve were not

adequately considered in the formulation of the staff plan. Nor were ICANN’s Bylaws and promises

to operate in an open, transparent, and bottom-up manner followed in this process. The communities

represented here participate in the process with the expectation that the process will be fair, open,

transparent, and bottom-up in its operation. Many of our members spent significant time drafting and

submitting comments that were not considered by staff and the needs and objectives of our entire

stakeholder communities are not reflected in the plan developed by staff.

We legitimately represent the bottom-up process with our members devoting significant energy to

ICANN, and that gives us standing to assert this request for reconsideration.

11. Are you bringing this Reconsideration Request on behalf of multiple persons or entities?

(Check one)

X Yes: Business Constituency, Registries Stakeholder Group, and Non-Commercial Stakeholders

Group

____ No

11a. If yes, Is the causal connection between the circumstances of the Reconsideration

Request and the harm the same for all of the complaining parties? Explain.

Yes, our members are participants in the GNSO at ICANN and each of our groups signed on to the

London #50 Statement (below) of the GNSO regarding the ICANN accountability crisis.

Do you have any documents you want to provide to ICANN?

The ICANN #50 Statement of the GNSO 4 Stakeholder Groups on ICANN Accountability (26 June

2014):

GNSO Constituencies Issue Unanimous Joint Statement on ICANN Accountability

Letter from ICANN communities on ICANN Accountability Plan:

http://www.circleid.com/posts/20140828_icann_community_issues_letter_questioning_icann_accountability/

(28 August 2014)

Terms and Conditions for Submission of Reconsideration Requests

The Board Governance Committee has the ability to consolidate the consideration of Reconsideration

Requests if the issues stated within are sufficiently similar.

The Board Governance Committee may dismiss Reconsideration Requests that are querulous or

Hearings are not required in the Reconsideration Process, however Requestors may request a hearing.

The BGC retains the absolute discretion to determine whether a hearing is appropriate, and to call

people before it for a hearing.

The BGC may take a decision on reconsideration of requests relating to staff action/inaction without

reference to the full ICANN Board. Whether recommendations will issue to the ICANN Board is

within the discretion of the BGC.

The ICANN Board of Director’s decision on the BGC’s reconsideration recommendation is final and

not subject to a reconsideration request.

29-Aug-2014

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Signature                                                                             Date