[council] TR: CWG-Stewardship Comments on CCWG-Accountability Third Draft Proposal

[Glen de Saint Géry <Glen@xxxxxxxxx>]

FYI
From: Grace Abuhamad

Dear CCWG-Accountability Chairs and Chairs of the CWG-Stewardship's Chartering 
Organizations,

Please find attached and below the CWG-Stewardship's comments on the 
CCWG-Accountability's Third Draft Proposal. These comments have been posted to 
the Public Comment forum and are being sent to you for information and wider 
circulation.

Thank you,
Lise & Jonathan

--


ICANN Cross Community Working Group Accountability (CCWG-Accountability)

Dear CCWG-Accountability members, participants and co-chairs,

We write in response to your group's recent 
publication<https://community.icann.org/download/attachments/56145016/CCWG%20Draft%20Proposal_Dec.01.2015.pdf?version=1&modificationDate=1449011113000&api=v2>
 of your third draft proposal (the "Third Draft Proposal").  We have prepared 
this in our capacities as co-chairs of the Cross Community Working Group to 
Develop an IANA Stewardship Transition Proposal on Naming Related Functions 
(CWG-Stewardship).  References below are to the main body of the Third Draft 
Proposal, unless otherwise indicated.  We have also indicated below where we 
previously raised points in  
response<https://community.icann.org/download/attachments/56136438/55.%20%20CWG%20IANA%20Stewardship%20Comments.pdf?api=v2>
 to your group's 
publication<https://community.icann.org/pages/viewpage.action?pageId=53783460&preview=/53783460/54887691/CCWG-2ndDraft-FINAL-3August.pdf>of
 its second draft proposal (the "Second Draft Proposal").

First, we would once again like to confirm the quality of the ongoing 
coordination and collaboration between the co-chairs of our respective groups 
since the CCWG-Accountability commenced its work.  Each of our groups has been 
regularly engaged with and updated on the progress made, including the 
interdependency and interrelation between our work, and this has led to the 
regular exchange of key correspondence to develop and formalize the linkage.  
As CWG-Stewardship co-chairs, we have discussed with the CCWG-Accountability 
co-chairs on a regular basis key aspects of the work of both groups.

The CWG-Stewardship final transition 
proposal<https://community.icann.org/pages/viewpage.action?pageId=53779816&preview=/53779816/54003507/FinalTransitionProposal_11June.pdf>
 submitted for approval to the chartering organizations on 11 June 2015 is 
significantly dependent and expressly conditioned on the implementation of 
ICANN-level accountability mechanisms by the CCWG-Accountability.  
Specifically, as recognized in the Third Draft Proposal, the CWG-Stewardship 
final transition proposal sets forth ICANN accountability requirements 
regarding Community Empowerment Mechanism, IANA Functions Budget, IANA Function 
Reviews, Separation Process, Appeals Mechanism, and Post-Transition IANA (PTI), 
as well as Fundamental Bylaws.  Therefore, this document is and should be 
viewed as an element of the agreed-upon working methods of the CWG-Stewardship 
and the CCWG-Accountability in determining whether the Third Draft Proposal 
meets the conditions and requirements of the CWG-Stewardship final transition 
proposal. In that regard, we kindly request confirmation that the 
CWG-Stewardship comments reflected in this document are addressed in the next 
version or variation of the CCWG-Accountability proposal in order to ensure 
that this next version or variation of the proposal addresses all of the 
CWG-Stewardship dependencies.

Our comments focus on the specific ICANN accountability requirements set forth 
in the CWG-Stewardship final transition proposal:

1.               Community Empowerment Mechanism



The CWG-Stewardship final transition proposal requires that the 
multistakeholder community be empowered with the following rights with respect 
to the ICANN Board, the exercise of which should be ensured by the creation of 
a stakeholder community/member group:



The ability to appoint and remove members of the ICANN Board and to recall the 
entire ICANN Board;

The ability to exercise oversight with respect to key ICANN Board decisions 
(including with respect to the ICANN Board's oversight of the IANA Functions) 
by reviewing and approving:  (i) ICANN Board decisions with respect to 
recommendations resulting from an IANA Function Review (IFR) or Special IFR and 
(ii) the ICANN Budget; and

The ability to approve amendments to ICANN's "Fundamental Bylaws," as described 
below.



Comment - The Third Draft Proposal contemplates implementing a "Sole 
Designator" model, pursuant to which the community would be empowered to act as 
the Sole Designator to: (a) exercise the community powers described in the 
Third Draft Proposal, including the power to: (i) remove (in addition to 
appoint) individual ICANN Directors, and (ii) recall the entire ICANN Board, 
and (b) enforce decisions and powers of the Community Mechanism as the Sole 
Designator (i.e., the Empowered Community) through initiating a binding 
Independent Review Panel process, where a panel decision is enforceable in any 
court recognizing international arbitration results.  In addition, the Third 
Draft Proposal contemplates that the community would be required to follow the 
engagement and escalation processes described in the proposal before exercising 
any of the community powers. Finally, with respect to actions involving 
individual Directors, the escalation process to remove a Director could only be 
used once during a Director's term if the process reaches the step of holding a 
community forum or above and then fails to remove the Director.



Conclusion- We believe that the community powers and community empowerment 
mechanism contemplated by the Third Draft Proposal adequately satisfy the 
CWG-Stewardship requirements relating to the community empowerment mechanism.  
Although the community powers are in some cases less direct than in the Sole 
Member model contemplated by the Second Draft Proposal, we believe the 
CWG-Stewardship requirements can be met through the community powers and 
community empowerment mechanism contemplated by the Third Draft Proposal.



The CCWG-Accountability Third Draft Proposal requires that the community 
"follow the engagement and escalation processes described in the proposal 
before exercising any of the community powers." This is a reasonable 
requirement but it creates a dependency on the usability of the engagement and 
escalation processes. If the community and in particular the SOs and ACs are 
unable to reasonably meet the requirements of those processes, then the 
community powers will lose their value. The very specific time requirements for 
various SO and AC actions in the escalation processes may be impossible or at 
best very difficult to meet; if more than one SO/AC cannot act within the tight 
time limits, the process will be halted.



The CWG-Stewardship recognizes that the escalation processes need to happen in 
a timely manner but they must also allow sufficient time to accommodate the 
diverse and complex makeup of SOs and ACs. A key question that should be asked 
of SOs and ACs is this: what is the minimum time they need to respond to a 
critical issue that is also very time sensitive? To be more specific, can they 
respond in 7 days without compromising their bottom-up, multistakeholder model? 
If they cannot, then the CCWG-Accountability recommended empowerment mechanisms 
do not meet the CWG-Stewardship requirements.  This should not be a hard 
problem to solve.  Time restrictions that are deemed to be too short could be 
lengthened a little and/or the restrictions could be defined in a more flexible 
manner to allow for brief extensions when reasonably required.



2.               ICANN Budget and IANA Functions Budget



The CWG-Stewardship final transition proposal requires that the community have 
the ability to approve or veto the ICANN Budget after it has been approved by 
the ICANN Board but before it comes into effect.  The community may reject the 
ICANN Budget based on perceived inconsistency with the purpose, mission and 
role set forth in ICANN's Articles and Bylaws, the global public interest, the 
needs of ICANN stakeholders, financial stability or other matters of concern to 
the community.



In the final transition proposal, the CWG-Stewardship also recommends that the 
IANA Functions Operator's comprehensive costs should be transparent and ICANN's 
operating plans and budget should include itemization of all IANA operations 
costs to the project level and below as needed.  Under the final transition 
proposal, an itemization of IANA costs would include:  direct costs for the 
operation of the IANA Functions, direct costs for shared resources and support 
functions allocation.  Furthermore, these costs should be itemized into more 
specific costs related to each specific function to the project level and below 
as needed.  PTI should also have a yearly budget that is reviewed and approved 
by the ICANN community on an annual basis.  PTI should submit a budget to ICANN 
at least nine months in advance of the fiscal year to ensure the stability of 
the IANA services.  It is the view of the CWG-Stewardship that the IANA 
Functions Budget should be approved by the ICANN Board in a much earlier 
timeframe than the overall ICANN Budget. The CWG-Stewardship (or a successor 
implementation group) will need to develop a proposed process for an IANA 
Functions Operations-specific budget review, which may become a component of 
the overall budget review.  It is anticipated that the IANA Functions 
Operations Budget review will include a consultation process with relevant and 
potentially impacted IANA customers.



Comment - The Third Draft Proposal clarifies that the community would have new 
powers to reject: (a) ICANN's Annual Operating Plan and Budget, (b) the IANA 
Functions Operations Budget, (c) ICANN's Five-Year Strategic Plan and (d) 
ICANN's Five-Year Operating Plan, in each case after approval by the ICANN 
Board but before they take effect.  The Third Draft Proposal specifies that 
these powers can only be exercised after extensive community discussions and 
through mandatory escalation processes.



The Third Draft Proposal contemplates that prior to the ICANN Board approving a 
budget or strategic/operating plan, the ICANN Board must have undertaken a 
mandatory engagement process pursuant to which the ICANN Board consults with 
the community.  The Third Draft Proposal further specifies that the community 
could only challenge a budget or strategic/operating plan if there are 
significant issues brought up in the engagement phase that were not addressed 
prior to approval.



The Third Draft Proposal specifies that the ICANN and IANA Functions Operations 
Budgets would be considered separately by the community so that a rejection of 
the ICANN Budget would not automatically result in a rejection of the IANA 
Functions Operations Budget, and a rejection of the IANA Functions Operations 
Budget would not serve as a rejection of the ICANN Budget.  It also proposes 
that if the community power is exercised to reject the ICANN Budget or the IANA 
Functions Operations Budget, a caretaker budget would be enacted.  The Third 
Draft Proposal notes that details regarding the caretaker budget are currently 
under development.



As we noted in our comment letter on the Second Draft Proposal, the Third Draft 
Proposal does not provide for "approval" by the community of the ICANN Budget 
and/or IANA Functions Operations Budget, but rather provides for negative 
authority in the form of a decision by the community to reject the ICANN Budget 
and/or IANA Functions Operations Budget.  As we also noted in that comment 
letter, the CWG-Stewardship acknowledges that the community's ability to reject 
the ICANN Budget and/or the IANA Functions Operations Budget will meet the 
CWG-Stewardship requirements and that community approval is not required.



We note that unlike the Second Draft Proposal, the Third Draft Proposal does 
not specifically address: (i) the CWG-Stewardship's requirement that the budget 
be transparent with respect to the IANA Functions' operating costs or (ii) the 
specific grounds upon which the community could reject a budget or plan.  In 
addition, as we noted in our comment letter on the Second Draft Proposal, the 
Third Draft Proposal does not specifically address the timeframe for when 
budgets should be submitted.



Conclusion- Similar to our conclusion in our response on the Second Draft 
Proposal, overall we believe that the Third Draft Proposal's specifications 
with respect to the community power to reject budgets is both necessary and 
consistent with the requirements of the CWG-Stewardship final transition 
proposal; however, we require that the CCWG-Accountability proposal or the 
implementation process address the matters that are not sufficiently specified 
in the Third Draft Proposal (i.e., those relating to budget transparency, 
grounds for rejection of a budget/plan, timing of budget preparation and 
development of the caretaker budget, each of which were described in the Second 
Draft Proposal).  In addition, we note, that the CWG-Stewardship (or a 
successor implementation group) is required to develop a proposed process for 
the IANA Functions Operations-specific budget review. We require that the 
proposal specifically acknowledge this.



3.               IFR



The CWG-Stewardship final transition proposal requires the creation of an IFR 
which is empowered to conduct periodic and special reviews of the IANA names 
function.  The CWG-Stewardship proposal contemplates the ability of the 
community to exercise oversight with respect to ICANN Board decisions on 
recommendations resulting from an IFR or Special IFR by reviewing and approving 
those ICANN Board decisions.



Comment - The Third Draft Proposal contemplates incorporating the review system 
defined in the Affirmation of Commitments into ICANN's Bylaws.  The Third Draft 
Proposal specifies that the IFR and Special IFR would be incorporated into the 
ICANN Bylaws based on the requirements detailed by the CWG-Stewardship, and 
notes that it is anticipated that the ICANN Bylaw drafting process would 
include the CWG-Stewardship.  The Third Draft Proposal also provides that the 
community be empowered to reject ICANN Board decisions relating to reviews of 
IANA names function.  Prior to making a decision relating to IFRs, the Third 
Draft Proposal specifies that the ICANN Board must have undertaken a mandatory 
engagement process pursuant to which the ICANN Board must have consulted with 
the community.



Conclusion- We believe that the Third Draft Proposal adequately satisfies the 
CWG-Stewardship requirement relating to the IFR.  The community's ability to 
reject ICANN Board decisions on recommendations resulting from an IFR or 
Special IFR will meet the CWG-Stewardship requirements, provided that the final 
version of the CCWG-Accountability proposal provide that the right to reject 
can be exercised an unlimited number of times.



4.               Customer Standing Committee (CSC)



The CWG-Stewardship final transition proposal requires the creation of a CSC 
that is empowered to monitor the performance of the IANA names function and 
escalate non-remediated issues to the ccNSO and GNSO.  The ccNSO and GNSO 
should be empowered to address matters escalated by the CSC.



Comment - The Third Draft Proposal contemplates that the CSC will be 
incorporated into the ICANN Bylaws. We expect that provisions incorporating the 
CSC into the Bylaws would be overseen by the CWG-Stewardship (or a successor 
implementation group).



Conclusion- We believe that the Third Draft Proposal adequately satisfies the 
CWG-Stewardship requirement relating to the CSC, provided that the ICANN Bylaw 
drafting process will continue to include involvement by the CWG-Stewardship 
(or a successor implementation group).



5.               Post-Transition IANA (PTI)



The CWG-Stewardship final transition proposal contemplates the formation of a 
PTI as a new legal entity.  PTI will have ICANN as its sole member and PTI will 
therefore be a controlled affiliate of ICANN.  As a result, the ICANN Bylaws 
will need to include governance provisions related to PTI, in particular as it 
relates to ICANN's role as the sole member of PTI.



Comment - The Third Draft Proposal contemplates that governance provisions 
related to PTI will be incorporated into the ICANN Bylaws as Fundamental 
Bylaws.  We note that the Second Draft Proposal contemplated that 
specifications with respect to PTI governance provisions would be based on 
requirements to be detailed by the CWG-Stewardship.  While this language was 
not included in the Third Draft Proposal, we continue to expect that PTI 
governance provisions would be overseen by the CWG-Stewardship (or a successor 
implementation group).



Conclusion- We believe that the Third Draft Proposal adequately satisfies the 
CWG-Stewardship requirement relating to PTI, provided that the ICANN Bylaw 
drafting process and related PTI governance documents will continue to include 
involvement by the CWG-Stewardship (or a successor implementation group).



6.               Separation Process



The CWG-Stewardship final transition proposal contemplates that a Special IFR 
will be empowered to determine that a separation process between ICANN and PTI 
is necessary and, if so, to recommend that a Separation Cross-Community Working 
Group (SCWG) be established to review the identified issues and make 
recommendations.  Annex L of the CWG-Stewardship final proposal sets forth more 
detailed information as to approval requirements with respect to the formation 
of an SCWG and approval of SCWG recommendations, including any selection of a 
new IANA Functions Operator or any other separation process, in each case these 
actions require approval by a community mechanism derived from the 
CCWG-Accountability process.



Comment - The Third Draft Proposal contemplates that the separation process 
required by the CWG-Stewardship final transition proposal will be incorporated 
into the ICANN Bylaws.  The Third Draft Proposal describes the CWG-Stewardship 
requirement of a procedure to implement a separation process should it arise 
from a Special IFR, including provisions for the creation of an SCWG, its 
functions and voting thresholds for approving the end-result of the SCWG 
process.



The Third Draft Proposal specifies that the community be empowered to reject 
ICANN Board decisions relating to reviews of IANA names function; including the 
triggering of PTI separation.  Prior to making a decision relating to IFRs, 
including the triggering of PTI separation, the Third Draft Proposal specifies 
that the ICANN Board must have undertaken a mandatory engagement process 
pursuant to which the ICANN Board must consult with the community.



Conclusion- We believe that the Third Draft Proposal adequately satisfies the 
CWG-Stewardship requirements relating to the separation process.  The 
community's ability to reject ICANN Board decisions on Special IFR/SCWG 
recommendations, which would include the selection of a new IANA Functions 
Operator or any other separation process will meet the CWG-Stewardship 
requirements, provided that (i) the final version of the CCWG-Accountability 
proposal provide that the right to reject can be exercised an unlimited number 
of times, and (ii) the ICANN Bylaw drafting process and related the Separation 
Process will continue to include involvement by the CWG-Stewardship (or a 
successor implementation group).



7.               Appeals Mechanism



The CWG-Stewardship final proposal contemplates an appeals mechanism, for 
example in the form of an Independent Review Panel (IRP), for issues relating 
to the IANA names function.  For example, direct customers with non-remediated 
issues or matters referred by ccNSO or GNSO after escalation by the CSC will 
have access to an IRP.  The appeal mechanism will not cover issues relating to 
ccTLD delegation and re-delegation, which mechanism is to be developed by the 
ccTLD community post-transition through the appropriate processes.



Comment - The Third Draft Proposal contemplates significant enhancements of 
ICANN's existing appeals mechanisms, including the IRP.  It is proposed that 
the IRP will be available to TLD managers to challenge ICANN decisions 
including with respect to issues relating to the IANA names function (with the 
exception of ccTLD delegations and redelegations, which appeals mechanisms are 
to be developed by the ccTLD community post-transition, in coordination with 
other parties), and that the Empowered Community can use the IRP to challenge 
an ICANN Board decision if it believes that the ICANN Board is in breach of its 
Articles or Bylaws (for example, if the ICANN Board determines not to accept 
the decision of the Empowered Community to use one of its community powers or 
if the ICANN Board determines not to implement a recommendation of the IFR 
team).



The Third Draft Proposal does not explicitly contemplate that the IRP would 
hear claims relating to actions (or inactions) of PTI.  The CWG-Stewardship 
final transition proposal requires an independent review process for issues 
relating to the IANA names function. This is intended to be a process that is 
independent of ICANN and PTI, and that would address actions (or inactions) of 
PTI.
Conclusion- As we noted in our comment letter to the Second Draft Proposal, the 
Third Draft Proposal does not explicitly address the CWG-Stewardship 
requirement that an independent review process be available for claims relating 
to actions or inactions of PTI. This requirement could be addressed in a number 
of ways. For example, a provision could be added to the ICANN Bylaws that would 
require ICANN to enforce its rights under the ICANN-PTI Contract/Statement of 
Work (SOW), with a failure by ICANN to address a material breach by PTI under 
the contract being grounds for an IRP process by the Empowered Community (after 
engagement and escalation). Another approach would be to expand and modify, as 
appropriate, the IRP process currently contemplated by the Third Draft Proposal 
to cover claims relating to actions or inactions of PTI, with the ICANN Bylaws 
and PTI governance documents expressly confirming that the IRP process is 
binding on PTI (which provisions would be Fundamental Bylaws that could not be 
amended without community approval). Regardless of approach, the 
CWG-Stewardship requires that this dependency be addressed in the final 
CCWG-Accountability proposal in order for the CWG-Stewardship to confirm that 
the conditions of the CWG-Stewardship final transition proposal have been 
adequately addressed.

8.               Fundamental Bylaws



The CWG-Stewardship final transition proposal contemplates that all the 
foregoing mechanisms will be provided for in the ICANN Bylaws as "Fundamental 
Bylaws."  A "Fundamental Bylaw" may only be amended with the prior approval of 
the Empowered Community and may require a higher approval threshold than 
typical Bylaw amendments (for example, a supermajority vote).



Comment - The Third Draft Proposal contemplates that the following, among 
others, would be made Fundamental Bylaws as part of Work Stream 1:

Each of the community powers (including in relation to ICANN and IANA Functions 
Operations Budgets, ICANN Director removal/Board recall, and amendments to 
Fundamental Bylaws);

The Empowered Community and the rules by which it is governed;

The framework for the IRP;

The IFR, Special IFR and the separation process;

The CSC; and

PTI governance.



Prior to approving any Bylaw amendment, the Third Draft Proposal specifies that 
the ICANN Board must have undertaken a mandatory engagement process pursuant to 
which the ICANN Board must consult with the community.  The Third Draft 
Proposal specifies that establishing new Fundamental Bylaws or amending or 
removing Fundamental Bylaws will require: (i) approval by the ICANN Board (with 
a three-quarters vote of all standing Directors) and (ii) a decision by the 
Empowered Community to exercise the Community Power to approve changes to 
fundamental Bylaws.  The Third Draft Proposal also specifies the threshold for 
the exercise of the Community Power to approve changes to Fundamental Bylaws.

Conclusion- We believe that the Third Draft Proposal adequately satisfies the 
CWG-Stewardship requirements relating to Fundamental Bylaws.

Looking forward, we continue to be committed to retaining the link between the 
work of the two groups.  Thank you for taking the lead in responding to the 
CWG-Stewardship requirements in the Third Draft Proposal and indeed for all 
related work.  As we have communicated with your group on several occasions, we 
rely on your work and our trust in the work of your group is vital in 
permitting us to focus on the essential aspects of our work on the stewardship 
transition. We look forward to your confirmation that the issues raised above 
will be resolved in the CCWG-Accountability Proposal.

Best regards,



Lise Fuhr and Jonathan Robinson

Co-chairs, CWG-Stewardship