Board Activities and Meetings
- Consent Agenda:
- Approval of Board Meeting Minutes
- Appointment of F-Root Server Operator Representative to the RSSAC
- Appointment of Independent Auditors
- Investment Policy Update
- Next Steps for the Internationalized Registration Data (WHOIS) Final Report
- Board Member Mentorship Program
- USG IANA Stewardship Transition – Additional FY16 Expenses and Funding
- Thank You to Local Host of ICANN 55 Meeting
- Thank You to Sponsors of ICANN 55 Meeting
- Thank You to Interpreters, Staff, Event and Hotel Teams of ICANN 55 Meeting
- Main Agenda:
- Consideration of .ECO and .HOTEL IRP Declaration
- IANA Stewardship Transition Proposal from ICG
- Proposal from CCWG on Enhancing ICANN Accountability
- Thank You to Staff
Approval of Board Meeting Minutes
Resolved (2016.03.10.01), the Board approves the minutes of the 3 February 2016 Regular Meeting of the ICANN Board.
Appointment of F-Root Server Operator Representative to the RSSAC
Whereas, the ICANN Bylaws call for the establishment of a Root Server System Advisory Committee (RSSAC) with the role to advise the ICANN community and Board on matters relating to the operation, administration, security, and integrity of the Root Server System of the Internet.
Whereas, the ICANN Bylaws call for appointment by the Board of Directors of RSSAC members based on recommendations from the RSSAC Co-Chairs.
Whereas, the RSSAC Co-Chairs recommended for consideration by the Board of Directors the appointment of a representative from the F-root server operator to the RSSAC.
Resolved (2016.03.10.02), the Board of Directors appoints to the RSSAC the representative from F-root server F-root server operator, Brian Reid, through 31 December 2018.
Rationale for Resolution 2016.03.10.02
In May 2013, the root server operators (RSO) agreed to an initial membership of RSO representatives for RSSAC, and each RSO nominated an individual. The Board of Directors approved the initial membership of RSSAC in July 2013 with staggered terms.
Jim Martin, the F-root server operator representative, served an initial two-year term, which expired on 31 December 2015. On 2 December 2015, the Board of Directors re-appointed him to a full, three-year term expiring on 31 December 2018.
The F-root server operator, Internet Systems Consortium, has requested to change its representative from Jim Martin to Brian Reid for the remainder of the term.
The appointment of this RSSAC member is not anticipated to have any fiscal impact on ICANN, though there are budgeted resources necessary for ongoing support of the RSSAC.
This resolution is an organizational administrative function for which no public comment is required. The appointment of RSSAC members contributes to the commitment of ICANN to strengthening the security, stability, and resiliency of the DNS.
Appointment of Independent Auditors
Whereas, Article XVI of the ICANN Bylaws (http://www.icann.org/general/bylaws.htm) requires that after the end of the fiscal year, the books of ICANN must be audited by certified public accountants, which shall be appointed by the Board.
Whereas, the Board Audit Committee has discussed the engagement of the independent auditor for the fiscal year ending 30 June 2016, and has recommended that the Board authorize the President and CEO, or his designee(s), to take all steps necessary to engage BDO LLP and BDO member firms.
Resolved (2016.03.10.03), the Board authorizes the President and CEO, or his designee(s), to take all steps necessary to engage BDO LLP and BDO member firms as the auditors for the financial statements for the fiscal year ending 30 June 2016.
Rationale for Resolution 2016.03.10.03
The audit firm BDO LLP and BDO member firms were engaged for the annual independent audits of the fiscal year ending 30 June 2014 and the fiscal year ending 30 June 2015. Based on the report from staff and the Audit Committee's evaluation of the work performed, the committee has unanimously recommended that the Board authorize the President and CEO, or his designee(s), to take all steps necessary to engage BDO LLP and BDO member firms as ICANN's annual independent auditor for the fiscal year ended 30 June 2016 for any annual independent audit requirements in any jurisdiction.
The engagement of an independent auditor is in fulfillment of ICANN's obligations to undertake an audit of ICANN's financial statements. This furthers ICANN's accountability to its Bylaws and processes, and the results of the independent auditors work will be publicly available. There is a fiscal impact to the engagement that has already been budgeted. There is no impact on the security or the stability of the DNS as a result of this appointment.
This is an Organizational Administrative Function not requiring public comment.
Investment Policy Update
Whereas, the Board Finance Committee requested that an outside expert review the Investment Policy to ensure it is appropriate for ICANN.
Whereas, the outside expert completed a review of the ICANN Investment Policy and concluded that overall the Investment Policy continues to support well the conservative philosophy of ICANN's investment strategy.
Whereas, the outside expert recommends that a few modifications be made to the Investment Policy to enhance and clarify some provisions, but do not change the overall investment strategy.
Resolved (2016.03.10.04), the Board endorses and adopts the ICANN Investment Policy as revised.
Rationale for Resolution 2016.03.10.04
In furtherance of its due diligence in regards to ICANN's Investment Policy ("Policy"), the Board Finance Committee (BFC) requested staff to engage an investment consulting firm to review the Policy. For this purpose, ICANN used the services of Bridgebay Investment Consultant Services ("Bridgebay"), which had also performed the previous review of the Policy in 2011 and 2014. As a result of its review process, Bridgebay recommended a few modifications to the Policy, intended to: (i) clarify the description of the Policy's risk profile; (ii) add low-risk allowable assets (money market funds); and (iii) clarify the flexible approach, for rebalancing the assets in accordance with the strategic allocation, and extended the range of allowable investment to enable the manager to increase fixed income for defensive purposes. Bridgebay also made additional suggested revisions to language, including items such as: clarification of required securities grades and update of the accounting standard name for fair value measurements. Bridgebay presented comments, analysis and the suggested changes to the Policy to the BFC during its meeting of 2 February 2016. These limited Policy modifications will enable the investment manager to optimize its asset allocation strategy for ICANN's Reserve Fund in a conservative, risk-controlled manner.
Adopting the suggested modifications is expected to be in the best interest of ICANN and the ICANN community in that it is meant to enhance and clarify certain aspects of ICANN's investment strategy. This action is not expected to have any fiscal impact, or any impact on the security, stability and resiliency of the domain name system.
This is an Organizational Administrative Function that does not require public comment.
Next Steps for the Internationalized Registration Data (WHOIS) Final Report
Whereas, in 2012, the Board adopted an Action Plan [PDF, 265 KB] to address the recommendations of the first WHOIS Review Team, calling for ICANN to (i) continue to fully enforce existing consensus policy and contractual conditions relating to WHOIS, and (ii) create an expert working group to determine the fundamental purpose and objectives of collecting, maintaining and providing access to gTLD registration data, to serve as a foundation for a Board-initiated GNSO policy development process (PDP).
Whereas, the WHOIS Policy Review Team, in the WHOIS RT Final Report, [PDF, 1.44 MB] highlighted the need to define requirements and develop data models with the following recommendations:
"ICANN should task a working group…, to determine appropriate internationalized domain name registration data requirements and evaluate available solutions; at a minimum, the data requirements should apply to all new gTLDs, and the working group should consider ways to encourage consistency of approach across the gTLD and (on a voluntary basis) ccTLD space…"
"The final data model, including (any) requirements for the translation or transliteration of the registration data, should be incorporated in the relevant Registrar and Registry agreements …"
Whereas, to address these WHOIS Review Team recommendations, the Action Plan [PDF, 265 KB] called for a series of activities aimed at developing policies and a technical data model and framework for internationalizing WHOIS, including,
- Convening of an expert working group (known as the IRD Working Group) to determine the requirements for the submission and display of internationalized registration data.
- A GNSO Policy Development Process (PDP) to determine whether translation or transliteration of contact information is needed.
Whereas, in September 2015, the Board approved a new consensus policy developed by the GNSO related to the translation and transliteration of WHOIS contact data, for which the implementation planning is currently underway.
Whereas the IRD Working Group produced the IRD Final Report, [PDF, 268 KB] that includes the Data Model requested by the Board, and principles and requirements for internationalizing registration data (such as WHOIS).
Resolved (2016.03.10.05), the Board hereby receives the IRD Final Report [PDF, 268 KB] and thanks the IRD Working Group for the significant effort and work exerted that produced the proposed data model for internationalizing registration data as reflected in the IRD Final Report.
Resolved (2016.03.10.06), the Board requests that the GNSO Council review the broader policy implications of the IRD Final Report [PDF, 268 KB] as they relate to other GNSO policy development work on WHOIS issues, and, at a minimum, forward the IRD Final Report [PDF, 268 KB] as an input to the GNSO PDP on the Next Generation Registration Directory Services to Replace WHOIS that is currently underway.
Resolved (2016.03.10.07), the President and CEO, or his designee(s), is directed to work with the implementation review team for the new consensus policy on translation and transliteration to consider the IRD Working Group's data model and requirements and incorporate them, where appropriate, to the extent that the IRD's recommendations are consistent with, and facilitate the implementation of the new consensus policy on translation and transliteration.
Rationale for Resolutions 2016.03.10.05 – 2016.03.10.07
Why is the Board addressing the issue?
This resolution continues the Board's attention to the implementation of the Action Plan [PDF, 265 KB] adopted by the Board in response to the WHOIS Review Team's recommendations. [PDF, 1.44 MB]This resolution arises out of a series of efforts identified in the Action Plan commenced at the Board's request with the aim of internationalizing WHOIS contact data. It also facilitates the implementation of the recently adopted and related consensus policy on translation and transliteration of WHOIS data approved by the Board on 28 September 2015.
What is the proposal being considered?
Under the Affirmation of Commitments (AoC), ICANN is committed to enforcing its existing policy relating to WHOIS (subject to applicable laws), which "requires that ICANN implement measures to maintain timely, unrestricted and public access to accurate and complete WHOIS information…." The AoC obligates ICANN to organize no less frequently than every three years a community review of WHOIS policy and its implementation to assess the extent to which WHOIS policy is effective and its implementation meets the legitimate needs of law enforcement and promotes consumer trust. Under this timeline, the second WHOIS Review Team is to be convened in late 2016.
In 2012, the first WHOIS Review Team recommended in its Final Report [PDF, 1.44 MB] that the Board take measures to improve WHOIS. Its findings state: "work needs to proceed with priority in coordination with other relevant work beyond ICANN's ambit, to make internationalized domain name registration data accessible." In response, the Board adopted a two-prong approach that simultaneously directed ICANN to (1) implement improvements to the current WHOIS system based on the Action Plan [PDF, 265 KB] that was based on the recommendations of the WHOIS Review Team, and (2) launch a new effort, achieved through the creation of the Expert Working Group, to focus on the purpose and provision of gTLD directory services, to serve as PDP on the Next Generation Registration Directory Services to Replace WHOIS commenced in January 2016 with a call for volunteers.
The effect of the Board's action today, i.e. forwarding the IRD Final Report [PDF, 268 KB] to the GNSO for appropriate follow-up policy work, is aimed at internationalizing WHOIS contact data, as part of the Action Plan, [PDF, 265 KB] in order to improve WHOIS and enable non US-ASCII script to be included in WHOIS records. At a minimum, the PDP on the Next Generation Registration Directory Services to Replace WHOIS should take into account the IRD Final Report recommendations.
Today's action also instructs the President and CEO to consider the IRD's technical data model & non-policy related requirements, as appropriate, as part of the implementation of the new consensus policy on translation and transliteration of registration data, to the extent that its findings are consistent with the new consensus policy, and facilitate its implementation.
What factors did the Board find to be significant?
Internationalization of the Internet's identifiers is a key ICANN priority. Much of the currently accessible domain name registration data (DNRD) (previously referred to as WHOIS data) is encoded in free form US-ASCII script. This legacy condition is convenient for WHOIS service users who are sufficiently familiar with languages that can be submitted and displayed in US-ASCII to be able to use US-ASCII script to submit registration data, make and receive queries using that script. However, this data is less useful to the WHOIS service users who are only familiar with languages that require script support other than US-ASCII for correct submission or display.
The data model recommended by in the IRD Final Report [PDF, 268 KB] creates a standard framework for submitting and displaying internalized registration data and facilitates the implementation of the new consensus policy on translation and transliteration of contact data.
What significant materials did the Board review?
The Board reviewed the IRD Final Report [PDF, 268 KB] and other briefing materials submitted by staff.
Are there fiscal impacts or ramifications on ICANN (strategic plan, operating plan, or budget)?
The work to improve and internationalize WHOIS is not expected to require additional resources beyond those included in the Board-approved FY16 Operating Plan and Budget, and the FY17 Operating Plan and Budget, when adopted.
Are there any security, stability or resiliency issues relating to the DNS?
This action is not expected to have an immediate impact on the security, stability or resiliency of the DNS, though the outcomes of this work may result in positive impacts, since improvements in the accessibility of WHOIS in multiple scripts and dialogues may enable the resolution of technical issues affecting the security, stability or resiliency of the DNS.
Is public comment required prior to Board action?
As this is a continuation of prior Board actions, this is an Organizational Administrative Action, for which public comment is not necessary prior to adoption.
Board Member Mentorship Program
Whereas, on 3 February 2016, the ICANN Board approved the initial set of key performance indicators (KPIs) to measure the Board Performance and Improvement efforts as per the recommendations of the Final Report of the Second Accountability and Transparency Review Team (ATRT2) published on 31 December 2013.
Whereas, the initial set of KPIs encompasses, among other things, the measurement of the effectiveness and success of a New Board Mentorship Program.
Whereas, the Board is engaged in an ongoing process to develop comprehensive and holistic practices to enhance its performance and measure its effectiveness and improvement efforts over time.
Whereas, the Board recognizes the importance of establishing programs aiming at guiding and supporting the Board members' on-boarding and development processes to improve the Board members' individual skills set and the Board's collegial performance.
Whereas the Board Mentorship Program will ease new Board members into the culture of ICANN, as well as into the specifics of their roles.
Whereas the Board Governance Committee (BGC) has recommended that the Board adopt the New Board Mentorship Program as a voluntary-basis program.
Resolved (2016.03.10.08), the Board adopts the New Board Mentorship Program set forth in Attachment A to the Reference Materials to this Board Paper, and agrees with the BGC that the Board Mentorship Program should be assessed, evaluated and reviewed to adapt to the need of the Board to consistently improve its performance over time.
Rationale for Resolution 2016.03.10.08
The implementation of recommendations [PDF, 3.46 MB] from the Second Accountability and Transparency Review Team (ATRT2) began in June 2014, shortly after the Board accepted the recommendations.
Since then, the Board Governance Committee, as per Section I.A of the its charter (see https://www.icann.org/resources/pages/charter-06-2012-02-25-en) has been tasked to review comprehensively the Board's performance and to develop relevant and substantive programs and practices to support the individual and the collegial improvement efforts and to measure their effectiveness over time.
Mentoring programs are globally recognized as useful practices to enhance productivity and performance and to facilitate the settlement of new recruits into the Organization. Additionally, the mentorship enables experienced, highly competent people to pass their expertise on to others who need to acquire specified skills, in particular, mentoring encourages the development of leadership competencies that are highly desirable at Board level.
Adopting this new Board Mentorship Program will have no direct fiscal impact on ICANN or the community, and will not have an impact of the security, stability and resiliency of the domain name system.
This is an Organization Administrative Function that does not require public comment.
USG IANA Stewardship Transition – Additional FY16 Expenses and Funding
Whereas, the Board has approved an expense budget envelopes to support the IANA Stewardship Transition Project ("Project") during FY15 and FY16, and all approved budget envelopes will have been used after the ICANN Meeting 55 in Marrakech.
Whereas, a Project Cost Support Team is being implemented to produce Project expense estimates for the remainder of FY16 and for FY17 for the Project.
Whereas, it is projected that further Project expenses of up to approximately US$1.5 million will be incurred while the Project Cost Support Team is producing cost estimates.
Whereas, the Board Finance Committee met on 3 March 2016 and has approved to recommend to the Board to approve an additional Project expense budget envelope of up US1.5 million to cover Project expenses while the Project Cost Support Team is working to produce estimates.
Resolved (2016.03.10.09), the Board approves a budget envelope of up to US$1.5 million, as an interim measure, to cover the costs of the Project to be incurred until the first estimate is produced, to be funded through a fund release from the Reserve Fund.
Rationale for Resolution 2016.03.10.09
The IANA Stewardship Transition is a major initiative to which the ICANN Community as a whole is dedicating a significant amount of time and resources. ICANN's support for the community's work towards a successful completion of the Project (including both the USG IANA Stewardship transition proposal development and the Cross-Community Working Group on Enhancing ICANN Accountability's work) is critical for ICANN.
Considering its exceptional nature and the significant amount of costs anticipated to be incurred, the funding of this Project could not be provided through the Operating Fund. Accordingly, when the Board approved the FY15 and FY16 Operating Plans and Budgets, it included the anticipated funding of the transition initiative costs through a corresponding withdrawal from the Reserve Fund.
The Board previously approved the FY16 Operating Plan and Budget, which included an estimated budget envelope of US$7 million for the USG IANA Stewardship Transition ("The Project") to be funded by the Reserve Fund. As the Project used this entire budget envelope by the end of November 2015, the Board approved additional funding of US$4.5 million on 2 February 2016 to allow the project to be funded through the ICANN Meeting 55 in Marrakech.
The Board reiterates its 25 June 2015 statement that the Board is "committed to supporting the community in obtaining the advice it needs in developing recommendations in support of the transition process, and also notes the importance of making sure that the funds entrusted to ICANN by the community are used in responsible and efficient ways. Assuring the continuation of cost-control measures over the future work of the independent counsel is encouraged." (See https://www.icann.org/resources/board-material/resolutions-2015-06-25-en#2.c.).
As the community work relative to the accountability track of the Project is expected to continue, further expenses are expected through the remainder of FY16 and during FY17. The implementation planning for other parts of the Project will also continue. Separately, in order to improve visibility on and control of the expenses for this type of project in partnership with the community, a Project Costs Support Team is being formed to produce costs estimates for future work.
The Board Finance Committee has determined that an additional budget envelope of approximately US$1.5 million needs to be approved by Board to allow ICANN to incur further Project expenses for a short period of time after the end of the ICANN 55 Meeting. This will give the necessary time to the project cost support team to produce estimates. These estimates will then be used by the Board to consider and approve a budget envelope for a longer period of time forward.
As this initiative's expenses and funding are approved by the Board, the ICANN Board is now approving as an additional interim measure a budget envelope of up to US$1.5 million to be funded through a release from the Reserve Fund to cover the estimated costs to be incurred after the end of the ICANN 55 meeting until such time a cost estimate will be ready. The Board will be asked to approve an additional expense budget envelope for the remainder of FY16, on the basis of the estimated future expenses produced by the Project Cost Support Team.
This action will not have a direct impact on the security, stability and resiliency of the domain name system.
This is an Organizational Administrative Function that does not require public comment.
Thank You to Local Host of ICANN 55 Meeting
The Board wishes to extend its thanks to the local host organizer, ANRT, for its support.
Thank You to Sponsors of ICANN 55 Meeting
The Board wishes to thank the following sponsors: Verisign, Inc., Nominet UK, NCC Group, PDR Solutions FZC, China Internet Network Information Center (CNNIC), Public Interest Registry, CentralNic, Afilias plc, Radix FZC, Rightside, dotistanbul, fmai, .MA and Office National Des Aeroports.
Thank You to Interpreters, Staff, Event and Hotel Teams of ICANN 55 Meeting
The Board expresses its deepest appreciation to the scribes, interpreters, audiovisual team, technical teams, and the entire ICANN staff for their efforts in facilitating the smooth operation of the meeting.
The Board would also like to thank the management and staff of the Palmeraie Conference Center and Hotels for providing a wonderful facility to hold this event. Special thanks are extended to Patrick Lebufno, Director General Delegue, Palmeraie Conference Center and Hotels; Boubker Bernoussi, Director of Convention Services for Palmeraie Conference Center and Hotels; Loubna El Mekkaoui, Sales Manager for Palmeraie Conference Center and Hotels; Mohamed Aziz, Director, Food and Beverage; Hassan Agouzoul, Executive Chef; Hafsa Aitouhan, Event Manager; and Jamal Drifi, Banquet Director.
Consideration of .ECO and .HOTEL IRP Declaration
Whereas, on 12 February 2016, an Independent Review Process (IRP) Panel (Panel) issued its Final Declaration in the IRPs relating to .HOTEL and .ECO.
Whereas, the Panel declared ICANN to be the prevailing party in both IRPs, and, among other things, declared that the Board's actions or inactions did not in any way violate ICANN's Articles of Incorporation or Bylaws. (See Final Declaration, ¶¶ 151-156, https://www.icann.org/en/system/files/files/irp-despegar-online-et-al-final-declaration-12feb16-en.pdf.) [PDF, 2.16 MB]
Whereas, while the Panel declared ICANN to be the prevailing party in both the .HOTEL and .ECO IRPs, the Panel also suggested that: (1) the Board consider additional measures be added in the future to increase the consistency and predictability of the CPE process and third-party provider evaluations; (2) the Board encourage ICANN staff to be as specific and detailed as possible in responding to requests made pursuant to ICANN's Documentary Information Disclosure Policy (DIDP); (3) the Board affirm, when appropriate, that ICANN's activities are conducted through open and transparent processes in conformance with Article IV of ICANN's Articles of Incorporation; and (4) the Board respond to a letter from the .HOTEL Claimants regarding the portal configuration issue as soon as feasible.
Whereas, in accordance with Article IV, section 3.21 of ICANN's Bylaws, the Board has considered the Panel's Final Declaration.
Resolved (2016.03.10.10), the Board accepts the following findings of the Panel's Final Declaration: (1) ICANN is the prevailing party in the Despegar Online SRL, Donuts Inc., Famous Four Media Limited, Fegistry LLC, and Radix FZC v. ICANN IRP; (2) ICANN is the prevailing party in the Little Birch, LLC and Minds + Machines Group Limited v. ICANN IRP; (3) the IRP Panel's analysis is limited to declaring whether the Board has acted consistently with the provisions of ICANN's Articles of Incorporation and Bylaws; (4) the Board (including the Board Governance Committee) acted consistently with the Articles of Incorporation and Bylaws; (5) the parties shall each bear their own expenses including legal fees; and (6) the IRP costs shall be divided between the parties in a 50% (claimants) / 50% (ICANN) proportion.
Resolved (2016.03.10.11), the Board notes the Panel's suggestions, and: (1) directs the President and CEO, or his designee(s), to ensure that the New gTLD Program Reviews take into consideration the issues raised by the Panel as they relate to the consistency and predictability of the CPE process and third-party provider evaluations; (2) encourages ICANN staff to be as specific and detailed as possible in responding to DIDP requests, particularly when not disclosing requested documents; (3) affirms that, as appropriate, ICANN will continue to ensure that its activities are conducted through open and transparent processes in conformance with Article IV of ICANN's Articles of Incorporation; and (4) directs the President and CEO, or his designee(s), to complete the investigation of the issues alleged by the .HOTEL Claimants regarding the portal configuration as soon as feasible and to provide a report to the Board for consideration following the completion of that investigation.
Rationale for Resolutions 2016.03.10.10 – 2016.03.10.11
Despegar Online SRL, Donuts Inc., Famous Four Media Limited, Fegistry LLC, and Radix FZC (collectively, ".HOTEL Claimants") filed a request for an Independent Review Process (IRP) challenging the Community Priority Evaluation (CPE) Panel Report finding that the one community application for .HOTEL prevailed in CPE (the ".HOTEL IRP"). Specifically, the .HOTEL Claimants filed Reconsideration Request 14-34 seeking reconsideration of the CPE Panel Report, and Reconsideration Request 14-39 seeking reconsideration of ICANN staff's determination, pursuant to the Documentary Information Disclosure Policy (DIDP), that certain documents related to the CPE Panel Report were not appropriate for disclosure under the DIDP Defined Conditions for Nondisclosure. The Board Governance Committee (BGC) denied Reconsideration Requests 14-34 and 14-39, finding that the .HOTEL Claimants had not stated proper grounds for reconsideration. The .HOTEL IRP challenged the denial of Reconsideration Requests 14-34 and 14-39, and argued that the Board should have take further action with respect to the CPE Panel Report.
Little Birch LLC and Minds + Machines Group Limited (collectively, ".ECO Claimants") filed an IRP Request challenging the CPE Panel Report finding that the one community application for .ECO prevailed in CPE (the ".ECO IRP"). Specifically, the .ECO Claimants filed Reconsideration Request 14-46, seeking reconsideration of the CPE Panel Report. The BGC denied Reconsideration Request 14-46, finding that the .ECO Claimants had not stated proper grounds for reconsideration. The .ECO IRP challenged the denial of Reconsideration Request 14-46, and alleged that ICANN "has failed to act with due diligence and failed to exercise independent judgment" in "adopting" the CPE Panel Report, and requested that ICANN be "required to overturn the CPE in relation to .eco and allow the .ECO Claimants' applications to proceed on their own merits."
On 12 May 2015, the .HOTEL and the .ECO IRPs were consolidated under a single IRP Panel (Panel). The Panel held a telephonic hearing on 7 December 2015. On 12 February 2016, the three-member Panel issued its Final Declaration. After consideration and discussion, pursuant to Article IV, Section 3.21 of the ICANN Bylaws, the Board adopts the findings of the Panel, which are summarized below, and can be found in full at https://www.icann.org/en/system/files/files/irp-despegar-online-et-al-final-declaration-12feb16-en.pdf. [PDF, 2.16 MB]
The Panel found that the "analysis, which the Panel is charged with carrying out in this IRP, is one of comparing the actions of the Board with the Articles of Incorporation and Bylaws, and declaring whether the Board has acted consistently with the provisions of those Articles of Incorporation and Bylaws." (Final Declaration at ¶ 58.)
Using the applicable standard of review, the Panel found that: (1) ICANN is the prevailing party in the Despegar Online SRL, Donuts Inc., Famous Four Media Limited, Fegistry LLC, and Radix FZC v. ICANN IRP; (2) ICANN is the prevailing party in the Little Birch, LLC and Minds + Machines Group Limited v. ICANN IRP; (3) the Board (including the Board Governance Committee) acted consistently with the Articles of Incorporation and Bylaws; (4) the parties shall each bear their own expenses including legal fees; and (5) the IRP costs shall be divided between the parties in a 50% (claimants) / 50% (ICANN) proportion. (See Final Declaration at ¶¶ 151, 154-156, 160.)
More specifically, the Panel found that the .HOTEL IRP "was always going to fail given the clear and thorough reasoning adopted by the BGC in its denial" of Reconsideration Requests 14-34 and 14-39. (Final Declaration at ¶ 155.) And, "[a]s for the .eco IRP, it is clear that the Reconsideration Request [14-46] was misconceived and was little more than an attempt to appeal the CPE decision. Again, therefore, the .eco IRP was always going to fail." (Final Declaration at ¶ 156.)
It should be noted that, while ruling in ICANN's favor and denying both IRPs, the Panel did make some observations and suggestions for the Board's consideration. In particular, while recognizing that the New gTLD Program is near its end "and there is little or nothing that ICANN can do now," the Panel suggested that a system be put in place to ensure that CPE evaluations are conducted "on a consistent and predictable basis by different individual evaluators," and to ensure that ICANN's core values "flow through…to entities such as the EIU." (Id. at ¶¶ 147, 150.) The Panel also noted that ICANN staff could have better explained its determination that certain requested documents were subject to the Defined Conditions for Nondisclosure in the Documentary Information Disclosure Policy (DIDP). (Id. at ¶ 110.) The Panel also suggested that "to the extent possible, and compatible with the circumstances and the objects to be achieved by ICANN" in taking a particular decision (Id. at ¶ 145), the Board affirm that ICANN carries out its activities "through open and transparent processes" pursuant to Article IV of ICANN's Articles of Incorporation. In addition, the Panel encouraged ICANN to respond to a letter from the .HOTEL Claimants regarding the portal configuration issue as soon as feasible. (Id. at ¶ 134.)
The Board acknowledges the foregoing suggestions by the Panel. The Board has considered the suggestions and notes that it will ensure that the New gTLD Program Reviews take into consideration the issues raised by the Panel as they relate to the consistency and predictability of the CPE process and third-party provider evaluations. The Board also affirms that ICANN, as appropriate, will continue to ensure that its activities are conducted through open and transparent processes in conformance with Article IV of ICANN's Articles of Incorporation. The Board also encourages ICANN staff to be as specific and detailed as possible in responding to DIDP requests, particularly when determining that requested documents will not be disclosed. In this regard, the Board notes that the Cross Community Working Group (CCWG) on Enhancing ICANN Accountability has identified that reviewing and enhancing the DIDP is one of the topics that it will address in Workstream 2. This work, which will be further framed starting at the ICANN55 meeting in Marrakech, is likely to include review of the scope of the DIDP Defined Conditions for Nondisclosure.
Finally, with respect to the Panel's recommendation that ICANN respond to a letter from the .HOTEL Claimants regarding the portal configuration issue as soon as feasible, the Board notes that staff has informed the Board that it is nearing the end of its investigation of this matter. The Board is recently in receipt of two letters from Claimants regarding the portal configuration issue, dated 1 March 2016 and 8 March 2016, respectively. Staff has provided the Board with an update of its investigation into the issues set forth in the letters. The Board has directed the President and CEO, or his designee(s) to complete its investigation into this matter as soon as feasible. The Board notes that out of a matter of equity and fairness, the investigation should include the opportunity for all relevant parties to be heard. The Board expects the staff will prepare a report for the Board following the completion of its investigation, at which time the Board will consider the .HOTEL Claimants request for cancellation of HOTEL Top-Level Domain S.a.r.l.'s application for .HOTEL.
As required, the Board has considered the Final Declaration. As this Board has previously indicated, the Board takes very seriously the results of one of ICANN's long-standing accountability mechanisms. Accordingly, and for the reasons set forth in this Resolution and Rationale, the Board has accepted the Panel's Final Declaration as indicated above. Adopting the Panel's Final Declaration will have no direct financial impact on the organization and no direct impact on the security, stability or resiliency of the domain name system.
This is an Organizational Administrative function that does not require public comment.
IANA Stewardship Transition Proposal from ICG
Whereas, on 14 March 2014, the National Telecommunications and Information Administration (NTIA) of the United States Department of Commerce announced its intention to transition the stewardship of the IANA Functions to the global multistakeholder community.
Whereas, NTIA asked ICANN to convene global stakeholders to develop a proposal to transition the current role played by NTIA in the coordination of the Internet's domain name system (DNS). NTIA required that the proposal for transition must have broad community support and uphold the following principles:
- Support and enhance the multistakeholder model;
- Maintain the security, stability, and resiliency of the Internet DNS;
- Meet the needs and expectation of the global customers and partners of the IANA services; and,
- Maintain the openness of the Internet.
NTIA also stated it would not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.
Whereas, after public input into the design of the process, the IANA Stewardship Transition Coordination Group (ICG) was formed, with 30 members representing 13 communities of both direct and indirect stakeholders each selected by their respective communities. The communities represented were the At-Large Advisory Committee, Address Supporting Organization, Country-Code Names Supporting Organization, Governmental Advisory Committee, Generic Names Supporting Organization, Generic Top-Level Domain Registries, International Chamber of Commerce/Business Action to Support the Information Society, Internet Architecture Board, Internet Engineering Task Force, Internet Society, Number Resource Organization, Root Server System Advisory Committee, and the Security and Stability Advisory Committee. A liaison from the ICANN Board, as well as an IANA Staff Liaison Expert were also named. The ICG is supported by an independent Secretariat.
Whereas, in response to its request, each of those operating communities in turn developed their own team to coordinate the development of a plan to submit to the ICG. The ICG received plans from the Domain Names communities (developed in the Cross-Community Working Group to Develop an IANA Stewardship Transition Proposal, or the CWG-Stewardship) in June 2015, the Number Resources community (developed by the Consolidated RIR IANA Stewardship Proposal Team, or CRISP) in January 2015, and the Protocol Parameters community (developed in the IANAPLAN team) in January 2015. The CWG-Stewardship, CRISP and IANAPLAN teams each developed their plans through open consultation processes. The ICG took these three community-developed plans and assessed them individually and collectively in order to determine whether: (1) the community processes were open and inclusive and if consensus was achieved for the plans; (2) the proposals are complete and clear; (3) the three proposals together are compatible and interoperable, provide appropriate accountability mechanisms, and are workable; and (4) the proposals together meet the NTIA criteria.
Whereas, the ICG found that each of its assessment criteria were met, and coordinated the three plans into a single unified Proposal. The Proposal went out for public comment from August-September 2015, and received 157 comments on the combined proposal from a wide variety of stakeholders, including individuals, operational communities, supporting organizations and advisory committees within the ICANN community, businesses and trade associations, civil society groups, governments, and others from all regions of the world.
Whereas, upon deliberation and consideration of public comments, the ICG achieved unanimous support among its members for the Proposal. The ICG completed its work on 29 October 2015 and finalized its proposal, with the exception of one item. The CWG-Stewardship plan identified contingencies on the work of the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), and the ICG received confirmation from the CWG-Stewardship on 29 Feburary 2016 that the contingencies had been met.
Whereas, the CCWG-Accountability finalized its report on 10 March 2016, and thus provided the final confirmation to the ICG on the meeting of the interdependencies with the CWG-Stewardship's portion of the Proposal.
Whereas, on 10 March 2016, the ICG formally transmitted its report to the ICANN Board for consideration.
Whereas, during the Proposal development process, the Board engaged in each part of the process. The Board monitored the development of all parts of the proposals and provided public comment as appropriate, including commenting on both the first and second versions of the CWG plan, and on 8 September 2015 providing a comment on the ICG Proposal noting some specific concerns that should be addressed during the implementation phase. The Board's input to the ICG is at https://comments.ianacg.org/pdf/submission/submission121.pdf. [PDF, 133 KB] A comprehensive list of all the ICANN Board's input into the processes are detailed at https://www.icann.org/resources/pages/board-input-stewardship-accountability-2015-07-10-en.
Whereas, on 19 February 2016, the Board held an information call wherein it refreshed its review of the ICG Proposal in anticipation that the Proposal would soon be delivered.
Resolved (2016.03.10.12), the ICANN Board accepts the ICG's IANA Stewardship Transition Proposal.
Resolved (2016.03.10.13), the Board approves of the transmittal of the Proposal to the National Telecommunications & Information Administration of the United States Department of Commerce in response to NTIA's 14 March 2014 announcement.
Resolved (2016.03.10.14), the President and CEO, or his designee, is directed to plan for the implementation of the Proposal so that ICANN is operationally ready to implement in the event NTIA approves of the Proposal and the IANA Functions Contract expires.
Resolved (2016.03.10.15), the Board expresses its deep appreciation for the tireless efforts of the ICG chairs and members in developing the Proposal, as well as the chairs, members and participants in the CWG-Stewardship, CRISP and IANAPLAN teams. The development of the coordinated Proposal across these four volunteer teams is a true demonstration of the strength and triumph of the multistakeholder model.
Rationale for Resolution 2016.03.10.12 – 2016.03.10.15
The acceptance and transmittal of the ICG's IANA Stewardship Transition Proposal to NTIA is the culmination of a nearly two-year process. NTIA's call for ICANN to convene global stakeholders to develop a proposal to transition the current role played by NTIA in the coordination of the Internet's unique identifiers has been met. This is the end of the first phase in the path towards the privatization of DNS management, a goal since ICANN's formation.
The global multistakeholder community embraced NTIA's call to action, first developing the plan for how the proposal will be developed, at https://www.icann.org/resources/pages/process-next-steps-2014-06-06-en after a call for public input, available at https://www.icann.org/resources/pages/draft-proposal-2014-04-08-en. The IANA Stewardship Transition Coordination Team, or ICG, was formed out of that effort, comprised of individuals selected by each represented community. These 30 individuals represent 13 communities of both direct and indirect stakeholders who together delivered a proposal to recommending a transition plan of NTIA's stewardship of IANA functions to the Internet community, consistent with the key principles outlined in the NTIA March 14 announcement. The ICG membership is identified at https://www.icann.org/resources/pages/icg-members-2014-07-29-en. The ICG documented its work at https://www.ianacg.org/.
The ICG called upon the operational communities to develop comprehensive plans for transition of NTIA's role as it relates to each of the three functions served under the IANA Functions Contract. The Request for Transition Proposals, at https://www.icann.org/news/announcement-2014-09-09-en, specified a comprehensive list of requirements, including: descriptions of how the community uses the IANA functions and existing arrangements; proposed oversight and accountability arrangements post-transition; transition implications; identification of the how the NTIA criteria are met; and description of community process and consensus assessment.
The operating communities each responded through separate teams. The Domain Names communities formed the Cross-Community Working Group to Develop an IANA Stewardship Transition Proposal (CWG-Stewardship), https://community.icann.org/x/37fhAg. The Domain Name Community's report was the result of over 100 calls or meetings, 2 public consultations and more than 4,000 email messages. The final proposal received the consensus support of the CWG with no objections or minority statements recorded for Chartering Organization consideration.
The Number Resources community formed the Consolidated RIR IANA Stewardship Proposal Team (CRISP), tracked at https://www.nro.net/nro-and-internet-governance/iana-oversight/consolidated-rir-iana-stewardship-proposal-team-crisp-team. Within the Number Resources community, each of the five RIRs also performed work to support the CRISP work, and details on those proceedings can be accessed from https://www.icann.org/en/stewardship/community. Each region contributed to the community consensus via regionally defined processes suitable to their particular local needs and culture.
The Protocol Parameters community established the IANAPLAN working group to elaborate a response, with a mailing list at http://www.ietf.org/iana-transition.html. Anyone was welcome to join the conversation and participate in the development. A publicly archived and open mailing list was created to this end and yielded 2,252 emails.
Upon receipt of all three reports, the ICG reviewed each report to consider if: (1) the community processes were open and inclusive and if consensus was achieved for the plans; (2) the proposals are complete and clear; (3) the three proposals together are compatible and interoperable, provide appropriate accountability mechanisms, and are workable; and (4) the proposals together meet the NTIA criteria. The ICG Proposal details the findings on each of these elements and the Board agrees with these findings.
The ICG received 157 comments on its draft combined proposal from a wide variety of stakeholders, including individuals, operational communities, supporting organizations and advisory committees within the ICANN community, businesses and trade associations, civil society groups, governments, and others from all regions of the world. In support of the proposal, the ICG produced a comprehensive summary of public comments (https://www.ianacg.org/icg-files/documents/Public-Comment-Summary-final.pdf) [PDF, 253 KB] to identify the comments received and how they were addressed in the Proposal. The comments, on the whole, also support the ICG's findings.
The ICG's deliberations were extensive. Seven face-to-face meetings, 26 conference calls and the exchange of 5,627 emails were the tools needed to build the report. To maintain and safeguard the inclusiveness of the process, interpretation services were provided for meetings. Translations of working documents were delivered, and inputs received in languages other than English were also translated. Seven engagement sessions were organized to foster awareness and receive feedback. The ICG called for input to its work at different phases, including a call for comments to validate community support for how ICG was performing its work. ICANN in its facilitation of the process provided all resources and support requested by the community to develop a consensus proposal.
The two most important considerations for the Board are on the compatibility and interoperability of the three plans, and whether the proposals meet NTIA's criteria.
Compatibility and interoperability
The Board has reviewed all three components of the plan. As the Board stated in its 8 September 2015 comments to the ICG, https://comments.ianacg.org/pdf/submission/submission121.pdf, [PDF, 133 KB] "While the ICG has asserted that there are no incompatibilities between the three operational communities' proposals received (also known as the CRISP, CWG-Stewardship, and IANAPLAN responses), there are some implementation details and foreseen complexities that will need further coordination with the communities for clarity. As implementation occurs, ways to address the elements of the proposal may evolve, and in our comments below, we have endeavored to highlight some of these and provide the ICG with implementation suggestions.
We do not believe that any of these issues poses a threat to the viability of the final ICG Proposal. We hope that these implementation issues and details can be resolved in the implementation phase, but we urge the community and where needed the ICG to consider these issues and begin to clarify as soon as practicable in the interests of a smooth IANA Stewardship Transition."
The areas identified by the Board on potential areas of overlap that require further coordination in the implementation phase include: (1) new service levels and operational changes; (2) jointly managed functions; (3) the relationship between the "Post Transition IANA" identified perform the naming-related functions and the other operating communties; and (4) transfer to successor operator requirements. ICANN stands ready to work with the communities to address these issues within the implementation planning phase.
NTIA Criteria Appear To Be Met
The Board agrees with the ICG's determination that the NTIA criteria have been met through the consensus-supported ICG Proposal.
Support and enhance the multistakeholder model.
The ICG noted, and the Board agrees, that each of the operating communities modeled their post-transition proposal on the existing arrangements and structures. The arrangements between ICANN and the Protocol Parameters and Numbers Resource communities remain largely unchanged, and the multistakeholder nature of oversight in the naming community will likely be enhanced through the development of community-based standing committees and review processes. The existing IANA Functions Contract served as the basis for many of the proposed post-transition plans, with enhanced responsibility placed on the multistakeholder community in overseeing the work.
Maintain the security, stability, and resiliency of the Internet DNS.
The Board agrees with the ICG that the security, stability and resiliency of the Internet DNS are maintained through the combined Proposal. There is no change suggested by the Numbers Resource or Protocol Parameters communities that could impact the security, stability or resiliency of the DNS. These proposals are built upon the existing structure.
Though the Names community is calling for the creation of a subsidiary of ICANN to perform the naming function, ICANN agrees with the ICG that this portion of the proposal also maintains the security, stability and resiliency of the Internet DNS. There is minimal change contemplated for the technical delivery of the naming-related functions, and the role remains unchanged.
ICANN agrees that it is essential to have a contract in place between ICANN and the Root Zone Maintainer prior to any expiration of the IANA Functions Contract, and this is key to security and stability concerns.
Meet the needs and expectation of the global customers and partners of the IANA services.
The Board agrees with the ICG that this condition has been met. The ICG stated "All three communities determined that the global customers and partners of the IANA services and their communities of stakeholders are presently satisfied with the performance of the IANA functions by the IANA department of ICANN. The combined proposal is not expected to impact that."
Maintain the openness of the Internet.
The ICG determined "The combined proposal requires that the IANA services, associated policy development processes, and IANA registries remain fully open and accessible just as they are today." The Board agrees that the ICG Proposal, though it identifies some organizational changes through which the IANA Functions will be delivered, otherwise has no impact on the variety of open policy development processes or on the databases and IANA registries that are available today.
No replacement of the NTIA role with a government-led or an inter-governmental organization solution.
NTIA also specified that its role could not be replaced by a government-led or an inter-governmental organization solution. This condition is met. None of the operating communities define a role for a government-led or inter-governmental organization solution, relying instead on the operating communities and other indirect customers of the IANA functions to perform the different oversight and accountability roles. The Proposal affirms the role of the multistakeholder community.
Accepting the Proposal and transmitting the Proposal to NTIA do not, specifically impose any resource requirements on ICANN. However, the planning for implementation that is necessary to be at a place that ICANN is ready to implement these changes if the IANA Functions Contract expires. That effort requires significant resources, such as systems and reporting updates, funding the development of an affiliate not-for-profit entity, development of changes to ICANN's Bylaws as well as governing documents for the new entity, completing contracts necessary for the performance of the IANA functions, and constituting the new community-based groups involved in oversight in the future. Both the community and ICANN will be called upon to devote time to this effort. Fiscally, the implementation planning must proceed with considerations of fiscal responsibility, and the Board looks forward to working with the community to develop cost management tools that will result in better estimation of costs. The Board will use these estimates to guide future budgeting decisions on the IANA Stewardship Transition work.
During the development of proposal, ICANN provided funding and staff resources for various aspects of the work, including initiating the work of the ICG, travel costs for face-to-face meetings, funding an independent Secretariat to support the ICG, staff support to the CWG-Stewardship, and funding external counsel to advise the CWG in the development of its proposal. The funds expended to date on the collective ICG effort helped provide the multistakeholder community with the opportunity to develop the proposals with the levels of independence it said were important. Further, the availability of external advice supported the CWG's debate and dialogue that led to its final recommendations. Providing these resources was an important facet of assuring multistakeholder participation in this work.
The acceptance and transmittal of this Proposal are not expected to have any impact on the security, stability and resiliency of the Internet DNS. Planning for implementation of the Proposal helps assure that ICANN can continue the performance of the required functions, even in a post-transition environment, with no environment, with no impact on security, stability or resiliency.
Taking this action today is an important affirmation of the multistakeholder model. The global multistakeholder community came together and developed a plan for the transition of the IANA Functions Stewardship. Issues were debated in multiple fora. Public comments were received, analyzed and incorporated. The resulting Proposal has the consensus of the operating communities impacted by the respective portions, as well. The Proposal also received unanimous consensus from across the 13 communities represented in the ICG.
The Board thanks NTIA for giving the multistakeholder community the opportunity to develop this Proposal. Accepting this report and transmitting it to NTIA for consideration is an important step in maintaining accountability to the multistakeholder community, and the Board serves the public interest in taking this decision.
This is an Organizational Administrative Function that has been subject to multiple levels of public comment.
Proposal from CCWG on Enhancing ICANN Accountability
Whereas, on 14 March 2014, the National Telecommunications and Information Administration of the United States Department of Commerce announced its intention to transition the stewardship of the IANA Functions to the global multistakeholder community.
Whereas, NTIA asked ICANN to convene global stakeholders to develop a proposal to transition the current role performed by NTIA in the coordination of the Internet's domain name system (DNS). NTIA required that the proposal for transition must have broad community support and uphold the following principles:
- Support and enhance the multistakeholder model;
- Maintain the security, stability, and resiliency of the Internet DNS;
- Meet the needs and expectation of the global customers and partners of the IANA services; and,
- Maintain the openness of the Internet.
NTIA also stated it would not accept a proposal that replaces the NTIA role with a government-led or an inter-governmental organization solution.
Whereas, during initial discussions on how to proceed with the transition process, the ICANN multistakeholder community, raised concerns on the impact of the transition on ICANN's accountability, with the removal of the perceived backstop of NTIA's historical role.
Whereas, ICANN supported the community in the development of the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), chartered by the Address Supporting Organization, the At-Large Advisory Committee, the Country Code Names Supporting Organization, the Generic Names Supporting Organization, the Governmental Advisory Committee and the Security and Stability Advisory Committee. The CCWG-Accountability has 28 members from across the Chartering Organizations, with an additional 175 registered participants.
Whereas, the CCWG-Accountability's work was determined to be interrelated with the work to develop a proposal being developed by the IANA Stewardship Transition Coordination Group (ICG), the proposal called for by NTIA in its announcement. ICANN agreed that after the Board considered the CCWG-Accountability proposal, it would be transmitted to NTIA to support its evaluation of the ICG's proposal.
Whereas, the CCWG-Accountability's work is divided into two phases:
- Work Stream 1: focused on mechanisms enhancing ICANN accountability that must be in place or committed to within the time frame of the IANA Stewardship Transition; and
- Work Stream 2: focused on addressing accountability topics for which a timeline for developing solutions and full implementation may extend beyond the IANA Stewardship Transition.
Whereas, the CCWG-Accountability's deliberations to date have focused on preparing a set of recommendations to fulfill its Work Stream 1 objectives, and defining the topics that will be considered for Work Stream 2. The CCWG-Accountability developed its report in multiple phases and iterations that included participation beyond the CCWG-Accountability, and beyond ICANN as a whole.
Whereas, the CCWG-Accountability requested that counsel external to ICANN be made available to provide advice on the governance issues that the CCWG-Accountability identified as necessary as part of its work. In coordination with ICANN, two sets of legal counsel were engaged and have provided advice and counsel directly to the CCWG-Accountability. ICANN funds the work of these two firms.
Whereas, in October 2014, the Board committed to a process through which it would consider the consensus-based recommendations of the CCWG-Accountability in Resolution 2014.10.16.16 at https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2.d.
Whereas, the Board has been closely following the work of the CCWG-Accountability, including identifying a liaison to the group, and active participation from across the Board in CCWG-Accountability meetings. The Board has participated in the public comment processes on the iterations of the CCWG-Accountability reports, and has provided interim inputs into the deliberations on an ongoing basis. A comprehensive list of all the ICANN Board's input into the process is detailed at https://www.icann.org/resources/pages/board-input-stewardship-accountability-2015-07-10-en.
Whereas, on 10 March 2016, the CCWG-Accountability Co-Chairs transmitted its Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) Work Stream 1 Report ("Report") to the ICANN Board, confirming that the recommendations achieved consensus in the CCWG-Accountability. The Report was approved by five of the Chartering Organizations, with the sixth, the GAC, submitting a statement of non-objection to transmitting the Report to the Board. The CCWG-Accountability also confirmed the support of the Cross-Community Working Group to Develop an IANA Stewardship Transition Proposal (CWG-Stewardship), the group responsible for developing the Domain Names Community's input into the IANA Stewardship Transition Coordination Group's proposal. The CWG-Stewardship had identified certain contingencies on the CCWG-Accountability's recommendations, which were confirmed as met.
Resolved (2016.03.10.16), the ICANN Board accepts the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) Work Stream 1 Report ("Report").
Resolved (2016.03.10.17), the Board approves of the transmittal of the Report the National Telecommunications & Information Administration of the United States Department of Commerce to accompany the IANA Stewardship Transition Proposal developed by the IANA Stewardship Transition Coordination Group.
Resolved (2016.03.10.18), the President and CEO, or his designee, is directed to plan for the implementation of the Report so that ICANN is operationally ready to implement in the event NTIA approves of the IANA Stewardship Transition Proposal and the IANA Functions Contract expires. The Board is committed to working with the community to identify the portions of the CCWG-Accountability recommendations that can be implemented in the event that it is determined that ICANN's obligations to perform the IANA Functions will remain under contract with NTIA.
Resolved (2016.03.10.19), the Board expresses its deep appreciation for the tireless efforts of the CCWG-Accountability chairs, rapporteurs, members and participants, as well as the global community that came together in developing the Report. The intensity and level of engagement from across the community, as well as the spirit of cooperation and compromise that led to this Report is a true demonstration of the strength and triumph of the multistakeholder model.
Rationale for Resolution 2016.03.10.16 – 2016.03.10.19
The acceptance of the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) Work Stream 1 Report ("Report") represents a milestone in the evolution of the multistakeholder model. The CCWG-Accountability was created out of a call from across the ICANN community on a review of the impacts on ICANN's accountability with the removal of the perceived backstop from the historical contract with NTIA in the event the stewardship of the IANA Functions is transitioned to the multistakeholder community. This Work Stream 1 Report was developed by the 28 members of the CCWG-Accountability, representing six Chartering Organizations, and 175 participants. The development of this Report required over 220 meetings (face-to-face or telephonic), three public comment periods, and more than 13,900 email messages. The dedication of the CCWG-Accountability, including intense debate and resulting compromise from all participants, is an example of what the multistakeholder model can achieve. The CCWG-Accountability work is only part of the coordinated effort to achieve the delivery of a proposal to NTIA on the IANA Stewardship Transition.
The CCWG-Accountability Work Stream 1 recommendations have a few main areas of focus:
- A revised Mission Statement for the ICANN Bylaws that clarifies what ICANN does, while not changing ICANN's historic mission.
- An enhanced Independent Review Process with a broader scope, reaffirming the IRP's power to ensure ICANN stays within its Mission. The IRP will become binding upon ICANN.
- Enhancements to the Reconsideration Request process.
- New specific powers for the ICANN community that can be enforced when the usual methods of discussion and dialogue have not effectively built consensus, including the powers to:
- Reject ICANN Budgets, IANA Budgets or Strategic/Operating Plans.
- Reject changes to ICANN's Standard Bylaws.
- Approve changes to new Fundamental Bylaws, Articles of Incorporation and ICANN's sale or other disposition of all or substantially all of ICANN's assets.
- Remove an individual ICANN Board Director.
- Recall the entire ICANN Board.
- Initiate a binding Independent Review Process on behalf of the Community.
- Reject ICANN Board decisions relating to reviews of the IANA functions, including the triggering of Post-Transition IANA separation.
- Inspect ICANN's books and records, and initiate investigatory audits.
The CCWG-Accountability recommendations also describe how the community will come together to excercise their new powers, including paths of escalation and community dialogue. The community will ultimately have the power and standing, through the development of a "designator" structure under California law, to enforce these powers in court, though the escalation paths are designed to reduce the need to ever resort to court for resolution. The Board is supportive of the CCWG-Accountability's focus on internal resolution and the Independent Review Process, as opposed to encouraging the ICANN community to rely upon the judicial system as a regular tool in holding ICANN accountable.
Other areas of the CCWG-Accountability recommendations include the insertion of a commitment to recognition of human rights, incorporating the reviews called for under the Affirmation of Commitments into the ICANN Bylaws, modifying the structural reviews to include considerations of SO/AC Accountability, and affirming the GAC's current advisory role and the deference given by the Board, while refining the threshold needed for the Board to not act consistently with GAC consensus advice. The CCWG-Accountability also specified some elements of accountability that relate to the CWG-Stewardship's portion of the IANA Stewardship Transition Proposal.
Finally, the CCWG-Accountability recommendations scope the topics that will be considered within its Work Stream 2, and identify that the Board will consider those continuous improvement recommendations with the same process the Board identified for the Work Stream 1 recommendations.
The CCWG-Accountability produced three drafts of recommendations to reach this final Report. The first draft was out for public comment from 4 May 2015 through 12 June 2015 and received 31 comment submissions. The second draft was out for public comment from 3 August 2015 through 12 September 2015 and received 93 comment submissions. The third draft was out for public comment from 30 November 2015 through 21 December 2015 and received 89 comment submissions. For each of these public comment periods and document releases, the CCWG-Accountability held multiple webinars to describe the mechanisms in the proposal and answer any questions. The CCWG-Accountability also held engagement sessions at each of the ICANN meetings and individual members conducted their own outreach around the globe at regional and national events and conferences.
The CCWG-Accountability relied upon advice provided by two external law firms, Sidley Austin LLP and Adler & Colvin, which were retained after the need for external inputs was determined by the CCWG-Accountability to be essential to its review of ICANN's governance structure, and to test the legal inputs provided by ICANN. ICANN facilitated the engagement process in collaboration with the CCWG-Accountability, and pays the legal fees. When addressing such important and broad issues, the availability of these legal inputs provided the CCWG-Accountability with the tools to perform their work and have full deliberations. ICANN in its faciliation of the process provided all resources and support requested by the community to develop a consensus report.
Meeting the NTIA Criteria
The Board agrees that it is important for the CCWG-Accountability recommendations that modify ICANN's governance structure to uphold the same criteria that NTIA defined for the transition of the stewardship of the technical IANA functions. ICANN, as the organization that will remain responsible for the performance of the IANA functions, must have the same safeguards. The Board agrees with the CCWG's assessment that NTIA's criteria are met.
Support and Enhance the Multistakeholder Model
At Annex 14 of its Report, the CCWG-Accountability identifies the ways in which its recommendations support and enhance the multistakeholder model. The Board agrees that the specific items enumerated in the Report support this criterion. More fundamentally, however, the recommendations as a whole demonstrate more reliance upon the multistakeholder community coming together to influence not just policy, but also ICANN's governing documents and some of ICANN's key operational decisions as well, such as planning for budgets and operating plans. The multistakeholder community is given more individual and collective access to paths of redress, and assurances of the binding nature of those tools. The spirit of this Report is for a community that has more determination over ICANN. It will be important that those taking on greater responsibilities continue to consider how to evolve their own accountability efforts, as will be considered in Work Stream 2.
Maintain the Security, Stability and Resiliency of the Internet DNS
Along with the items identified by the CCWG-Accountability in Annex 14 of its Report, the Board notes that the security, stability and resiliency of the Internet DNS are maintained through the CCWG-Accountability recommendations first and foremost through the affirmation that ICANN's mission, while clarified, remains unchanged, and any future attempt to change that mission will require both Board and community consent. The CCWG-Accountability has identified that there are core components of ICANN's budget that will remain operational even if there is a dispute between the community and ICANN on the budget, and those core components include operations that relate to the security and stability of the Internet DNS.
Meet the needs and expectations of the partners of the IANA Functions
Along with the items identified by the CCWG-Accountability in Annex 14 of its report, the Board notes that this criterion is met by the consideration of the needs of the customers of the IANA Functions and the coordination of recommendations that complement the IANA Stewardship Transition Proposal. The needs identified by the CWG-Stewardship have been incorporated into the recommendations, and the CWG-Stewardship has affirmed that its contingencies were met. The CCWG-Accountability also coordinated with the other operating communities to confirm that their concerns on clarification on mission and applicability of independent review processes were addressed.
Maintain the Openness of the Internet
In addition to the items identified by the CCWG-Accountability in Annex 14 of its Report, the Board agrees that this criterion is met through the development of open processes where community members might wish to engage. Maintaining open processes where community members have not only a voice, but also an opportunity to impact, is expected to enhance ICANN's accountability and the multistakeholder model itself. Strengthening ICANN through the strengthening of the multistakeholder model is the key way to maintain the openness of the Internet and continued participation in ICANN's processes. The recognition of the roles of all stakeholders at ICANN is another important aspect of meeting this criterion.
The Board also agrees that the future work scheduled for Work Stream 2, focusing on issues such as enhancing transparency, diversity, community accountability, and defining how staff can be more accountable to the community also are geared towards continued enhancement of engagement in ICANN and maintaining the model.
No replacement of the NTIA role with a government-led or an inter-governmental organization solution
In addition to the CCWG-Accountability's discussion of how this criteria is met, the Board agrees that this criteria is met, again, through a strong grounding in the multistakeholder community. The recommendations reafirm the role of each of the structures within ICANN, and do not create inequalities in how each of the groups participate, even as the ICANN community moves beyond policy development work and into new operational activities. The role of governments in ICANN is affirmed, as well as the Governmental Advisory Committee's autonomy over its own operating procedures, while at the same time creating more predictability in the Board providing special consideration only to GAC advice that is within ICANN's mission and provided with defined consensus.
Minority and Voting Statements
The Board notes that there were five minority statements provided to the CCWG-Accountability on its final Report. Appendix A of the report details both the process that the CCWG-Accountability followed to reach consensus. The Appendix also includes the minority statements in full.
In the 10 March 2016 letter transmitting the Report to the Board, the Board has been informed by the CCWG-Accountability co-chairs that consensus was reached on the recommendations. Further, the Chartering Organizations have each approved (with one non-objection) to the forwarding of the final Report to the Board for consideration, though the minority statements were provided by those associated with various Chartering Organizations. There were also voting statements provided within the GNSO on parts of the recommendations, at times mirroring the issues previously raised in the minority statements. The GAC, in providing its non-objection, noted the support for a large majority of the recommendations and lack of consensus over others.
Given the full process for the development of the Report,the numerous concessions made by all in reaching the consensus recommendations, and the approval (or non-objection) of all of the Chartering Organizations, the Board considers that the existence of these voting and minority statements does not create a barrier to the acceptance of the Report. The Board encourages the CCWG-Accountability to consider if any of the concerns raised in the minority or voting statements can appropriately be addressed within the topics defined for Work Stream 2 or used as guidance in implementation.
Accepting the Report and transmitting it to NTIA does not specifically impose any resource requirements on ICANN. However, the planning for implementation that is necessary to be in place for ICANN is ready to implement these changes when appropriate. That effort requires significant resources, including amending ICANN's Bylaws, supporting the revisions to the Independent Review Process, confirming that processes are in place for the community escalation processes, and other planning as required. The implementation planning for the entirety of the IANA Stewardship Transition Process is a coordinated effort, with the interrelated operational and accountability requirements within the ICG's Proposal and the CCWG-Accountability's Report considered together. Given that there is the possibility that NTIA may not be able to approve ICG's Proposal, if that determination is made, the Board is committed to work with the community to implement those parts of the CCWG-Accountability Report that do not interfere with the obligations ICANN would maintain under an IANA Functions Contract with NTIA.
Both the community and ICANN will be called upon to devote time to this effort. The implementation planning must proceed with considerations of fiscal responsibility, and the Board looks forward to working with the community to develop cost management tools that will result in better estimation of costs. The Board will use these estimates to guide future budgeting decisions on the CCWG-Accountability work, including implemenation and Work Stream 2. As Work Stream 2 proceeds, the Board urges close consideration of the types of legal support needed now that the broad governance changes developed in Work Stream 1 are accepted and on path for implementation, and the issues reserved for Work Stream 2 may not be as legal in nature.
During the development of the Report, ICANN provided funding and staff resources for all aspects of the work, including things such as travel support and coordination of face-to-face meetings, secretariat support, external counsel, report drafting and graphics, and translations. The funds expended to date on the CCWG-Accountability helped provide the multistakeholder community with the opportunity to develop the Report with the levels of independence it said were important. Further, the availability of external advice supported the CCWG-Accountability's debate and dialogue that led to its final recommendations. Providing these resources was an important facet of assuring multistakeholder participation in this work.
The acceptance and transmittal of this Report are not expected to have any impact on the security, stability and resiliency of the Internet DNS.
Taking this action today is an important affirmation of the multistakeholder model. The global multistakeholder community came together and developed a plan to enhance the accountability of ICANN to help support the transition of the IANA Functions Stewardship. Issues were debated in multiple fora. Public comments were received, analyzed and incorporated. Many difficult issues were resolved, with compromises across the community. In the end, the multistakeholder community developed recommendations that reserve to it unprecedented power in ICANN, with meaningful and binding escalation paths to enforce these new rights. The CCWG-Accountability also has considered how to make sure the key commitments from the existing Affirmation of Commitments remain in place through incorporation into the Bylaws, and other enhancements to enhance accountability and transparency in ICANN's operations. The Report is supported by a consensus of the CCWG-Accountability, and approved by all but one Chartering Organization, which has noted its non-objection to submitting the Report to ICANN. Accepting this Report is an important step in maintaining accountability to the multistakeholder community, and the Board serves the public interest in taking this decision.
This is an Organizational Administrative Function that has been subject to multiple levels of public comment.
Thank You to Staff
Resolved (2016.03.10.20), the Board thanks the ICANN staff who worked on all aspects of the development of the transition and accountability proposals. This effort has been supported by staff from across the entire organization. The Board also thanks all the staff who supported ICANN during this period of intense activity.
Published on 10 March 2016