Purpose: The purpose of this public comment proceeding is to obtain community input on proposed changes to the charter of the GNSO Registrar Stakeholder Group (RrSG). The changes have been approved by the membership of the RrSG and are awaiting ICANN Board review and approval. Due to the extent of the revisions and consistent with the ICANN Board Process for Amending GNSO Stakeholder Group and Constituency Charters, the ICANN Board Organizational Effectiveness Committee has authorized this public comment proceeding.
Current Status: Charter changes have been approved by the membership of the RrSG. As part of its Phase II process responsibilities, ICANN staff conducted a review of the document, with policy staff further examining the language, form and structure of the document and the legal team making an assessment of any potential fiscal or liability concerns in the proposed changes. As part of the Phase II process, ICANN Org provided input back to the RrSG of potential fiscal or liability concerns. While most issues were addressed, ICANN Org identified that there are some potential fiscal or liability concerns that persist, and those were flagged to the ICANN Board Organizational Effectiveness Committee in preparation for the opening of the public comment proceeding.
Next Steps: Pending community feedback, the ICANN Board will review the proposed changes to the RrSG charter.
Section I: Description and Explanation
The GNSO Registrar Stakeholder Group (RrSG) has completed phase I of the formal ICANN Board Process for approval of GNSO Stakeholder Group and Constituency charter amendments and on 28 June 2018, the RrSG membership voted to approve amendments to its governing documents and availed itself of the Board process as of 6 July, 2018.
Accompanying this public comment announcement (see link below) you will find a document titled RrSG Charter (6.0) which reflects the RrSG’s proposed new charter documentation in a “clean” format. The document is the culmination of extensive work by the RrSG Charter Drafting Team in partnership with ICANN Org, from July 2016 to May 2018, and the direct product of over 50 virtual meetings and 4 face-to-face meetings at ICANN58 Copenhagen, ICANN59 Johannesburg, ICANN60 Abu Dhabi and ICANN61 San Juan.
There is also a redline version below (see link below) to show the difference between this final version and the version of the currently in force charter, also viewable below.
Among a number of changes noted by ICANN Org, the amended charter reflects:
- Reordered and reformatted document, aligning with other “best-of-breed” charters for the GNSO, including information as per the GNSO Operating Procedures and ICANN Bylaws;
- Clarified areas of RrSG membership eligibility – particularly the definition of eligible members, voting status vs. non-voting status, and matters regarding non-eligible applicants;
- Additional membership representatives, outlining different status for Member Representatives, Alternate Member Representatives and Member Participants.
- Expanded provisions regarding Executive Committee roles, responsibilities, and eligibility and created new Vice Chair position;
- Added details on GNSO Council Representatives and Nominating Committee Representative, specifically regarding eligibility and responsibilities towards RrSG;
- Added section on decision-making, clarifying the process for any decision-making scenario in the RrSG, elections and drafting of policy comments/positions;
- Creation of a new vice chair role, bringing vice chairs to two –V. Chair for Technical Operations, and V. Chair for Policy Coordination;
- Added chapter on functioning of additional committees within RrSG;
- Added chapter on communications: RrSG Web Presence, Distribution List and Publication Policies;
- Added chapters outlining processes for: Membership Meetings, Outreach and Finances;
- General expansion of governance document to include clear processes for members to refer to and a thorough definitions section defining terms used within the document.
As part of Phase II of the GNSO Charter Amendment Process, ICANN Org reviewed the proposed changes to the RrSG Charter. The Policy and Legal staff teams at ICANN organization reviewed the entire document, and worked with the RrSG to clarify potential fiscal or liability concerns contained within the amended Charter. ICANN Org notes that most of the concerns previously raised in the initial review of potential legal or fiduciary concerns have been addressed through an updated document.
However, some of the concerns previously raised by ICANN Org persist, specifically as they relate to the development of a grouping of registrars that have non-voting status within the RrSG even if they are not exercising a vote in any other part of the GNSO, as set out in Section 2.2.3. As previously noted, these concerns do not apply where an otherwise eligible member elects to vote through a different Stakeholder Group in the GNSO, or is part of a registrar family.
The persisting legal and fiduciary concerns ICANN Org has with this are:
- May not be aligned with the clarity required under GNSO operating procedures, particularly where there is significant discretion provided to making such a determination as to who can vote and may not (see terms such as "non-exhaustive list" "entities whose primary business activity derives from an accredited TLD registry or registry operator" "entities who are directly or indirectly operated/owned by governments");
- Lack of representation at the Council level:
If the Registrar Stakeholder Group is going to maintain its practice of reaching a voting position (as noted on recently filed GNSO Council Abstention Forms), then there is no ability for these otherwise eligible entities to have votes raised at the Council level. If otherwise eligible registrars are not allowed to have their voice considered during Council votes on items such as consensus policies, ICANN org is concerned with how that might impact the future applicability of those policies and the ability to enforce against disenfranchised registrars. In addition, ICANN org is concerned with how this disenfranchisement may impact Council votes on the exercise of Empowered Community powers.
- Lack of clarity on non-voting participation in consensus calls on policy statements/voting positions. Further, if non-voting members do not support a consensus call, they then automatically excluded from any simple majority vote on the policy statements issued in the name of the group of which they are members. (See Item (2) above)
- Lack of clarity in how the otherwise eligible non-voting members will participate in Empowered Community processes originating within the RrSG (prior to the Council votes).
A dialogue was held between ICANN Org and the drafting team. ICANN Org confirmed for the drafting team that if it wished to proceed without making further changes to the proposed Charter, ICANN Org would provide to the OEC the above analysis, which was previously shared with the drafting team. The drafting team has provided a note to the OEC with their response to the issues raised during those dialogues (see link below).
The Board OEC reviewed documentation and voted to submit the proposed changes to the RrSG charter to the public comment process for community review. All comments and documentation will then be reviewed by the Board during Phase IV of the GNSO Charter Amendment Process.
Section II: Background
The ICANN Bylaws (Article 11, Section 11.5c) state, "Each Stakeholder Group … shall maintain recognition with the ICANN Board." The ICANN Board has interpreted this language to require that it must formally approve any GNSO Stakeholder Group and/or Constituency charter amendments.
In 2013, the ICANN Board approved a Process for Amending GNSO Stakeholder Group and Constituency Charters establishing four phases that must be executed to secure formal ICANN Board approval of any community governance changes. Those phases are:
- Phase I: Amendment Preparation
- Phase II: Staff Review
- Phase III: Public Comments
- Phase IV: Board Review
After receiving a recommendation from its Organizational Effectiveness Committee, the ICANN Board shall either:
- Recognize the proposed charter amendment by a simple majority vote; or
- Reject the proposed amendment by a supermajority (2/3) vote and provide a specific rationale for its concerns.
If neither condition is met, the ICANN Board will ask for further explanation of the proposed amendments by the community.
- The RrSG has completed Phase I of the Process, voted to amend its governing Charter on 28 June 2018.
- Formally advised Staff via email on 6 July 2018.
- Policy Staff was actively involved in supporting the redrafting of the RrSG Charter from the start of the process.
- As part of its Phase II process responsibilities, ICANN staff conducted a review of the document, with policy staff further examining the language, form and structure of the document and the legal team making an assessment of any potential fiscal or liability concerns in the proposed changes. As part of the Phase II process, ICANN Org provided input back to the RrSG of potential fiscal or liability concerns. While most issues were addressed, ICANN Org identified that there are some potential fiscal or liability concerns that persist, and that those were flagged for the OEC during Phase III, and the OEC voted to open the public comment proceeding.