By Gangesh Varma
In the weeks leading up to the ICANN 55 Meeting at Marrakech, we are doing a series of posts tracking the CCWG-Accountability process. The first and second posts by Aarti Bhavana analyze Recommendations 1 & 2 and Recommendation 6 & 12 respectively. This third post in our series on the CCWG- Accountability recommendations will recap the discussions on Recommendation 4. The Empowered Community is vested with powers to ensure enhanced accountability and these are provided under Recommendation 4: Ensuring Community Involvement in ICANN Decision-making: Seven New Community Powers. These were designed to prevent domination of a single stakeholder or individual section of the community.
Source: CCWG-Accountability Supplemental Final Proposal on Work Stream 1 Recommendations at page 22.
Recommendation #4: Ensuring Community Involvement in ICANN Decision-making: Seven New Community Powers
While the public comments largely supported the recommendation and the seven community powers, there was a call for greater detail and clarity. The key discussions following the public comment period on this recommendation have been focussed on three aspects. First, the issue of indemnification of community members in case of removal of Directors. Second the discussion on the power to reject the IANA Budget (IANA Budget veto power) and third the IANA Separation process. The discussion on the scope of Independent Review Panel (IRP) is closely connected to Recommendation 7: Strengthening ICANN’s Independent Review Process, and will be addressed in a separate post of this series.
Indemnification and Liability Mitigation in the Event of Removal of Entire Board or Individual Directors:
One of the primary concerns raised with regard to these powers was that the removal of Board Directors runs the risk of litigation against community members. It was considered that there is a possibility that a Director who was being removed through this power vested in the community could sue members of the community for libel, slander or defamation. This would stall the process and restrict any utility of the provision. In order to prevent such liability, it was suggested that pre-service letters with a waiver of right to sue for statements made in the exercise of this power might be required. On the last call addressing this recommendation, the Board objected to the inclusion of a waiver and indemnification while it was supportive of the pre-service letters. The Board also confirmed that the requirement for a clear and written rationale for removal was not a restriction over the type of rationale under which the removal would be executed. After extensive discussions, it was concluded that indemnification will be available
(i) to a member of a Supporting Organization, Advisory Committee, the Nominating Committee or the Empowered Community
(ii) who is acting as a representative of such applicable organization or committee
(iii) for actions taken by such representative in such capacity pursuant to the Bylaws (e.g., a chair of a Supporting Organization submitting a written rationale for the removal of the director)
It was further clarified that this indemnification will be available only if the actions were taken in good faith, and in a manner that the indemnified person reasonably believed to be in the best interest of ICANN. The specific guidelines for the standards of conduct such as good faith, due diligence etc. will be developed by ICANN. These details would ensure that even when the power of removal of directors is used, it will encourage and promote healthy discussions.
The power to reject the ICANN’s Budget or strategic/operating plans also includes the power to reject the IANA Budget. There were four main concerns with this aspect. First, the CWG-Stewardship in its comments sought for greater clarity in the process and criteria for exercise of this power (relating to budget transparency, grounds for rejection of a budget/plan, timing of budget preparation and development of the caretaker budget). The 2nd draft proposal contained these clarifications, and the CCWG resolved this concern by re-introducing the 2nd draft proposal text in the 3rd draft proposal. The second main discussion was on refining the role of operational communities in the IANA Budget veto power, taking inputs from the various stakeholders. The Internet Advisory Board (IAB), in particular, raised this issue and stated that it did not wish to alter the power in a manner in which the IETF had a direct voice in the budget. Upon further discussion, it was resolved by removing specific reference to the IETF, and inclusion of text referring to service level contractual obligations. The third concern was expressed by the Board that sought clarification on the IANA Budget within the context of this specific power, and made a proposal for a ‘caretaker budget’ to be operational so that ICANN can perform its functions on a day-to-day basis. While the finer details of the caretaker budget will be developed in the implementation process, the 3rd draft proposal requires it to be a public and transparent process. The fourth aspect for consideration was whether this ‘caretaker budget’ approach should be embedded in the bylaws. The CCWG concurred with the Board’s suggestion that the ‘caretaker budget’ approach be embedded in the Fundamental Bylaws.
IANA Separation Process:
The Empowered Community is also vested with the power to reject ICANN Board decisions relating to the reviews of the IANA functions including the triggering of Post-Transition IANA Separation. The Board suggested that the recommendation should clarify that this is limited to the Names component of the IANA function. Additionally, CWG in its comments suggested the insertion of two conditions for greater clarity. First, the right to reject Board decisions relating to reviews of IANA Functions can be applied by the Empowered Community an unlimited number of times. Second, the ICANN Bylaw drafting process and related Separation process will continue to include involvement by the CWG-Stewardship. Both these suggestions were incorporated in the recommendation at paragraphs 75 and 77 of the final draft of Annex – 04.
Scope of Community Independent Review Process (IRP):
The Empowered Community is also vested with the power to initiate a binding Community IRP. The circumstances under which this power may be used are listed as follows:
- “Hear and resolve claims that ICANN through its Board of Directors or staff has acted (or has failed to act) in violation of its Articles of Incorporation or Bylaws (including any violation of the Articles of Incorporation or Bylaws resulting from action taken in response to advice/input from any AC or SO).
- Hear and resolve claims that PTI through its Board of Directors or staff has acted (or has failed to act) in violation of its contract with ICANN and the CWG-Stewardship requirements for issues related to the IANA naming functions.
- Hear and resolve claims that expert panel decisions are inconsistent with ICANN’s Bylaws. Hear and resolve issues relating to DIDP decisions by ICANN which are inconsistent with ICANN Bylaws.
- Hear and resolve claims initiated by the Empowered Community with respect to matters reserved to the Empowered Community in the Articles of Incorporation or Bylaws”
In the 3rd Draft Proposal, this power is accompanied with the option of filing a Request for Reconsideration. One of the main suggestions regarding limiting the scope of the Community IRP was to confine its applicability to the names community excluding the numbers and protocol community. Additionally, another key concern raised was with regard to the threshold for initiating this right and to prevent parts of the community affecting decisions relating to policy development processes. This discussion is closely related to Recommendation 7 and will be discussed in a separate post of this series.
 Pre-Service Letters in this context refer to letters signed prior to taking the position of Director on the ICANN Board. In this case, the proposition was that such letter would include a waiver of the right to sue when this Power was used by the Community Member.
 As per Annex 04 at page 4: “ If the CWG-Stewardship’s IANA Function Review determines that a Separation Process for the IANA naming functions is necessary, it will recommend the creation of a Separation Cross Community Working Group. This recommendation will need to be approved by a supermajority of each of the Generic Names Supporting Organization and the Country-Code Names Supporting Organization Councils, according to their normal procedures for determining supermajority, and will need to be approved by the ICANN Board after a Public Comment Period, as well as by the Empowered Community”