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Congress Should Reject ICANN Transition Proposal Unless Significant Changes Are Made

Since the U.S. National Telecommunications and Information Administration (NTIA) first announced that it intended to transition U.S. oversight of the Internet Corporation for Assigned Names and Numbers (ICANN) to the global multi-stakeholder Internet community in March 2014, the multi-stakeholder community has been working diligently on proposals to ensure that ICANN remains accountable and the Internet remains stable, secure, and resilient absent U.S. oversight.

On Nov. 30, 2015, the Cross-Community Working Group on Accountability (CCWG-Accountability) published its third draft proposal for the transition for public comment. While the draft proposal is greatly improved from earlier drafts in clarity, specificity, and accountability measures, overall the draft proposal has a number of significant weaknesses, ambiguity and gaps. Unless and until these issues are addressed, the NTIA and Congress should oppose this transition.

We discuss a number of these weaknesses, ambiguity and gaps in our public comment submitted to ICANN last week. The most serious of these is the issue of the future role of governments in ICANN. Under the current bylaws, if the ICANN board “determines to take an action that is not consistent with the Governmental Advisory Committee [GAC] advice“ it is obligated to “try, in good faith and in a timely and efficient manner, to find a mutually acceptable solution.” The ICANN board decision currently is made by a simple majority.

The third draft proposal would increase the board threshold for rejecting the Governmental Advisory Committee advice to a two-thirds majority, but would also limit special consideration of GAC advice by the board to consensus advice and defining that advice as general agreement without formal objection. Concerns include what, if any, obligations the board has in regards to non-consensus GAC advice, nailing down the specific process for approving or rejecting consensus GAC advice, and making certain that board-approved GAC advice is subject to appeal by the community.

In addition, it needs to be made clear that there are no shortcuts for circumventing the obligation of the GAC to inform the board of any objection when communicating its advice or for undermining the consensus requirement through changes to internal GAC operating procedures.

Also worth noting is that the increase in the threshold from a simple majority to two-thirds majority for the board to reject GAC advice violates the testimony of ICANN CEO Fadi Chehade at a Feb. 2015 Senate hearing where he stated that requiring a two-thirds board majority to reject GAC advice was “off the table.”

In addition, the GAC is also likely to participate as a voting member in the proposed post-transition ICANN community governing body called the “Empowered Community.” Such participation would represent an expansion of GAC authority in ICANN by granting it powers that it does not currently possess.

We strongly believe that an acceptable proposal that preserves the privileged advisory role of the GAC to the board must not allow the GAC to be a decisional participant in the Empowered Community. Specifically, the GAC role must be limited to a non-decisional advisory role in the Empowered Community.

Unfortunately,…

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