GAC Advice Provisions in CCWG-Accountability's Draft Proposal Subject of Stakeholder Scrutiny

Language concerning requirements for accepting and rejecting advice from the Governmental Advisory Committee (GAC) included by the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability) in its draft of proposed changes to ICANN's accountability procedures released last month (see 1512010064) was the subject of much scrutiny in public comments due Monday. The language drew some support from national governments, ICANN's At-Large Advisory Committee (ALAC) and top-level domain (TLD) associations. ICANN's board submitted comments on the draft proposal last week (see 1512140055) and said it supports CCWG-Accountability's consensus language on handling GAC recommendations, which many saw as the final substantial barrier to approving the draft (see 1511270048). Multiple stakeholders also expressed concerns about language allowing the removal of several ICANN board members at once.

The ICANN Generic Names Supporting Organization's Non-Commercial Stakeholder Group (NCSG) said it doesn't support the GAC advice provisions as currently written -- mainly language requiring the ICANN board to comply with advice from the GAC unless a two-thirds vote opposes the group -- and suggested the text be amended to allow the ICANN board to reject GAC advice "approved by full consensus" with a majority vote. The NCSG said CCWG-Accountability should revise language in the draft to require the GAC to "confirm the lack of any objection" on advice it offers to ICANN's board. The NCSG also took issue with the way CCWG-Accountability constituted its establishment of an empowered community, which they said alters "the existing balance" between supporting organizations and advisory committees. The NCSG "want[s] an empowered community that reflects the actual designators of board members and policy development authorities in the ICANN community" whose relative powers "maintain the same balance among stakeholder groups that currently exists in ICANN," it said.

Google is "very concerned that the proposal's recommendation to amend the bylaws addressing the role of GAC advice will disproportionately empower governments at the expense of other stakeholders," Google said in comments filed on the draft proposal. Requiring the ICANN board to reject GAC advice by a two-thirds majority will unfairly strengthen the power of governments and disincentivize governmental representatives from participating in the bottom-up process, Google said. "While Google understands that this rule may merely codify the ICANN Board's informal practice, the proposal and [previous negotiations] send the wrong message," it said. "They create the perception that governmental stakeholders have the power to override and a potential interest in overriding community-driven decisionmaking."

The Center for Democracy and Technology and the Internet Association also showed concern with the proposed GAC advice requirements in their respective comments. Google said proposed changes to ICANN's bylaws should include a prohibition to limit the organization's ability to regulate services using unique Internet identifiers or the content they carry or provide, and warned of the harmful potential of removing the entire ICANN board simultaneously. "The power to remove the ICANN board as a whole could have destabilizing effects on ICANN and on the Internet more broadly," it said. Google said a member recall provision is "simply not necessary as a practical matter," because the multistakeholder community will unseat members individually if they're not happy with a particular member.

In its comments to CCWG-Accountability, the U.S. Chamber of Commerce said it has concerns about the GAC advice provisions, but said it may find the two-thirds threshold for refuting GAC advice "acceptable" if several changes are made. GAC advice must be accompanied by a "clear, written rationale," must reflect a full, actual consensus with no objections, and any negotiated solution between the ICANN board and the GAC mustn't violate ICANN's bylaws. The Chamber also urged enhanced ICANN transparency requirements, but noted a "general step in the right direction with respect to access to documents, interactions with governments, and whistleblower protections."

ALAC supported the GAC advice provisions in its comments, but provided no explanation for its decision. ALAC did disagree with certain deadlines and vague consequences baked into proposed ICANN bylaws, and said it has "serious concerns" with the changes to ICANN's mission statement, which it said would restrict the mission of the organization and could have "inadvertent results which severely impact its ability to properly carry out its intended mission." The GAC has "preliminarily considered" CCWG-Accountability's draft recommendations, but said in comments that it "is not in a position to give an indication of its position." The group said it hasn't reached a consensus on its opinion on the language for GAC advice provisions, and expects to finalize its formal position on all draft recommendations between Jan. 7 and Jan. 22.