As many of you are aware, the United States Government (USG) has announced that it intends to withdraw from oversight of ICANN. This will be accomplished by terminating the IANA contract (IANA provides, essentially, the technical functions of the domain name system) and presumably either withdrawing from the Affirmation of Commitments (AOC), a contract of sorts which holds ICANN to certain high standards of behavior and provides the legitimacy for ICANN’s policy making function, or at least no longer enforcing the AOC. The USG has asked the ICANN Community for a plan to effectuate the transfer and made it clear that the USG was not seeking a plan which increased governmental (domestic or foreign) control of ICANN. Since ICANN enjoys a global monopoly over the generic domain names industry – it is the only party which can issue or revoke contracts to those registries and registrars wanting to enter or stay in the market – the stakes are high.

Although the question of whether or not the ICANN Community actually wanted to see the transition go forward was never asked or answered – a major oversight in my opinion – the ICANN Community formed several working groups, including the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-ACCT). You see, ICANN has been suffering from a credibility problem for years prior to the USG announcement, and it was a generally held view that any transition that did not also fix ICANN’s accountability problem would only cement the flaws into a monopoly with no USG acting as a backstop. Unfortunately, what the CCWG-ACCT came up with doesn’t work.

As currently written, the proposal from the CCWG-ACCT enhances the power of foreign governments participating on ICANN’s Government Advisory Committee (GAC) through Recommendation 11. As things current stand, when the GAC issues “advice” to the Board, the Board is not required to vote on it, and if the Board decides not to act on it, there is a meet and confer process. Recommendation 11, as proposed by the CCWG-ACCT, enhances GAC power by requiring the Board to vote on any GAC advice and by requiring a 2/3 supermajority to reject GAC advice. In the absence of the vote and supermajority “no”, the advice becomes binding. In other words, the GAC will have the power to direct the Board rather than advise it, unless the Board has the courage to stand up to the GAC on an issue and tell them “no thanks.” Importantly, there are no guardrails around what the GAC can “advise” upon, at what stage in the process it must advise or lose its chance, the level of detail needed to make its “advice” implementable, any requirement for the “advice” to be accompanied by a clear and fact-based rationale that does not violate the law; nor is there any requirement that the GAC deliberate in open session where those with interests can see which governments are pushing for what outcomes.

The GNSO Council, on which I sit as a representative of the Intellectual Property Constituency, politely described the reaction of the part of the ICANN Community that it represents to Recommendation 11 in the following way: “There is broad opposition to this recommendation as written.” Hopefully, the CCWG-ACCT will try again.

Next up: ICANN at the Crossroad: Should ICANN keep itself headquartered in California and formed under California law?