And we wept as the ICANN Board scrapped our work on the accountability proposal. Of course, the board cannot really reject the proposal, they can only comment on it. But if their comments are taken seriously, our work will indeed be scrapped.
For months the Cross Community Working Group on Enhancing ICANN Accountability (CCWG-Accountability), with the help of independent lawyers, considered possible models that would give the community the power to hold the Board and ICANN staff accountable. After months of discussions, hundreds of hours of meetings online and face-to-face, and one round of community comment, the CCWG’s proposal offered a sole membership model to empower the community and enable them to ultimately go to court to challenge the actions or inactions (with many caveats) of the Board and staff under certain circumstances. The conditions to challenge the Board and staff in court are very strict. CCWG-Accountability’s team of independent lawyers, based on the community requests, found ways to provide a balance between community empowerment and the stability of ICANN.
But the Board was having none of it. Again and again they insisted that they agreed with the community on principles, and then suggested an implementation plan that weakens or undermines all those principles. They proposed to eliminate the possibility of going to court from the proposal and replace it with an arbitration mechanism. This they called, quite misleadingly, the Multistakeholder Enforcement Mechanism. In their enforcement plan, which is sketchy and entails only 4 bullet points (as opposed to the CCWG-Accountability’s 100-page proposal), the arbitration panel will be paid by ICANN, which undermines the neutrality of the panel, and the binding arbitration award will be enforceable in California court. Moreover, they don’t want the community to challenge the strategic plan or the budget. Their argument for changing the membership model to “MEM” is: we should not change the governance structure of ICANN drastically and the membership proposal does that. They also repeatedly said the proposal has unintended consequences, which they were unable to elaborate on during the call.
Why does the board’s plan sound like it defeats the whole purpose of the accountability working group? All this time we’ve needed a strong enforcement mechanism – not necessarily to take ICANN to court, but to put them under the “shadow of the law.” The possibility of legal action by members (who have specific rights under California nonprofit law) stops ICANN from easily disregarding the community’s policies. The board proposal would blunt the community’s ability to challenge ICANN’s decisions with layers and layers of process. For example, a court judgement is enforceable on its own, but an arbitration award has to be enforced in a court of law if ICANN does not voluntarily abide by it. An arbitration award can only be challenged based on due process violations and can be petitioned to be vacated, hence prolonging the process. Moreover, an arbitration award cannot be challenged based on the merits of the case, so they are seriously limiting the community’s access to court if we want to challenge ICANN’s actions or inactions.
The way the Board reacted to the accountability proposal exemplifies the very reason why we need a strong accountability mechanism. After months of deliberations, hours of voluntary work, many consultations with the independent lawyers — engaged at great cost to ICANN (and their support for this independent advice was exceptional, and perhaps useless) — the Board suddenly decided to turn the tables. The Board has followed the process from the beginning, but this sudden and intense reaction came in the final stages of proposal development. There can only be one reason for such a reaction to the sole member mode proposal: the legal advice they received from their Jones-Day and in-house lawyers. Are they shielding themselves, or are they rescuing ICANN for our sake because we poor little volunteers don’t understand the consequences of the CCWG proposal?
The legal team working for CCWG-Accountability provided an incisive analysis of the ICANN legal team’s critique of its proposal, summed up in these two bullet points:
- The [Jones-Day] Analysis does not identify any legal flaws or legal “workability” issues with respect to…key elements of the Second Proposal.
- The [Jones-Day] Analysis does not identify any significant issues that the CCWG, its working groups and/or its advisors have not already considered.
Should we really treat ICANN board’s decision seriously and give it a serious consideration? They cannot reject the proposal, but what will happen if ICG sends the proposal to NTIA with a note from ICANN board that it does not accept it? Regardless, we need to wait to see the results of the public comment period.