Comments on 4 May draft proposal
I refer to the draft proposal at: https://www.icann.org/en/system/files/files/cwg-accountability-draft-proposa l-with-annexes-04may15-en.pdf Overall, I think that this is a step in the right direction. However, I feel that it suffers from reinventing the wheel and trying to fit a square peg into a round hole. Regarding re-inventing the wheel, I would suggest taking a fresh look at the proposals of the Internet Ad Hoc Group (IAHC), which can be found at: http://web.archive.org/web/19971211190257/http://www.gtld-mou.org/gTLD-MoU.h tml See also: http://web.archive.org/web/19971211190034/http://www.gtld-mou.org/ http://web.archive.org/web/19980415071855/http://www.gtld-mou.org/draft-iahc -gTLDspec-00.html Regarding fitting a square peg into a round hole, the proposal attempts to solve the very difficult problem of ensuring accountability of an organization (ICANN) that performs very different functions: it is the regulator of the gTLD business, and it is the operator of the IANA function, which is itself composed of sub-functions. It would be easier to implement proper accountability if the several functions were separated, each with its own accountability mechanism, as proposed by the Just Net Coalition. I attach for convenience the JNC proposal which has already been submitted to the various groups working on the IANA transition. See in particular paragraphs 23 and 31 to 35 of the JNC proposal. I agree that turning ICANN into a membership organization is the way forward: if the membership is sufficiently broad, and ICANN is accountable to its membership, then adequate accountability will be ensured. In some countries (in particular in Switzerland), non-profit associations are, by law, accountable to their membership, in the sense that the membership has full powers to amend the bylaws (called statues in Switzerland), elect and revoke the Board, approve and review the budget, etc. See articles 60 ff. of the Swiss Civil Code at: https://www.admin.ch/opc/en/classified-compilation/19070042/index.html If we accept the principle that accountability is ensured by the members, then I don't understand why the members of ICANN should not have full powers to amend the bylaws, set the budget, etc. Here are more detailed comments. I reference the paragraph number that appears at the left margin of the pages of the draft proposal. 16: the members should be the members of the SO and AC, not the SO and AC themselves. 19: of course ICANN will be subject to the laws of the countries in which it operates, unless it is granted immunity of jurisdiction. But ICANN will primarily be subject to the laws of the country in which it is incorporated. If California law does not allow the membership to exercise full powers, then it might be better to incorporate ICANN elsewhere. Quite apart from that, ICANN should not be incorporated in the USA, or in any other powerful state that might be tempted to interfere with ICANN for political or economic reasons. It should be incorporated in a neutral state that is unlikely to interfere, for example Switzerland. 44: by analogy, the people, who should have full power, are the members of the SO and AC, not the SO and AC themselves. See also paragraphs 23 and 31 to 35 of the JNC proposal. 63: if ICANN remains incorporated in the USA it will be subject to US law, which could have undesirable consequences (e.g. force ICANN to comply with sanctions that are unilaterally imposed by the USA). ICANN should be incorporated in a neutral jurisdiction, for example Switzerland. 124: the membership, and only the membership, should have the power to change the bylaws. 126: answer to question 2: see above. 133: 14(a) states "Third party international arbitral bodies would nominate candidates". That is too vague. The proposal would have to specify some specific bodies. But I propose that this provision be deleted entirely. I doubt that any arbitral body has enough knowledge and experience to be able to propose candidates. I would propose instead that ICANN itself ask for nominations, as it did for the PIC DRP. 180: The membership should have full powers, not just some powers. And the membership should consist of the members of the SO and AC, not the SO and AC themselves. That is, the directly concerned entities should be members. One level of representation (the Board) is sufficient, I don't see any reason for the extra level of indirection. That is, why should the directly concerned entities elect representatives that elect the ICANN Board, when the directly concerned entities can elect the Board themselves? 182: As explained in the proposal, a membership model is better than a "designator" model. 189: Answer to question 9: yes. 190: Answer to question 10: see above. 197 ff.: As explained above, the membership should have full powers, not just some powers. 207: Answer to question 11a: yes. 208: Answer to question 11b: see above. 209 ff.: As explained above, the membership should have full powers, not just some powers. 216: Answer to question 12a: yes. 217: Answer to question 12b: see above. 219 ff.: As explained above, the membership should have full powers, not just some powers. 224: Answer to question 13a: yes. 225: Answer to question 13b: see above. 227 ff.: As explained above, the membership should have full powers, not just some powers. 237: Answer to question 14a: yes. 238: Answer to question 14b: see above. 240 ff.: As explained above, the membership should have full powers, not just some powers. 249: Answer to question 15a: yes. 250: Answer to question 15b: see above. 284, 285, 287: if ICANN remains incorporated in the USA it will be subject to US law, which could have undesirable consequences (e.g. force ICANN to comply with sanctions that are unilaterally imposed by the USA). ICANN should be incorporated in a neutral jurisdiction, for example Switzerland. 296: Answer to question 16a: no. 297: Answer to question 16b: ICANN should not be incorporated in the USA, see above. 516 ff., Stress test category III, Legal/Legislative Action: as the proposal correctly states the "proposed measures ... might not be adequate to stop interference with ICANN policies". In particular, the cannot stop interference from the country where ICANN is incorporated. Hence, as stated above, ICANN should be incorporated in a neutral country that is unlikely to interfere, for example Switzerland. Or ICANN should negotiate immunity of jurisdiction. Attachment:
IANA_paper_final_r1.pdf |