Proposed Bylaws Updates to Limit Access to Accountability Mechanisms

What We Received Input On

The Internet Corporation for Assigned Names and Numbers is seeking input on a proposed amendment to Section 4.1 of the ICANN Bylaws. The proposed Bylaws amendment sets out the process through which the ICANN community can limit access to ICANN’s Reconsideration Request and Independent Review Processes (collectively, “Accountability Mechanisms") in specific circumstances, and in a streamlined manner. The proposed amendment outlines thresholds for broad community consensus and procedural protections for use.

Specifically: 

• The amendment creates a procedure for the ICANN community to limit or make unavailable the Reconsideration Request process or the Independent Review Process (IRP) set forth at Article 4, Sections 4.2 and 4.3 of the ICANN Bylaws. 
• If a community recommendation is made through the proposed process, and the Board approves that recommendation, the implementation of any limitation can then occur without requiring a specific Fundamental Bylaws Amendment process to embed that change within the ICANN Bylaws.
• The proposed threshold for establishing broad community support is that all three of the following conditions be met:
• The recommendation for use of the amendment stems from a Cross-Community Working Group chartered by at least five of the seven Supporting Organizations and Advisory Committees (SO/ACs).
• At least four of the CCWG’s chartering SO/ACs are Decisional Participants within the Empowered Community.
• Each of the chartering SO/ACs approves the CCWG’s recommendation to limit or restrict access to one or more of the Accountability Mechanisms.

Article 4, Section 4.1 of the ICANN Bylaws is not one of the Sections identified as subject to the Fundamental Bylaws Amendment process under Article 25, Section 25.2 of the ICANN Bylaws. However, the ICANN Board is treating this proposal as a Fundamental Bylaws Amendment because, if approved, changes would apply to the use of the ICANN Accountability Mechanisms which are each identified as Fundamental Bylaws.

Background

The ICANN Board initiated the Fundamental Bylaws Amendment Process in its Board Resolution 2024.01.21.09.

The Board’s proposed Fundamental Bylaws Amendment will:

1. Support the Board’s commitment that decisions to limit access to Accountability Mechanisms belong to the community.
2. Provide a route for ICANN to appropriately implement community recommendations to limit access to the Accountability Mechanisms in specific circumstances without the need for additional complexity, resources, and risk through additional processes.

In October 2023, as the ICANN Board addressed Recommendation #7 of the Cross-Community Working Group on the Auctions Proceeds from New gTLD Program (CCWG-AP), it also asked ICANN org to identify a proposed Bylaws amendment that would document a general process for how the ICANN community could limit access to ICANN’s Accountability Mechanisms. 

The CCWG-AP is the first ICANN Cross-Community Working Group to make a recommendation to limit access to ICANN’s Accountability Mechanisms in relation to what subsequently is known as the ICANN Grant Program. The CCWG-AP recommended that:

Existing ICANN accountability mechanisms such as IRP or other appeal mechanisms cannot be used to challenge a decision from the Independent Project Applications Evaluation Panel to approve or not approve an application.

The ICANN Board weighed the implementation challenges posed by the language of the CCWG-AP’s recommendation and resolved in October 2023 to use contractual terms and conditions to limit ICANN Grant Program applicant access to ICANN Accountability Mechanisms. 

The Board recognized the community’s concern with a contractual approach, specifically the concern that the Board could choose to use contracts in other areas to similarly limit access to ICANN Accountability Mechanisms. That was not the Board’s intent and the Board appreciates the important role the community performs in identifying how and when access to ICANN’s Accountability Mechanisms should be limited. As a way forward, the Board proposed the above Fundamental Bylaws Amendment.

This general process would be beneficial to the ICANN community in the following ways:

• The community saves time and resources.
  • The proposal eliminates the need for an additional, subsequent Fundamental Bylaws Amendment process that would implement the same recommendation already deliberated and made by a Cross Community Working Group.
• Better clarity is maintained with ICANN’s Bylaws.
  • The proposal reduces the possibility of adding complex exception language in the Bylaws for programs and/or projects that may be of limited duration.

In addition, the text of the proposed Bylaws Amendment builds in multiple protections for the community:

1. The proposal requires that there be wide community participation within the Cross-Community Working Group that makes a recommendation to limit access to either or both of ICANN’s Accountability Mechanisms. At least five of ICANN’s seven Supporting Organizations and Advisory Committees (SO/ACs) must be Chartering Organizations to that effort. 
2. Of those Chartering Organizations, at least four of them must be Decisional Participants in ICANN’s Empowered Community. This is an important safeguard, as ICANN’s Empowered Community has a role in approving Fundamental Bylaws Amendments. No Fundamental Bylaws Amendment can be approved within ICANN if more than one of the five Decisional Participants within the Empowered Community object to such an amendment. 
3. Any recommendation to limit access to ICANN’s Accountability Mechanisms must then be supported by all of the Chartering Organizations to that Cross-Community Working Group. 
4. The recommendation can only go into effect if the ICANN Board agrees that the recommendation is in the public interest. 

If approved, ICANN will be responsible for confirming that any limitation on access to ICANN’s Accountability Mechanisms developed through a Cross-Community Working Group be clearly documented. 

Some initial implementation ideas include the use of a page similar to the repository of ICANN Consensus Policies, where ICANN centralizes information about all Consensus Policies that ICANN’s gTLD Registry Operators and accredited registrars are bound to follow. ICANN would also need to include information about the limitation on access within the relevant project or program pages for the work implicated by the CCWG recommendations, as well as other tools and communications designed for the specific situation.

Next Steps

Following the Public Comment proceeding:

1. ICANN org will analyze the received Public Comments and prepare a report of the Public Comments for publication.
2. The ICANN Board will consider the public comments received to identify whether any modifications are needed to the proposal and whether the Board is in a position to approve the Fundamental Bylaws Amendment.
3. If the Board approves the Fundamental Bylaws Amendment, the Empowered Community’s approval action process will be initiated as required under Article 25, Section 25.2 of the ICANN Bylaws.