Case Study: Reassigning .org Agreement, Stress Tests #3 & 15
Some community members have expressed concerns that ICANN has not lived up to its governance obligations or that ICANN’s new accountability mechanisms have fallen short. Examples cited include: the assignment of TLDs previously operated by UniRegistry, the controversy around .africa; and the proposed sale of the .org domain contract.
The proposed sale of .org by its operator PIR is a prime example of how the stress tests led to the design of new accountability mechanisms that have helped ICANN make decisions both within its mandate and accountable to the global internet community.
Stress Test #3 considered legal action arising from conflicts between laws or regulation and public policy decisions made by ICANN, such as the intervention of California’s Attorney General when ICANN was considering the transfer of the .org contract as recommended by ICANN legal staff. As anticipated in Stress Test #3, when faced with such an intervention, the ICANN board would decide whether to litigate, concede, or settle.
In the .org example, following significant stakeholder input and reaction as provided for in the .org Registry Agreement, the Board chose to concede, preventing transfer. If the board had chosen differently and decided to proceed with the transfer, under post-transition strictures, it could have quickly been challenged by the EC via IRP or Request for Reconsideration. In effect, the prospect of a community challenge cast a long shadow over board deliberations, to the extent that potential accountability mechanisms provided motivation without requiring EC mobilization.
Stress Test #15 considered the risk of “ICANN terminates its legal presence in a nation where Internet users or domain registrants are seeking legal remedies for ICANN’s failure to enforce contracts, or other actions.” More specifically, Stress Test #15 anticipated a hypothetical future ICANN board that might seek to avoid being subject to pressure from California’s Attorney General in a situation similar to the .org transfer.
This stress test led to a change in ICANN’s Articles of Incorporation, so that the Board could not change ICANN’s jurisdiction from California:
Any amendment to these Articles shall require (a) the affirmative vote of at least three-fourths of the directors of the Corporation, and (b) approval in writing by the Empowered Community, a California nonprofit association established by the Bylaws.
As previously noted, the EC was never envisioned to replace the appropriate roles of ICANN’s executives and board in managing normal operations and making decisions, even when facing delicate and difficult decisions. The EC is a backstop mechanism to ensure the ICANN Board remains accountable to the organization’s articles of incorporation and bylaws, and to its global multi-stakeholder community. As such, the triggers and thresholds for EC action were carefully designed and the powers are available, provided a sufficient majority of the ICANN community feels the board must be held to account for straying from the bylaws or failing to consider the global public interest in its decision-making. ICANN and its board are keenly aware of the new mechanisms and limited scope, and have, to date, generally avoided decisions that would prompt the EC to challenge and overturn. Second, the EC was well aware of the range of opinions on the matters being questioned, yet not a single EC member sought a petition to invoke the accountability powers.
It’s also important to note that the EC is not unduly constrained by a need to reach consensus among all five members. Annex D of ICANN’s new bylaws enables accountability measures to challenge board decisions if just 60% of decisional participants agree. The EC has an effect without having to mobilize, since the ICANN board is aware of the relatively low threshold and significant powers of the EC. If no EC members have called for mobilization, it’s because none believed ICANN, or the board, have violated the mission or bylaws.