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A Proposal for Creation of “Community Veto” Process on ICANN Board’s Key Decisions

Below is the text of a proposal made today to ICANN’s Cross Community Working Group on Accountability (CCWG-ACCT) to create a community veto process over certain key decisions of ICANN’s board of directors. This community veto process could be created by amending ICANN’s existing corporate bylaws, which should also be amended to provide the means to recall nonperforming board members in certain situations. Together, these two bylaws amendments could provide significant teeth to the presently unempowered ICANN community to oversee key decisions of the organization’s board of directors. The “community veto” proposal is now in the hands of the CCWG-ACCT in anticipation of the discussions at ICANN#52 in Singapore from 8-12 February 2015.

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Community Veto Process on Key Board Decisions via Bylaws Amendment

Amend the existing corporate bylaws (and /or articles of incorporation) to create a new mechanism that empowers the Community to overturn board decisions on a limited number of specific, enumerated issues and also to recall nonperforming board members. This community veto process would be fashioned such that a decision to over-rule the board is determined via aggregation of decisions of the existing ICANN community structures. Each individual component of the relevant Community (for example, GAC, GNSO, At-Large, CCNSO, etc.) would have a proportional share in the over-all Decision of the Community (to veto or not to veto the board). Each of these individual structures already has internal mechanisms to make decisions through which the larger Decision of the Community could ultimately be determined. We must scope what specific enumerated decisions can trigger such a community veto process (ex: the list developed in Frankfurt) and also a specific mechanism for triggering the veto process (ex: complaint supported by relevant 2 community components).

The ombudsman (or neutral 3rd-party) could act as the facilitator of this community veto process in a purely administrative role: accept the matter for review, call the question to community vote, and collect the decisions of the individual components to reach the overall Decision of the Community (to veto or not to veto). The board would then be required to adopt this Decision of the Community unless it voted (unanimous or super-majority) to reject the Decision of the Community that was reached via this process and which would be stipulated to in bylaws and/or articles of incorporation.

Coupled with another bylaws revision providing for the ability of the community to recall recalcitrant board members, it would be difficult for the board to disregard the bottom-up Decision of the Community on a few specific matters. Larry Strickling’s speech last week hinted that an ability to recall board members would be part of the solution NTIA is looking for in the transition. Under this community veto model, the board would still maintain the requisite ultimate direction and control that is required by California corporations law (§5210), but we could significantly empower the community by creating a veto process with teeth behind it.

Amending the bylaws allows us to create the ability to overturn board decisions and thus empower the community without the need to create complicated new membership organizations or super-structures to be representational of the community. Creating a community veto process is a simpler and lighter approach to achieving the same community powers and would use the existing organizational structure. This would be a more bottom-up method of reaching a decision of the community to overturn a particular board decision and it wouldn’t require a radical remaking of ICANN’s organizational and legal structure, but rather, a couple key bylaws amendments. The creation of this community veto process is not without challenges, but I think most concerns can be addressed as we hammer it out and further develop the community veto model as a possibility to consider for empowering the community with respect to key board decisions.

By Robin Gross, Founder and Executive Director of IP Justice

I am also former Chair of ICANN’s Non-Commercial Stakeholders Group (NCSG).

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