Dear Tripti and Board:

Members of the CSG have raised several concerns about this proposed action in relation to the administration of the ICANN Grant Program based on a change to the Recommendations adopted from the CCWG - Auction Proceeds Final Report. The following text quotes the concerns raised and is asking that the Board defer action on this matter at its special Board meeting tomorrow in order to allow time for community feedback.

"If staff can be instructed to disapply the IRP and RfR by contract, rather than the community going through the formal process to approve a targeted Bylaws change, that sets a concerning precedent. Furthermore:

Doesn’t this place Org in a position where the Bylaws allow for these accountability mechanisms to apply, but a staff action purports to contravene the Bylaws, which itself could be challenged?
These proposed contractual terms with ICANN would be non-negotiable. I’m not a US attorney, so I don’t know to what extent this would be a concern here, but I recall that in other contexts there have been arguments that unilateral terms imposed by ICANN might be considered contracts of adhesion and unenforceable (I also appreciate, of course, that Org would never concede that this might be the case);
I share your concern that, in any event, while this might catch the applicant who agrees to the terms, it would not cover a third party who had not signed on to the terms and who might seek to challenge a Grant award to someone else.

Overall, it sounds as though the CCWG considered how best to handle disapplying these accountability mechanisms and concluded that a Bylaws change was the right way forward. Seeking to shortcut this by using the T&Cs appears to be an unsatisfactory alternative. "

Thank you,

Anne

(Former CSG Voting Delegate to the CCWG - Auction Proceeds)

Anne Aikman-Scalese

GNSO Councilor

NomCom Non-Voting 2022-2024

anneicanngnso@gmail.com

On Thu, Jul 20, 2023 at 6:24 AM Wendy Profit <wendy.profit@icann.org> wrote:

Sending on behalf of ICANN Board Chair, Tripti Sinha…

Dear Former CCWG-AP Members, (in bcc)

In follow up to the update email from Xavier Calvez, I am writing to you as Chair of the ICANN Board to update you on the Board’s discussions at its workshop during ICANN77. During this workshop, the ICANN Board discussed with ICANN org how to best implement Recommendation #7 of the Final Report.

As a reminder, part of Recommendation #7 stated that ICANN’s existing accountability mechanisms – the Independent Review Process (IRP) or the Reconsideration Process – could not be used to challenge decisions made by the Independent Applications Assessment Panel on individual applications within the Grant Program. To allow this would add unnecessary complexity to the program. Additionally, the total available funding for the program could also be depleted by the cost of such challenges. The CCWG-AP (and the Board as well, as indicated in our June 2022 action on the CCWG-AP’s Final Report) assumed that the best way to restrict the use of ICANN’s accountability mechanisms in this way would be to amend the ICANN Bylaws to create a “carve-out.” This would therefore require a Fundamental Bylaws Amendment.

After exploring this issue more in-depth, I am happy to share with you that the Board and ICANN org identified a path that both upholds the CCWG-AP’s recommendation that individual application decisions should not be challenged through ICANN’s accountability mechanisms, while also keeping ICANN’s accountability mechanisms unchanged within the Bylaws. The Board is planning to take action on this later this month; however, I wanted to provide you with a preview. The Board will direct ICANN org to use the contractual terms and conditions required to apply for the Grant Program to obtain applicant agreement that they cannot use ICANN’s accountability mechanisms to challenge any individual decision taken on their application within the ICANN Grant Program. This remains in line with the CCWG-AP’s recommendation regarding the accountability mechanisms as well as the intention to lower complexity and protect the total amount of proceeds available for applicants.

When the CCWG-AP made Recommendation #7, it also provided guidance that providing limited opportunity for review of decisions within the Grant Program might also introduce complexity, and encouraged ICANN to not make such opportunities available. However, when considering the inability for applicants to use ICANN’s accountability mechanisms for individual decisions, the ICANN Board will also ask ICANN org to explore whether there are appropriate interim opportunities within the evaluation process for applicants to ask for a limited procedural review. The Board hopes this will enhance ICANN’s accountability to applicants, while following best practices within grant making programs.

We are happy to have identified a path forward that preserves the CCWG-AP’s recommendation and enhances accountability to applicants and the wider Internet community. The Bylaws are important to us, and we are confident that we can keep up ICANN’s accountability, as set up, while at the same time limiting the ability to challenge for individual selection decisions.

The Board is following ICANN org’s implementation closely and looks forward to seeing this program launch next year. Thank you again for your time and efforts that went into envisioning this exciting program. The establishment of the ICANN Grant Program is a testament to your commitment to the work of the CCWG-AP and is an excellent representation of the multistakeholder model in action.

Kind Regards,

Tripti Sinha

Chair, ICANN Board of Directors