[CCWG-Accountability] [Area 2] Work Area 2: inventory of accountability mechanisms, draft 4

Tue Dec 23 17:26:13 UTC 2014

Mr. Ojedeji

Respectful disagreement (and agreement with Mr. Hutty) on two counts:

First, the principle as stated is at too high a level of generality.  We need to be specific and if you are going to call for community oversight you need propose a mechanism.

Second, in disputes between the community and the Board, the community will often be an interested party.  As you know, I favor the community generally over the Board, but it is reasonable for the Board to insist on an independent adjudicator.  Saying that some issues may be “too complex to understand” is not persuasive.  The Bylaws are “law” and interpreting law is a very common practice.

Warm regards

Paul

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From: Seun Ojedeji [mailto:seun.ojedeji at gmail.com] 
Sent: Tuesday, December 23, 2014 11:48 AM
To: Malcolm Hutty
Cc: ccwg-accountability2 at icann.org; accountability-cross-community at icann.org
Subject: Re: [CCWG-Accountability] [Area 2] Work Area 2: inventory of accountability mechanisms, draft 4

Hi Malcolm,

While I agree that it may be moved to WS1, I will like to suggest a rewording as below:

 "Ensure that the ICANN Board can be held to its own Bylaws, and
      effective remedy granted if breach found by it's community."

I don't think an independent external entity will understand the bylaw than the community because they are the ones directly affected. They may engage the external entity if required but the trigger should happen from the community and the decision made by them.

However as you have observed, the WS1 item seem to be the start-up and what is in WS2 is the continuation.

Cheers!
sent from Google nexus 4
kindly excuse brevity and typos.

On 23 Dec 2014 17:17, "Malcolm Hutty" <malcolm at linx.net <mailto:malcolm at linx.net> > wrote:

On 21/12/2014 21:10, Steve DelBianco wrote:
> To: members of CCWG and Work Area 2,
>
> After our last call on 16-Dec, the chairs tasked the entire CCWG with
> this action:
>
>     3. ACTION review the inventory list compiled by WA2 and suggest
>     either additions to or deletions from the list.
>
>     With regard to work area 2, everyone is encouraged to review the
>     latest version of the inventory that was developed by the WA 2
>     sub-group.

Steve,

1. I would like to propose that the item
     "Ensure that the ICANN Board can be held to its own Bylaws, and
      effective remedy granted if breach found by independent
      adjudicator."

be reclassified to WS1.

I have three reasons for this.

Firstly, I would suggest that this is a fundamental element of
accountability. Although the is not limited to such extreme scenarios,
it includes the case where the Board willfully defies the bylaws. If you
cannot ensure that the Board honours the bylaws, any accountability
mechanisms that that depend upon the bylaws are critically weakened.
This makes this foundational, and I think that reason alone is
sufficient to justify placing it in WS1.

In short, the statement "these are initially designated as WS2, since
the Members could reverse board or management decisions if Members are
empowered in WS1 (above)" does not apply unless this is WS1.

Secondly, my own view is that the only way this accountability objective
can be achieved robustly is to create an independent/external body that
is able to review the Board's actions for compliance with the bylaws
(presumably on an appellate basis) and, if it finds a breach, to vacate
the Board action. To be effective, in my view, in the face of a
theoretically defiant Board, this entity could not be answerable to the
Board. While it is possible that others may not support such a
mechanism, this type of approach clearly ought to be considered. Any
such a mechanism would have to be created by NTIA, not ICANN; the ICANN
Board is self-evidently incapable of setting up something in authority
over itself and its own bylaws. For that reason I believe that this also
qualifies this scenario for WS1 according to your own criterion of
"things that cannot be done if left until after transition has occurred"

Thirdly, this overlaps with another proposal you have classifed as WS1
   "Establish a permanent cross-community working group with power to
    refer any board decision to an independent review panel."
If the only grounds for making such a referral is an alleged breach of
the bylaws then the one is a perfect superset of this other proposal:
referral from a cross-community one of a range of possible means of
having such an allegation considered by an independent review panel, but
not the only one. If it was intended that the cross-community group be
able to refer decisions on other grounds too, then there is overlap but
not duplication.

2. I would like to propose that the items

   "Ensure ICANN Board does not act "ultra vires", and stays within
    assigned mission and scope. e.g., prevent scope creep in policies
    imposed via RAA."

and

   "Prevent ICANN Board redefining mission/scope in Bylaws without
    community consensus"

be reclassified to WS1.

My reasons are similar to the previous item. A Board that is capable
ignoring its mission or of redefining its mission at will cannot be
accountable to anyone: if anyone says it has done wrong it can simply
redefine the goals so as to justify its preferred actions.

This item is therefore foundational for any other mechanisms, which is
in my view sufficient to justify WS1 classification.

Moreover, the ability to set the goals and thereby determine the
criteria according to which any accountability mechanisms will operate
is so fundamental that it largely defines "who is in charge". It is
almost inconceivable that any Board would yield up ultimate
decision-making authority on this issue to anyone else, unless faced
with extraordinary leverage. NTIA transition is therefore the only
opportunity for the community to seize this authority directly, and so
it also qualifies for WS1 according your "now or never" criterion.

Finally this overlaps with another proposal you have assigned to WS1:
    "Establish a permanent cross-community working group with power
     to approve changes to ICANN bylaws or Articles, with 2/3 majority".
A permanent cross-community working group is one means by which
community consensus might be established, but not the only possible
means (for example, changes to the bylaws and articles could be ratified
directly by ACs and components of SOs directly).

3. Lastly, I am a little concerned that the proposals relating to
Affirmation Review Teams might be a bit too narrow and
'solution-oriented' for WS1 track. There is an underlying idea, I think,
that continuing community oversight is required and that the community
needs a permanent ability to initiate major perform, but I suspect the
details of this may need to be left to WS2; the minimum requirement in
these proposals it to be confident such reforms could be initiated later.

However I've just tried three times to come up with an alternative way
of framing this that would allow these proposals to be reclassified as
WS2 and found myself unsatisfied with my own idea each time. I will
therefore await the discussion

--
            Malcolm Hutty | tel: +44 20 7645 3523
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 London Internet Exchange | http://publicaffairs.linx.net/

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