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

Tue Dec 23 17:41:34 UTC 2014

On Tue, Dec 23, 2014 at 6:26 PM, Paul Rosenzweig <
paul.rosenzweig at redbranchconsulting.com> wrote:

> 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.
>
>
>
I am seeing it as the mechanism is what we are to determined in this
process.

> Second, in disputes between the community and the Board, the community
> will often be an interested party.
>

If you refer to dispute that that remained unresolved among both parties
then i agree. My main point is that the existing community processes needs
to be exhausted before seeking any external options.

  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.
>

I agree but again based on the understanding i have mentioned above.

Thanks

>
>
> Warm regards
>
> Paul
>
>
>
> ***NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
>
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>
> Paul Rosenzweig
>
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> <paul.rosenzweigesq at redbranchconsulting.com>
>
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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> 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
>    Head of Public Affairs | Read the LINX Public Affairs blog
>  London Internet Exchange | http://publicaffairs.linx.net/
>
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-- 
------------------------------------------------------------------------

*Seun Ojedeji,Federal University Oye-Ekitiweb:      http://www.fuoye.edu.ng
<http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email:
<http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
<seun.ojedeji at fuoye.edu.ng>*

The key to understanding is humility - my view !
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