[CCWG-ACCT] Minority statements inclusion in report

[Andrew Sullivan]

On Tue, Dec 01, 2015 at 01:50:05AM +0000, Malcolm Hutty wrote:

> With respect, I don't think anyone could seriously think that the
> power to sack the Board or remove directors is remotely effective as a means
> of addressing the concerns in this debate, whether your concern is ICANN's
> overreach (as David would have it) or ICANN's failure to act (closer to
> Bradley's concern). Whatever be the purpose of these community powers,
> I don't think it can be this.

Why not?  As nearly as I can tell, what we are talking about is a case
where ICANN the corporation interprets the mission in ways quite far
out of line with what the community thinks is appropriate (and also, I
think it should be noted, quite far out of line with what the current
board seems to think is ICANN's mission.  For instance, several board
members have talked about how ICANN doesn't regulate content on
various occasions).  If we have a problem where the community agrees
that the board is permitting the corporation to act inconsistently
with the community's understanding of the mission, surely the
community should be able to force the board to change its behaviour.
This would seem to me to be precisely the point of such community powers.

Or, let's suppose that an IRP decides, in the teeth of the plain
English meaning of the text, that in fact the mission does permit
ICANN to regulate content beyond whatever capability it has today by
dint of the agreements that are in place.  This doesn't seem
impossible, if only on the basis of history of technical decisions by
eminent jurists to date.  Surely, ICANN would want to update its
bylaws to make perfectly plain that such regulation is not in its
capabilities.  If nobody on the board were willing to put forward such
an alteration, it seems to me entirely appropriate for the community
to find someone who will and to remove enough of the board to get the
necessary actions moving along.

It's _exactly_ what the powers are for, isn't it?

> the Reconsideration process, and the IRP. But they are all three
> entirely predicated on getting the Mission text right: unless the
> Mission text accurately reflects what we want ICANN to do, mere
> mechanisms for ensuring that ICANN honours its Mission will not
> help.

I've seen no reasonable argument of any sort that the guidance to
bylaw drafters is wrong.  It says that the mission is limited in the
ways we've already agreed, but that those limitations cannot overturn
such agreements as ICANN already has in place.  The arguments I've
seen on this list have been all of the sort, "What if someone ignores
this part, and just concentrates on that part?"  In other words, the
arguments are all of the form, "What if someone interprets this
incorrectly?"  And I say that, if someone is insisting on interpreting
a bit of text out of line with the community's interpretation, there's
still a mechanism to defend against that, and it's the recall
procedures.

It is not possible to "get the Mission text right" if the requirement
is that nobody could possibly misunderstand it, if only because humans
are ingenious at ignoring inconvenient text whenever that turns out to
be convenient.  So what we must do is get the text right enough so
that anyone properly disinterested will interpret it correctly; and
ensure the community has enough power to that, if interested parties
get their hands on the levers, those hands can be pulled back.  I
think the draft text we have accomplishes both of these goals.

Best regards,

A

-- 
Andrew Sullivan
ajs at anvilwalrusden.com