[CCWG-ACCT] Minority statements inclusion in report

Chartier, Mike S mike.s.chartier at intel.com
Tue Dec 1 14:54:54 UTC 2015


I see it the same way as Andrew- the test (on whether "we got it right") on the text will come when some action is challenged and the IRP has to interpret it.

-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Andrew Sullivan
Sent: Tuesday, December 1, 2015 9:38 AM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Minority statements inclusion in report

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
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