[CCWG-ACCT] Our timetable -- some personal observations

Malcolm Hutty malcolm at linx.net
Wed Dec 16 10:22:16 UTC 2015



On 16/12/2015 03:57, Jordan Carter wrote:
> 
> It seems to me the Board's conflict of interest in this process, which
> is inherent (the body being held to account is inserting itself into
> decisions about how that should happen),

Indeed, we should remember this conflict, when considering the Board's
input.

> 
> If the substantive changes proposed by the Board on the items I noted
> above are agreed to by the CCWG, it will require:
> 
> - diligent work to assure the quality of the proposals, including legal
> review
> - a re-presentation of the final proposal, along with explanation of why
> the changes have been made
> - a re-consideration of the final proposal by the chartering SOs and ACs.

The Board also proposes to reject and entirely rewrite our proposal on
the Mission text. It rejects the compromise we put forward on the
prohibition on regulating web site content (etc), a compromise we
carefully constructed, over many weeks of intense negotiation balancing
diverse interests.

Needless to say, for many of us the Board's proposal is simply
unacceptable, and should be dropped. But if we do try to work to find a
new formulation, that will likely take many weeks within CCWG before we
could get a new draft on which to consult.

> As usual, we are again in an invidious situation through no fault of our
> (the CCWG's) own. It is no surprise volunteer numbers are down. 
> 
> I would be interested in the views of other participants on the following:
> 
> - do you think substantive changes such as those of the Board would
> require delays if adopted following the close of public comments?
> 
> - do you feel comfortable with delay if required?
> 

Actually, I think we have a larger problem even than that.

The public comment round on the Third Draft was designed to avoid
receiving significant public comment that would lead to substantial
changes.
- The report has been presented as our final report.
- The comment period was highly truncated, a mere (20?) days, and
scheduled in the run-up to the holiday season.
- The Chairs have let it be known that comment is principally sought
from the Chartering Organisations rather than the general public.
-The Chairs have also stressed most clearly that they are soliciting
support for the proposal, not ideas for further improvement, and that
the question on the table is not "Do you like this recommendation?" or
"Are there aspects of this recommendation that you would want changed?"
but "Will you raise a fundamental objection to transition if this
recommendation proceeds?".
- Most particularly, by sending the report to the Chartering
Organisations while public comment is still open, the Chairs have sent
the clearest possible signal that the time for further improvements is over.

Frankly, stated like this it can look like an appalling attempt to
exclude public input and impose an outcome. But there is a legitimate
justification: our work must eventually conclude, and there comes a
point when, having done our best, anything more is worse. So the above
process would be justified if the Chairs have already concluded that
this Third Draft Report is the best report of which CCWG is capable;
that the length and intensity of our work cannot be maintained any
longer, and so continuing negotiations would amount to letting a
dwindling band of volunteers capture the CCWG to impose their own viewpoint.

I think sooner or later we must reach that point, and if the Chairs say
that we reached it with publication of the Third Draft Report I will
accept their judgement.

If that is where we are, then the correct approach to the Board's
substantial disagreements with core aspects of our proposal is simply to
proceed on our current path: we convey our report to the Chartering
Organisations and, with their support, deliver it to the Board as the
final, considered community view. If the Board chooses to reject the
community view, that's on them. The Board may back down, and support our
proposal. And it may not, in which case it will be up to the NTIA to
decide whether it agrees with us (and demands cooperaion from a
recalcitrant Board) or with the Board (and so concludes that this
community is not sufficient mature to be able to accept transition).

On the other hand, if we have not reached "the end of the line", then we
must continue our work not only on the Board's input but on that of
others too.

If we simply adopt the Board recommendations unthinkingly, subordinating
our judgement to theirs, we will have essentially been captured by the
Board, and handed them control of the process; if that happens, I would
oppose transition for that reason alone: this community would then have
proven itself to have insufficient willpower to hold the Board to
account, and so would be in my view too immature to accept transition.

If instead we take up any of several key areas where the Board has
proposed major changes for detailed consideration, that will take time
to negotiate amongst ourselves, and will likely still result in
disagreement with the Board view in some cases. We will also have to
consider other input, not just the Board's, and given how we've run this
public comment round, we may have to re-open it in January to attract
that input. We will also have to be prepared to take comments from the
public on yet another major set of changes. That means having a proper
public comment period (that runs for 60 days), with a genuine attempt to
attract rather than avoid participation. In that comment round, one of
the key questions will be "Do you think this recommendation in the
Fourth Draft Report is an improvement on its counterpart in the Third,
or a retrograde step?".

Given that the current process is still running I cannot see any
possibility of agreeing a Fourth Draft Report before the end of January,
most likely mid-February. Add 60 days for comment and a couple of weeks
to collate and analyse comment, we'd be looking at reaching a conclusion
in late May. Even if the comment period were pulled back to 30 days,
we're still talking end April.

I think the Board has put the Chairs in an invidious position. To
summarise their options as I see them:

i) declare that we've reached the end of the line, for better or for
worse, and that the Third Draft Report remains final. This may be the
best option, but if it leads to transition failure they will likely be
scapegoated by the Board (who would actually deserve the blame).

ii) bounce CCWG into accepting the core of the Board's latest demands by
ignoring those that voice disagreement. This will utterly discredit the
CCWG process, and may lead to many individual stakeholders (but perhaps
not Chartering Organisations) directly opposing transition on this
basis. This route may be the path of least resistance for the Chairs,
but it will cause lasting damage to ICANN and undermine the credibility
of multistakeholderism more generally, most particularly amongst
multistakholderism's traditional cheerleaders.

iii) re-open substantive work to produce a Fourth Draft Report, putting
it on a timeline for public review that won't conclude until
late-spring/early-summer, and will *still* risk the Board pulling the
same stunt yet again. The displeasure of the numbers and protocols
community leaders will be fearsome. I don't know what NTIA would think
about being told we're pushing back the deadline by 4-6 months and will
miss the Congressional calendar window, but I doubt they'll be happy either.

Does anyone see another way out of this I have missed?

Malcolm.

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