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

Paul Rosenzweig paul.rosenzweig at redbranchconsulting.com
Wed Dec 16 19:41:16 UTC 2015


Malcolm is, of course, completely correct.  The Board's last minute effort
to play the GPI card is an effort to cow the Co-Chairs into adopting their
views as a way of avoiding further delay.  As Malcolm says, however, if the
CCWG accedes to those demands it risks losing the support of many
individuals and perhaps even some chartering organizations.

My own recommendation is that the Chartering Organizations withhold their
support pending not only close of the public comment period but also a
determination by the Co-Chairs as to how they intend to proceed.  If the
Co-Chairs choose to modify the Third Proposal in response to the Board and
if they do so without futher engagement and public comment that process
foul, by itself, would be grounds for the Chartering Organizations to reject
the proposal -- and I would strongly advocate that they do so.  

Paul

Paul Rosenzweig
paul.rosenzweig at redbranchconsulting.com 
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-----Original Message-----
From: Malcolm Hutty [mailto:malcolm at linx.net] 
Sent: Wednesday, December 16, 2015 5:22 AM
To: Jordan Carter <jordan at internetnz.net.nz>; Accountability Cross Community
<accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Our timetable -- some personal observations



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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