[CCWG-ACCT] Third Draft Proposal -- substantive Comments/Edits

Sun Dec 20 15:10:14 UTC 2015

This simply reconfirms my view that we are going too fast and that our pace has outstripped our capacity to keep up.  In comments we filed earlier this week, Brett Schaeffer and I wrote the following:

To begin with, we believe that the entire process by which the Draft Proposal was created calls into question the validity of the work product and its utility and representativeness. The consideration of new accountability measures has been characterized by a rush to resolution under what appear to be self-imposed deadlines based on perceived political conditions. As National Telecommunications and Information Administration (NTIA) has emphasized over and over again, the U.S. government “has not set any deadline for the transition.”[2] <http://www.heritage.org/research/reports/2015/12/comment-on-the-ccwg-accountability-draft-proposal-on-work-stream-1-recommendations#_ftn2>  We strongly believe that it is better to get this process done right than it is to get it done on time. 

Indeed, this third CCWG-Accountability report to the community represents a complete revision of the proposed oversight mechanism of ICANN—yet this novel approach has not been fully vetted by the community and is now being subject to a truncated 21-day comment period, with the CCWG-Accountability co-chairs urging all commentators to preferentially submit their comments through their supporting organizations and advisory committees (SOs and ACs). 

We reject that limitation. This novel proposal still has many open questions that require answers. Indeed, even as we write this comment a vibrant debate continues to occur on the CCWG-Accountability discussion list over exactly how, if at all, the proposed revised Mission Statement will effect existing contractual obligations. This week, it was suggested that this legal question be certified to outside lawyers for answers even though that fundamental question must be answered before the transition moves forward. The Board also submitted detailed comments this week (discussed further below) on the Draft Proposal that, if accepted by the community, would reflect a further fundamental transformation of the accountability proposals.[3] <http://www.heritage.org/research/reports/2015/12/comment-on-the-ccwg-accountability-draft-proposal-on-work-stream-1-recommendations#_ftn%203>  

We recognize that uncertainty about certain specifics in the Draft Proposal during the public comment period may aid in moving the process forward in order to meet a predetermined timeline. But that ambiguity is a critical failure that raises questions about the legitimacy of the CCWG-Accountability process. Moreover, the specific language of new and amended bylaws to implement outlined reforms of Internet Corporation for Assigned Names and Numbers (ICANN) remains at the conceptual stage and has yet to be drafted by CCWG-Accountability legal advisers. Asking the community to give its final support or opposition to an incomplete product is unacceptable. 

According to the chairs of the CCWG-Accountability, “The CCWG-Accountability considers this Draft Proposal to be the Final proposal unless significant concerns are raised by Chartering Organizations. As the case may be, the CCWG-Accountability might then amend the proposal to address these and post a supplementary report for approval by the Chartering Organizations.”[4] <http://www.heritage.org/research/reports/2015/12/comment-on-the-ccwg-accountability-draft-proposal-on-work-stream-1-recommendations#_ftn4>  Thus, even though there may be a number of significant objections and concerns raised by individuals, civil society, and businesses during this public comment, there are no plans for another draft to be opened for public comment. 

We urge individual members of the ICANN community along with the SOs and ACs to demand that this document be treated as a provisional draft until all outstanding issues are settled, including specific language for bylaw revisions, and instruct the CCWG-Accountability to provide a final draft for public comment that incorporates comments on the Draft Proposal from the ICANN community, the chartering organizations, and the Board of Directors. In our judgment, these process flaws are so significant that the community should insist that final approval of the transition be deferred to ICANN 56. More to the point, if unremedied, these process flaws alone are sufficient for us to urge rejection of the transition, notwithstanding our substantive views on the merits of the transition proposal. 

That, it seems to me, is ineluctably correct.  Under the current flawed process the result cannot stand as a reflection of our good work.  

Paul

Paul Rosenzweig

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From: Rosemary E. Fei [mailto:rfei at adlercolvin.com] 
Sent: Sunday, December 20, 2015 12:10 AM
To: Mathieu Weill (Mathieu.Weill at afnic.fr) <Mathieu.Weill at afnic.fr>; León Felipe Sánchez Ambía (leonfelipe at sanchez.mx) <leonfelipe at sanchez.mx>; Thomas Rickert <thomas at rickert.net>; ccwg-accountability5 at icann.org; Accountability Cross Community (accountability-cross-community at icann.org) <accountability-cross-community at icann.org>
Cc: Sidley ICANN CCWG (sidleyicannccwg at sidley.com) <sidleyicannccwg at sidley.com>; ACCT-Staff (acct-staff at icann.org) <acct-staff at icann.org>; ICANN-Adler <ICANN at adlercolvin.com>
Subject: [CCWG-ACCT] Third Draft Proposal -- substantive Comments/Edits

Dear CCWG:

To confirm our comprehension of the CCWG’s decisions on the many changes from the Second to the Third Proposal, we reviewed the Third Proposal as published.  In doing so, we noted points where the language in the Third Proposal does not unambiguously reflect our current substantive understanding of the CCWG’s intent.  In our comments on the Third Proposal draft, we suggested edits on many of these points which were not accepted, so perhaps we have misunderstood the intent.  As to other points, we don’t have a clear understanding of the CCWG’s intent.  In either case, we would like clarification.

In the attached table you will find our joint substantive comments on the Third Proposal as published.  As we approach the implementation stage, we would welcome an opportunity to discuss any of our comments that raise questions or concerns, to ensure we know what we’re asked to implement.  We also hope these comments may be useful to clarify the final proposal for the general reader.

To make the volume of our comments more manageable, we are sending staff separately our comments on the Third Proposal that raise only non-substantive issues.

Holly and Rosemary

Rosemary E. Fei
Adler & Colvin
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rfei at adlercolvin.com <mailto:rfei at adlercolvin.com>  
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