[CCWG-ACCT] Unintended Consequences of the CCWG proposal

Matthew Shears mshears at cdt.org
Thu Jul 9 12:33:06 UTC 2015

I agree, well put.

On 7/8/2015 4:27 PM, Burr, Becky wrote:
> +1
> J. Beckwith Burr
> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
> Office: + 1.202.533.2932  Mobile: +1.202.352.6367 / 
> becky.burr at neustar.biz <mailto:becky.burr at neustar.biz> / www.neustar.biz
> From: <Drazek>, Keith Drazek <kdrazek at verisign.com 
> <mailto:kdrazek at verisign.com>>
> Date: Wednesday, July 8, 2015 at 8:08 AM
> To: "Mathieu.Weill at afnic.fr <mailto:Mathieu.Weill at afnic.fr>" 
> <Mathieu.Weill at afnic.fr <mailto:Mathieu.Weill at afnic.fr>>, 
> "cherine.chalaby at icann.org <mailto:cherine.chalaby at icann.org>" 
> <cherine.chalaby at icann.org <mailto:cherine.chalaby at icann.org>>
> Cc: Accountability Community <accountability-cross-community at icann.org 
> <mailto:accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] Unintended Consequences of the CCWG proposal
> I fully support Mathieu’s points. Exceptionally well said.
> Regards,
> Keith
> *From:*accountability-cross-community-bounces at icann.org 
> <mailto:accountability-cross-community-bounces at icann.org> 
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf 
> Of *Mathieu Weill
> *Sent:* Wednesday, July 08, 2015 7:41 AM
> *To:* Cherine Chalaby
> *Cc:* accountability-cross-community at icann.org 
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-ACCT] Unintended Consequences of the CCWG proposal
> Dear Cherine,
> Thank you very much for taking the time to articulate your concerns 
> and share them openly on this list. This is very useful to achieve 
> what we called for in Buenos Aires : a fruitful dialogue with mutual 
> respect. Your points are very useful to highlight what we need to keep 
> in mind and improve, including the communication about our proposals.
> The comments I make below are not CCWG comments, but rather personal 
> thoughts about the purpose of Enhancing Icann's Accountability. 
> Sometimes we get lost in the details of the mechanisms and tend to 
> lose track of the reasons why we go through this process. That is why 
> this note is not much about the mechanisms but rather the vision our 
> group is developing.
> If you find it appropriate, feel free to share these comments with the 
> rest of the Board. I am certain that the concerns you raise are shared 
> by other Board members, and it is certainly valuable to have this 
> dialogue with the whole Board.
> Unintended Consequence 1:   Weakening ICANN's Governance model ?
> The headline of this section highlights the difference of perspective 
> one can have of Icann's Governance model. I believe personnaly that 
> the empowered community strengthens Icann's Governance model by 
> setting up a *mutual accountability* between the Board and the 
> Community, instead of the currrent model where the Board is fully 
> empowered on all issues : it has the last word on Bylaws, budgets, 
> policies, disputes, etc. The only *perceived* backstop is the NTIA, 
> thanks to the leverage provided by the IANA contract and the AoC.
> It is true that the CCWG proposals have focused so far on providing 
> more powers to the Community. But I insist the underlying model is 
> about mutual accountability, separation of powers. The community holds 
> the Board accountable through this limited but powerful set of rights 
> ; the Board is still in charge of running the corporations and holds 
> SO and ACs accountable in terms of policy making or structural 
> improvements. SO/AC accountability is an item of work we are currently 
> investigating further, taking into account the comments we have 
> received so far.
> So both bodies are selected by the community, both bodies must be 
> accountable, both bodies pursue the same Purpose, which is the Purpose 
> of the organisation. The big change is that they are mutually 
> accountable and powers are shared.
> Unintended Consequence 2:   Threatening ICANN's financial stability ?
> In this section you mention three threats : budget paralysis, 
> instability of the business environment and unfairness to minority 
> interests. As a reminder the current proposal would enable the 
> community, if a SO/AC approved a petition against a budget or 
> strategic plan, to vote on this budget. Only if 2/3 of the communitty 
> votes against the budget or strategic plan would it be rejected. This 
> means that a budget that would secure support from only 1/3 of the 
> community would not be blocked.
> We are aware of the need to review our proposals to mitigate any risk 
> of budget paralysis, and provide more details on the continuity 
> measures in case a budget would be rejected. Just like the Board 
> usually asks to be trusted by the Community, I guess we should also 
> consider the opposite : can we seriously imagine a situation where 
> more than 2/3 of the community would become so obsessed with their 
> respective "pet" projects that they would jeopardize Icann's stability 
> ? Does a strategic plan or budget that gets less than 33% support 
> deserve to be carried forward ? There needs to be a balance found, and 
> I am confident this can be achieved.
> Regarding business environment stability I must admit I can't really 
> see how our proposals are degrading the current situation. Icann 
> policy decisions often are decried as creating instability for 
> business, I have difficulties anticipating that budget decisions by 
> themselves would have such an impact ?
> And with regards to unfairness for a minority, I believe your point 
> raises a fundamental question : should Icann be funding anything "for 
> the benefit of a minority" if the rest of the community disagrees ? If 
> Icann decisions are based on consensus and aim at fulfilling a common 
> purpose, then I would argue that no project should raise opposition by 
> 2 thirds of the community, even though direct beneficiaries might be a 
> subset of stakeholders only.
> In conclusion on this point, budgets and strategic plans are tough, 
> and I know that. Especially in the multistakeholder environment where 
> bottom up is key. And it is a key responsibility for the Board to 
> define these plans and budgets not only so that they enable continuity 
> of operations, but also so that they are supported by the community. 
> This means that the Board needs to ensure, not only that it takes 
> input into account but also that it gets buy-in. This is in my 
> opinion, what our proposals will enable to achieve : greater alignment 
> behind the strategy and budgets, for the benefit of the Purpose of Icann.
> Unintended Consequence 3:  Dysfunctional Board ?
> Your concern is that the threat of removal of Board members without 
> justification would lead to Board members fearing the loss of their 
> seats if they do not adhere to the wishes of the constituency which 
> appointed them. This concern has been raised by others in our public 
> comment and we have launched additional work to see how best to 
> address this.
> While I agree with you that a Board that would function as a 
> representative body would not be appropriate, I also have to question 
> whether a Board functioning on the basis of the addition of 16+ 
> individual views (which are also subjective and certainly have no way 
> to exclude some personal agendas) would be more, or less, appropriate 
> to ensure that Icann fulfills its Mission. I see no contradiction 
> between the Board being a place for debates, sometimes clashes, then 
> reconciliation behind a common goal, and the fact that the Board would 
> then act as a body in the interest of the Purpose of the organization 
> (note that I am not mentioning the the interest of the organization 
> itself but its purpose here).
> You have more experience than I have, but it seems to me that most 
> Boards across the globe acknowledge the fact that shareholders (or 
> stakeholders) appoint Board members, that some of these Board members 
> take the interests of certain shareholders to heart, and that they can 
> be removed at will. To my knowlege this is the situation in most 
> corporations, as well as in many membership organizations.
> Being a Board member is not a "regular" job. It is always a service, 
> to a company, to a community, and it is not always rewarding : the CEO 
> gets the media attention and fancy presentations when everything's ok 
> while you work in the background, and the Board members are liable, 
> and people turn to them when things go wrong. I believe accepting the 
> fact that one can be removed at any time would actually enhance Board 
> member's ability to contribute : it reminds everyone out of the Board 
> that THEY appointed you, and could remove you if need be. And until 
> then, you are doing your best to serve the Purpose of Icann.
> To conclude, I hope we can pursue this dialogue and, at the same time, 
> focus our efforts to deliver proposals in time. We need Board members 
> inputs, we also need your support and efforts to get to a point of 
> consensus that is sufficient to get approval in Dublin. There is no 
> question to me that we are all in this together, trying to demonstrate 
> the value of the multistakeholder model and its ability to "up its 
> game" to face the challenge of the transition. This implies that we 
> all, co-chairs, members, leaders of Icann,  feel accountable to 
> reaching consensus.
> Best,
> Mathieu
> PS: For full disclosure, I acknowledge that in my role as co Chair of 
> the CCWG-Accountability I can be removed without cause at any point 
> (some argue that I should say "be relieved") ;-)
> Le 07/07/2015 08:45, Cherine Chalaby a écrit :
>     Dear Mathieu and the CCWG group,
>     In Buenos Aires, I attended most of the sessions on the CCWG
>     proposal and made several comments.   I wish to share these
>     comments in writing with you and the
>     accountability-cross-community group as you prepare for the F2F
>     meeting in Paris.    As I said in Buenos Aires, please do not take
>     my comments as fierce criticism but more as constructive suggestions.
>     Let me start by saying that as a Director of the Board, I believe
>     in (a) appropriate empowerment of the community within the
>     multi-stakeholder model,  (b) strengthening of the the bottom-up
>     process, and (c) enhancing accountability without destabilising
>     the security and stability of ICANN or introducing opportunities
>     for capture.
>     In my personal capacity as a member of the community, I support
>     the CWG proposal, but I have concerns that the CCWG draft
>     proposal, discussed in Buenos Aires,  could lead to three
>     unintended consequences that could seriously damage ICANN in the
>     long run.  These unintended consequences apply to both the
>     Membership model as well as the Designator (Hybrid) model.
>     *_Unintended Consequence 1:   Weakening ICANN's Governance model_*
>     The CCWG has asserted that the “empowered community” will have
>     control over the Board in the following areas: Strategic Plan,
>     Operating Plan, Budget and Bylaws changes, fundamental or not.  As
>     a consequence, there will be no decision that the Board can make
>     in those core fiduciary responsibilities that cannot be rejected
>     or stopped by the proposed new community-empowerment mechanism.
>     The CCWG draft proposal indicates that the Board would always have
>     the ability to exercise its own judgment after the
>     community-empowerment mechanism makes its decisions.  But the
>     proposal also states that if the community-empowrment mechanism
>     does not like what the Board has done, it can remove the Board
>     individually or collectively.  Hence, the new
>     community-empowerment mechanism in fact has the ultimate power to
>     control the activities of ICANN.   While as a community member who
>     believes in the bottom-up model, I support the principles behind
>     this objective, I believe it is vitally important that these newly
>     transferred powers are paired with the transfer of corresponding
>     accountability.  The CCWG proposal in effect creates two bodies –
>     one that is empowered (the community) and a separate one that is
>     accountable (the Board).  This, in my view, breaches a fundamental
>     principle of governance, weakens the overall structure of ICANN,
>     and is not sustainable.
>     *_Unintended Consequence 2:   Threatening ICANN's financial
>     stability _*
>     The CCWG draft proposal gives the community the right to reject
>     the Board approved budget.  I have not yet seen proposed
>     mechanisms to prevent the following from happening:
>     (a) Budget paralysis, whereby members of the community will vote
>     against each other rather than be accountable to each other.  For
>     example, given budget limitations, what will stop members from
>     voting against funding projects that do not facilitate their
>     personal interest.   This could lead to a situation where the
>     budget is never adopted or takes too long to adopt,
>     therefore jeopardising ICANN’s ability to deliver on key
>     commitments such as contractual compliance enforcement , including
>     issues relating to enhanced consumer protections and enhanced IP
>     and rights protections, and other initiatives important to the
>     community.   This budget paralysis could also risk the stable and
>     continued funding of the IANA functions.  That is why I suggested
>     in Buenos Aires that a commitment to fund the IANA functions
>     should be separated from this budgetary process and embodied in
>     the ICANN Bylaws.
>     (b) Threat to the stability of the business environment in which
>     many have invested and rely on ICANN’s ability to maintain,  as
>     under the new proposal, members of the community will have the
>     right to reject the budget, but not a single member of the
>     community will be accountable for the budget bottom line.
>     (c) Unfairness, where the financial needs of the minority will
>     seldom be fulfilled  because final budget decisions will be made
>     as a result of a majority voting by members of the community who
>     do not have an obligation to act in the collective interest of all
>     stakeholders.
>     it is worth noting that the current budget process is robust and
>     transparent and ensures that none of the above consequences can
>     occur. It also ensures community participation and it can always
>     be improved.
>     *_Unintended Consequence 3:  Dysfunctional Board_*
>     The CCWG draft proposal gives the community the right to remove an
>     individual board member.   The CCWG proposed mechanism for
>     implementing this right will in my view lead to the creation of
>     two classes of board members. Those that will act in sole the
>     interest of the SO/AC that has elected them, and the others who
>     will be free to act in the collective interest of all
>     stakeholders.  The threat of removal without significant
>     justification runs the risk of having individual Board members
>     fear the loss of their seats if they do not adhere to the wishes
>     of the constituency from which they come.  This could turn the
>     Board into a representative body, or a parliament, i.e. a place
>     where opposing interests clash and are reconciled, rather than the
>     present situation in which all Board members are obligated to act
>     as a body in the best interests of the overall organization.
>     Furthermore,  Board deliberations and decisions would be at risk
>     of being driven to a large extent by subjective goals and personal
>     compromise.
>     I do not have concrete suggestions to prevent these unintended
>     consequences from happening, but I sincerely hope that the CCWG
>     takes my concerns into account when it prepares its 2nd draft
>     proposal at its F2F meeting in Paris.
>     Thank you for listening.
>     Regards
>     Cherine  Chalaby
>         On 6 Jul 2015, at 22:10, Mathieu Weill <mathieu.weill at afnic.fr
>         <mailto:mathieu.weill at afnic.fr>> wrote:
>         Dear Colleagues,
>         In anticipation of our call tomorrow, here are a few points
>         outlining the current thinking about the face to face in Paris.
>         Goal of the meeting :
>         2 weeks before the publication of our second (and hopefully
>         last) WS1 public comment the overarching goal will be to find
>         the common views that will be detailed in our 2nd draft
>         proposals. The expected outcome of the meeting is that we find
>         common ground on most of, if not all the open discussions.
>         Agenda of the meeting :
>         Our plans are to work 8.30-18.00 local time (CEST, UTC+2),
>         with lunch break from 12.00 to 13.00.
>         Our plan is to define a topic based agenda, including :
>         - WP3 proposals (emerging issues)
>         - Community mechanism model (including thorough Q&A with lawyers)
>         - modalities of of community mechanisms
>         - Removal / recall Board members refinements
>         - Government input related discussions (the BA GAC communiqué
>         announced upcoming contributions before Paris)
>         - IRP refinements
>         We might have to plan sessions on the most difficult topics on
>         day 1 and on day 2 to enable consensus building.
>         Please let us know either on list or during the call tomorrow
>         if you have specific suggestions or feedbacks regarding this
>         plan for the meeting.
>         Best regards,
>         -- 
>         *****************************
>         Mathieu WEILL
>         AFNIC - directeur général
>         Tél: +33 1 39 30 83 06
>         mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
>         Twitter : @mathieuweill
>         *****************************
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> -- 
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06
> mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
> Twitter : @mathieuweill
> *****************************
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Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 (0)771 247 2987

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