[CCWG-ACCT] An mplication of accountability models being discussed

[Jordan Carter]

Thank you George, interesting post - a couple of thoughts in line below:

On 11 July 2015 at 05:13, George Sadowsky <george.sadowsky at gmail.com> wrote:

<snip>

> Here's the question: Does the CCWG believe that the global public interest
> is _always_ defined by "community" consensus or "community" dictates?
> Yes or no?  I believe that the great majority of the time the two are
> consistent, but I believe that there are cases in which they diverge.   Is
> there any disagreement among us that this could happen?  In that case, what
> should a Board member do?  Which is the higher authority according to the
> CCWG's thinking?
>

I think there will always be occasions when there is a divergence between
interpretations of the global public interest on the part of different
stakeholders. The ICANN Board will remain charged, I think, with bringing
that global perspective to bear. But this decision is made easier by
ICANN's very limited role, and by the identify of interests in its
performance of that role between what the Internet and its users need, and
what core operational ICANN stakeholders want: completely reliable
operation of the IANA functions, and an open and accountable, bottom up,
consensus driven policy process - with the Board generally validating the
outcomes of consensus policy processes.

To put it another way, the global public interest is always served by ICANN
focusing on doing its core operational jobs well. Beyond that, it becomes
very subjective, as you note.

<snip>

>
> This implies to me that the test for removal of a Director must rest upon
> a process that is broadly distributed in the community and must recognize
> the different organizations to which such a member is accountable as an
> important factor in the process.
>
> What are the opinions of members of the CCWG on this point?
>
>
>
I am personally quite comfortable with the logic of the appointing body
being the removing body for individual directors (recognising there is work
to be done in respect of NomCom appointees).

One of the concerns that comes up in thinking about this is probably well
represented by this hypothetical & fictional scenario:

*The GNSO demands that the proceeds of the new gTLD programme be returned
to the registries pro rata depending on the number of registrations. The
Board does not agree, including the GNSO appointed directors on the Board.
The GNSO removes its directors and appoints different ones who say they
will support this proposal.*

I think this scenario would never play out in practice.

Why not?

   - two out of sixteen directors would never be credibly enough to
   completely change the Board's position on a matter involving significant
   resources and impact on the public.
   - the new directors would face the same obligations the old directors
   faced to act in the public interest


The removal of individual directors is possible in very many organisations
and it is only when they are dysfunctional that these sorts of games start
being played.

I think in any situation where an SO/AC or the NomCom was contemplating
removing a director, they'd be carefully considering what they could really
achieve. And they'd be unlikely to do it for reasons of rent-seeking or
other self-interested things.

The whole rationale behind the power, in my view, is that it simply
tightens the link between directors and their appointing bodies. It isn't
and should not be a backdoor way to change directors from directors into
mere avatars for the specific interests of their appointing groups.

George, I hope this is constructive.

A last question...

Do you have a concrete suggestion as to how you would see the exercise of
such a power being done by "a process that is broadly distributed in the
community" as an alternative for us to consider, and seek legal advice on?

The advice we've had so far suggests that it's simple to have the
appointment and removal function with the same group, but more complicated
(though not, if memory serves, impossible) for removers to be different to
appointers.


cheers
Jordan


-- 
Jordan Carter

Chief Executive
*InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob)
jordan at internetnz.net.nz
Skype: jordancarter

*A better world through a better Internet *
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