[CCWG-ACCT] [WP1] Revised draft - Voting weights in community mechanism

Wed Jul 29 21:09:00 UTC 2015

Hi Chris,

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 From: "Chris Disspain" <ceo at auda.org.au>
Sent: Wednesday, July 29, 2015 6:34 AM
To: "accountability-cross-community at icann.org Community" <accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] [WP1] Revised draft - Voting weights in community mechanism   
 I think we have all agreed that the purpose of the increased accountability in the ICANN structure is to enhance the power of the community. I'm concerned that we have still not agreed on what 'the community' is and that, now that we are finally getting into the detail, that devil we have constantly referred to is rearing his ugly head. 

- First, Chris, I want to thank you and Bruce, in particular, for the contributions you've made to this effort as participants in the process from the Board. I don't always agree with you, in fact I often don't, but your posts are always well considered and thought provoking. Thank you.   

When the US government announced it's intention to relinquish control of the IANA contract it cited ICANN's maturity as an organization as one of the reasons it felt now was the time to do so. I had hoped they were right, questioned the decision a bit, but at the moment am starting to feel that just maybe they were a little bit early with their assessment. There's nothing wrong with that if they were, organisations like people mature at different rates, and we'll just need to deal with this as we move on. The worst thing we can do, though, is force things if we aren't there yet. At the moment I'd suggest we all need to take a deep breath, exhale and focus not only on our areas of disagreement but also recognise the many ways we've come together as a community during the past several months.   

As your conversation with Robin has progressed, Chris,  concerning the statutory role of the GNSO I'l be honest: I can argue either of your positions with equal conviction. Part of that is my legal training but a bigger part is I think that, in some ways, you are both right. We are entering, as Alan has pointed out several times in posts and on calls, a new phase in ICANN, one in which old statutory constructions need to be reconsidered and possibly discarded. I agree, in part, with his assessment, with the proviso that some of the changes we're proposing for organisational roles and responsibilities are a lot greater reach than others.   

Let's go back to the American government's assessment that ICANN is now mature enough to be granted independence. How did that ICANN work? It's clear, at least to me, that functionally there were clear demarcations between the roles and responsibilities of the SO's and AC's in that ICANN. The SO's really did do policy and the AC's really did advise. ALAC had a bit different role than the other AC's by virtue of it's right to select the occupant of seat 15 on the Board. GAC had a different role than the others in that their advice had a bit more force and power. Yet somehow we had an equilibrium that to me really seemed to work. That ICANN is the one the Department of Commerce saw, the one it thought mature enough to be independent.   

The structure of the ICANN we're proposing is not the same ecosystem as that ICANN. Before I protested in WP1,  the text of the document proposed for public comment claimed that ALAC "was structurally designed to represent Intenet users within ICANN". That just was not true and to their credit the Chairs removed that language from the text. For the record ALAC was designed to "consider and advise" on behalf of "individual internet users". The NCSG, on the other hand, in it's Board approved Charter, is tasked to "represent...the interests and concerns...of non-commercial registrants and non-commercial Internet users of generic Top-level domains". Consider and advise. Represent. These are different things.  I'm not claiming we need to stick to these constructions going forward. What I am hoping is that we are very careful not to confuse and make claims for aspirational goals by claiming they are rooted in past constructs when they are not. Doing so just isn't a positive thing to introduce in what I hope would be a fact based discussion.   

For me, the change in the ecosystem that would be created by the proposed voting mechanism, all SO's/AC's being equal, is so severe that if this is the final proposal and is put before me to vote on in my role as a GNSO Counsellor I would have to in good faith vote against it. If it were to pass and be sent to the N.T.I.A. as our official proposal I would encourage Congress and the American government to reject it. Fortunately for proponents of this model I only have one vote on Council and if the U.S. Congress ever listened to me we'd be living in a very different world.   

I want to make it clear, though, that my opposition is not rooted in jealousy or some sort of convoluted power struggle. Life is too short for those things. Sure, there are aspects of the voting model I absolutely oppose. It seems to me absolutely nonsensical that the United States military (including NASA), by virtue of it's operation of three root servers, could potentially have a voting weight equal to that of the entire commercial or noncommercial worlds. The weight is wrong and I'm not sure anyone felt one of the goals of the transition was to directly empower with  voting rights (albeit as part of RSSAC) the military of the United States of America. Think Snowden. Double dipping is also a major problem with the proposed model. This is not just true of the United States government (RSSAC, GAC), Verisign (RSSAC, GNSO) and other institutions, this is also true of individuals. Leon, for example, one of our co-chairs and someone whom I've come to greatly admire through this process, is the ALAC rep as Chair yet is also an individual member of the Intellectual Property Constituency in the GNSO. Dual memberships were allowed in the past, I presume, because it was never envisioned that powers of the various groups would be amalgamated in the way we're proposing. This is a major problem in terms of democratic legitimacy and can't just be brushed off. We also have the problem that two of the AC's have it's members appointed by the Board, the same Board they are supposed to hold accountable. Possible conflict there. These reasons, though, are not why I wouldn't be able to support the current proposal, although they do give one cause to think.   

What we do is important to the world, even if much of the world isn't aware that we exist. I'm convinced that our current ecosystem with a strong, albeit not absolute, division of responsibilities between policy developing SO's and advisory AC's would function in a secure and stable way if the current balance and division of responsibilities and powers were exported into our proposed model. Four years ago I would not have said that. The GNSO, in particular, appeared to me to be rather dysfunctional then. That's change. We've matured and I believe are ready for the challenge.   

Although I have confidence that the current ecosystem will work if transformed into the new model I have no such confidence with the proposed new model, which changes both power equations and substantive responsibilities. Let me be clear: I'm not saying it won't work, it very well may, I just don't know. By definition a new ecosystem is immature and in good conscience I just can't trust full responsibility for names and numbers of this most precious global resource to an untested and untried ecosystem. I have no trouble with the legal changes that restructure ICANN's relationship with the external world and changes the internal relationship between the Board and the community, it's changes within community relationships and the capacity of groups to meet those challenges that worry me. Ecosystem not legal system. I just hope that the public comments are taken seriously, as I know they will be, and they result in a way forward I can be comfortable with and support.   

As we grapple with this issue (and I do not believe consensus has been reached here; the numbers were altered so many times in recent weeks that I don't think people really have had time to digest everything) we should not neglect or in any way allow this dispute to take away from our work in other areas. It's remarkable all that we've come together to achieve in reforming some of ICANN's failed accountability processes and our plans going forward are equally admirable. The progress made on the IRP, on Reconsideration and other areas of review and redress is quite remarkable but not yet done. Work stream 2 is vital and without the same commitment to quality there (although hopefully without the same extreme deadline pressures) the work completed in work stream 1 will largely have been for naught. I do hope the transition goes forward, on different terms than in our current proposal, but to me the changes we are proposing in review and redress stand alone from the transition. These are changes this organisation has needed for many years and I hope regardless of ICANN's external corporate status we can successfully complete and implement their revision and improvement.    

So, Chris, I agree the "devil" you wrote of might have finally raised it's "ugly head". We just might not be where we need to be yet to become fully independent. I honestly don't know. Time will tell. My hope, though,  is that regardless of the mega issues of corporate status the great work that has been done and will be done in review and redress will be implemented wherever possible regardless of what happens elsewhere. It's good stuff and Becky and the volunteers in WS2 deserve to be commended.   

Best,   

Ed   

- Not wanting to criticise without offering something something positive to offer as a substitute, my personal preference is for a voting mechanism that duplicates the one we already have. AC's and SO's maintain their traditional roles and voting be done on a version of the San Fransisco model (votes distributed as is currently done for Board seats, but adjusted to reflect the different powers given organisations within the NomCom). This to me is the most accurate model I've seen for transporting the status quo into the future. I haven't run the numbers yet to see specifically what would come out, I'm sure the model would be opposed by extremists on all sides, but that would seem to me to be the best and most reasonable way to transport the current ecosystem into the future. It's how we divide the one community power we currently share: that of selecting the Board. That's not to say we couldn't change things down the road, have an external review etc. but the current proposal changes the status quo without the benefit of any review or real consideration of the implications. I can't support it.    

I don't take this position because of my membership of any group or for any other reason. I'm a bit unusual in this community. This is completely public service for me. I don't work in any field remotely connected to this industry, I derive no income from it, I don't want to work in the field, I'm not an ICANN lifer: when my time on Council ends I expect to never set foot again in an ICANN meeting, except perhaps to see friends. I'm doing this because when I was a young student at USC a guy named Postel treated me pretty good. It's pay back. I mention this because I'm reading comments from some who seem to want to attribute motivations to those of us differing in our views from him or her on matters relating to the voting balance. Please stop with the mind reading and please stop with the lectures. I take my positions because in good faith I believe they are the correct ones; no other reason. I assume others operate in good faith as well and in this community I believe mostly do. Thanks.   

-  

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