[CCWG-ACCT] Question regarding UAs
Matthew Shears
mshears at cdt.org
Wed May 20 11:46:44 UTC 2015
+ 1 Keith - well put.
On 5/20/2015 12:44 PM, Drazek, Keith wrote:
> Hi Chris,
>
> I think there's a fundamental flaw in your assessment. You appear to
> be looking at this question through the lens of the past and present,
> where NTIA holds the enforcement function ("enforceability") through
> its ability to rebid and transfer the IANA functions contract if the
> ICANN Board and management acts inappropriately. That is the existing
> and necessary check on the Board's decision-making power.
>
> Without NTIA in its current role, the community MUST have the ability
> to check the Board's power, and the only way to secure that check is
> to create legal enforceability. Otherwise, the Board has ultimate
> authority, even if its decisions are inconsistent with the interests
> and desires of the community ICANN is supposed to serve.
>
> You are proposing a transfer of power from NTIA to the ICANN Board,
> which has a fiduciary obligation to first serve the interests of the
> corporation. Alternatively, proponents of legal enforceability are in
> favor of transferring final authority to ICANN's multi-stakeholder
> community.
>
> We should all be looking at this through the lens of the future, when
> NTIA no longer holds the tether and is only participating through the
> GAC. How do we, the multi-stakeholder community, ensure that ICANN and
> its future Boards and management are truly accountable once the NTIA
> back-stop is gone?
>
> The answer is to ensure the Board's decisions, in very limited areas,
> can be challenged and overturned by a significant majority of the
> community. We need to protect against the "catastrophic" scenario you
> referenced. According to our independent legal advisors, the best (and
> perhaps only) way to guarantee this is through legal enforceability.
> /
> /
> You asked, /"//Is addressing this most unlikely scenario worth the
> significant structural changes a membership model would require?" /I
> believe the answer is yes. Not only worth it, but necessary.
>
> Regards,
> Keith
>
>
> On May 20, 2015, at 2:40 AM, Chris Disspain <ceo at auda.org.au
> <mailto:ceo at auda.org.au>> wrote:
>
>> For clarity, the last sentence of paragraph 8 below should read:
>>
>> "However, I cannot think of a single example of a failure throughout
>> the history of ICANN that did result or would have resulted in the
>> community acting as one against an action or decision of the ICANN
>> Board."
>>
>>
>>
>> Cheers,
>>
>>
>> Chris
>>
>>
>>> On 20 May 2015, at 16:13 , Chris Disspain <ceo at auda.org.au
>>> <mailto:ceo at auda.org.au>> wrote:
>>>
>>> Jordan, All,
>>> Thank you Jordan, for attempting to bring some focus to the current
>>> discussion about the UA model, membership structures and all of the
>>> related issues.
>>>
>>> First of all, I want to acknowledge that I concur with you on a
>>> number points.
>>> I agree that we need to develop a model that disrupts ICANN’s
>>> operation as little as possible. We can argue about how much
>>> disruption is either possible or preferable, but the principle is
>>> agreed.
>>>
>>> I also agree that levels of accountability are not “up to scratch”
>>> and, irrespective of the model we arrive at post-transition, these
>>> need to be improved. Many of the improvements proposed by the CCWG:
>>> to the IRP, reconsideration mechanisms and the role of the
>>> ombudsman, the introduction of fundamental bylaws and binding
>>> arbitration, and the empowerment of the community to spill the ICANN
>>> Board, are also supported.
>>> However, where I disagree with you is in respect to the absolute
>>> need for an /additional/ mechanism, to supersede the current IANA
>>> functions contract, in order to ensure that the community
>>> can ‘control’ the Board because it has the right to bring a legal
>>> action in a US court.
>>> I disagree with the characterisation that the purpose of the CCWG’s
>>> work is to wrest “control” from the ICANN Board and deliver it to
>>> the community. From your email, I gather that you are fundamentally
>>> tying the concept of control to “enforceability”, neither of which
>>> are goals for the current process. Rather, I believe we are aiming
>>> to deliver a structure where ICANN and its Board are held
>>> accountable to the community, via the number of improvements I
>>> mentioned above.
>>> The need to assert absolute “control” or enforceability could only
>>> arise in the most catastrophic of circumstances. If we assume a
>>> situation where proposed mechanisms for escalation, independent
>>> review,/binding /arbitration and direct instruction by the SOs and
>>> ACs are not acknowledged by ICANN, wouldn’t the entire
>>> multi-stakeholder model be irreparably broken? Is addressing this
>>> most unlikely scenario worth the significant structural changes a
>>> membership model would require?
>>> Further, you refer to a “long list” of community concerns about
>>> ICANN’s current operations. I wonder whether these concerns are
>>> actually held by individuals (or individual constituencies) on
>>> particular issues and have been aggregated in to a larger picture of
>>> overall community dissatisfaction? Concerns by distinct groups on
>>> particular topics can certainly be dealt with by the increased
>>> robustness proposed to ICANN’s bylaws and operations.However, I
>>> cannot think of a single example of a failure throughout the history
>>> of ICANN that did result or would have resulted in the community as
>>> one against an action or decision of the ICANN Board.
>>> To be clear – I am 100% supportive of improvements to
>>> accountability. I believe that the CCWG has initiated extremely
>>> useful work in identifying these mechanisms.
>>>
>>> I remain unconvinced regarding the argument that
>>> accountability=control=enforceability, and the subsequent
>>> recommendations of the CCWG that arise from this assumption.
>>>
>>>
>>> Cheers,
>>>
>>> Chris
>>>
>>>> On 20 May 2015, at 15:33 , Jordan Carter <jordan at internetnz.net.nz
>>>> <mailto:jordan at internetnz.net.nz>> wrote:
>>>>
>>>> We need legal persons to be members of ICANN.
>>>>
>>>> They can be individual humans or they can be organisations.
>>>>
>>>> UAs are the lightest touch, most easily controlled, non-human form
>>>> of person that can fit this mould.
>>>>
>>>> I do not understand the propensity of parts of our community to
>>>> over-complicate things that look reasonably straight forward from
>>>> other points of view. Has ICANN always been like this? (Answers own
>>>> question - it can't have been, otherwise it would never be
>>>> organised the way it is today....)
>>>>
>>>> cheers
>>>> Jordan
>>>>
>>>>
>>>> On 20 May 2015 at 17:21, Alan Greenberg<alan.greenberg at mcgill.ca
>>>> <mailto:alan.greenberg at mcgill.ca>>wrote:
>>>>
>>>> Avri, I think that you are generally correct. We are putting
>>>> this entire infrastructure in place because we want to be able
>>>> to take ICANN or the Board to court if they do not follow the
>>>> rules. I tend to agree with the auDA comment that if it ever
>>>> gets to that stage, we are REALLY in trouble, and a simple
>>>> court decision is not likelt to fix it.
>>>>
>>>> But that nothwithstanding, we supposedly ned that UA because
>>>> they can take legal action. But if the UA representatives do
>>>> not listen to the SO/AC. the SO/AC cannot take that rep to
>>>> court, because the SO/AC has no legal persona. So we are again
>>>> left with a discontinuity where something is largely
>>>> unenforceable and we have to take it on faith that they will do
>>>> the right thing.
>>>>
>>>> Of course, the UA reps and the Board members we select are
>>>> basically drawn from the same pool, perhaps separated by a few
>>>> years.
>>>>
>>>> The difference between a Board member and a UA rep is the Board
>>>> member has a duty to the corporation, and the UA rep can, in
>>>> theory, be required to take instruction from the SO/AC. But
>>>> enforcing that theory may be the rub.
>>>>
>>>> Alan
>>>>
>>>>
>>>> At 20/05/2015 12:41 AM, Avri Doria wrote:
>>>>
>>>> Hi,
>>>>
>>>> I think I understand the argument about members becoming
>>>> that to which
>>>> ICANN, and its Board, are responsible and accountable. From
>>>> that
>>>> perspective it sounds really good.
>>>>
>>>> What I have having trouble understanding is an
>>>> accountability structure
>>>> were there is a discontinuity between the SOAC and the UA.
>>>> If each of
>>>> the Board designating SOAC were the UA, it think I would
>>>> understand.
>>>> But I just do not see how the UA are accountable to the
>>>> people and
>>>> organizations that participate in each of the SOAC. Yes,
>>>> the SOAC
>>>> designates it UA representative, but how is (s)electing one
>>>> of these any
>>>> more accountable than (s)electing the Board as we do now.
>>>> Don't we just
>>>> move the perceived/possible unaccountability down a layer
>>>> in the hierarchy?
>>>>
>>>> I think I am as comfortable with complexity as the next
>>>> person. And I
>>>> understand how in computer science any problem can solved
>>>> by adding
>>>> another layer of indirection, but in this case the extra
>>>> layer we are
>>>> creating does not seem to really be accountable to anyone
>>>> but itself,
>>>> except by (s)election procedures.
>>>>
>>>> I am sure I am missing some critical bit of understanding
>>>> and hope
>>>> someone can explain the chain of accountability in the
>>>> membership
>>>> model. I feel that we are still hand-waving a bit in the
>>>> explanations.
>>>> In a sense it seems as if we are creating a 'council' that
>>>> is omnipotent
>>>> in the powers it is given, except that they can somehow be
>>>> replaced.
>>>>
>>>> Thanks and apologies for my persistent confusion.
>>>>
>>>> avri
>>>>
>>>>
>>>>
>>>> On 20-May-15 01:14, Jordan Carter wrote:
>>>> > Hi all
>>>> >
>>>> > This thread is useful to tease out some of the questions
>>>> and concerns
>>>> > and confusions with the UA model, and as rapporteur for
>>>> the WP
>>>> > responsible for refining this part of the proposal I am
>>>> reading it avidly.
>>>> >
>>>> > I just want to take the opportunity to remind us all why
>>>> membership
>>>> > (or something analogous) is an important aspect of the
>>>> reforms we are
>>>> > proposing - no matter the precise details.
>>>> >
>>>> > At the moment without members, ICANN is fundamentally
>>>> controlled by
>>>> > the Board. The only external constraint is the IANA
>>>> functions contract
>>>> > with NTIA. The long list of community concerns and
>>>> examples detailed
>>>> > by our earlier work in this CCWG shows that even with
>>>> that constraint,
>>>> > accountability isn't up to scratch.
>>>> >
>>>> > We are working on a settlement without that NTIA contract.
>>>> > Accountability has to get better even *with* the contract.
>>>> > Fundamentally better, without it.
>>>> >
>>>> > Either we have a membership structure or some other
>>>> durable approach
>>>> > that firmly embeds the stewardship of ICANN and the DNS
>>>> in the ICANN
>>>> > community, or... we remain with Board control.
>>>> >
>>>> > Given ICANN's history, anyone who is advocating a
>>>> continuation of
>>>> > Board control is arguing for a model that can't be suitably
>>>> > accountable, and that seems highly likely to fail over
>>>> time, with real
>>>> > risks to the security and stability of the DNS.
>>>> >
>>>> > A real, fundamental source of power over the company
>>>> absent the
>>>> > contract *has* to be established. The membership model is
>>>> the most
>>>> > suitable one to achieve that that we have considered so far.
>>>> >
>>>> > So: we need to be creative and thoughtful in how we make
>>>> that model
>>>> > work in a fashion that disrupts ICANN's general operation
>>>> as little as
>>>> > possible. But the key there is "as possible." Real change
>>>> is needed
>>>> > and much refinement and comment is needed.
>>>> >
>>>> > If there are proposals to achieve the same shift in
>>>> control from ICANN
>>>> > the corporation to ICANN the community, I hope they come
>>>> through in
>>>> > the comment period. So far, none have - but there are
>>>> still two weeks
>>>> > of comments to go.
>>>> >
>>>> > cheers
>>>> > Jordan
>>>> >
>>>> >
>>>> > On 20 May 2015 at 10:45, Malcolm Hutty <malcolm at linx.net
>>>> <mailto:malcolm at linx.net>
>>>> > <mailto:malcolm at linx.net <mailto:malcolm at linx.net>>> wrote:
>>>> >
>>>> > This whole thread seems to have massively
>>>> overcomplicated the
>>>> > question.
>>>> >
>>>> >
>>>> > Unless I have missed something, the only reason we
>>>> need "members"
>>>> > is to
>>>> > stand as plaintiff-of-record in a lawsuit against the
>>>> ICANN Board
>>>> > complaining that the Board has failed to adhere to
>>>> the corporations
>>>> > bylaws. Such a lawsuit would in reality be conducted
>>>> by an SO or
>>>> > AC, but
>>>> > a person with legal personality needs to act as
>>>> plaintiff-of-record.
>>>> >
>>>> > Why not simply proceed, as Samantha suggested, with
>>>> the SOACs'
>>>> > Chairs as
>>>> > the members of the corporation? Could the Articles
>>>> (or Bylaws, as
>>>> > appropriate) not simply identify the SOACs' Chairs as
>>>> the members, ex
>>>> > officio and pro tempore?
>>>> >
>>>> > An SOAC Chair that refused to act as
>>>> plaintiff-of-record when required
>>>> > to do so by his SOAC could simply be replaced.
>>>> Likewise a Chair that
>>>> > went rogue and initiated a lawsuit without their consent.
>>>> >
>>>> > You can't make the SOAC a member without turning them
>>>> into UAs,
>>>> > with all
>>>> > the attendent complexity. But I don't see that there
>>>> should be any
>>>> > such
>>>> > problem with designating the chair of a SOAC, who
>>>> will be a natural
>>>> > person, as a member of the corporation; the fact that
>>>> the SOAC is
>>>> > not a
>>>> > UA is then irrelevant.
>>>> >
>>>> > In the event that there were any dispute as to
>>>> whether a particular
>>>> > person is in truth an SOAC Chair, this would surely
>>>> be a simple
>>>> > preliminary matter of fact for the court. It is
>>>> surely beyond dispute
>>>> > that if the Articles designated "Alan Greenberg" as
>>>> the member, it
>>>> > would
>>>> > be a matter of fact as to whether or not the person
>>>> before the
>>>> > court was
>>>> > indeed Alan Greenberg; surely it is the same as to
>>>> whether the person
>>>> > before the court is "the current Chair of ALAC", if
>>>> that should be
>>>> > what
>>>> > is specified in the Articles?
>>>> >
>>>> > Malcolm.
>>>> >
>>>> > --
>>>> > Malcolm Hutty | tel:+44 20 7645 3523
>>>> <tel:%2B44%2020%207645%203523>
>>>> > <tel:%2B44%2020%207645%203523>
>>>> > Head of Public Affairs | Read the LINX Public
>>>> Affairs blog
>>>> > London Internet Exchange |http://publicaffairs.linx.net/
>>>> >
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>>>> > 21-27 St Thomas Street, London SE1 9RY
>>>> >
>>>> > Company Registered in England No. 3137929
>>>> > Trinity Court, Trinity Street, Peterborough
>>>> PE1 1DA
>>>> >
>>>> >
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>>>> >
>>>> >
>>>> > --
>>>> > Jordan Carter
>>>> >
>>>> > Chief Executive
>>>> > *InternetNZ*
>>>> >
>>>> >04 495 2118 <tel:04%20495%202118>(office) |+64 21 442 649
>>>> <tel:%2B64%2021%20442%20649>(mob)
>>>> >jordan at internetnz.net.nz
>>>> <mailto:jordan at internetnz.net.nz><mailto:jordan at internetnz.net.nz
>>>> <mailto:jordan at internetnz.net.nz>>
>>>> > Skype: jordancarter
>>>> >
>>>> > /A better world through a better Internet /
>>>> >
>>>> >
>>>> >
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>>>>
>>>> --
>>>> Jordan Carter
>>>>
>>>> Chief Executive
>>>> *InternetNZ*
>>>>
>>>> 04 495 2118 (office) | +64 21 442 649 (mob)
>>>> jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
>>>> Skype: jordancarter
>>>>
>>>> /A better world through a better Internet /
>>>>
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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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