[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/
>>>>         >
>>>>         > London Internet Exchange Ltd
>>>>         >                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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