[CCWG-ACCT] Question regarding UAs
Jordan Carter
jordan at internetnz.net.nz
Wed May 20 13:05:40 UTC 2015
Steve, your point doesn't quite seem to fit here. Keith was making the
argument that there is currently a legally enforceable constraint or
outside source of accountability via the NTIA contract.
If the NTIA contract ends and that's it, then there is no longer an
external/enforceable authority over ICANN.
If a membership model was implemented, through whatever means, then again
there is an enforceable constraint that can hold the company to account.
Those are all straightforward observations.
The intention that sits behind the framework here is a very simple division
of powers, of the sort we are all familiar with through our various
constitutional systems of government. It isn't about arguing that
proposed members or board members are more or less reliable. It is that by
structuring the relationship the right way (our proposal, a membership
model), you systemically create a balance.
That balance is similar to what we all enjoy today with the NTIA contract.
I am not sure what it is you'd like Keith to apologise for, but I
personally largely agree with all he wrote.
best,
Jordan
On Thursday, 21 May 2015, Steve Crocker <steve at shinkuro.com> wrote:
>
> On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek at verisign.com
> <javascript:_e(%7B%7D,'cvml','kdrazek at verisign.com');>> 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.
>
>
> Keith, Edward and Edward,
>
> We have covered the point above several times and it's long past time to
> stop throwing this half-trust around. Yes, ICANN is legally a corporation,
> and, yes, directors of a corporation have a duty to protect the
> corporation. But that generality has a far different meaning in a for
> profit corporation like Verisign than it does in a not-for-profit public
> benefit corporation like ICANN. The directors are obliged to pursue the
> purpose and mission stated in the incorporation papers and the bylaws. The
> directors serve the community, and we do so by exercising oversight over
> the corporation toward that end.
>
> There will always be differences of opinion about the particular details,
> but those sorts of differences of opinion will arise in *any* governance
> model. The prevailing assumption in much of the correspondence on this
> list is that the proposed members will somehow be more balanced, more
> inclusive and more trustworthy in protecting the interests of the overall
> community than the ICANN Board is. That's simply false. And I think you
> know that it is.
>
> Please correct yourself and apologize.
>
> Thanks,
>
> Steve
>
>
>
>
>
> 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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','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
>>> <javascript:_e(%7B%7D,'cvml','malcolm at linx.net');>
>>> > <mailto:malcolm at linx.net
>>> <javascript:_e(%7B%7D,'cvml','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>
>>> > 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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>>> >
>>> >
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>>> >
>>> >
>>> >
>>> >
>>> > --
>>> > Jordan Carter
>>> >
>>> > Chief Executive
>>> > *InternetNZ*
>>> >
>>> > 04 495 2118 (office) | +64 21 442 649 <%2B64%2021%20442%20649> (mob)
>>> > jordan at internetnz.net.nz
>>> <javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');> <mailto:
>>> jordan at internetnz.net.nz
>>> <javascript:_e(%7B%7D,'cvml','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
> <javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');>
> Skype: jordancarter
>
> *A better world through a better Internet *
>
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--
Jordan Carter
Chief Executive, InternetNZ
+64-21-442-649 | jordan at internetnz.net.nz
Sent on the run, apologies for brevity
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