[CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

[Malcolm Hutty]

On 30/09/2015 18:15, Drazek, Keith wrote:
> Thanks Nigel.
> 
> In no particular  order, my interpretation of the Board's written comments, what we heard in Los Angeles and from Fadi yesterday is:


Thank you Keith. I think it helps to bring those together.

It may also help to provide a "ready-reference" list of the leading
counter-arguments to each of these objections. So in the same spirit
(and with apologies if I misattribute or missummarise some of the
leading arguments I have heard), I offer this "handy checklist". :-)


> -- Introducing a different governance structure, i.e. membership, is new, untested, and cannot be proven to resist capture in the limited time available to meet the September 2016 date.

Sidley: The Board's alternative is equally new and untested.

> -- Shifting authority from the Board to an untested membership body is potentially destabilizing and will be difficult or impossible to sell as not introducing risk at a delicate time.

As above. "No change" is not on the table, unless you wish to oppose
transition; the NTIA is proposing to change the structure by withdrawing.

The only question is "what change should we introduce in response to
this" - and that question was explicitly proposed by NTIA in asking for
a transition proposal.

> -- If we're going to shift authority, we must also shift a commensurate level of accountability, and the current SOs and ACs do not have sufficient accountability at this time.

Roberts and Doria? : Continuous improvement in the inclusiveness and
representativeness of the SOs and ACs is of course agreed as a goal by
all. But saying that their current status is so inadequate that they
cannot be trusted with even participating in a jointly shared authority
betrays a fundamental lack of confidence in the multistakeholder model.

> -- ICANN and its SOs/ACs need to be safe from capture from outside and from within; empowering the SOs and ACs without clear safeguards is problematic.

This is a restatement of the previous; and the answer is the same.

> -- Concentrating power in a new "sole membership" body is not balanced if it doesn't include all community members, and two groups (SSAC and RSSAC) have said they want to remain advisory.

Hutty: All elements are (or should be) invited to participate in the
sole membership model. They don't need to all participate in the voting
though, if they don't wish to: denying that participating in a purely
advisory capacity qualifies as meaningful participation would be equally
inconsistent with the Board's claim to represent the fullcommunity,
since the GAC, SSAC and RSSAC don't have votes on the Board either.

> -- Shifting from consensus-based decision-making to reliance on a voting structure is not consistent with the multi-stakeholder model.



Carter? and others:
i) Firstly, we are not shifting the basis for existing decision-making;
the areas where we currently have consensus-based decision-making (i.e.
all the ordinary, day-to-day business of policy and operational work)
are entirely untouched by this proposal. All we are talking about is the
use of certain rare, backstop powers.
ii) ... even to the extent that it is true that SOs currently make
decisions without a vote
iii) ... or for that matter the Board: the Bylaws provide for voting on
the Board, yet it is usually able to come to a consensus position. Why
would you expect the Single Member to be any different?
iv) ... and, as with the Board, the Bylaws must provide for resolving a
lack of consensus somehow. As with the Board, we have chosen a vote. Why
is this any less consistent with the multi-stakeholder model in the case
of the Single Member than it is with the Board?


> -- The CCWG recommendation is too complex and difficult to explain/understand, so we need to make smaller, incremental changes that are more easily implemented and understood.

McCarthy: The *explanation* of the CCWG recommendation is too complex
and difficult to explain/understand, and must be improved. This doesn't
require rewriting the CCWG proposal.

Several: The proposal should drive the communications plan, not the
other way around. Making it easier to conduct PR is a poor reason for
adopting a sub-optimal plan.

Zuck, Shatan: "Incremental" changes are a mirage. What is not done now
will never be done.

> -- A recommendation requiring a substantial governance restructuring will suggest that ICANN is currently broken -- a politically risky message going into the transition.

Carter, Hutty: This is not a substantial governance restructuring;
almost the entire structure is left untouched. This is a discrete
addition of a modest set of new safeguards for rare and exceptional events.

> I'm obviously not in a position to speak for the Board, but that's my non-legalistic reading of the concerns.  I'd be happy to be corrected if my interpretation is off-base.
> 
> That was a reply to your question (a).  I can't respond to question (b).
> 
> Regards,
> Keith
> 
> 
> -----Original Message-----
> From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Nigel Roberts
> Sent: Wednesday, September 30, 2015 12:46 PM
> To: accountability-cross-community at icann.org
> Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem
> 
> Let's be Frank, here.
> 
> I'm not entirely unreceptive to the view expressed to me by at least one Board member regarding the idea of a quick win.
> 
> HOWEVER, despite the fairly emphatic nature of the Board's objection to membership model, I do not believe I have read or heard any rationale or reasons for their, apparently unanimous, position.
> 
> Personally I have serious doubts about the Single Member model, although, probably, they are not the same doubts as the Board's.
> 
> But that is the outcome of this WG, and it should not tear up months of work without a rationale. This is simply the IFWP and history repeating itself, otherwise.
> 
> Apparently there is some legal difference of opinion between Sidleys and Jones Day on the technicalities. But I do not beleive that can be the only reason.
> 
> So, can someone please explain, in simply, preferable non legalistic terms why
> 
> (a) the CCWG proposal is unsuitable
> (b) the Board's proposal is more suitable.
> 
> 
>> That said, I'm not confident this would resolve the Board's concerns with membership, so we will need to consider all options available to deliver community empowerment, including variations of the sole designator implementation.
>>
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            Malcolm Hutty | tel: +44 20 7645 3523
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