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

Thu Oct 1 12:04:58 UTC 2015

Thanks Keith and Malcolm, very useful.

On the "response" as to whether or not the proposal is a substantial 
governance restructuring:

This is a discrete addition of a modest set of new safeguards for rare and exceptional events.

Yes, but that is not the perception and our discussions have always 
focused on the use of the powers rather than the escalation paths, 
decision-making flows and exhaustion of recourse options that would get 
us to the point of using those powers in those rare and exceptional 
instances.  We need to more clearly show and demonstrate that these are 
a  "modest set of safeguards".

Matthew

On 01/10/2015 12:02, Malcolm Hutty wrote:
>
> 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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-- 

Matthew Shears
Director - Global Internet Policy and Human Rights
Center for Democracy & Technology
mshears at cdt.org
+ 44 771 247 2987

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