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

Thu Oct 1 12:14:36 UTC 2015

Let me chime in to recall everyone that NTIA expects the “global multistakeholder community” to replace its role. Hence, concentration of power in parts of the community and risk of capture should be avoided at any rate, and that applies to all and every stakeholder in this environment. The GAC has already expressed that a model subject to capture by specific interests should not be approved.

The Sole Member (or whatever other Community organization or mechanism is devised to empower the community) should only make decisions supported by most of the stakeholders (be it via voting or be it via positioning). Otherwise, the CCWG proposal would jeopardize the fulfillment of NTIA’s first condition (“support and enhance the multistakeholder model”) as it would be in practice substituting the NTIA by a subset of stakeholders. That is something we should avoid if the transition is to take place.

Best

Rafael

De: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] En nombre de Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>
Enviado el: miércoles, 30 de septiembre de 2015 10:44
Para: james at cyberinvasion.net<mailto:james at cyberinvasion.net>; kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>; jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
CC: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Asunto: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

Community powers only are meaningful if they represent the “community” as a whole, which is the collective we want to empower to check the power exercised by the executive power designated to represent that same community. That’s the key point.

And I would beg you to avoid qualifying opinions different to yours as “autocratic” or the like.

Regards

Jorge

Von: James Gannon [mailto:james at cyberinvasion.net]
Gesendet: Mittwoch, 30. September 2015 10:36
An: Cancio Jorge BAKOM <Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>>; kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>; jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
Cc: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Betreff: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

I have said it before and will repeat it here again, it is not our place to force parts of the community into exercising a vote, our voting thresholds should reflect variable participation to allow groups such as the SSAC and RSSAC to participate when they feel the need to, but we should not be forcing any part of our community into a role that they do not wish to have. To do so is in my mind autocratic and does not reflect the wishes of these groups as expressed through the bottom up multistakeholder process.

-James

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of "Jorge.Cancio at bakom.admin.ch<mailto:Jorge.Cancio at bakom.admin.ch>"
Date: Wednesday 30 September 2015 09:22
To: "kavouss.arasteh at gmail.com<mailto:kavouss.arasteh at gmail.com>", "jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>"
Cc: "accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>"
Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

Kavouss makes a vital point here.

Any decision-making process needs to be absolutely capture-proof and respect the diversity of the ICANN community.

Hence, large supermajorities and/or consensus might be required for such important decisions. This means that those large supermajorities have to be measured against the community as a whole (i.e. the seven SO/AC).

Regards

Jorge

Von: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] Im Auftrag von Kavouss Arasteh
Gesendet: Mittwoch, 30. September 2015 10:15
An: Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>
Cc: Accountability Cross Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Betreff: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

Dear All,
I also  understood Fadi in LA  expressing a concern on how do we ensure ..in the single member model, that we have inclusion in consensus, rather than allowing a subset of the community to exercise that power without the Full acceptance of the community..and that can easily be construed as a capture scenario that needs to be stress tested.
Let us take a scenario as follows
There is a potion to reject the Budget.
Petition is agreed ( not voted ) in the petition SO
Then it is discussed at Forum
Then put it for voting
SAS,RSSAC and very likely GAC do not participate in  voting
Very probably all 3 OCs participate in voting .
ALAC may or may not to do so
 if three OCs vote ,the super majority would be 2/3 thus out of 15 votes currently foreseen 10 is enough to reset or ,at extreme, veto the budget .
Then out of 29 overall weighted /weighting votes 10 succeeded to veto the budget and start an unnecessary process of back and fort of the Budget for months
Is that a right process?
However, if we first establish a quorum for  decision making with fairly high threshold ( 3/4 or  4/5 of the  7 SOs and ACs ) which means 5 SOs and ACs or 4 SOs and ACs  are the minimum requirement of quorum to decide on the matter .
Then we have to apply the super majority of votes which means 2/3 of 25 or 2/3 of 22 or 2/3 of 19 , depending on the SOs and ACs participating which becomes  17, 14 and 12 votes out of 29 votes are sufficient to reject the budget .This would result in a real capture of the community by a small number of subset of that community.
Consequently, should we replace the voting by consensus then we are better saved .
In view of the above the decision making process voting versus consensus building needs to be seriously re-examined
Kavouss

2015-09-30 9:40 GMT+02:00 Jordan Carter <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>>:
Tapani: The approach I have suggested could work for none, any or all of the statutory powers. If it is worth exploring we can explore it. There might be some statutory rights that should not be subject to this approach, as Ed has argued.

To address Kavouss' point: Kavouss, I agree with you this is unusual. I would not suggest this for any of the accountability powers we have suggested through the CCWG. I would only suggest it as a cast-iron, impossible-to-avoid, last-resort for powers that AREN'T about accountability. Dissolving ICANN, to pick the example repeatedly raised by Board members in LA, isn't an accountability issue. So let's not treat it as one.

To put it another way: some of the powers of a Member in the law of California [or under any other law, should ICANN's jurisdiction change at some point] are clearly about accountability.

Some of them aren't.

The ones that aren't about accountability, the ones that pose some kind of risk to stability or that just aren't relevant, we can make impossible to use. We can make them even more impossible to use by including the Board as a participant for any decision to use them.

All food for thought.

best
Jordan

On 30 September 2015 at 19:36, Tapani Tarvainen <ncuc at tapani.tarvainen.info<mailto:ncuc at tapani.tarvainen.info>> wrote:
This is worrysome. While I can understand the concern about
things like dissolving the company, what's the issue with
document inspection?

After all, transparency is one of the key elements of trust,
and trust is ultimately what will sustain or kill ICANN.

Perhaps some of the lawyers among us could explain what
bad could result from document inspection power of the member?

--
Tapani Tarvainen

On Sep 29 20:48, Rudolph Daniel (rudi.daniel at gmail.com<mailto:rudi.daniel at gmail.com>) wrote:

> "the other powers the California law grants to member/s (document
> inspection, dissolve the company, etc), should face such high thresholds to
> action that they can, practically speaking, never be actioned at all."
>
> Yes , interesting, I understood Fadi today expressing a concern (my take on
> it)....how do we ensure ..in the single member model, that we have
> inclusion in consensus, rather than allowing a subset of the community to
> exercise that power without the Full acceptance of the community..and that
> can easily be construed as a capture scenario that needs to be stress
> tested.
>
> Interesting take on the problem Jordon, but as you suggest...over to the
> legal minds..
> RD
> On Sep 29, 2015 8:15 PM, "Jordan Carter" <jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>> wrote:
>
> > Hi all
> >
> > One of the pieces of feedback from Board members I heard in L.A. was a
> > concern that basically goes like this:
> >
> > "The Single Member is a problematic idea because of the incredible powers
> > it has under California law - for instance, it could even dissolve ICANN!"
> >
> > There were some sub-themes to this concern:
> >
> > - the accountability of SO/AC actors in exercising the powers intended for
> > the CMSM
> > - the absence of fiduciary duties on the Single Member in making its
> > decisions
> > - the engineering principle of minimal change at a time
> >
> >
> > Focusing on the overarching concern, it was a tenet of the CCWG's Second
> > Draft Proposal that the CMSM should be largely ruled out from exercising
> > any of the powers the community didn't propose it had.
> >
> > That is, aside from the five community powers and the ability to enforce
> > the bylaws against the Board, the other powers the California law grants to
> > member/s (document inspection, dissolve the company, etc), should face such
> > high thresholds to action that they can, practically speaking, never be
> > actioned at all.
> >
> > [The Second Draft Proposal may not have been terribly clear about this,
> > but that's what it was driving at.]
> >
> >
> > So how to resolve this? The CCWG's choice of a Single Member (following
> > its earlier choice of multiple members) was to meet the accountability
> > requirements the community has asked for. But nobody asked for the
> > community to have these other powers.
> >
> > *Here is a suggestion.*
> >
> > *For the exercise of any of the Member Powers the CMSM would have (beyond
> > those we "want" it to have), why don't we include the ICANN Board as one of
> > the groups that has to vote / come to consensus to exercise them?*
> >
> > This sounds a little strange on the face of it but think it through.
> >
> > This seems to me to be a very simple way to avoid the problem.
> >
> > It acknowledges that the rights of the Member are set out in law and can't
> > be eroded - that they can only be managed by the decisions that member is
> > able to take. And it acknowledges that the concerns about constraining the
> > possible actions of the member to those that are intended, should be
> > solved. It shares power in the model in quite a nice, dare-I-say-it,
> > "multistakeholder" way.
> >
> > I'd welcome others' thoughts. I'd welcome views from our lawyers about
> > this, too. On the face of it I can't see any reason this wouldn't work in
> > law, since the CMSM can be comprised of any set of ICANN actors. But - I Am
> > Not A Lawyer.
> >
> >
> > cheers
> > Jordan
> >
> > --
> > Jordan Carter
> >
> > Chief Executive
> > *InternetNZ*
> >
> > +64-4-495-2118 (office) | +64-21-442-649 (mob)
> > Email: jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
> > Skype: jordancarter
> > Web: www.internetnz.nz<http://www.internetnz.nz>
> >
> > *A better world through a better Internet *
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--
Jordan Carter

Chief Executive
InternetNZ

+64-4-495-2118 (office) | +64-21-442-649 (mob)
Email: jordan at internetnz.net.nz<mailto:jordan at internetnz.net.nz>
Skype: jordancarter
Web: www.internetnz.nz<http://www.internetnz.nz>

A better world through a better Internet

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