[CCWG-ACCT] A path to Dublin and beyond

[Arun Mohan Sukumar]

Thanks, Steve. This is food for thought. To be clear, would  the IANA
functions review still be a part of the fundamental bylaws, in the scheme
that you are suggesting? How can we better enforce separability b/w ICANN
and the IFO?

On membership in WS2: could we refer to the need to create a
membership-model in ICANN's mission statement/core values to ensure this
goal is not neglected?

Just some preliminary thoughts.

-- 
Head, Cyber Initiative
Observer Research Foundation, New Delhi
http://amsukumar.tumblr.com
+91-9871943272

On Sun, Oct 4, 2015 at 9:20 AM, Chartier, Mike S <mike.s.chartier at intel.com>
wrote:

> Good posts. Two points, one substance, one process:
>
>
>
> WRT substance, ironically I think the only way you can “ensure those
> powers are enough to force a future change to ICANN” is by membership;
> because the other models don’t allow for the initiation and adoption of
> bylaws by anyone other than the Board.
>
> Doubly ironic, if you could create a model that would allow the community
> to make a fundamental change to the bylaws, then you wouldn’t need
> membership- you would already have ultimate power.
>
> However, such power is exactly what the board does not want; recall the
> first negative bullet of Fadi’s foil was “New structure with legal
> authority to change any and all bylaws”.
>
> I think the only way a change like this would happen would be due to
> external influence- the IANA transition. If you ever needed to spend that
> leverage, this would be the issue.
>
>
>
> As to process, it might be the case that the final proposal will be
> something other than membership, and eventually gain consensus at a meeting.
>
> However that wouldn’t be defendable based on the existing public record.
> And a robust public record is important, not only for broad consensus, but
> in this case, is it a critical element of the domestic process. The notice
> of the CCWG consultations were posted in the Federal Register, which stated
> in relevant part:
>
> *“Comments provided will be used by NTIA to determine whether the
> proposals satisfy NTIA’s criteria and have received broad community
> support. Comments will also be considered in any NTIA certification before
> the U.S. Congress that may be required prior to terminating the existing
> IANA functions contract currently in place between NTIA and ICANN.  To
> ensure that all views are taken into consideration, NTIA encourages
> interested parties— including U.S.-based stakeholders—to file written
> comments by the deadline.*”
>
> Based on the two rounds of consultations, it might be the case that
> “refined” membership model would be supported by the public record; but a
> designator model wouldn’t be because of the record of the earlier
> rejection, and the MEM couldn’t be because it was only one submission.
>
> So it may be possible to get consensus in Dublin on a refined membership
> model for transmission to NTIA.
>
> And it may also be the case that we could get consensus in Dublin on some
> other model for a third proposal; but I think this would have to be for
> another round of consultation to build the requisite public record, not
> only to pass scrutiny domestically, but for broad international legitimacy
> and credibility.
>
>
>
>
>
>
>
> *From:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *On Behalf Of *Alan
> Greenberg
> *Sent:* Saturday, October 3, 2015 6:20 PM
> *To:* Chris Disspain; Steve DelBianco
> *Cc:* Accountability Cross Community
> *Subject:* Re: [CCWG-ACCT] A path to Dublin and beyond
>
>
>
> Subject to the following comments, I would support this, and I suspect it
> would have general acceptance within At-Large.
>
> The caveats:
>
> - There are a number of ALAC comments to the current proposal that will
> still apply and will be critical. Pending the details analysis and
> resolution of the comments, I remain optimistic.
>
> - Steve's message does not talk about "the model", so I presume it will be
> some variation of the board proposal (often referred to as MEM, even though
> the MEM is only a component of it). That proposal calls for the AC/SOs to
> take formal action through their Chairs. That idea was rejected by the CCWG
> quite a while ago for a number of reasons (reluctance of the people filling
> the Chair position to get involved at a personal level, the difficulty
> associated with an ongoing action at the time the Chair changes are the
> prime ones that I recall). The CCWG moved to UA and then the Empowered
> AC/SO as a result, and then to the Community Mechanism. The proved to be a
> stumbling block, but perhaps the Empowered AC/SO or Community Mechanism
> could be adapted to work here.
>
> Alan
>
> At 03/10/2015 05:00 PM, Chris Disspain wrote:
>
> Steve,
>
> Thank you for this. It chimes In essence with what I, and some others,
> have been saying for a while.
>
> If we can coalesce around the powers you have listed (there may still be
> issues for some around the budget power and some differences around detail
> but nothing insurmountable IMO) and agree a pathway for ICANN 3.0 and
> beyond then I believe we can walk together as a community through the
> transition.
>
> Happy to do whatever it takes to bring this to fruition in Dublin or
> shortly thereafter.
>
> Cheers,
>
> Chris
>
> On 4 Oct 2015, at 07:34, Steve DelBianco <sdelbianco at netchoice.org >
> wrote:
>
>
> Here are my own thoughts on a path to Dublin and beyond.
>
> I was thinking about Jonathan Zuck’s suggestion ( link
> <http://mm.icann.org/pipermail/accountability-cross-community/2015-September/005764.html>)
> that a change to Membership model could be done in Work Stream 2 —” if we
> create lasting leverage for community to enact a change despite board
> resistance.
>
> Then I read Bruce Tonkin's recent post ( link
> <http://mm.icann.org/pipermail/accountability-cross-community/2015-October/006098.html>)
> describing why our present AC/SO participation falls short of representing
> the global M-S community, and suggesting this is why the board might not
> approve a move to Membership at this time.
>
> Their posts, along with responses on list, suggest a way we can deliver by
> Dublin on enforceable accountability enhancements, thereby giving us powers
> to impose reforms to the AC/SO model after the IANA transition.
>
> Consider this:
>
> Let’s use the leverage of the IANA transition to get bylaws changes give
> the current AC/SO community the powers we require, with adequate
> enforceability.   Plus, we ensure those powers are enough to force a future
> change to ICANN governance structure and/or Membership, if the community
> comes to consensus around what that new ICANN governance structure look
> like.
>
> That would mean we focus CCWG on finishing details and bylaws language for
> these enforceable powers exercised by supermajority of ACs and SOs:
>
> 1. Power to block a proposed Operating Plan/Strat Plan/Budget
> 2. Power to approve changes to Fundamental Bylaws and Articles of
> Incorporation
> 3. Power to block changes to regular bylaws.
> 4. Power to appoint and remove individual board directors
> 5. Power to recall the entire board of directors
> 6. Mechanism for binding IRP where a panel decision is enforceable in any
> court recognizing international arbitration results — even if ICCANN’s
> board refused to participate in the binding arbitration.  (assuming CCWG
> lawyers verify this works without activating a Membership model)
>
> I think we are close enough to get consensus around the above powers
> before we leave Dublin.   And based on what we’ve heard recently, the
> board will support the powers described above.
>
> But there’s one more we have to add before losing the leverage of this
> IANA transition:
>
> Let’s put into ICANN bylaws a method where the community can show
> consensus to undertake a review of ICANN's governance structure, either
> because the powers above aren’t working, or just because the community
> overwhelmingly wants to review governance.   The goal of the Governance
> Review is to recommend a new governance model that might even include
> moving to Membership.  To Bruce’s point, any proposal emerging from this
> Governance Review would include assurances that ACs and SOs are
> representative of global internet users and protected from capture.
>
> This same bylaw could describe a process for board acceptance of a
> consensus proposal emerging from the Governance Review:  it would take 2/3
> board majority to object to the proposal on the grounds that it is not in
> the global public interest, triggering a board-community consultation.
> After consultation, a new community proposal would take 3/4 board majority
> to object.   If the board objected a second time, we would have the power
> to recall that entire board, or to pursue binding arbitration.
>
> Again, these are my personal thoughts about a way forward that is based on
> what others have said recently.
>
> —Steve DelBianco
>
>
>
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