[CCWG-ACCT] A path to Dublin and beyond

Sun Oct 4 21:30:50 UTC 2015

 *Proposed amendments to Steve's thoughts *

*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/ consensus
 of ACs and SOs: 1. Power to block a proposed Operating Plan/Strat
Plan/Budget with  limitation on rejection/ Veto ( maximum 3 times ) 2.
Power to approve changes to Fundamental Bylaws and Articles of
Incorporation. 3. Power to block changes to  standard Blaws. 4. Power to
appoint and remove individual board Directors  possibly with the approval
of the entire community 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 ICCANNs Board
refused to participate in the binding arbitration.  (assuming  CCWG lawyers
verify this works without activating a Membership model) All decision taken
on the above would require consensus , without more than two Advice against
that ( non-voting of ACs)   I think we are close enough to get consensus
around the above powers before we leave Dublin.   And based on what weâ€™ve
heard recently, the board will support the powers described above. But
there is  one more we have to add before losing the leverage of this IANA
transition: Lets 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 are not 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.*

*Kavouss *

2015-10-04 22:02 GMT+02:00 Chartier, Mike S <mike.s.chartier at intel.com>:

> Fair enough, agree with the points.
> I think the issue as I see it is there's been several months of generally
> consistent support for a membership model.
> And There will only be a couple of weeks to agree to something in Dublin.
> It's a little unclear what the method for demonstrating consensus will be.
> I think the way it was laid out it could just be agreement of the
> chartering orgs. And they would certainly be free to agree to an alternate
> model. But there would not be any demonstration of consistent support.
> And the USG has stated the particular need for a strong public record.
>
>
>
> On Oct 4, 2015, at 2:04 PM, Greg Shatan <gregshatanipc at gmail.com<mailto:
> gregshatanipc at gmail.com>> wrote:
>
> As for the process point, I am less concerned than Mike.  I believe the
> community is allowed to refine its thinking, and that an earlier show of
> support for one model will essentially wash away earlier support for a
> different model.  This is an iterative process and we need to be able to
> advance our thinking without being haunted by the ghosts of comment periods
> past.
>
> That said, if the support for a later model is weaker and less consistent
> than for an earlier model, that could be an issue.  The community needs to
> select the final model, taking into account all factors, including the need
> to be pragmatic and make concessions; however, if we in the CCWG settle for
> too little, our decision will not pass muster.  It's not an easy place to
> be.
>
> Greg
>
> On Sun, Oct 4, 2015 at 2:53 PM, Greg Shatan <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>> wrote:
> I think Steve has advanced some good thoughts here, though it is fairly
> clear from both Steve's email and particularly from Mike Chartier's
> response, that this is "second best" from the point of view of empowering
> the community.  If we adopt the "Trust/Enforce" spectrum used by
> Sidley/Adler, this moves us down the scale in the direction of relying on
> trust, simply because we are no longer relying on the Membership/Board
> power dynamic unique to the structure of a membership-based non-profit
> corporation or on the clearly delineated rights of a member in that
> structure.  This makes it less certain that the community can truly hold
> the corporation accountable.
>
> We have to weigh how much we are giving up, in the ability to truly
> enforce each power and in how each power works, in order to adequately
> weigh our decision as a community.
>
> Greg
>
>
>
> On Sun, Oct 4, 2015 at 12:28 AM, Arun Mohan Sukumar <
> arun.sukumar at orfonline.org<mailto:arun.sukumar at orfonline.org>> wrote:
> 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<http://amsukumar.tumblr.com/>
> +91-9871943272<tel:%2B91-9871943272>
>
> On Sun, Oct 4, 2015 at 9:20 AM, Chartier, Mike S <
> mike.s.chartier at intel.com<mailto: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> [mailto:
> 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<mailto:
> sdelbianco at netchoice.org> > wrote:
>
>
> Here are my own thoughts on a path to Dublin and beyond.
>
> I was thinking about Jonathan Zuckâ€™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:
>
> Letâ€™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 ICCANNâ€™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 weâ€™ve heard recently, the
> board will support the powers described above.
>
> But thereâ€™s one more we have to add before losing the leverage of this
> IANA transition:
>
> Letâ€™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 arenâ€™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 Bruceâ€™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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