[CCWG-ACCT] A path to Dublin and beyond

Sun Oct 4 22:01:52 UTC 2015

Thanks Steve, this is quite a good prospectus and is similar to where my
own thinking has been going.

I have one concern and a suggestion to mitigate it.

If I was a decision-maker on this proposal - either the ICANN Board, NTIA
or indeed the Congress itself, or even an ICANN SO or AC - I would be very
uncomfortable at anything which suggested "we will reevaluate the model
after the transition, because we aren't sure this is a durable
accountability settlement".

The signal of uncertainty and of future work that this sends is problematic.

If membership is the straw that breaks the camel's back, my preference
would instead be the bones of a settlement like this:

- the community powers are put into the bylaws (Steve's list below 1-5) -
and for me, I am happy with modifying the Budget powers in a range of ways
to be agreed to further reduce the already minimal disruption the CCWG's
approach would create (the Board's proposal is helpful in doing this).
- the IRP approach largely as the CCWG has set out (Steve's list below 6)
- a Designator foundation that renders the board removal powers completely
enforceable
- probably the Sole Designator model, operating by SO/AC consensus for
NomCom director removal and the rest of the powers, and appointing SOs and
ACs for their appointed Directors

Taking this approach mitigates the "future governance change" concern which
I think is a real one, and ensures that a key instrument of redress is
enforceable.

It is clearly not as powerful a set of tools as the membership model, which
on an objective basis remains my preference.

That said: I take the concerns about "changing the engine in flight"
seriously. I think that the comments about the scale of the change created
by membership are wrong and misleading, but some of the participants in
this process hold them sincerely and seem unlikely to accept analysis that
contradicts their entrenched views.

So in terms of our *requirements*, which are meant to be guiding our work,
I personally am prepared to step back to indirect enforceability of some of
the powers by means of membership, back to designator. The additional
enforceability of membership on the budget power, if it is going to prevent
consensus, should not be something to die in a ditch over.

We can get almost all the way there. CMSM and MEM would both be redundant
and off the table. Multistakeholder consensus building at work....?

A last thought: I have never placed much importance on the "other statutory
powers" a membership would allow. I know others have. Certainly on
transparency and disclosure, it's clear to me just by watching and
participating in our CCWG process that there are hidden depths that need
badly to be exposed to sunlight - and that's a piece of work that needs to
be pushed along promptly next year.  I know others have a different view
though, eloquently expressed by Ed among others. So this needs more
discussion.

I don't present my thinking above as a definitive compromise, but I hope
that it helps to demonstrate that like others, I have been listening to
discussion, and recognise a need for me and all of us to get out of the
competitive "my way or the highway" tone that has emerged in the past few
weeks.

So long as others show the same willingness to move, we should be able to
get into a more collaborative work method, which is what the community
deserves from all of us.

all best,
Jordan

On 4 October 2015 at 09:33, 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 ICANN’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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>

-- 
Jordan Carter

Chief Executive
*InternetNZ*

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

*A better world through a better Internet *
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