[CCWG-ACCT] Personal thoughts on sole member
Greg Shatan
gregshatanipc at gmail.com
Mon Oct 5 00:42:30 UTC 2015
We seem to be getting to a point in this process where "ontogeny
recapitulates philogeny." In other words, where we need to go through
entire evolutionary process in miniature as we consider a change to the
current (Second Draft) proposal.
We started out with a "full membership" model of sorts. There were several
problematic issues, such as the ability of GAC members (i.e., sovereign
entities) to join ICANN as members in a membership structure, and concerns
about the possibility of *any* member to exercise the statutory powers of
members.
The "single member model" evolved from the full member model in large part
to provide solutions to those problems, while maintaining the significant
power inherent in the Membership in a membership-based non-profit. Since
the single member was the only member of ICANN, concerns about the ability
to "join" ICANN were resolved. With only one member, controlled by the
SO/ACs working in concert, the concern of a single "rogue" member
exercising one of the statutory powers was also resolved. I don't believe
we have adequately resolved the participation and decision-making
mechanisms for the sole member yet, but this is an iterative process, and
these are not irresoluble issues (although they will be more quickly
resolved if energy is expended building up the single member model rather
than tearing it down).
The single member structure was intended to be as lightweight and low
maintenance as possible. This led to the "unincorporated association"
being advanced as the most likely legal structure for the member, as
opposed to a non-profit corporation. As we know, a California
unincorporated association is a legal entity, with a great deal of
flexibility around its organizational and governance structure. While not
needed, articles of association and bylaws are possible, and often
recommended. Similarly, a board or council or other governance structure
could be adopted if needed. I don't believe that "membership" in the
unincorporated association is required to participate in governance, so GAC
concerns should not be an issue -- a structure could be adopted whereby the
"associators" (the SO/ACs that are actually forming the association) share
power with SO/ACs that are not part of the formation process. If providing
"advice" with a certain threshold of "deference" is preferable to a vote
for some organizations, I am confident that can be accommodated.
While this is more flexible than a non-profit corporation, and thus more
attractive to many, the non-profit was never taken completely out of
consideration. It is entirely possible that the sole member could be
formed as a corporation rather than an unincorporated association. If we
do so, we may want to avoid some of the other evils that were raised in the
CWG-Stewardship with regard to "Contract Co." (and to a lesser extent PTI):
essentially, creating a "second ICANN." (I always felt these concerns were
overblown.) The full member model Bruce posits revives some of those
concerns, although, as Bruce points out, there are advantages to the more
robust and well-understood structure of a non-profit corporation.
Unfortunately, I think Bruce misses some of the key elements that went into
the single member model. The single member was always intended to be a
"thin" organization, with just the minimum necessary personhood and
structure to deliver the will of the community as a whole. So, I don't
think it's accurate to say that the "sole member concentrates all the
responsibilities of membership into a single legal entity." The sole
member concentrates the power of the community into a single entity, but
not the broader responsibilities. It was always our intention for the
deliberative and consultative responsibilities to remain with the SO/AC's
(all of them), so that it would represent the "broader Internet community."
To concentrate on the method of application (the single member) rather than
the participants (the broader community) is to mistake the package for its
contents. Admittedly, we can do a better job of demonstrating that the
single member can be operationalized without disenfranchising parts of our
community.
As for the observation that Bruce is "not aware of any similar Internet
based body that operates under this model." -- technically speaking, I am
sure he's right. The use of the "single member" is probably somewhat
novel. But again, that focuses on the single member as if it were the
solution, and not just a small piece of a much larger solution. The single
member is just an adaptor (or a transformer? or piece of middleware?) to
take the will of the community and transmit it to the corporation with the
power and position of "the membership" in a membership non-profit. This
should really be viewed as a slight variation on the typical membership
model, which Bruce has indicated he is well aware of.
I agree that "it is far better that SOs and ACs participate in the ICANN
model as themselves." Our goal was also to "empower these groups ... in
appropriate ways" through the use of the Community Forum and the Community
Mechanism. I would rather concentrate on getting there in our model,
rather than relying solely on a bylaws-based solution. I am highly
confident that we can empower all SO/ACs in appropriate ways in the Single
Member Model.
At the same time, I'm not opposed to making the single member a "much more
formal structure." As noted above, it was kept less formal to meet the
concerns of certain participants. As Bruce notes, one of the advantages of
a non-profit corporate structure are the clearly defined fiduciary duties
-- the duty of care, the duty of loyalty, and most importantly the duty of
obedience (to mission, values and purpose and to the public benefit). A
non-profit corporation would "bake" those principles into the single
member, mollifying those who were concerned that the unincorporated
association would result in a member that could be careless and capricious,
without any standards other than "we do as we please" (frankly, I think
that's an incorrect view of the UA CMSM, but solving perception is as
important as solving reality). I also suggested a Board with the same
structure as ICANN, so it's good to see great minds thinking alike on that
point.
However, I don't think that the single member, even with these extra
structural pieces, sounds like "what we already have" because the goal of
the single member -- acting as a conduit for the community in holding the
Board and the corporation accountable -- is quite different from that of
the Board. Similarly, I would take issue with the contention that the sole
member (or for that matter, any membership) is "completely unnecessary in
that we already have a Board that does much the same thing," which is then
defined as "listening to all parts of the community before making major
decisions, and acting for the benefit of the Internet community as a
whole." It's clear that the Board does not do the same thing as the
community, and the member is supposed to be the tool the membership uses
when it feels that the Board has not listened to the community and when it
feels that the actions of the Board do not reflect the community's view of
what need to be done for the benefit of the Internet community as a whole.
We know that there have been such times in the past. However, even if
there had never been a time when this had occurred, it would still be
appropriate to put in place a robust and independent accountability
mechanism, since that is the essence of our task.
Finally, in response to Bruce's preference order:
- leverage the governance model we have and refine to have additional
powers for the SOs and ACs in the bylaws, have a binding IRP mechanism if
any SO or AC feels that board is not following the bylaws, and set up a
mechanism to ensure that IRP decision is legally enforceable. This is
broadly the current Board proposal.
- Concerns about the MEM model have been stated by others, and this is
not the place to go into a full response. My critical problem with this
statement of the Board proposal is the reliance on bylaws based rights
rather than membership based rights.
- move to a full membership model with appropriate diversification and
participation of members that include infrastructure operators and users,
with appropriate culture and geographical diversity
- I'm not exactly sure what a "full membership model" is. If it is
based around the SO/ACs, I would contend that the Single Member Model is in
substance such a thing. If we are talking about direct membership for
thousands (or millions or even billions) of people, that would be a truly
radical shift in the structure of ICANN. If this is an issue about whether
the SO/ACs are good enough to represent the community, I've commented on
that elsewhere and I think it's misplaced. As for the specific cited
shortcomings, we have infrastructure operators participating in the ISPCP
and in the ASO among other places, and we have business users in the BC
(and IPC), non-commercial users in tne NCUC, non-profit users in the
NPOC,and all kinds of users in the ALAC. I am all for encouraging cultural
and geographical diversity but insisting that the community we havve cannot
act as a responsible steward for accountability seems quite sad.
- use a sole member model - with a fully incorporated member and clear
fiduciary responsibilities. Set up the board of the sole member with an
equivalent level of governance as we have with the Board of ICANN.
- I don't have a particular problem with this and would be happy to
explore further, as long as we don't make it as heavyweight as ICANN.
Trying to find a balance between the perhaps too-light version in the UA
form and ICANN Part Deux is a challenge but hardly the biggest one we face.
Greg
On Sun, Oct 4, 2015 at 1:04 PM, Jordan Carter <jordan at internetnz.net.nz>
wrote:
> Thank you to Bruce for sharing your thoughts candidly and openly once
> again, and to Tijani for this excellent reply.
>
> I want to +1 Tijani's comments.
>
> Bruce, we came at this from a 'how do we avoid fracturing the community,
> and make sure that decisions in exercising the membership powers are done
> responsibly and by some measure of cross-community consensus?'
>
> That is why we evolved from SO/AC membership to the community exercising
> membership powers together through one "entity" (really, a decision-counter
> - by votes or by consensus doesn't matter).
>
> The SOs and ACs will be and do participate in ICANN as themselves, if we
> correctly recognise that those 'selves' are just forums for ICANN's
> **actual** stakeholders to involve themselves in the policy process ICANN
> exists to serve.
>
> They would participate in the accountability powers in the same way.
>
> Your alternative route summons up all the things the CCWG's first proposal
> was rightly criticised for - the need for legal personality for each SO and
> AC; the fact this would require a complete rewrite of each of their rules
> in the bylaws to allow for that and for relevant decision making, and so on.
>
>
> My personal preference remains the SMM for the reason that it deals with
> this set of problems in a way that supports and upholds the
> multistakeholder model. I've tried to get my head around the Board's
> contention that it would undermine that model, but I simply can't grasp the
> core concern, other than it's founded on a different vision of what the SOs
> and ACs are and their role as routes in / bridges to the global
> multistakeholder community.
>
> If they aren't such bridges, then the model is broken either way.
>
> If they are, then they are the right groupings to be exercising the narrow
> and constrained set of accountability powers the CCWG has been concerning
> itself with.
>
>
> best
> Jordan
>
>
>
> On 5 October 2015 at 00:50, Tijani BEN JEMAA <tijani.benjemaa at planet.tn>
> wrote:
>
>> Bruce,
>>
>>
>>
>> You say you prefer a full membership model where each SO and AC becomes a
>> member rather than a sole membership model because it concentrates all the
>> powers in the hands of a single entity.
>>
>>
>>
>> I don’t think it is the best way to avoid capture: In case we have each
>> SO and AC becoming a member, all those members will have the full statutory
>> rights and can at anytime exercise them including before the Californian
>> courts. The SOs or ACs that have a big interest (financial, political,
>> etc.) may use their member right to force the board to act for their own
>> narrow interest.
>>
>>
>>
>> In the sole membership model, no power is allowed to a single SO or AC;
>> they can’t act separately. Any power exercise would be the result of the
>> community consensus (any form of consensus including voting). So no capture
>> is possible.
>>
>>
>>
>> The only risk would be if all the community is not represented in the
>> sole member decision making, but this is the same risk for the full
>> membership model where you would have only some SO/AC becoming members of
>> ICANN.
>>
>>
>>
>> I don’t say that the sole membership model is the best, but if I compare
>> it to the full membership model, I would prefer it.
>>
>>
>>
>>
>> --------------------------------------------------------------------------------
>>
>> *Tijani BEN JEMAA*
>>
>> Executive Director
>>
>> Mediterranean Federation of Internet Associations (*FMAI*)
>>
>> Phone: + 216 41 649 605
>>
>> Mobile: + 216 98 330 114
>>
>> Fax: + 216 70 853 376
>>
>>
>> --------------------------------------------------------------------------------
>>
>>
>>
>>
>>
>>
>>
>>
>>
>> -----Message d'origine-----
>> De : accountability-cross-community-bounces at icann.org [mailto:
>> accountability-cross-community-bounces at icann.org] De la part de Bruce
>> Tonkin
>> Envoyé : samedi 3 octobre 2015 08:32
>> À : accountability-cross-community at icann.org
>> Objet : [CCWG-ACCT] Personal thoughts on sole member
>>
>>
>>
>> Hello All,
>>
>>
>>
>> The following is NOT a Board view.
>>
>>
>>
>> My personal thoughts on sole member is that I prefer a broader membership
>> structure to a sole membership structure.
>>
>>
>>
>> For me - a sole member concentrates all the responsibilities of
>> membership into a single legal entity. I much prefer more distributed
>> membership structures that are more likely to represent the broader
>> Internet community.
>>
>>
>>
>> I am not aware of any similar Internet based body that operates under
>> this model. I have been on the Board of several non-profit organizations
>> over the past 20 years in a range of areas from sport to research to
>> business, and I have never personally had any experience in this model.
>> I have also done several company director courses and I have never had this
>> model come up in presentations or discussions.
>>
>>
>>
>> The sole member model also doesn't seem to particularly fit the current
>> SOs and ACs that often have different interests and areas of focus For
>> example SSAC and RRSAC have quite narrow mandates to look at particular
>> technical issues. They do not generally get involved in ICANN strategic
>> plans, operating plans, budgets, and naming policies.
>>
>>
>>
>> I think it is far better that SOs and ACs participate in the ICANN model
>> as themselves. I think we can empower each of these groups in our bylaws
>> in appropriate ways.
>>
>>
>>
>> If the CCWG really wants to go down the single member model, then I would
>> prefer a much more formal structure.
>>
>>
>>
>> - make the single member an incorporated entity
>>
>>
>>
>> - set the articles of incorporation up to ensure that the single member
>> has a fiduciary responsibility to the Internet community as a whole. I.e.
>> align its fiduciary responsibility to ICANN's fiduciary responsibility
>>
>>
>>
>> - have a board of the single member with the same structure as ICANN -
>> with SOs and ALAC appointing directors, set up a nominating committee (or
>> use the one we have) to select 8 directors, and have liaisons from GAC,
>> SSAC, RSSAC and IETF.
>>
>>
>>
>> - include in its bylaws its mission (to be a member of ICANN), and
>> processes it will use to reach decisions and consult with the community
>>
>>
>>
>>
>>
>> If this is sounding like what we already have - then that is not
>> surprising.
>>
>>
>>
>> I feel that it is certainly legally possible to create a sole member -
>> but it is practically highly unusual, and also seems completely unnecessary
>> in that we already have a Board that does much the same thing. The Board
>> listens to all parts of the community before making major decisions, and
>> acts for the benefit of the Internet community as a whole.
>>
>>
>>
>>
>>
>> So vmy preference order is:
>>
>>
>>
>> - leverage the governance model we have and refine to have additional
>> powers for the SOs and ACs in the bylaws, have a binding IRP mechanism if
>> any SO or AC feels that board is not following the bylaws, and set up a
>> mechanism to ensure that IRP decision is legally enforceable. This is
>> broadly the current Board proposal.
>>
>>
>>
>> - move to a full membership model with appropriate diversification and
>> participation of members that include infrastructure operators and users,
>> with appropriate culture and geographical diversity
>>
>>
>>
>> - use a sole member model - with a fully incorporated member and clear
>> fiduciary responsibilities. Set up the board of the sole member with an
>> equivalent level of governance as we have with the Board of ICANN.
>>
>>
>>
>> Regards,
>>
>> Bruce Tonkin
>>
>>
>>
>>
>>
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>>
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>>
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>>
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>>
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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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