[CCWG-ACCT] Personal thoughts on sole member

Kavouss Arasteh kavouss.arasteh at gmail.com
Mon Oct 5 07:37:59 UTC 2015


Dear Tijani
I did reply to the entire subject Under discussion and not to a specific
message.
Kavouss

2015-10-05 2:42 GMT+02:00 Greg Shatan <gregshatanipc at gmail.com>:

>
> 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
>>>
>>>
>>>
>>>
>>>
>>> _______________________________________________
>>>
>>> Accountability-Cross-Community mailing list
>>>
>>> Accountability-Cross-Community at icann.org
>>>
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>> ------------------------------
>>> [image: Avast logo] <https://www.avast.com/antivirus>
>>>
>>> L'absence de virus dans ce courrier électronique a été vérifiée par le
>>> logiciel antivirus Avast.
>>> www.avast.com <https://www.avast.com/antivirus>
>>>
>>>
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>>
>>>
>>
>>
>> --
>> 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 *
>>
>>
>> _______________________________________________
>> Accountability-Cross-Community mailing list
>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>>
>>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20151005/ab9819ae/attachment.html>


More information about the Accountability-Cross-Community mailing list