[CCWG-ACCT] Message from ICANN Board re Designator Model

Tue Oct 6 03:24:52 UTC 2015

Cheryl, Phil, all - that is an option, sure. But think about this. That
option, unless I am mistaken, says in short form:

"Defer this discussion on structure until after the transition."

Now on its own that could be a route through.

But think about that other subject that's sitting there for post transition
discussion - jurisdiction.

Is it viable to close out workstream 1 with both those issues on the table?
Or isn't it simply a different version of the problem that the board's
feedback raised - that you can't shift the model and do the transition at
the same time, that any significant change would need to be bedded in
before transition could occur?

If I was a government decision maker, I'd be pretty nervous about a
scenario that could see what some argue is 'fundamental' change being
debated just after the contract comes to an end.

That topic / approach does seem like the only possible route, so let's talk
about it soon...

Cheers!
Jordan

On Tuesday, 6 October 2015, Phil Corwin <psc at vlaw-dc.com> wrote:

> +1
>
> Philip S. Corwin, Founding Principal
> Virtualaw LLC
> 1155 F Street, NW
> Suite 1050
> Washington, DC 20004
> 202-559-8597/Direct
> 202-559-8750/Fax
> 202-255-6172/Cell
>
> Twitter: @VLawDC
>
> "Luck is the residue of design" -- Branch Rickey
>
> Sent from my iPad
>
> On Oct 5, 2015, at 10:58 PM, Cheryl Langdon-Orr <langdonorr at gmail.com
> <javascript:_e(%7B%7D,'cvml','langdonorr at gmail.com');>> wrote:
>
> Jordan you ask what we think.... Well ... I am personally of the belief,
> that we should as a Community, explore the Zuck / Del Bianco options that
> were recently raised and mentioned in the correspondence from the ICANN
> Chair of the Board...
> On 6 Oct 2015 13:44, "Jordan Carter" <jordan at internetnz.net.nz
> <javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');>> wrote:
>
>> Steve, all
>>
>> In finalising the CCWG's proposal, the ICANN board is a stakeholder - an
>> important one.
>>
>> It has a later role as a decision-maker, according to criteria that have
>> already been established by Board resolution.
>>
>> A careful multi-stakeholder process over almost a year has analysed the
>> community's requirements and come up with a model that can do it - based
>> around membership.
>>
>> The Board has abused its role as a decision-maker in this process. In
>> effect, it has sought to replace the open, public, deliberative proposal
>> development process with its own definition of what the community requires,
>> and its own solution that can deliver its evaluation of those requirements.
>>
>> In doing so, it has profoundly challenged the legitimacy of the
>> multi-stakeholder model of decision-making that ICANN and its Board claim
>> to uphold.
>>
>> Worse, as a matter of process, the Board has attempted to use its
>> decisional role at the end of the Accountability to move the trajectory of
>> debate away from what the community's requirements, fairly analysed dictate
>> -- trying to force the group to "jump the tracks" and into a solution that
>> is unlikely to be able to deliver on those requirements.
>>
>> It's an ugly display of force in what should be a rational and
>> requirements-based conversation.
>>
>> I sincerely regret the Board's choice as a group to take that approach.
>> The effect is to give fodder to all of those people, countries and groups
>> who have long argued that the entire notion of multi-stakeholder Internet
>> policymaking is a charade, behind which decisions are made simply and alone
>> by "the people who matter".
>>
>> In terms of the CCWG's work, this email combined with your statement in
>> Los Angeles reduce the chances of any consensus being able to emerge
>> between what the Board has asked for and what the CCWG has developed.
>>
>>
>> It leaves me very sad that the groups here (Board and CCWG) have arrived
>> at this position. There is an apparent lack of listening and comprehension;
>> few displays of empathy or willingness to see things from another point of
>> view; and a consequent inability to really talk through and resolve the
>> conflicting perspectives and aims here.
>>
>> I hoped the Board might make some overtures in that direction. I know I
>> and other CCWG members have been trying to do. To get this sort of response
>> indicates that that attempt serves no further purpose.
>>
>>
>> What are others' views about how we proceed from here? I confess myself
>> mystified.
>>
>> Look forward to speaking with you all in a few hours.
>>
>> Cheers
>>
>> Jordan
>>
>>
>> On 6 October 2015 at 15:21, Steve Crocker <steve.crocker at icann.org
>> <javascript:_e(%7B%7D,'cvml','steve.crocker at icann.org');>> wrote:
>>
>>> CCWG,
>>>
>>> We appreciate the continued work that the CCWG is doing to consider the
>>> public comments received on its second draft report.  Following the Los
>>> Angeles F2F we have heard suggestions that a Designator model relying on
>>> California statutes may be a replacement for the Sole Member model that was
>>> in the second draft report.
>>>
>>> To be clear, the concerns that the Board raised on the Sole Member model
>>> still apply to a Designator model.  The Designator model still introduces a
>>> new legal structure with powers that are intrinsically beyond the structure
>>> we have been using.  We understand that many believe it is possible to
>>> constrain these powers in order to provide established protections,
>>> accountability and thresholds: This is unproven territory and will require
>>> more detail and time to understand and test the impact on our bedrock
>>> multistakeholder balance.
>>>
>>> Further, it is unclear that this would represent the full
>>> multistakeholder community because we do not know yet which SO/ACs will
>>> join now or later.  Moreover, the same community accountability issues
>>> present in the Sole Member are present in the Designator model.
>>>
>>> Steve del Bianco’s constructive suggestion over the weekend that the
>>> Board could commit to a future governance structure review triggered by key
>>> factors seems like a good path forward.  This can be enshrined in a new
>>> fundamental bylaw that would require the holding of a future governance
>>> structure review if SOs and ACs agree to kick off that review.
>>>
>>> We are all in complete agreement on the objective of enforcement of the
>>> five community powers, with new/stronger mechanisms for board removal
>>> if/when necessary.  Let’s focus on finalizing the details on these
>>> consensus elements to enable implementation and a successful transition.
>>>
>>> Steve Crocker
>>> for the ICANN Board of Directors
>>>
>>>
>>>
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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
>> <javascript:_e(%7B%7D,'cvml','jordan at internetnz.net.nz');>
>> Skype: jordancarter
>> Web: www.internetnz.nz
>>
>> *A better world through a better Internet *
>>
>>
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-- 
Jordan Carter
Chief Executive, InternetNZ

+64-21-442-649 | jordan at internetnz.net.nz

Sent on the run, apologies for brevity
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