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

Tue Oct 6 19:29:17 UTC 2015

Asha:

Thank you for your perspective as a Board member who was ¡°a complete ICANN outsider¡± prior to selection.

With respect, when I look at the members of the current Board I do not discern such a significant difference from the makeup of the ICANN community that the former can be presumed to always act reliably  on behalf of the global Internet community while the latter cannot be trusted to do so. And if the belief is that the community is not sufficiently diverse to be trusted with certain accountability enforcement mechanisms, then how can it be trusted to make DNS policy through the bottom-up, multistakeholder process that this whole transition-plus-accountability exercise is designed to protect? As a just-reelected member of the GNSO Council, I believe that we and the community we represent are quite diverse and trustworthy, and I know that we strive to carefully devise policies that benefit both the ICANN and the global community.

Further, while the last thing I want to do is test either group against some ethnic/gender/geographic scorecard, both the Board and the community might well be adjudged to be  insufficiently reflective of the global Internet community, depending how one is measuring that. Yet in nearly twenty years of operation I know of no charge that ICANN has acted against global interests.

As for language differences, under Fadi¡¯s leadership great strides have been made in translation not just of discussions but of documents. On the matter of cultural differences, ICANN is a U.S. corporation designed by U.S. lawyers, so I¡¯m not sure whether or how that should be addressed -- but I also don¡¯t see it as relevant to the question of who can be trusted to carry out the global public interest.

As I have previously urged on this list, I do not think it is productive to raise charges such as ¡°instability¡±, ¡°capture¡±, and ¡°against the global public interest¡± without citing specific examples of what bad act might result. So, rather than charging that under some proposed model ICANN processes might somehow be captured by a subset of SOs and ACs who might then act against the global public interest, can we please require that those raising such concerns cite specific examples of what bad acts might result ¨C so the threat can be evaluated and stress tested?

Without such specificity, this discussion begins to seem like children seeing ghosts and goblins in dark shadows, which disappear instantly when the lights are switched on.

Sincerely,
Philip

Philip S. Corwin, Founding Principal
Virtualaw LLC
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Suite 1050
Washington, DC 20004
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"Luck is the residue of design" -- Branch Rickey

From: Asha Hemrajani [mailto:asha.hemrajani at icann.org]
Sent: Tuesday, October 06, 2015 2:29 PM
To: Phil Corwin; Paul Rosenzweig; Guru Acharya
Cc: CCWG Accountability
Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model

Hello Phil

I would beg to differ that the ICANN community is currently sufficiently reflective of the global Internet community.  If anything, it is on the contrary.  The barriers to participation can be quite high ¨C language is one of them as well as the ¡°speak up¡± culture so dominant at ICANN meetings which is certainly not the norm in many Asian cultures/communities.

Of course there have been tremendous efforts made to increase diversity in the ICANN community via outreach activities and programmes, but we still have a long way to go before we can say that the ICANN community is reflective of the global Internet community.   At the recent ICANN meeting in Singapore, there was a (very sadly) low number of participants from the ASEAN region.  The ICANN community has a long way to before we can truly say we are geographically diverse (or gender balanced for that matter!)

I would also beg to differ on your point that Board members are equally non-representative.  The NomCom selects 8 directors that are oftentimes not from the usual ICANN community ¨C I am an example, a complete ICANN outsider and from Asia.

Asha Hemrajani ÏÄÉÖæÃ

From: <accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>> on behalf of Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>>
Date: Wednesday, 7 October 2015 1:15 am
To: Paul Rosenzweig <paul.rosenzweig at redbranchconsulting.com<mailto:paul.rosenzweig at redbranchconsulting.com>>, Guru Acharya <gurcharya at gmail.com<mailto:gurcharya at gmail.com>>
Cc: CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model

I personally do not buy the argument that the ICANN community is insufficiently reflective of the global Internet Community, given the very low barriers to participation as well as the increasing levels of attendance at ICANN meetings and participation in ICANN activities, with greater numbers from the developing world as it comes online.

However, if the community is not reflective of global Internet diversity then wouldn¡¯t the Board members who are drawn from it be equally non-representative? The logical outcome of this criticism is that the Board is equally disqualified from being the steward.

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

From: 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 Paul Rosenzweig
Sent: Tuesday, October 06, 2015 12:47 PM
To: Guru Acharya
Cc: CCWG Accountability
Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model

Exactly.  The Board is demonstrably speaking with situational particularity.  Perhaps it is time we think about selecting different Board members in the next round of elections....

--
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Tuesday, 06 October 2015, 00:40AM -04:00 from Guru Acharya <gurcharya at gmail.com<mailto:gurcharya at gmail.com>>:

I strongly agree with Jordan.

I personally find that attitude of the board to be very 'convenient'.

According to them, ICANN is multistakeholder enough to become the steward of IANA, but the community is not multistakeholder enough to become a member of ICANN. Effectively, we are making ICANN the corporation the steward of IANA and not ICANN the community.

I also find it an extremely convenient argument that 'while entering uncharted territories to make ICANN the steward is very safe; at the same entering uncharted territories to make ICANN a membership organisation is untested and very very unsafe'.

In the CWG (Stewardship), the board consistently argued that
1) the CCWG will solve all accountability issues and therefore ICANN should be made the steward.
2) the ICANN structures are truly multistakeholder and therefore ICANN should be made the steward
3) entering unchartered territories by making ICANN the steward is very very safe
4) the NTIA may not accept the Contract Co model

In complete contrast, in the CCWG (Accountability), the board is arguing that
1) the CCWG should postpone major accountability measures to after the transition
2) the ICANN structures are currently not multistakeholder enough to become the members of ICANN
3) entering unchartered territories by making ICANN a membership organisation is very very unsafe.
4) the NTIA may not accept the membership model

I do not find the promises for future change to be trustworthy. I am strongly against pushing something so important and basic to WS2.

On Tue, Oct 6, 2015 at 8:26 AM, Aikman-Scalese, Anne <AAikman at lrrlaw.com<//e-aj.my.com/compose/?mailto=mailto%3aAAikman at lrrlaw.com>> wrote:

@ Jordan ¨C well stated.   Postponing truly effective accountability measures developed using the Multistakeholder process  in favor of  ¡°a review of structure¡± as suggested strikes me as another recipe for a years-long process the elements of which would take months to agree on in and of themselves ¨C very ineffective.

Anne

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From: accountability-cross-community-bounces at icann.org<//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org<//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces at icann.org>] On Behalf Of Jordan Carter
Sent: Monday, October 05, 2015 7:44 PM
To: Steve Crocker
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model

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<//e-aj.my.com/compose/?mailto=mailto%3asteve.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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