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

Chartier, Mike S mike.s.chartier at intel.com
Tue Oct 6 20:40:05 UTC 2015


I guess the question is, can someone point to this point of when the board "receives" the proposal. From the charter I don't see anything post the "board consideration".




On Oct 6, 2015, at 3:01 PM, Phil Corwin <psc at vlaw-dc.com<mailto:psc at vlaw-dc.com>> wrote:

Mike:

They never said they wouldn’t do everything they could to modify the proposals before they were received.

And while they committed to send them on without modification, they never pledged that they would refrain from stating lack of Board support (or even outright opposition) when they transmitted them to NTIA.

That’s my take.

Best, Philip

Philip S. Corwin, Founding Principal
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From: Chartier, Mike S [mailto:mike.s.chartier at intel.com]
Sent: Tuesday, October 06, 2015 2:56 PM
To: Phil Corwin; "Kleinwächter, Wolfgang"; Paul Rosenzweig; Guru Acharya
Cc: CCWG Accountability
Subject: RE: [CCWG-ACCT] Message from ICANN Board re Designator Model

Phil,
               I too would like to understand what process we are using re: the board. It is especially mystifying given that just in August the NTIA's Third Quarterly Report on the IANA transition stated:
"ICANN has indicated that it expects to receive both the ICG and CCWG proposals at roughly the same time and that it will forward them promptly and without modification to NTIA."
The reference it cites is “ICANN 52 Board Statement on ICANN Sending IANA Stewardship Transition and Enhancing ICANN Accountability Proposals to NTIA” of 2/12/2015
https://www.icann.org/news/announcement-3-2015-02-12-en  which states:
“When ICANN receives these proposals, we will forward them promptly and without modification to NTIA.”

So, I’d like to know how we reconcile the report of the NTIA from August, and the Board Statement from February; with the Board Resolution of last year that’s cited in the CCWG charter- but we don’t seem to be following either.

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 Phil Corwin
Sent: Tuesday, October 6, 2015 2:03 PM
To: "Kleinwächter, Wolfgang"; Paul Rosenzweig; Guru Acharya
Cc: CCWG Accountability
Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model


I agree this is slippery and dangerous territory, Wolfgang. And I have made clear that I do not agree with that POV.



However, in its October 1st High Level Response to CCWG Counsel’s 29 September 2015 Slides, Jones Day states: " proponents of the CCWG’s Proposal minimize or ignore the fact that the shift to the SMM would place a significant amount of power in the hands of individuals and stakeholders that hold no fiduciary obligations to ICANN or the global stakeholder community. These individuals and stakeholders are free to act in their personal interest and are not required to make decisions based on what is best for ICANN, the ICANN community, and the global public interest".  (Emphasis added)



While the Board may credibly state that it has a fiduciary duty to ICANN and makes decisions beside upon what is best for ICANN (and I am not in any way implying that the CCWG and ICANN community make decisions based on anything but what they believe is best for ICANN and its community), it cannot claim to make decisions based on what is best for the ICANN community (since its first duty is to the Corporation, and it is quite evident from the current accountability discussion that its views are at significant variance from those of the community members comprising the CCWG) and it has no greater claim to representing the global public interest than the community from which it is drawn.



Given that it is ICANN’s outside Counsel that has raised this charge, which has since been echoed in Board member communications, perhaps your caution to “be careful” should be directed elsewhere.



Finally, on the matter of the “global public interest”, points #2 & 3 of the CCWG Charter states:

2.            If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board.

3.            The Board must provide detailed rationale to accompany the initiation of dialogue. The Board shall agree with the CCWG the method (e.g., by teleconference, email or otherwise) by which the dialogue will occur. The discussions shall be held in good faith and in a timely and efficient manner, to find a mutually acceptable solution.



I have previously inquired on this list whether the Board’s concerns regarding the Sole member or Designator models amounted to a formal belief that they threatened the global public interest, and I do not recall any statement that they did – much less a formal invoking of the dialogue process provide for in the Charter.



If the Board believes that either or both of those models does so it would seem appropriate to provide the required detailed rationale and start the dialogue. If it does not, then it seems quite inappropriate and non-constructive for ICANN Counsel to raise a purported threat to the global public interest in their memoranda.



Best,

Philip



Philip S. Corwin, Founding Principal

Virtualaw LLC

1155 F Street, NW

Suite 1050

Washington, DC 20004

202-559-8597/Direct

202-559-8750/Fax

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Twitter: @VlawDC



"Luck is the residue of design" -- Branch Rickey





-----Original Message-----
From: "Kleinwächter, Wolfgang" [mailto:wolfgang.kleinwaechter at medienkomm.uni-halle.de]
Sent: Tuesday, October 06, 2015 1:25 PM
To: Phil Corwin; Paul Rosenzweig; Guru Acharya
Cc: CCWG Accountability
Subject: AW: [CCWG-ACCT] Message from ICANN Board re Designator Model



Hi Phil,



this is slippery territory. If you read Parminders comment that it is only the UN which is the legitimized representative of the global Internet community (via the elected governments of the UN member states). As said in previous comments: There are unintended side-effects of our discussion both for the microcosm of ICANN as well as for the macrocosm of the broader Internet world. Be careful!



Wolfgang







-----Ursprüngliche Nachricht-----

Von: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> im Auftrag von Phil Corwin

Gesendet: Di 06.10.2015 19:15

An: Paul Rosenzweig; Guru Acharya

Cc: CCWG Accountability

Betreff: 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<mailto:gurcharya at gmail.com%3cmailto: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<mailto:AAikman at lrrlaw.com%3c//e-aj.my.com/compose/?mailto=mailto%3aAAikman at lrrlaw.com>>> wrote:



@ Jordan - 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 - 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%3c//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><mailto:accountability-cross-community-bounces at icann.org%3c//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces at icann.org%3e>] 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<mailto:steve.crocker at icann.org%3c//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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