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

Wed Oct 7 14:01:02 UTC 2015

On Tuesday 06 October 2015 10:54 PM, "Kleinwächter, Wolfgang" wrote:
> 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).
Dear Wolfgang

Can you point me to when and where did I say so. And as a proof of how I
question different legitimacies, including of the UN, please see the
open letter  <http://therules.org/petition/sdg-open-letter/> that I
signed about two weeks back, which clearly puts a lie to your claim.

In fact my email of 3rd Oct to this group says "This was/ is the time
and opportunity to devise some kind of really globally representative
structure outside the states based structures, and thus meet the
requirements of participatory democracy, and alternative models of
global governance that are still democratic, and interact with the
current states based ones. "

Does this look like I perhaps believe in other forms of representation
of the global Internet community!

What I dont believe in is scaremongering that you and the board is doing
using the name of the UN, because I, like many others in the developing
world, also know what all good the UN has done, and what degree of
legitimacy it actually has, specially in comparison to US led hegemonic
structures (and what it hasnt).  (As a social-political scientist,
Wolfgang, never lose the relative point.)

My same email does say that ICANN needs to be incorporated in
international law, which will, yes, have to be treaty based, and I will
explain this point presently. But before that, can I say that either you
accept this point, which I know you do not, or you believe that only the
US jurisdiction and state is the one, to use your words, 'the
legitimized representative of the global Internet community'? You have
the accept this counter-point if you can tell me that just bec I asked
for international law/ jurisdiction basis for ICANN I believe that UN is
the the sole legitimate representative of the global Internet community.

Now, before you or anyone else mangles my viewpoint further/ again, let
me clearly state that

1. ICANN and its oversight structure should be based on an international
treaty forming international law. Remember two things in this regard.
Firstly,  limits to state power are also something which legal
frameworks alone provide and there are numerous such frameworks, both at
national and international levels. Therefore an international law does
not necessarily mean more power to the states, it could, and I think,
should, be an agreement to limit it, and structure is in appropriate
manners to be used only for specific, well defined ways. Secondly, any
such law requires assent of the US and its allies, and would therefore
certainly carry all the necessary safeguards, while getting us out of
this untenable situation where a private body doing a public function,
is (1) seeking to remain more or less completely unsupervised, and (2)
is subject to the jurisdiction of one country.
2. The oversight mechanism should be broad, membership based, bringing
in a very larger base of Internet community, in a suitable
institutionalised way, /*which is what we should be discussing here and
now*/. This mechanism should preponderantly be of communities currently
outside ICANN, in its operational and policy making functions, and
intending to remain so. (The logic is obvious.) Just because that
perfect representative situation can never be arrived at , it does not
mean we do not take it as our guiding principle and move in the right
direction (such arguments against democracy have often been used, and
debunked, 2015 is too late to be resuscitating them).  Just Net
Coalition has proposed two different models for making headway in this
direction. Out test should we, did we substantially move in that
direction or not, and not refuse to move just bec it would never be
perfect. That is the real test of this 'transition' process, and it is
failing on it entirely even as per the CCWG's current proposal, which
simply seeks to consolidate power among the close ICANN engagers, a lot
of them often going into and coming out of ICANN proper (of whose
boundaries even no one is ever clear). As for the Board's response to
it, it falls so low that I dont want stretch my vocabulary to describe it.
3. ICANN's current operational and technical policy making structures
can largely keep working as they are, with some improvements that may be
required.

So, Wolfgang, if you ever in future want to describe my views, you have
a full statement above. Please do not create a strawman to defend your
and board's brazen attempt to resist greater democratication of the
oversight over a key global infrastructure. Although, and that is the
saddest part, democracy, democratisation, public and such are not the
terms that anyone  in this group ever utters at all. These are the
sacrifices of sacred civilisational achievements that I rue most about
what is happening. A discourse completely alien to what I have learnt
and known about public and political affairs is being played out here,
and that in the name of the global community. No, not only the board,
and the ICANN in general, but this process itself does not represent the
global pulbic in any kind of even close to adequate way. And in this
alone, Wolfgang, you and the Board, are right. But as many have pointed
out, the hypocrisy that it implies about the board's and ICANN's own
legitimacy is so acute that I am quite surprised that you/ board got so
desperate to actually present this particular argument.

Best regards, parmidner

>  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 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
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> 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] 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....
>
> --
> Sent from myMail app for Android
> 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 - 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
>
>
>
> [https://af.mail.my.com/cgi-bin/readmsg?id=14441065090000080418;0;0;1&mode=attachment&bs=16497&bl=3767&ct=image%2fgif&cn=image001.gif&cte=base64]
>
>
> Anne E. Aikman-Scalese, Of Counsel
>
>
> Lewis Roca Rothgerber LLP
>
>
> One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611
>
>
> (T) 520.629.4428 | (F) 520.879.4725
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>
> AAikman at lrrlaw.com<//e-aj.my.com/compose/?mailto=mailto%3aAAikman at lrrlaw.com> | www.LRRLaw.com<http://www.lrrlaw.com/>
>
>
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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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> --
>
> Jordan Carter
>
> Chief Executive
> InternetNZ
>
> +64-4-495-2118 (office) | +64-21-442-649 (mob)
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