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

Thu Oct 8 08:08:58 UTC 2015

Thanks, Wolfgang, we needed this. Well presented and true

Best,

Roelof

On 06-10-15 21:14, "accountability-cross-community-bounces at icann.org on
behalf of "Kleinwächter, Wolfgang""
<accountability-cross-community-bounces at icann.org on behalf of
wolfgang.kleinwaechter at medienkomm.uni-halle.de> wrote:

>Hi Phil,
>
>thanks for your understanding. Unfortunately we have been pulled into a
>"we vs. they" constellation which is grotesk.
>
>I served five years in the NomCom, one year as its chair. We had endless
>discussion how to send the best people for ICANN and the broader ICANN
>and Internet community to the Board. The people who made it to the board
>are - in my understanding - the best people you can get in a given year.
>They are not hand picked by an outside power which wants to manipulate
>the community. The NomCom itself is populated by representatives from the
>community. All SOs, ACs and the constituencies are represented with
>voting members in the NomCom. I trusted the community that they did send
>the right people to the NomCom. In my reports to the ICANN Public Forum -
>when I chaired the NomCom - I always presented the NomCom as the most
>democratic element in the whole ICANN ecosystem. The community itself
>selects its representatives (and should have also the right to spill them
>if they do not meet the expected standards, here I agree with the
>proposed enhancements). No CEO, no ICANN chair, no ICANN Board member can
>tell the NomCom whom to select. The same is true for the seven directors
>selected/elected by the SOs and ALAC. Do you know how many interviews and
>discussions take place before the 15 ALAC members vote in favor of one
>director which goes to the Board? Did you see the debate on the GNSO Seat?
>
>This are very democratic bottom up transparent, diversified and open
>processes. If you compare this with the population of other for profit or
>non-for profit boards in the world, this is unique. Do you know how FIFA
>selects its Executive Committee? Do you know how to become a member of
>the IOC ExCom? Do you know how Green Peace selects its Board? There are
>endless back-door meetings (in closeed circles) which produce bodies
>which are indeed - sometimes - not accountable to the broader public and
>it is difficult to remove them.
>
>The procedure how to get a seat in the ICANN Board is - as said above -
>one of the most impressive achievements we have in the ICANN family. And
>we should be proud to have such good mechanisms. Additionally the
>principle of rotation is an extra block against misuse and capture of the
>board function. The term is just three years for a director. If he did
>not deliver what was expected, the ACs, SOs and the NomCom has no duty to
>re-elect/select the candidate. The maximum is three terms (nine years).
>It was two terms (six years). The extension was made to have a right mix
>between continuation and presence of history knowledge and innovative
>newcomers. There is also the democratic element of geographical
>diversity. BTW, this is one point I miss in the CCWG discussion. How
>seriously CCWG members take arguments from participants from Africa,
>Latin America and Asia?
>
>I bring this facts not to undermine the proposed community power of
>spilling of the board. I was always behind this extra power for the
>community to enhance the inner democratic processes. In my eyes there is
>no need to create a new burocracy to achieve this aim. It can be done on
>the basis of the tested and workable model. Under the circumstances of
>the discussion we have today I have my doubt whether we can introduce the
>same high standard for representatives in a new legal entity in the short
>time we have (Sole Membership Model). We were fighting over many years to
>errect barriers aganist caputre in the board. And I am not ready to open
>now a backdoor for capture in a new entity which has not yet clear rules
>of procedure how voting and other important elements (including
>accountability) can be introduced in a way which does not undermine the
>functioning, stability, security and prosperity of ICANN. I am in favor
>of power sharing. But I am against power shifting.
>
>As you know I am leaving the board and I will repeat my arguments after
>Dublin as a member of the commmunity. I hope that we have more or less
>finished the discussion at the end of the Dublin Meeting. But there will
>be a lot of things that we have to do beyond Dublin.
>
>Wolfgang
>
>
>
>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
>
>202-255-6172/cell
>
>
>
>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-cro
>ss-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-cro
>ss-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<mailto:gurcharya at gmail.co
>m%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%3aAAi
>kman 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
>
>
>
>
>
>AAikman at lrrlaw.com<//e-aj.my.com/compose/?mailto=mailto%3aAAikman at lrrlaw.c
>om<mailto:AAikman at lrrlaw.com%3c//e-aj.my.com/compose/?mailto=mailto%3aAAik
>man at lrrlaw.com>> |
>www.LRRLaw.com<http://www.lrrlaw.com/<http://www.LRRLaw.com%3chttp:/www.lr
>rlaw.com/>>
>
>
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>From: 
>accountability-cross-community-bounces at icann.org<//e-aj.my.com/compose/?ma
>ilto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces at icann.org<mailt
>o: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/co
>>mpose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces at icann
>>.org><mailto:accountability-cross-community-bounces at icann.org%3c//e-aj..m
>>y.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounc
>>es 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.croc
>ker at icann.org<mailto:steve.crocker at icann.org%3c//e-aj.my.com/compose/?mail
>to=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)
>
>Email: 
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>ilto=mailto%3ajordan at internetnz.net.nz>>
>
>Skype: jordancarter
>
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>:/www.internetnz.nz>>
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>A better world through a better Internet
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