[CCWG-ACCT] A path to Dublin and beyond

Thu Oct 8 17:54:14 UTC 2015

Steve,
               You are doing yeoman’s work trying to advance the work! However, I think the current situation (the significant “evolution” of the ICANN Board’s role in the development of this proposal) is a strong indicator of why relying on an internal process to ensure a change to a membership model may not be viable.

The current environment we find ourselves in was certainly foresaw. In their Joint Comments from SO-AC-SG-C Leaders towards the development of the process, the Joint Commenter’s stated: “We believe that in the context of the Accountability Process this fiduciary duty creates the possibility of tension between the interests of the ICANN Board and those of the ICANN community. New or strengthened accountability mechanisms may impose new requirements upon ICANN as an organization. These requirements may be deemed cumbersome, restrictive, or otherwise undesirable by representatives of the organization. In these circumstances, the ICANN Board could find the organization’s interests at odds with those of the community and be led to reject such recommendations.”

Accordingly the final charter articulated a process (and limit) for Board interaction: “CCWG-Accountability will include a liaison from the ICANN Board, who would be an active member of the CCWG-Accountability, bringing the voice of the Board and Board experience to activities and deliberations. The CCWG-Accountability will also include an ICANN Staff representative to provide input into the deliberations and who is able to participate in this effort in the same way as other members of the CCWG-Accountability. Should there be a need for any consensus call(s), neither the Board liaison nor the Staff representative would participate in such a consensus call.”(my highlighting)

Moreover, the Board’s own resolution on their “interaction” contained the threshold you’ve copied in your proposal. “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.”

However we now have apparently reached a point, as stated by Steve Crocker in the Sept 2 meeting where: “NTIA has made it very clear that they do not want a proposal from the community in which the board has not reached consensus on as well”

We have moved from a documented position (identical to what you’re proposing) requiring a 2/3rds rejection of a proposal on a strict finding of “not in the global public interest”, to where apparently now the proposal has to be developed in consensus with the board, ex anti, even before its submission to the SO/ACs. And this “evolution” has happened in the presence of the strongest external pressure that is likely to exist for quite a while.

So it is hard to imagine how, in the absence of the IANA Transition stick, the old “2/3rds majority- it’s not in the global interest” requirement will actually be complied with.

Mike

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Steve DelBianco
Sent: Thursday, October 8, 2015 12:26 PM
To: Kieren McCarthy; Accountability Cross Community
Subject: Re: [CCWG-ACCT] A path to Dublin and beyond

Kieren — as to your first question, I do assume the board would likely resist an attempt to activate the enforcemnet powers of Membership.

As to your second question, see the Plan B text I proposed last weekend (below)  If it’s not strong enuogh please suggest ways to improve it!
But there’s one more we have to add before losing the leverage of this IANA transition:

Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance.   The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership.  To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture.

This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review:  it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation.  After consultation, a new community proposal would take 3/4 board majority to object.   If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration.

From: Kieren McCarthy
Date: Thursday, October 8, 2015 at 12:08 PM
To: Accountability Cross Community, Steve DelBianco
Subject: Re: [CCWG-ACCT] A path to Dublin and beyond

Serious question: why would you imagine that the Board would do anything but block future governance changes given what it has done this time and in numerous previous accountability reviews?

And related to that: if the Board blocked it, what mechanism would exist to force the changes? Why would we not end up in the exact same possible as now but five years down the road?

Kieren

On Sat, Oct 3, 2015 at 1:33 PM Steve DelBianco <sdelbianco at netchoice.org<mailto:sdelbianco at netchoice.org>> wrote:
Here are my own thoughts on a path to Dublin and beyond.

I was thinking about Jonathan Zuck’s suggestion (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-September/005764.html>) that a change to Membership model could be done in Work Stream 2 — if we create lasting leverage for community to enact a change despite board resistance.

Then I read Bruce Tonkin's recent post (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-October/006098.html>) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time.

Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition.

Consider this:

Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability.   Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like.

That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs:

1. Power to block a proposed Operating Plan/Strat Plan/Budget
2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation
3. Power to block changes to regular bylaws.
4. Power to appoint and remove individual board directors
5. Power to recall the entire board of directors
6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICANN’s board refused to participate in the binding arbitration.  (assuming CCWG lawyers verify this works without activating a Membership model)

I think we are close enough to get consensus around the above powers before we leave Dublin.   And based on what we’ve heard recently, the board will support the powers described above.

But there’s one more we have to add before losing the leverage of this IANA transition:

Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance.   The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership.  To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture.

This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review:  it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation.  After consultation, a new community proposal would take 3/4 board majority to object.   If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration.

Again, these are my personal thoughts about a way forward that is based on what others have said recently.

—Steve DelBianco

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