[CCWG-ACCT] A plea for time

Sun Oct 11 23:06:46 UTC 2015

Hi Chris

Thank you for sharing your thinking with us on the current situation. I am
sure you and others will be shocked to learn I have a slightly different
take on things. To keep it brief, here are four points:

*1. Why are we in our "current difficult situation"?*

We are under time pressure because ICANN's Board and staff engaged in a
process of delay and deferral that meant that the Accountability discussion
didn't properly start until late November/early December 2014. Without that
instinctive and disappointing response, we would have had a further ~ 6
months to work through these issues. The CCWG and those interested in
improving ICANN's accountability aren't responsible for that situation, and
nor are the CCWG's counsel.

*2. Fiduciary duties are still owed.*

In AUDA, or InternetNZ, our members (who have some rights of decision)
don't owe the organisations they are part of fiduciary duties. Fiduciary
duties are owed by the Board/Council to give effect to the organisation's
mission and to exercise due judgement and care.

*Absolutely nothing in the CCWG Proposal or any of the models under
discussion changes that fiduciary responsibility on the Board.* There is
absolutely nothing novel, disruptive or difficult with the idea that a
stakeholder community organised as members don't owe such duties - that is
the Board's job, because the Board governs the organisation. People who
aren't on the Board can't realise such duties - they don't have the rights
of decision, the access to information, and the leverage over the
operational staff that a Board does.

Conflating this argument in the way your email does is a regrettable tactic
because it suggests something unusual is being proposed. That isn't the
case.

*3. Limited, carefully constrained powers are all anyone has suggested.*

Nobody, the CCWG least of all, has suggested a fundamental restructure of
ICANN. ICANN's multistakeholder policy process is the core of its activity.
That wouldn't change with any of the models set out - not the Board's, not
the CCWG's.

All the CCWG has proposed are reserve accountability powers the Board says
it supports - powers to guarantee community rights in respect of planning
and budget documents, to appoint and remove directors, and to have a formal
role in changes to ICANN's bylaws. Add on more effective dispute resolution
and that's it.

Significant progress is being made in the CCWG to make the decisional
rights to exercise such powers more consistent with consensus
multistakeholder decision-making. That work will hopefully be shared at
Dublin.

Whether such powers have a backstop of membership, or designator, or
binding arbitration, the choice should rely on the objective merits of each
approach and how far each one goes in meeting CWG and NTIA requirements.

To repeat: *there is no massive restructuring in any of these models, and
all the CCWG proposals have been thoroughly stress tested. It is the
Board's MEM model that is the weakest in this regard, having been developed
behind closed doors and not subject to rigorous stress testing. It is
today the highest risk option on the table.*

*4. Delaying key decisions isn't credible.*

The history of accountability progress in ICANN has been of community
pressure overcoming ICANN"s resistance to real change. That's not an unkind
statement: it is just the only way to understand what actually happens (as
opposed to the public arguments used to explain what people want to see
happen).

The CCWG's work has led to a substantive, careful, rigorously tested
proposal to improve ICANN accountability, It has only been possible to get
this done because of the dynamic created by the IANA Stewardship
Transition.

It is important that the community comes to a consensus around a proposal
that creates a durable structure for accountability.  I will assert this
bluntly: if there isn't a workable and complete basic framework done now
that provides for true accountability, once the transition is done such a
settlement will *never* come about. The playing field would be forever
tilted in the interests of the group with the most power and resources.
That's ICANN - not the ICANN community.

*In closing, I'd like to stress that the most important thing we can do is
be up front and honest about what we do and don't support. *

*I don't support the Board's MEM proposal* for the reasons set out above -
it is untested and novel and hasn't been developed through a
multistakeholder process. To validate it and think it through will delay
this process and delay the transition.

*I do support the CCWG's proposal*. It needs improvement but it is a
genuine result of multistakeholder efforts, and after the community
dialogue in Dublin we will know the remaining points of modification needed.

*I could support, based on what I know today, a new synthesis* with no
membership but careful use of designators and the revised community
consensus decision-making the CCWG is developing.

*All of these proposals need further refinement and the discussion has to
go on until there is consensus. Until there is, nobody should try and
finalise the proposal, because it'd be dead on arrival.*

That's my starting position at the start of this pre-Dublin week. It would
be good to know others'.

In the end, we can only have an honest dialogue that leads to the sort of
collaboration that can drive consensus if we *actually say what we think*,
and acknowledge that the end point of the consensus process might
absolutely not be what we individually want.

Looking forward to seeing many of you soon!

best
Jordan

On 12 October 2015 at 05:05, Chris Disspain <ceo at auda.org.au> wrote:

> Greetings,
>
> As we approach ICANN Dublin I have been asked by some of my ccTLD
> colleagues to set out clearly why as a ccTLD manager I support the Board
> proposals for improving ICANN's accountability as part of the transition.
>
> In essence for me it’s all about time.
>
> I believe that we, the community, can get the enhanced accountability we
> want now without the need for wholesale structural change. I'm not against
> change or indeed any of the models being proposed but I am against making
> such changes without carefully considering them over time. There is a
> significant amount of work to be done before deciding to make such
> important structural changes and all of that will take time and more
> research and stress testing and unforeseen consequence analysis and impact
> analysis.
>
> In essence the Board has supported the CCWG’s proposed fundamental bylaws
> and the binding IRP and has suggested that there be a Community IRP and a
> further fundamental bylaw setting in place an ongoing improvement mechanism
> that will allow the community to take the necessary time to consider the
> structural changes and to have confidence that the proposals arising from
> such a process will be implemented.
>
> I believe that the Community IRP does provide the community with the
> rights it seeks and that it can be implemented in a timeframe that does not
> jeopardise the transition. The Community IRP is an independent arbitration
> process for hearing community claims that the Board has acted outside of
> its by-laws. Under the process there is a legally enforceable and
> contractual obligation on ICANN to comply with a decision of the
> arbitration panel.
>
> I believe that the community find ourselves in our current difficult
> situation because, with the best of intentions, the CCWG’s attorneys have
> been instructed to come up with models that deliver ‘the highest possible
> levels of enforcement’. It is not that the Community IRP cannot deliver the
> enhanced accountability that we want but rather that it is perceived, by
> some, as inadequate because there is a different mechanism that delivers a
> higher level of enforceability.
>
> The CCWG appears to be requiring a mechanism that allows the community (in
> whatever guise we finally agree is acceptable) the absolute final say. The
> right to step over the Board's fiduciary duty without any check or balance
> in place to allow for the testing of the Board's claim that acting would
> indeed be in breach of such duty.
>
> I firmly believe in the corporate governance structures adopted by most
> corporate bodies around the world. Board members are appointed to manage
> the affairs of the organisation on the understanding that they are legally
> bound to act in the best interests of the organization rather than any one
> member or community. Such best interests are set out in the by-laws - in
> ICANN's case for example, the security and stability of the Internet as a
> whole. The Board has a fiduciary obligations to act in that way.
>
> The ICANN Board has proposed the Community IRP as binding arbitration. The
> CCWG’s attorneys have said that the Board can refuse to implement such a
> binding arbitration decision if it claims that to implement it would be a
> breach of its obligations to act in the best interests of ICANN. This is
> true BUT the community representatives can then go to court and a court
> will enforce the arbitration decision if it disagrees with the Board's
> view. In my opinion this is precisely the type of safeguard we need to have
> in place because it ensures that an elected board made up of
> representatives of the multi-stakeholder community will always act, first,
> in the interests of a stable and secure Internet and it puts in place an
> independent arbiter to decide, in the final analysis, if the community or
> the board is right.
>
> The alternative, it seems to me, is to create, now, a system where
> fiduciary duty is abandoned and the will of the community holds sway. That
> is in effect what happens under the membership model as described by the
> CCWG’s attorneys. This may well be acceptable in the future when all of the
> nuances have been thought through and the necessary community conflicts and
> ethics rules, accountability mechanisms and disclosure requirements have
> been agreed. But it will take time and testing and a fuller discussion.
>
> Fiduciary responsibilities and duties are there for a reason. I think that
> some in the community feel that the Board and ICANN legal sometimes use the
> ‘cloak’ of fiduciary responsibility to avoid doing what the community
> wants. Whilst I don’t believe that is true I do empathise with the feeling.
> To my mind the solution (at least at this time during the transition) is
> NOT to create a mechanism under which fiduciary duty is held by no one but
> rather to create a mechanism where the community can test the Board's
> claims about such duty. The Community IRP as suggested by the Board does
> just that.
>
> I want to stress again that I am not against any of the proposed models
> put forward by the CCWG. But I can't agree the models at this stage because
> I don’t believe we have enough detail and I think the community as a whole
> should take their time in considering making such important changes. And I
> do not agree with those who claim that "we must do it now because it's our
> only chance".
>
> I am very much looking forward to spending time with my ccTLD colleagues
> during the Dublin meeting and hope we will have the opportunity to talk,
> and not just about the transition.
>
>
> Cheers,
>
>
> Chris Disspain | Chief Executive Officer
>
> .au Domain Administration Ltd
>
> T: +61 3 8341 4111 | F: +61 3 8341 4112
>
> E: ceo at auda.org.au | W: www.auda.org.au
>
> auDA – Australia’s Domain Name Administrator
>
>
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-- 
Jordan Carter

Chief Executive
*InternetNZ*

+64-4-495-2118 (office) | +64-21-442-649 (mob)
Email: jordan at internetnz.net.nz
Skype: jordancarter
Web: www.internetnz.nz

*A better world through a better Internet *
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