[CCWG-ACCT] Blog: Working Together Through The Last Mile

[Phil Corwin]

Wolfgang:

With all respect, you say, " For nearly all CCWG building blocks we have an agreement... We have a disagreement with regard to the Sole Membership Model". But that seriously overstates the present degree of agreement, especially at the granular level.

Because when I read Chairman Crocker's "Last Mile" blog I read, " We are in agreement on key concepts set forward in the CCWG's proposal... We have suggestions on how these could be operationalized. With regards to the mechanisms for community enforceability, where the current proposal still warrants much detail that may not be achievable we have a suggestion on how to deliver on it in a stable way... Let's work together on operationalizing the above principles on which we agree. Once again, we are committed to providing more detail on how these ideas can be operationalized."

So it is clear from those words  that at present there is not just remaining disagreement on the Sole Membership Model but operational gaps on all eight key concepts listed in the blog post, with details yet to be provided on the Board's ideas on bridging the gap. And the devil will be in those details.

Going further, while the Board has yet to articulate which of the critiques and counterproposals contained in the Jones Day analysis it agrees with, those 42 pages add up to a broad prescription of "dilute and defer" on almost every point contained in the CCWG proposal. 

Of course we all await the Board's detailed suggestions, as well its reasons for believing that "the current proposal still warrants much detail that may not be achievable", and that key elements of the CCWG proposal will lead to instability and capture. The CCWG will undoubtedly evaluate them in objective good faith, just as it will weight all the other input that the community will be submitting between now and September 12th. 

While the Board's input must be given serious consideration, the question arises as to whether its views should be accorded more or less weight than that of other stakeholders. Some may say that it is entitled to more because these are the people selected to oversee ICANN the corporation and charged with its best interests; and that as a political reality the US is unlikely to accept a proposal from which the Board broadly dissents. Others might reply that it is entitled to less weight because the accountability plan is all about making ICANN the corporation, including its Board, more accountable to the community -- and the Board's response, to the extent we can presently discern, is based upon  the same general critique that Jones Day has supplied with regularity for a decade and a half. Given all the Board's concern about "untested" proposals, we must keep in mind that the present model has been tested since ICANN's inception and has been found in need of significant revamping by a majority of the community acting within the CCWG, and that there is broad agreement that key elements of this revamping must be agreed upon and implemented before the IANA stewardship transition can be allowed to proceed. Let's also not forget that it is the multistakeholder community that has produced the accountability plan, and this entire transition exercise is in supposed defense and perpetuation of that the much vaunted MSM.

Whatever weight the CCWG accords to the Board's detailed input once it is received, the remaining issue is whether to accept the Board's suggestion of a late September F2F in LA. You assert that " the remaining open issues can be solved by further intensification of the dialogue within the community including CCWG and Board members". I would submit that any such intensification should await careful analysis of all the comments filed on the CCWG proposal, not only that submitted by the Board. It is doubtful that such input can be fully assimilated and a constructive meeting blueprint can be assembled between September 12th and the final week of September -- and any further postponement would bring the F2F dialogue so close to Dublin that it would be best to have it there, especially considering the time and travel burden on CCWG members already stretched thin.

Further, I have yet to see an answer on how an LA F2F meeting could be successfully integrated into the normal process for a WG's consideration of all comments, especially when the comments on the CCWG proposal can be expected to be voluminous in both number and content. There is substantial danger that an ad hoc LA meeting will be perceived as, if not become, a bilateral negotiation between the CCWG and Board. Bruce Tonkin has suggested, in response to my original airing of these concerns, that other ICANN internal entities can present as well, but this may be a distinction without a difference as all those entities are already actively participating within the CCWG. Indeed, the very proposal that the Board is critiquing represents the consensus among those groups after taking under advisement all comments received on the original proposal, as well as the expert and independent  legal advice of the Sidley and Adler law firms. I do not see any way that a F2F meeting in the near term could do anything but elevate the Board's feedback over that of all other parties submitting comments on the proposal.

There is also a danger that an LA F2F will be perceived as a "Summit" meeting, and that it will be a Summit set up for failure. In the world of diplomacy Summits that seek to hammer out agreements are nearly always failures, whereas the successful Summits are those that are held to ratify agreements already reached in quiet back rooms over substantial time. It is extremely doubtful that the foundation for a successful Summit -- one that agrees at least on clear principles for resolving a narrow remaining list of issues, if not on a final agreement itself -- can be laid in the two weeks between the comment period close and any meeting in LA. We all saw on Wednesday evening how a lack of adequate preparation can lead to undesirable and counterproductive confusion and discord. The results of a premature F2F in LA  could be substantially worse if it results in a sharpening rather than a narrowing of differences between the Board and CCWG, and that is likely to happen if the basis for resolving remaining differences has not been achieved in advance. Driving the process forward based upon self-imposed and artificial deadlines could result in a train wreck.

Thus, my own view is that it would be best to shelve the idea of an LA F2F and use the time between September 12th and Dublin for careful analysis and quiet, constructive dialogue.

So let us all be honest that the areas of disagreement between the Board and CCWG are multiple and that no further progress can be made until the Board better articulates both its reasons for concern and its proposed operational details -- and that once that occurs its views must be measured within the context of the input submitted by all other stakeholder groups. 

Thanks to all who have read this far, and with best regards,
Philip


Philip S. Corwin, Founding Principal
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-----Original Message-----
From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of "Kleinwächter, Wolfgang"
Sent: Monday, September 07, 2015 4:22 AM
To: avri at acm.org; accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Blog: Working Together Through The Last Mile

Hi Avri,

it is not easy for me to disagree with you. In most of the areas where we work together we have consensus or rough consensus.  But here we have one of this seldom cases of disagreement. I recognize your statement but I am asking myself whether it is grounded on facts or on mistrust?

What are the facts? For nearly all CCWG building blocks we have an agreement:
.	Community empowerment (Agreeement)
.	Removal of the Board (Agreement with some minor specifications)
.	Fundamental Bylaws (Agreement)
.	Operational Plan (Agreement)
.	Budget (Agreement with some minor clarifictions)
.	Enforceability (Agreement)
.	IRP (Agreement)
.	Ombudsman (Agreement) 

We have a disagreement with regard to the Sole Membership Model.  For me the remaining open issues can be solved by further intensification of the dialogue within the community including CCWG and Board members. We have enough legal advice from different perspectives. If needed, we could get a third legal advice. But at the end it is the community which has to make the decision. 

This is the last mile. It is very natural that in such a complicated transition in the final stage there are some remaining controversies. In my eyes, there are not 20 miles to go (as Becky has proposed). The main work is done. And it is good work, also thanks to the CCWG, to its co-chairs, to its members and to the input from the broader community. The whole process is a very encouraging example which shows how the multistakeholder approach works in practice. This is an important signal also towards the WSIS 10+ Review process in New York.

The reason why I have problems with the sole membership model is simple: I am in favor of a new mechanism to strengthen the checks and balances in the ICANN system to keep the board (and the other ICANN bodies) accountable to the community. But in my eyes the proposed Sole Membership Model  is untested, has a number of risks and is open for unintended side-effects. I am not convinced that the proposed voting mechanism is save enough against capture. I did not get a satisfying rationale why Advisory Committees are treated so differently in the proposed mechanism. I have my doubts how governments can be included in an appropriate way into this new mechanism without touching the well designed balance between governments and the non-governmental stakeholders in the ICANN ecosystem.  And there are other detailed questions.

The Sole Membership Model, as it is proposed now, is still too vague, too unbalanced, too confusing. It is not yet ready for adoption. It needs a lot of more work. There are too many weak points. Go back to the table which was presented by Sidley in Paris where they showed us the plus and minus of the three models. It is true that the Sole Membership Model was the best of the three with more plus and less minus than the other two. But in total, all the three models were far away to meet the NTIA criteria, to be save enough against capture and to enhance ICANNs operational stability and security.  More innovation, more creativity and more careful analysis are needed. I raised my doubts in BA. I repeated this in Paris. And I raised my voice in the various telcos. 

My first proposal was to dislink the discussion of the sole membership model from WS 1 and to have more time to go into the details of such a needed new mechanism in WS 2. This is obviously impossible. We have to propose something here and now within WS 1. I know that some CCWG members have mistrust into a long-term process and speculate that if they do not get it now they will get it never. I think this is wrong.  The process is unstoppable. 

My impression is that the majority in the community sees this indeed as an ongoing process of ICANNs improvement which will not stop with the IANA transition. In BA I argued that after the IANA transition (WS 1) and an enhanced accountability (WS 2) we will need to discuss a restructuring of ICANN to adjust its various SOs and ACs and CCWGs to the new challenges of a changing environment. I did call this "WS 3" and "ICANN 2020". And I also argued that small steps are better than big jumps. 

More or less we are witnessing now what Bill Clinton told us in San Francisco that getting Internet Governance right is like stumbling forward. As longs as it goes forward, it is ok. And what we are doing now is to prepare the next (small) stumbling step forward.  With other words, we have to be patient and to do now what can be done now and what is needed under WS 1 to allow the termination of the IANA contract. But this will not be the end of the story. It will go on. 

And here is a final observation.  To put it - like Greg - as a conflict as "Board on Top" vs. "Community on Top" is misleading. Both the members of the Board and the members of the CCWG are selected by the community. Both are accountable to the community. As I said in the chat during the recent telco we all are sitting in one boat (or in one car) and want to have a better, stable, secure, efficient and accountable ICANN with more (and stress-tested) checks and balances in the system. 

Wolfgang






-----Ursprüngliche Nachricht-----
Von: accountability-cross-community-bounces at icann.org im Auftrag von Avri Doria
Gesendet: Sa 05.09.2015 08:17
An: accountability-cross-community at icann.org
Betreff: Re: [CCWG-ACCT] Blog: Working Together Through The Last Mile
 
Hi,

The effort to spin the replacement recommendation as just operationalization is impressive.

I do not understand the references to capture unless they mean capture by the community from the Board.  I suppose that from their perspective the CMSM would appear to be capture in and of itself, as it gives the community a share of the power they now hold for themselves.  I think any discussion of capture that goes beyond FUD, needs an analysis who who has captured the current ICANN model.  Capture is always an interesting topic because it often means: "who is trying to share my power now?"  I am all for opening up the discussion to the power anlaysi, current, potential and likely.

Additionally, I do not understand this statement:

> where the current proposal still warrants much detail that may not be 
> achievable

While it is true that is needs a bit more detail, though perhaps much less that is being claimed - until it is time for implementaton, it is not as bad as all of that.  What do they mean that an adequate level of detail is not achievable? Though I have learned that if someone does not wish to accept a proposal, it can never have enough detail. 

I think we are facing a critical moment in this transition where we, as a community, will have to decide whether we want the transition so badly that we are willing to surrender and let the Board have complete control without any possibility of ever being subject to oversight ever again. 
The transition is the time to switch from NTIA oversight to community oversight.  If this is not possible, then perhaps the transition should not go forward.

We need to consider this turn of affairs quite carefully.


avri

On 04-Sep-15 15:53, Grace Abuhamad wrote:
> Original
> link: 
> https://www.icann.org/news/blog/working-together-through-the-last-mile
>
>
>   Working Together Through The Last Mile
>
> <https://www.icann.org/news/blog/working-together-through-the-last-mil
> e#><https://www.icann.org/news/blog/working-together-through-the-last-
> mile#><https://www.icann.org/news/blog/working-together-through-the-la
> st-mile#><https://www.icann.org/news/blog/working-together-through-the
> -last-mile#><https://www.icann.org/news/blog/working-together-through-
> the-last-mile#><https://www.icann.org/news/blog/working-together-throu
> gh-the-last-mile#>
>
> I'd like to thank everyone who has participated in both the CCWG 
> briefing to the ICANN Board 
> <https://community.icann.org/pages/viewpage.action?pageId=56132981>,
> and the CCWG and ICANN board dialogue
> <https://community.icann.org/pages/viewpage.action?pageId=56133316>.
> All of our dialogues over the past months have been illuminating, 
> challenging and in my opinion, an important and true testament to the 
> multistakeholder model as we work toward the IANA Stewardship Transition.
>
> */We support the important improvements for ICANN's accountability 
> contained in the CCWG-Accountability's 2nd Draft Proposal. We endorse 
> the goal of enforceability of these accountability mechanisms, and we 
> believe that it is possible to implement the key elements of the 
> proposal. We want to work together to achieve the elements of the 
> proposal within the community's timeline while meeting the NTIA 
> requirements./*
>
> As we enter the final days of the Public Comment period, the Board 
> wants to be completely clear on our position. We are in agreement on 
> key concepts set forward in the CCWG's proposal, for example:
>
>   * Fundamental bylaws.
>   * Specific requirements for empowering the community into the bylaws
>     adoption process.
>   * IRP enhancements.
>   * Board and director removal.
>   * ICANN's mission and core values.
>   * Strengthening requirements for empowering the community in the
>     budget, operational and strategic planning process.
>   * The incorporation of the Affirmation of Commitments Reviews
>     intoICANN bylaws.
>   * Community ability to enforce the accountability mechanisms in the
>     bylaws.
>
> We have suggestions on how these could be operationalized. With 
> regards to the mechanisms for community enforceability, where the 
> current proposal still warrants much detail that may not be achievable 
> we have a suggestion on how to deliver on it in a stable way, as 
> increased enforceability must not open up questions of, for example, 
> capture or diminishing of checks and balances.
>
> Let's work together on operationalizing the above principles on which 
> we agree. Once again, we are committed to providing more detail on how 
> these ideas can be operationalized in a way that they can be 
> implemented within the community identified time frame for the 
> transition, as well as have sufficient tested grounds to not result in 
> unintended consequences.
>
> During last night's discussion we shared this feedback. It was a lot 
> of information to digest in a call (notes around opening remarks 
> <http://mm.icann.org/pipermail/accountability-cross-community/2015-Sep
> tember/005160.html>, notes around 10 points 
> <http://mm.icann.org/pipermail/accountability-cross-community/2015-Sep
> tember/005161.html>), and we appreciate everyone giving our advice 
> consideration. We are committed to submitting our comments into the 
> Public Comment process in the next few days, and we look forward to 
> the working with the community on further details.
>
> It is critical that we work together to build enhanced accountability 
> forICANN and continue to refine and flesh out details of the 
> impressive work already done by the community and complete the 
> IANAStewardship Transition.
>
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list 
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community


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