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

[Avri Doria]

Hi,

First, my perceptions are not colored by Trust.  I trust the Board and I
trust that you are all well intentioned people who are doing the best
you can for ICANN.  I believe that none of you has an ulterior motive of
personal advantage for the positions you take.  I go so far in my trust
of the Board members as being among those who do not believe that a
Board member would ever take a position just because it would help him
get elected and in the future would never believe that a Board member
would change her position due to a concern with being removed from the
Board.  I am sure that each and every Board member would resign from the
Board if they believed their effect were deleterious on ICANN and the
Internet.

My issue has to with with different perspectives.  Perspective from the
Board that holds all the power, and from the community that wishes to
become empowered, at leas to a degree.

While you say the the Single member is just a implementation issue, I
see you attacking one of the fundamental principles, in fact the
keystone of the CCWG proposal. 

I see in the Board's response a fear of the community and of the all the
bad things we might do if we were not kept tightly in check.  I think
this is problematic and may be a barrier to finding a solution to the
current impasse.

Some inset comments below.

On 07-Sep-15 04:22, "Kleinwächter, Wolfgang" wrote:
> 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)

I do not see the Board as agreeing with the basic proposal.  Maybe it is
a matter of degree. The Board wishes to empower the community to a lower
extent than the community considers empowerment.  As explained by other,
you want to give the community more appeal mechanisms, whereas on some
fundamental issues the community requires decision making empowerment. 
The concepts are so far apart, it cannot be called 'agreement' in any
straightforward definition of the term.. 

> •	Removal of the Board (Agreement with some minor specifications)

Sort of ok. I think there is a bit of very unflattering conjecture on
the Board's part of a capricious and vengeful community.  Why do you
fear us so?

> •	Fundamental Bylaws (Agreement)

Not really, the CCWG proposal required that the Community have a direct
say on changes to fundamental bylaws and articles of incorporation. 
Raising the Board's threshold and consultations do not match the
requirements at all.  The are qualitatively different proposals.


> •	Operational Plan (Agreement)
> •	Budget (Agreement with some minor clarifictions)

How minor are those clarifications?  My impression in the meeting was
that they, like many of the other 'minor' issues where actually based on
fundamental disagreements.

> •	Enforceability (Agreement)

I think you make a mistake about this.  The Board seems to assume that
we want to run off to court every time we are thwarted.  Nothing could
be further from the truth.   The CCWG plan was designed to make going to
court the end of a very long chain of other options that should not be
necessary.  The Board seems to offer a fast path to court. The CCWG plan
balances the empowerment of the community with the empowerment of the
Board nd strengthened redress mechanisms. It creates a new participant 
in the checks and balances.

> •	IRP (Agreement)

Without allowing for binding decisions, it can't be called agreement.

> •	Ombudsman (Agreement) 
>
> We have a disagreement with regard to the Sole Membership Model.  

Which is the keystone of the proposal and the reason that the other
parts of the solution would work.

> 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. 

The community makes the decision?  I thought the situation here was that
ultimately the Board would make the decision.  Had the community been
making the decision, this process would have been like the CWG process.
Once we would have finished the last comment period we would have
submitted out proposal and then we could have moded on to the
implementation phase.

>
> 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.

If the Board were closer to agreeing with the CCWG proposal, I would be
able to agree.  But given the explanations we have had of the MEM and
the Board's other possible solutions, I just do not see this.  To me,
this looks like the morning of a multiday bike bike tour when a century*
or two are left to the finish. But maybe it is more like a climb of
Everest at the last stage - stage 4, but i have never tried that.

(*century as in 100 km or miles - lets go with km, that is a little better)

>
> 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. 

Whereas I see this as a fundamental check and balance element that
compensates for the removal of ICANN's only external oversight.  An
organization that removes formal external oversight needs a stronger
notion of community oversight mechanisms.  The AOC reviews are a good
start, but we have seen that not only do the recommendations sometimes
get perverted in implementation (for example bylaws changes that made
the IRP less useful rather than more so, as had been recommended by
ATRT1) or rather lackadaisically as we have seen with ATRT2
recommendations that are green lighted for someday over the rainbow.  As
people pointed out to me frequently when I spoke of ATRT2
recommendations, I mostly had to add: "but we are still waiting."

You speak of untested models. The only model that has been tested is the
current model without any changes.  And we have seen that this is a
model that does nothing to curb the creative and spending exuberance of
the Board.  It is a model that will not work without ultimate oversight
somewhere.  This we can see strong evidence for.  As we become free from
government's ultimate control, we have to make sure that the community,
one that is ever outreaching, has adequate oversight.  We need the SMCM
in order to replace NTIA's ultimate responsibility. This cannot be a
transition of the absence of oversight, but rather must be a transition
to community oversight. It is this that I don't think the Board has
accepted, and that is the crux of the matter. I think it is something
that the CWG proposal requires.

> 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.

In one respect, I  agree with you.  I want all ACSO to have equal
footing in the SMCM, but am in the minority on that one as I want its
structure to resemble essence of the matrix balance that exists in the
ICANN system architecture. Nonetheless, I do not see major opportunity
for capture in the reference model as the initiation mechanisms for
action and the vote thresholds are so high they do not facilitate
capture. And the simpler we are allowed to implement, the less chance
there will be for capture and other shenanigans.

>
> The Sole Membership Model, as it is proposed now, is still too vague, too unbalanced, too confusing. 

I disagree.  It is fairly direct and limited.  It has defined scope and
functions.  The only fuzzy part is the voting thresholds and the
modalities by which it worst internally, but that is an implementation
detail.

> It is not yet ready for adoption.

We disagree on this.

>  It needs a lot of more work. 

We agree on this, but those are implementation details.  That fact of an
SMCM is not a mere operationalization detail as the Board seems to
claim, but its implementation modalities may be.

> 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. 

I think you will find if you investigate it that many of the weaknesses
of the model have been dealt with.  perhaps Sidley and Adler will help
us with that.

>
> 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. 

Again you miss the point about the SMCM being the the keystone in this
system construction.  Removing it requires going back to the beginning
as it holds everything together.

As soon as WS1 in complete, the process will be stoppable unless the
community model has been implemented.  As long as the Board remains
unchecked, and only accessible by appeal, a system that has failed at
ICANN since its beginnings, there will be no way fro redress Board
actiions.  If there is one thing ICANN has nearly always failed in it is
redress mechanisms.   After all these years of failure in redress
mechanism why should anyone be convinced on ICANN's future redress
mechanisms.  Here we have proof of what doesn't work.  New RR, IRP,
ombudsman roles roles &c, are the experimental part of this proposal. I
have faith that with a SMCM we can insure that there are genuine
improvements to the redress mechanisms, but in today's Board
configuration, it is impossible to believe in redress at ICANN.

>
> 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. 

Yes any organization that does not continually improve is doomed.  but
we should get to a point of sufficient accountability in good time, and
leave the future to necessary tweaking.

I find the invention of WS3 to be the first step in the process of
taking decisions out of WS2 and see it as the tip of the spear for
thwarting future change. Anything hard, lets push it to WS2, and then to
WS3...

>
> 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. 

I am not quite the Bill Clinton fan you are.  And find that too much
stumbling, as we often see among the Clintons, is not really the best
example.  Yes, if we are about to fall, stumbling forward is preferable,
but I would prefer to see us get our multistakeholder model beyond the
stumbling phase.

As for being patient, sorry, been too long coming.  We have been
patient.   My experience is of at least of decade of 'soon come.'   For
others it is  much longer.

But if patient I must be,  I am ready to be patient now and wait for
transition until we are ready.

>
> 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. 

The politics of Tops and Bottoms is always tough unless there is real
mutual trust of each party by the other. You claim that the community
does not trust the Board, that may be the case among some parts of the
community.  I claim that a far greater lack of trust is displayed by the
Board for the community.  I think many of your comments are colored by a
pervasive distrust of the community and its purported drive to capture
and game.   

Once a community member becomes a Board member she adopts a new
perspective and set of responsibilities.  This is what makes the Board
another part of the community while not representing the community.  For
a the Board to become a genuine member of the community, it needs to
give up its role as benevolent despot and accept the need for the
community to balance its power. ICANN needs a community that can check
and balance the Board's unilateral power. 

The CCWG model defines a degree of power sharing between the two as the
best solution for replacing NTIA oversight.

avri

>
> 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-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-through-the-last-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#>
>>
>> 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-September/005160.html>, notes
>> around 10 points
>> <http://mm.icann.org/pipermail/accountability-cross-community/2015-September/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.
>>
>>
>>
>> _______________________________________________
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>> Accountability-Cross-Community at icann.org
>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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