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

David W. Maher dmaher at pir.org
Mon Sep 7 19:35:52 UTC 2015


+1
David W. Maher
Senior Vice President ­ Law & Policy
Public Interest Registry
312 375 4849 






On 9/7/15 1:14 PM, "accountability-cross-community-bounces at icann.org on
behalf of Avri Doria" <accountability-cross-community-bounces at icann.org on
behalf of avri at acm.org> wrote:

>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 ³WS 3² and
>>³ICANN 2020². 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 ³Board on Top² vs. ³Community on Top² 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-mi
>>>>le#><https://www.icann.org/news/blog/working-together-through-the-last-
>>>>mile#><https://www.icann.org/news/blog/working-together-through-the-las
>>>>t-mile#><https://www.icann.org/news/blog/working-together-through-the-l
>>>>ast-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-Septe
>>>mber/005160.html>, notes
>>> around 10 points
>>> 
>>><http://mm.icann.org/pipermail/accountability-cross-community/2015-Septe
>>>mber/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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