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

David W. Maher dmaher at pir.org
Mon Sep 7 19:39:27 UTC 2015


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






On 9/7/15 11:20 AM, "accountability-cross-community-bounces at icann.org on
behalf of Phil Corwin" <accountability-cross-community-bounces at icann.org
on behalf of psc at vlaw-dc.com> wrote:

>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
>Virtualaw LLC
>1155 F Street, NW
>Suite 1050
>Washington, DC 20004
>202-559-8597/Direct
>202-559-8750/Fax
>202-255-6172/cell
>
>Twitter: @VlawDC
> 
>"Luck is the residue of design" -- Branch Rickey
>
>
>-----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.
>>
>>
>>
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>> Accountability-Cross-Community at icann.org
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>
>
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