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

Phil Corwin psc at vlaw-dc.com
Mon Sep 7 23:15:31 UTC 2015 

Bruce:

Thanks as always for your clear and candid comments.

In regard to this --
	There is still quite a wide range of views amongst the Board and staff on some items in the CCWG proposal - so some of the vagueness in replies is because 	there is not clarity yet within the Board on some items.   Hopefully that will emerge in a day or so.
-- it would probably be best for guiding the CCWG and informing the community if the final Board comments indicated the degree of consensus and, it is lacking on any matter, permit the posting of minority views.

As for this--
	Speaking personally - my perspective is most of what is in the CCWG proposal for workstream 1 is fine by me with respect to the IRP.   I think the exact rules 	of procedure need some refinement - so our statement that we can at least roll back the most recent change was simply to gain some time to work on those 	rules - I am thinking a 3 months for a focussed group not years.
--Your supportive view that the general IRP proposal is acceptable is welcome, and your observation that a small group can probably work out final procedures in a few months seems reasonable. My additional observation is that this reinforces the viewpoint that a large meeting in LA later this month may be both premature and counterproductive; that what would be most constructive and efficient would be quiet discussions on critical issues for the purpose of identifying common ground and building upon it to reach a final agreement that all can feel comfortable with sometime between Dublin and Marrakech. This merely recognizes that all parties may be hesitant to agree to a final blueprint in Dublin when critical details have yet to be sketched in.

Very best, 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 Bruce Tonkin
Sent: Monday, September 07, 2015 6:48 PM
To: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Blog: Working Together Through The Last Mile

Hello Malcolm,


    "because we understand that the community is not happy with the
     current situation we would suggest that we roll back the
     modification of the standard of review to where it was before
     2013, and that there is a commitment that the revised standard
     of review standing panel and procedural improvements will be part
     of the next phase of work on the IRP enhancements."

>>  Reverting to 2013 rules and the promising to come back and look at it later, after transition is not at all what we proposed. So I don't think we do have agreement yet.

Yes - We are working on a set of comments that addresses each section of the CCWG proposal to make our position clear.   There is still quite a wide range of views amongst the Board and staff on some items in the CCWG proposal - so some of the vagueness in replies is because there is not clarity yet within the Board on some items.   Hopefully that will emerge in a day or so.

Speaking personally - my perspective is most of what is in the CCWG proposal for workstream 1 is fine by me with respect to the IRP.   I think the exact rules of procedure need some refinement - so our statement that we can at least roll back the most recent change was simply to gain some time to work on those rules - I am thinking a 3 months for a focussed group not years.



>>  Perhaps when we use the word "enforceability" we simply mean different things?

>>  When I talk about a decision that is enforceable against ICANN, I mean one which ICANN has to comply with. In the final analysis, that would mean the ability to go to court and get an order.

Yes - I think the Board shares that understanding as well.  We are advised that there is an alternative to the sole member model - once the details are available the CCWG and Board members can form their own view.



> 
> 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.

>>  If that is the limit of your problems with the Sole Membership Model, there is scope for dialogue and collaborative working.

Speaking personally - if the model being proposed by the ICAMNN legal team is not viable - then I also agree that the sole member model could be refined to deal with some of the concerns that have been raised.    As has been noted - there is no legal issue with the sole member model, it is a matter of how the balance of power is implemented in the model - particularly between Governments, industry and civil society.
.
>>  In many important respects the Board is wholly unaccountable. That is not intended as a personal slight; it is an assessment of the current structure.

I don't think that is true.   I agree that you can make it more accountable - but I disagree that it is unaccountable.

For example, the community elects/appoints Board members - for fixed three year terms.   In any given year - 1/3 of the Board can be changed, and in two years, 2/3 of the Board can be changed.     A new Board presumably can change back anything that the community does like. 

The Board also is legally accountable for managing the organization in accordance with the law.   Directors can feel the full force of the law, and have personally legal liability in this regard.

Just some examples - I fully accept the need for more accountability - as does the whole board.   I am just reacting to blanket statements that I don't believe are correct.

I assume the current accountability for SO and AC leaders is much the same.   Ie many have fixed appointments and go through some form of election/selection process.   So if the Board is so unaccountable - doesn't the same apply to everyone else as well?   All the proposals seem to rely on decisions made by SO and ACs that consist of the same sort of  people that make up the Board.


Regards,
Bruce Tonkin

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