[CCWG-ACCT] Regarding the Board's Comments and It's Obligations
Avri Doria
avri at acm.org
Wed Sep 9 20:00:44 UTC 2015
Hi,
Thanks for this.
avri
On 09-Sep-15 15:13, Aikman-Scalese, Anne wrote:
>
> Steve, Greg, et al,
>
>
>
> Considering all that has been said, I harken back to Dr. Crocker’s
> comment in last week’s call. He said, very accurately, in my opinion,
> that the CCWG proposal leans toward changing the Board from a “Board
> of a Directors to a body of elected representatives.” I believe that
> it is the nature of this particular proposed change that is driving
> the bulk of the Board’s resistance to the Community Mechanism Sole
> Member structure. My perspective (having only been involved since
> 2010) on this change in roles is as follows:
>
>
>
> 1. It seems to me that in many situations, the Board has stated
> that it does not make policy and does not want to make policy, but
> rather that the Community makes policy and that this is the beauty of
> the Multi-Stakeholder Model.
>
>
>
> 2. Based on my limited 5 year experience as well as active
> participation in the GNSO Policy & Implementation Working Group where
> we studied various examples of policy-making prior to making our
> recommendations, I have observed that the Board does in fact make
> policy and it especially does so when constituencies and stakeholders
> cannot agree on what the final policy should be. (I apologize for
> coming “late to the party”, but this was due to active participation
> in the Policy & Implementation Working Group.)
>
>
>
>
>
> 3. The Board receives policy advice from the GNSO, the GAC,
> ALAC, and others. The advice received by the Board is not even
> limited to advice received from the Community. It may in fact receive
> advice from individual governments or entities such as the European
> Commission. In many situations, the desire to move forward even in
> light of strong differences of opinion has resulted in Board policy
> being made where the Community has not reached consensus. In this
> regard, individual Board members have also been put in the position of
> assessing various risks – e.g. the risk of a transfer of authority to
> some other entity.
>
> 4. Further evidence that the Board makes policy comes in the
> form of the creation of the New gTLD Program Committee, which was
> required to be free of conflicts of interest precisely because it was
> known they would make policy when making decisions. In this regard,
> the NGPC was delegated full Board authority.
>
>
>
>
>
> 5. In its Accountability proposal, the CCWG-ACCT seeks to
> establish a structure which is much more in line with the Board’s
> stated desire not to make policy. It brings the stakeholders together
> in a forum that provides for voting and exercise of powers if the
> Board does not execute policy as the Sole Member believes it was
> intended to be executed.
>
>
>
> 6. The proposed structure also appears to be designed to avoid
> undue government influence, but I have not heard anyone on the GAC say
> they are willing to change the current status of GAC advice under the
> By-Laws.
>
>
>
> 7. A possible difficulty with the proposed structure is that
> bringing together the Community in the form of the Community Mechanism
> Sole Member does not necessarily mean that there will be agreement
> among stakeholders with respect to establishing and executing policy.
>
>
>
> 8. Under the current structure, the Board resolves differences
> among stakeholder groups by making judgments based on input received
> from all those who provide input. It is essentially this function
> which I think the Board is reluctant to relinquish to the voting
> structure of the Sole Member. The directors are qualified and
> experienced professionals who believe they serve on the Board for the
> purpose of exercising their best independent professional judgment in
> matters of concern to the Community and the world with respect to the
> functioning of the Internet.
>
>
>
> 9. It therefore gives Board members great pause when they see
> that even in the best exercise of their independent professional
> judgment, they are subject to recall via the Sole Member structure and
> their view may be that this recall could, under certain circumstances,
> be unfounded.
>
>
>
> 10. Greg clarified this issue when he said there is a difference
> between a Board that serves a non-profit MEMBERSHIP corporation
> (proposed structure) and a Board that serves a non-profit corporation
> (current structure). However, the Community has been complaining that
> the Board serves the corporation itself (as it is bound to do) and not
> the Community and that this is precisely why important Accountability
> measures are in order prior to the IANA transition.
>
>
>
> 11. We may be learning that despite a public stance previously taken
> that the Board does not make policy because the Community makes
> policy, the Board in fact is most valuable to the Community in its
> role of resolving differences when the Community is unable to resolve
> those differences itself.
>
>
>
> 12. We are very definitely at a “fork in the road” with respect to
> the role of the ICANN Board of Directors. It is particularly
> important that everyone be extremely candid about this. I personally
> would anticipate that if the recommendations of the CCWG-ACCT are
> adopted, the composition of the Board and the type of Board members
> being sought (and willing to serve) may well be different from the
> individuals previously recruited and currently serving.
>
>
>
> 13. Having said all of the above, I continue to support the CCWG –
> ACCT Community Mechanism Sole Member proposal – precisely because it
> is actually a closer reflection of what everyone has been saying is
> SUPPOSED to happen in the unique and proper functioning of the
> Multi-Stakeholder Model. If we really believe in this MS Model and
> believe that it actually works, we should be ready to adopt the
> Community Mechanism Sole Member structure.
>
>
>
>
>
> 14. On the topic of potential undue government influence and the
> NTIA view of such influence, the GAC has not yet said it will
> participate in the Sole Member with a voting role. If I were
> representing a GAC government, I would have serious concerns about
> this level of participation as it appears to me it represents a
> conscious choice to submit to the jurisdiction of the California
> courts and statutes – or at least arguably so since the Sole Member is
> the sole member of a California non-profit unincorporated association.
> (In this regard, I still did not receive an answer with respect to my
> question regarding the applicability of CA Corporations Code Section
> 18630 which provides as follows: “Notwithstanding any other
> provision of this chapter, a member or person in control of a
> nonprofit association may be subject to liability for a debt,
> obligation, or liability of the association under common law
> principles governing alter ego liability of shareholders of a
> corporation, taking into account the differences between a nonprofit
> association and a corporation.” )
>
>
>
> 15. Because of the recommended formalization of the Sole Member
> structure, I believe the Sole Member should have a separate budget for
> enforcement of its member rights under the California statutes.
> Further, I believe individual directors should agree, upon taking
> office, not to sue the Sole Member.
>
>
>
> 16. If the Board continues in its current role with respect to
> resolving differences and making policy, I think there is actually a
> higher risk that the control of the Internet and the IANA functions
> could be subject to undue government influence. (Witness .africa?)
> Nonetheless, I do personally believe that GAC Advice should continue
> to have special status under the By-Laws, whether or not the GAC
> participates in active voting in the Sole Member. The GAC has
> essentially been the only influence with any “teeth” in the direction
> of consumer protection in the launching of new gTLDs and that consumer
> protection is absolutely critical to promoting trust in the worldwide
> web long term.
>
>
>
>
>
> 17. With respect to the Board’s recommended use of binding
> arbitration as a dispute resolution mechanism, this bears discussing
> with the Community as a whole in the Face to Face meeting. However,
> it is unquestionable that in practice, arbitration can take a very
> long time and especially in relation to both sides settling on an
> arbitrator or arbitrators and waiting for availability of particular
> arbitrators who may be qualified to arbitrate disputes in this highly
> specialized arena. Further, not all arbitration rules allow for
> issuance of injunctive relief. The availability of expedited
> injunctive relief in court would seem absolutely critical to the
> process of enforcement by the Sole Member of Community powers. In the
> private sector, we often conclude agreements which provide for
> arbitration but do not prohibit seeking injunctive relief pending such
> arbitration decisions.
>
>
>
> I apologize in advance for any statements made out of lack of
> knowledge or experience. So far in my ICANN education and
> orientation, it seems that the only way to contribute and to learn as
> a relative newcomer is to jump in with both feet and be prepared to be
> embarrassed by someone.
>
>
>
> I support discussing the Board’s concerns in a face-to-face meeting of
> the CCWG-ACCT in Los Angeles September 25 and 26. I also agree with
> those who have observed that this meeting should be set in the very
> near future.
>
>
>
> Anne
>
>
>
> **
>
>
>
> *Anne E. Aikman-Scalese, Of Counsel*
>
> *Lewis Roca Rothgerber LLP | *
>
> *One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611*
>
> *(T) 520.629.4428 | (F) 520.879.4725*
>
> *_AAikman at LRRLaw.com <mailto:AAikman at LRRLaw.com>_**| www.LRRLaw.com
> <http://www.lrrlaw.com/>*
>
>
>
>
>
> **
>
>
>
>
> * *
>
>
>
> *From:*accountability-cross-community-bounces at icann.org
> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
> Of *Steve DelBianco
> *Sent:* Wednesday, September 09, 2015 6:03 AM
> *To:* Greg Shatan; Chris Disspain
> *Cc:* accountability-cross-community at icann.org
> *Subject:* Re: [CCWG-ACCT] Regarding the Board's Comments and It's
> Obligations
>
>
>
> Fully agree with your description of ‘participation’, Greg.
>
>
>
> As I said on yesterday’s CCWG call, now is the time for the full board
> and its lawyers to engage in some ‘participatory’ engagement, by being
> specific about perceived risks and problems with CCWG’s proposal.
> That will allow CCWG to react to those specifics, either thru
> explanation or adjustments to the proposal.
>
>
>
>
>
> *From: *<accountability-cross-community-bounces at icann.org
> <mailto:accountability-cross-community-bounces at icann.org>> on behalf
> of Greg Shatan
> *Date: *Tuesday, September 8, 2015 at 11:54 PM
> *To: *Chris Disspain
> *Cc: *"accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>"
> *Subject: *Re: [CCWG-ACCT] Regarding the Board's Comments and It's
> Obligations
>
>
>
> Chris,
>
>
>
> First, I would like to say that you and Bruce Tonkin have been models
> of participation. Other board members have participated from time to
> time, but you have been through the process with us on a fairly
> regular basis -- both in calls and on the email list.
>
>
>
> As far as the call with the Board as a whole, I think "participation"
> would have looked far more collaborative and a lot less like we were
> being overruled. It would have looked more honest where there were
> points of disagreement. It would have looked like a Board looking for
> ways to make our proposal work, rather than excising significant
> elements. It would have looked like a Board being more specific and
> explicit about points of concern so that these could be solved,
> instead of relying on vague characterizations that could not even be
> identified with enough specificity to work through them. It would
> have looked like a give-and-take process, not the delivery of a
> counter-proposal. It would have felt more engaged and less scripted
> and spun. It would have felt like the Board was seeking
> understanding, rather than seeking to replace what it did not
> understand (or understood, but did not like).
>
>
>
> Greg
>
>
>
> On Tue, Sep 8, 2015 at 5:51 PM, Chris Disspain <ceo at auda.org.au
> <mailto:ceo at auda.org.au>> wrote:
>
> Hi Greg,
>
>
>
> We can choose to treat the Board's intervention as
> "participation," but it did not have the feeling of participation
> to me.
>
>
>
> So what would participation look like to you?
>
>
>
>
>
> Cheers,
>
>
>
> Chris
>
>
>
> On 9 Sep 2015, at 05:52 , Greg Shatan <gregshatanipc at gmail.com
> <mailto:gregshatanipc at gmail.com>> wrote:
>
>
>
> Did anyone get the license plate number of the bus that
> "participated" with me?
>
>
>
> We can choose to treat the Board's intervention as
> "participation," but it did not have the feeling of participation
> to me. It had the feeling of the Board attempting to exercise its
> position of power.
>
>
>
> On Tue, Sep 8, 2015 at 3:03 PM, Seun Ojedeji
> <seun.ojedeji at gmail.com <mailto:seun.ojedeji at gmail.com>> wrote:
>
> Hi,
>
> Even though I would have preferred seeing board's comment earlier
> than now. I believe what is written below is still order. I quote
> a section below that may need to be in bold as well.
>
> "....if we have views on that proposal, we should participate with
> the community."
>
> We are still in proposal development process and board is
> participating in the process.
>
> Regards
>
> Sent from my Asus Zenfone2
> Kindly excuse brevity and typos.
>
> On 8 Sep 2015 19:58, "Paul Rosenzweig"
> <paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweig at redbranchconsulting.com>> wrote:
>
> All
>
>
>
> In preparation for our call today, I wanted to share with you
> the following that I pulled from the hearing that the Senate
> Commerce Committee held earlier this year:
>
> ***
>
>
>
> The Chairman: Will the ICANN Board send a proposal to NTIA
> that lessens the Board’s power or authority?
>
> Mr. Chehade: We will if the community and the stakeholders
> present us with a proposal. We will give it to NTIA, and we
> committed already that we will not change the proposal, that
> if we have views on that proposal, we should participate with
> the community. Once that proposal comes from our stakeholders,
> we will pass it on to NTIA *as is*.
>
> ***
>
> I would read this as a commitment from ICANN and the Board.
>
> Paul
>
>
>
>
>
> Paul Rosenzweig
>
> Red Branch Consulting, PLLC
>
> 509 C St. NE
>
> Washington, DC 20002
>
> paul.rosenzweig at redbranchconsulting.com
> <mailto:paul.rosenzweigesq at redbranchconsulting.com>
>
> O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660>
>
> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650>
>
> VOIP: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>
>
> Skype: paul.rosenzweig1066
>
> www.redbranchconsulting.com <http://www.redbranchconsulting.com/>
>
> www.paulrosenzweigesq.com <http://www.paulrosenzweigesq.com/>
>
> Link to my PGP Key
> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>
>
>
>
>
>
>
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