[CCWG-ACCT] Regarding the Board's Comments and It's Obligations

Thu Sep 10 21:37:50 UTC 2015

Hi Megan,
I could not agree more regarding your assertion that “governments and public authorities are those best placed to determine public policy issues”.   I thought I heard Fadi say on the call last week that he thought the 5 votes accorded the GAC in the Community Mechanism Sole Member recommendation might be viewed negatively by NTIA as “undue government control”.  (Perhaps I misheard or was wrong about this?)  The discussion relates to one of the NTIA conditions for transfer.

If representatives of particular governments share their views with the Board directly or if the Board receives a letter directly from a public authority that is not a government, the content of such communications could be considered to be policy advice that informs the judgment of individual Board members, whether such advice is provided formally or informally.  The Board does not live in a vacuum and they are all experienced and have multiple contacts in this arena.  All of this advice may figure into individual votes of directors in the current nonprofit corporation structure (which is not a membership corporation structure) since individual directors exercise their independent professional judgment when voting.  They also, I am sure, accord deference to formal policy advice as required by the By-Laws.   As we have seen in the past, such advice may be conflicting.

My own views on various matters, e.g. GAC safeguards, IOC/RC names, .africa, .amazon,  are not particularly relevant to this discussion of organizational structure.   My point is I think it would be unrealistic to say that the proposed Community Mechanism Sole Member non-profit membership corporation structure is somehow more vulnerable to “government control” than the existing non-profit corporation structure.   In fact I think there are those who would assert that the proposed membership corporation structure is less vulnerable in this regard in that it would arguably make the Board more “accountable” to the Community as a whole due to the remedies provided through enforcement of certain membership rights.

The foregoing notwithstanding, I personally would retain the current status of GAC consensus advice (however consensus is defined) and classify that as a “fundamental by-law”, and especially so if the GAC chooses not to exercise 5 votes in the Sole Member.

With respect to resolving policy differences in the Community BEFORE they reach the Board level, I think we are all hopeful that the new policy tools of GNSO Input, GNSO Guidance, and Expedited PDP (along with the renewed efforts at establishing communication lines between the GAC and the GNSO) will bear fruit going forward.
Anne

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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: Megan.Richards at ec.europa.eu [mailto:Megan.Richards at ec.europa.eu]
Sent: Thursday, September 10, 2015 1:17 AM
To: Aikman-Scalese, Anne; sdelbianco at netchoice.org; gregshatanipc at gmail.com; ceo at auda.org.au
Cc: accountability-cross-community at icann.org; Maciej.TOMASZEWSKI at ec.europa.eu; Cristina.MONTI at ec.europa.eu; Thomas.Schneider at bakom.admin.ch
Subject: RE: [CCWG-ACCT] Regarding the Board's Comments and It's Obligations

Thanks for this but there are two aspects that I don't understand and I quote:

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."

Could you give some examples of the kind of advice identified in red ?  I am not aware of such as in principle all such advice is officially provided via the GAC Communiqué and endorsed by all GAC members (or where there are dissenting opinions to same those are provided as well)

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."

Can I interpret this as suggesting that GAC advice and the current status of GAC advice is not problematic and would in any event not develop into "undue government influence" or are you implying that more needs to be done to avoid such "undue influence"?  (It seems to me that there is no "undue government influence" as GAC Advice is on public policy issues and none of that has changed – governments and public authorities are those best placed to determine public policy issues)

Many thanks

Megan Richards

Megan RICHARDS
Principal Adviser

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European Commission
Communications Networks, Content and Technology Directorate-General

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From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Aikman-Scalese, Anne
Sent: Wednesday, September 09, 2015 9:13 PM
To: 'Steve DelBianco'; Greg Shatan; 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

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

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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> [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<mailto: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
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