[CCWG-ACCT] Fundamental Differences Beteen SMM & MEM--RE: Summary Comparison Chart of Board Comments Matrix and Notes

Mon Sep 14 19:21:57 UTC 2015

Many thanks to Greg and Phil for their detailed analysis.  I also think Avri’s suggestion re: implementation of the Sole Member Mechanism pending official transition in fall 2016 is very constructive.

I am going to avoid the procedural issues with this new proposal and try to get a better understanding of the comments.

These elements may be touched in Greg’s chart somewhere but on an “aerial view” of the MEM, I had the following questions:

1.       What level of consensus would operate to initiate enforcement action?  What level would be necessary within any given SO/AC to initiate enforcement and then what level for the entire Community to consider and develop Consensus?  Does the Board anticipate there would be any delays resulting from the MEM “consensus enforcement decision” process as opposed to the Sole Member voting process?  I am familiar with Working Group consensus levels as defined in the Policy Development Process Manual.  I also Chair the GNSO Standing Committee on Improvement Implementation (SCI) for 2015 and have been on that Committee a few years as IPC designate. SCI works on full consensus which we believe is appropriate when considering procedural matters for GNSO Council.  However, it is clear that this level of consensus requires an enormous amount of time.  Then there is an animal within ICANN known as “Consensus Policy” and that requires a PDP and results in binding contractual obligations for Contracted Parties.   In the MEM proposal from the Board, what specifically  is meant by the use of the word “consensus” in each instance?

2.       What would determine the composition of the MEM and what level of voting by that group would be necessary before enforcement is initiated?  (Is it representative in nature as is the Sole Member model?)  in other words, what is the exact interplay between the “Community Consensus” for enforcement and direct action taken by the MEM?

3.       If the MEM has capacity to sue for enforcement as stated in the Board proposal, what is its legal personhood?  Is it a California non-profit association?   What statutes govern?  Or are all of its obligations contractual within ICANN?   Is there any potential conflict between the CA statutes that may apply to the legal person of the MEM and the structure and operation that is proposed by the Board?  (Sidley Adler analysis appropriate here.)  Has the proposed alternate structure been analyzed by Jones Day?

4.       What standards would the MEM members use to determine injunctive relief?  Courts are bound by precedent and legal elements that must be strictly analyzed for such relief.  Members of the MEM would not be.  What would be the process for determining the standards to be applied by the MEM for injunctive relief?  Would they be bound by legal precedents?  (Sidley Adler to weigh in here.)

5.       Regarding injunctive relief, it appears this could not be instituted until consensus across the community is established (as opposed to voting within the Sole Member).  History indicates there is a potential lack of effectiveness in waiting to reach such a Community Consensus.  (In many cases, this is why the Board acts to resolve differences.)  If the Community is unable to act on a full consensus basis, is the enforcement mechanism effective?  Does a lack of full consensus mean the Community should not act to exercise any powers?

6.       Is there some reason to believe that the MEM would be less vulnerable to capture than the Sole Member?

7.       Are there other measures to avoid capture within the Sole Member if that is the chief concern?  If GAC participation in the Sole Member is the chief capture concern that may be raised by NTIA (as alluded to by Fadi on the call) and yet the GAC has not yet decided whether it will participate, then what are we speculating about?  If the GAC does not participate in the voting process relative to the Sole Member but maintains the current formula of elevated status of GAC Advice to the Board, how does this affect the analysis of potential for capture of the Sole Member?  (In this regard, I disagree that the remaining “commercial interests” represent a recipe for capture.   The commercial interests reside within the GNSO and there is plenty of disagreement there.)   What is ALAC doing? If the GAC elects to stay out of the Sole Member and rely on the status of GAC Advice to the Board,  could the CCWG agree that the status of GAC advice would be a Fundamental By-Law?

8.       Given the above, does the Board’s proposed alternate structure actually increase accountability? This is a subject for further discussion within the CCWG and in the meetings in Santa Monica.  Prior to that meeting, it would be helpful to have some additional analysis from outside counsel of the Board’s alternative proposal.    Certainly we want to consider the Board’s thoughts on this matter in a thoughtful way.  It nevertheless poses huge obstacles to the timeline in the degree of analysis that would be required.

Alternatively, Avri’s idea is very creative and also respects the Multi-Stakeholder bottom-up process.  In other words, determine in Dublin whether or not GAC and ALAC will participate in the Sole Member, then transmit the plan to NTIA,  institute the Sole Member in 2016, and pull the trigger on the transition in the fall of 2016.  If not successful, punt, fall back, play defense.

It does not make sense to me to speculate that NTIA will reject the recommendation of the CCWG and refuse to certify the transition to Congress because of the “risk of capture” of the Sole Member.  In fact, when we consider some of the issues that have been the topic of Congressional public hearings, it seems to me Congress may be more concerned about the “risk of capture” related to the operation of the current structure.  There is even a bill in Congress to disapprove the transition unless Amazon is given the .amazon TLD since one viewpoint in Congress is  that this decision was representative of government “capture”.  (For the record, I have no stake in the .amazon decision.)

I certainly do not think the Board is saying “do it our way or we won’t transmit to NTIA as we promised in our Board resolution”.  Let’s assume 100% good faith on their part and address the comment substantively. However, given all the hard work undertaken by this CCWG and the bottom up process followed, fear of disapproval of the IANA transition should not motivate the structural changes (or lack thereof) proposed for increasing Accountability within ICANN.  It makes much more sense to me to believe that the Executive Branch of the USG has every reason to move this transition forward before the President leaves office.

I am originally from the Midwest and will use a farmer’s analogy here. If the risk identified in the CCWG proposal is “capture”, could it be that the alternate structure proposed by the Board is “burning down a barn to roast a steer?”  (I’ll stay away from pig roasting analogies on Rosh Hashannah.)

The next call begins at 11 pm tonight for me  – not sure of being able to make that one so my thoughts/questions are as shown above.  Very interested to see a Sidley Adler analysis of the Board’s proposal prior to the face to face if possible.  (I am not a California lawyer.)
Anne

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From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Phil Corwin
Sent: Sunday, September 13, 2015 6:06 PM
To: Greg Shatan; accountability-cross-community at icann.org
Subject: [CCWG-ACCT] Fundamental Differences Beteen SMM & MEM--RE: Summary Comparison Chart of Board Comments Matrix and Notes

Thanks for doing this Greg. It is very helpful (and Happy New Year).

And thank you for discerning that the Board may be urging that the WS2 work be shunted to the dead end swamp of a PDP. I think this would be a grave mistake, jeopardizing both cohesion and inertia. If anything like this was adopted I would urge a re-think and expansiomn of what should be in WS1 and thus assured of timely implementation.

As for your observation at the top of the second page, “Unclear what is meant by “community powers” (may be referring to Fundamental Bylaws)”, the answer can be found in the Memo on proposed Approach for Community Enforceability:

  *   MEM arbitration would only be for alleged violations of Fundamental Bylaws, while the CCWG’s SMM-based IRP would be available for alleged violations of any part of AOC or Bylaws. Under  the MEM proposal, for anything other than a Fundamental Bylaw allegation only the present IRP (which is limited scope and only advisory, at least according to the longstanding Board and Jones Day position – is that still the case post-.Africa?) would remain in place as the available, inadequate remedy.
  *   Under MEM, if the Board were found to have violated a Fundamental Bylaw it would be required to remedy that, but in a manner “within its discretion”. That could allow for a very watered down response that nonetheless might qualify as an acceptable remedy, and there is no clear way for community to challenge the Board’s decision. The SMM’s IRP allows for a binding decision to be ordered implemented by the Board.
  *   Access to courts is available under MEM only if the Board has failed to remedy after an adverse decision. But, as just noted, the discretion leeway might allow for a very weak ‘remedy’ that nonetheless could still be deemed sufficient to block access to the courts. Court access is assured under the SMM.

If the Board’s alternative were to be adopted I think it would be incumbent upon the CCWG to review and probably expand the number of Fundamental Bylaws, as they would be the only basis for invoking a MEM arbitration. That would of course have the downside of making more of the Bylaws subject to a higher threshold for change.

Given the input that the CCWG received from its lawyers, I remain skeptical that the MEM provides a model that creates adequate legal standing for court access. Even if it does, the individuals composing the MEM Issue Group would appear to have potential personal liability, although the MEM proposal says that ICANN will indemnify and hold them harmless due to that. Regardless of that offer, the individuals involved (heads of internal ICANN groups) may still hesitate to invoke MEM much more than under the framework of the CCWG’s SMM proposal because of the risk of being personally caught up in litigation – and potentially liable.

In that litigation liability regard, note Q. 14 in the FAQ document:
Q14: Does the MEM Issue Group possess the right to sue ICANN in order to enforce the MEM arbitration decision in court? If so, is there a risk that the MEM Issue Group can be sued?
A14: The capacity to sue comes along with the capacity to be sued, although it is highly unlikely that the MEM Issue Group would engage in any conduct that would be subject to litigation. In any event, ICANN will indemnify the MEM Issue Group, and will bear the fees and expenses that might be incurred in any lawsuit arising out of the enforcement of a MEM final arbitration decision. (Emphasis added)

Therefore, there is a possibility that in a very heated future disagreement, ICANN might express its view that the individual members of the MEM were potentially engaging in conduct subject to litigation and that invoking a MEM arbitration might invite a countersuit. That could certainly dampen the willingness to proceed. Even if the hold harmless and indemnify pledge bears out, who wants to be caught up in the misery of a lawsuit?

Summing up, as I read it, the scope of Board action subject to MEM-triggered arbitration is much narrower than under the CCWG’s proposal, and the Board retains very broad discretion to respond to an adverse MEM decision with a weak remedy that could nonetheless be sufficient to block access to court.

So the Fundamental Difference between the CCWG Proposal and the Board’s proposed alternative is not just replacement of the SMM with the MEM, all other things being equal. The scope of actions subject to MEM arbitration would be much narrower, the ability to compel the Board to take a particular action would be substantially diluted, and the individuals comprising the MEM would be exposed to litigation risk. I don’t see how that squares with the level of enhanced accountability deemed necessary by the CCWG.

That is my reading of what the Board has provided. If I am wrong in any aspect of that reading then I would appreciate being so advised.

Best to all,
Philip

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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 Greg Shatan
Sent: Sunday, September 13, 2015 3:03 PM
To: accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>
Subject: Re: [CCWG-ACCT] Summary Comparison Chart of Board Comments Matrix and Notes

Here is the PDF.

Greg

On Sun, Sep 13, 2015 at 3:01 PM, Greg Shatan <gregshatanipc at gmail.com<mailto:gregshatanipc at gmail.com>> wrote:
All,

I've reviewed the Board's Comments Matrix and Notes in some detail.  I found it somewhat difficult to extract the key disagreements with and differences from our proposal, given the length and format of the document.

I've prepared a chart attempting to summarize all of the key disagreements/differences (and mentioning a few but not all of the key points of agreement as well). I've also inserted my own notes, as well.

I found this very helpful and I hope you will too.  If desired, I can put this up as a Google Doc if others want to refine it or comment on it collaboratively.  I'll send a PDF shortly.

Many of the Board's key points have been mentioned in prior discussions or documents.  There is one important point that I don't recall seeing earlier.

The Board essentially rejects the idea of Work Stream 2 and wants all of this work done using other ICANN community processes instead.  This is explained fully in point 47, but foreshadowed in a number of places throughout the document.

I hope you find this useful.

L'shana Tova and Happy New Year to those observing the holiday.

Regards,

Greg

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