[CCWG-ACCT] comments from Ira Magaziner

Wed Sep 16 05:45:55 UTC 2015

On capture there are some interesting paras within the ICG-proposal which perhaps could be also considered as an element:

58 The combined proposal does not replace NTIA’s role with a government or inter-governmental organization.
59 The names proposal replaces NTIA’s various roles as they relate to the naming functions with the combination of ICANN, the CSC, and the IFR, none of which are governments or inter-governmental organizations. Establishing the PTI as an affiliate of ICANN allows the community to rely on ICANN’s accountability mechanisms and safeguards to prevent capture, including by governments.
60 Although a government that operates a ccTLD may become a member of the CSC, governments are expected to comprise at most a minority of the CSC. The IFR is a multistakeholder entity with limited membership seats for governmental entities.

Regards

Jorge

Von: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] Im Auftrag von Aikman-Scalese, Anne
Gesendet: Dienstag, 15. September 2015 23:31
An: 'Thomas Rickert' <rickert at anwaelte.de>
Cc: Thomas Rickert <thomas at rickert.net>; Accountability Cross Community <accountability-cross-community at icann.org>
Betreff: Re: [CCWG-ACCT] comments from Ira Magaziner

Many thanks Thomas – very helpful.
Anne

[cid:image001.gif at 01D0F053.B7602E30]

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: Thomas Rickert [mailto:rickert at anwaelte.de]
Sent: Tuesday, September 15, 2015 1:50 PM
To: Aikman-Scalese, Anne
Cc: Thomas Rickert; Accountability Cross Community
Subject: Re: [CCWG-ACCT] comments from Ira Magaziner

Hi Anne,
please find my responses to your questions below.
---
rickert.net<http://rickert.net>

Am 15.09.2015 um 00:02 schrieb Aikman-Scalese, Anne <AAikman at lrrlaw.com<mailto:AAikman at lrrlaw.com>>:
Thanks Thomas.  It appears Ira had a chance to read the Board’s comments since he talks about discord between the CCWG and the Board.

A couple of comments on Ira’s text:

FIRST:  “Therefore, the ultimate proposal should be one that does not create too many burdensome processes that would hinder the internet and its users. And the ultimate proposal needs to preserve the current balance among stakeholders.”  During the call, did Ira offer comments regarding a comparison of the burdensome nature of the processes described in the CCWG Second Report versus the burdensome nature of the  processes described in the Board’s alternate proposal?  Did he say whether he thought the voting structure arrived at by the CCWG for the Sole Member in fact did not “preserve the current balance among stakeholders”?

No to both.

SECOND: “Finally, I think that It very important that the community achieve consensus on a proposal. If there is discord, particularly between the CCWG and the ICANN board, it will doom any proposal to failure.”   I would have to disagree with the notion that “Community Consensus” requires consensus with the ICANN Board.   It is CCWG consensus that is required.  The Board resolved to forward the Community proposal to NTIA after it is finalized (with WG consensus) and the Board input is duly considered.  Certainly the proposal may be accompanied by a letter from the Board to the NTIA.  In this letter, the Board would have to decide whether it wants to say that the result of the CCWG –Accountability is “not in the global public interest.”  If that is the case, then the entire Multi-Stakeholder Model credibility is completely blown because the Board would be saying that the MS Model does not work and the result of the CCWG’s work endangers the global public interest.

As previously mentioned, I think it is ultimately the Congressional view under the DOTCOM Act that will either move the transition forward or “doom it to failure”.   In this regard, I don’t see how anyone is in a position to state definitively that the Single Member Model poses a greater risk of capture than presently exists or than is contained in its proposed alternative.   There will be too much testimony in Congress about .amazon and .africa at that point.  Congress has been told that the Board will forward the Community proposal to NTIA. If that process is disrupted, you can imagine that this will create mountains of distrust on Capitol Hill.  (If the CCWG suddenly adopts the Board proposal out of fear of lack of NTIA approval, then that is “Board capture” of the bottom-up MultiStakeholder process.)

The CCWG has determined there are increased Accountability measures that should be in place prior to the transition.  Congressional hearings thus far confirm the risk perceived is in relation to the current structure.  Nor should the CCWG or the Board  underestimate the power of the lobby in relation to these issues when Congress reviews the proposal pursuant to the DOTCOM Act.  We will “cross that bridge when we come to it”, but we absolutely need to be able to verify that it was a true following of the Multi-Stakeholder process that produced the result.  Otherwise, Congress may hold prolonged hearings in 2016 and then determine in 2017 that the Internet policy-making process is broken and that more Dept of Commerce supervision is needed, not less.  (This could of course happened anyway.)  The Board should be just as focused on these concerns as it is on projections regarding NTIA reaction to the Sole Member Model.

My view is that substituting the Board’s proposal is a great way to defeat the IANA transition in Congress.  If I were against the IANA transition, I would adopt it with no changes.  However, I remain confident that if the concern is capture, then there are more conservative ways of addressing that concern within the context of the Sole Member Model developed by the CCWG. Given that the NTIA conditions are focused on government control,  I also don’t quite see how 5 GAC votes (out of 27?) poses the type of capture risk being posited.  Could someone who believes this please enlighten me?

How could the GAC capture the Sole Member?
How could the GNSO capture the Sole Member?
How could any SO or AC capture the Sole Member?

I do not think there is the risk of capture since what we proposed was based on thorough thinking to avoid exactly that. However, I think we need to make sure to explain more why there is no such risk with what we proposed and listen to those that have concerns of capture.

Thanks,
Thomas

Thank you,
Anne

[cid:image001.gif at 01D0F053.B7602E30]

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 Thomas Rickert
Sent: Monday, September 14, 2015 1:26 PM
To: Accountability Cross Community
Subject: [CCWG-ACCT] comments from Ira Magaziner

All,
please find below a note from Ira Magaziner, one of our Advisors. I have also included his covering note for your attention.

Kind regards,
Thomas

Thomas and Colleagues;

I hope that you do not mind, but I have taken the liberty of framing my views in a short note to you and to Mathieu which is attached. This is not intended for posting but feel free to share it with members of your working groups if you think they will find it useful.

I look forward to assisting you in your important work if you think I can be helpful.

Best Wishes,

Ira

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