[CCWG-ACCT] Your public comment re replacement of IANA provider

Phil Corwin psc at vlaw-dc.com
Mon Sep 21 03:09:17 UTC 2015


Let us remember that this entire transition exercise began because it was deemed by some to be necessary, post-Snowden revelations, for the U.S. to transfer its (minor and clerical, although not without substantial and sobering backstop  effect)  review role regarding root zone changes to the global multistakeholder community. And that this was allegedly necessary to save the multistakeholder model and prevent its transition to one of government-dominated multilateralism. 

Well, the CCWG proposal is the output of the multistakeholder community -- and is perhaps the highest expression of the capabilities of the MSM to date. It is a remarkable piece of work to be produced so quickly. 

As for the Board's proposal, it is the product of the Board and its lawyers. It may be sincere and well-intentioned, but it is not the product of a multistakeholder process.

Clearly, the only answer consistent with devotion to the MSM is to adopt the CCWG proposal as the baseline.

And while individual components of the Board's Comments Matrix may improve and enhance the CCWG proposal and certainly should be considered , on the central question of whether to go with the SMM or the MEM my personal view is that the burden of proof is on the Board and any other MEM proponents to demonstrate that it better enables the accountability desired by the community than the SMM. If it does not it should be rejected, as this is no time for the CCWG to be diverted from project completion. 

That is especially true because the MEM is just as untested as the SMM, and the Board's stated concerns about instability, capture, or analysis could just as well apply to it -- none of us know how these theories will actually play out in practice. 

And it is further true because there is not a single instance in which the Board has asserted that the CCWG's Proposal is in any way unlawful; much less one that will be at odds with the Global Public Interest, which under the CCWG's Charter is the standard for triggering mandatory consultation with the CCWG over the final proposal.



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 Paul Rosenzweig
Sent: Sunday, September 20, 2015 9:35 PM
To: 'Chris Disspain'; 'Nigel Roberts'
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider

Surely that isn't the righ question -- especially since the CCWG proposal is still in development.  It only distracts  Rather the right question is -- is the Board's proposal the right baseline to start from or is the CCWGs?  I think I know which one Nigel prefers :-)

Paul

Paul Rosenzweig
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Link to my PGP Key


-----Original Message-----
From: Chris Disspain [mailto:ceo at auda.org.au] 
Sent: Sunday, September 20, 2015 2:37 PM
To: Nigel Roberts <nigel at channelisles.net>
Cc: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] Your public comment re replacement of IANA provider

Hi Nigel,

Just landed in the U.S. so will respond as soon as I can. 

Meanwhile, a question for you. What are your thoughts on the current CCWG
proposal? Would you sign off on it?

Chris Disspain
CEO - auDA

> On 20 Sep 2015, at 19:40, Nigel Roberts <nigel at channelisles.net> wrote:
> 
> Nice try. But I'll bite anyway . . .
> 
> ________________________
> 
> Perhaps.
> 
> I can see nothing that THAT IS DESIGNED TO lead to the perception that the
board disagrees with the strategic accountability goal.
> 
> But plenty that raises the suspicion that it is designed NOT to lead to
that perception.
> 
> What I find interesting is that the Board, instead of merely pointing 
> out the disagreements or potential workability issues with the CCWG's 
> plan, has put together its own competing bid
> 
> Why did you buy a dog, if you are going to bark yourself?
> 
> THIS is one of the things that leads me to the "history repeating itself"
suspicion.
> 
> Because the next thing we will be told:
> 
> "We have to do this (insert defective plan of your choice here), because
there is no time to do anything else, and if we wait any longer, transition
will never happen because (election/regime change)".
> 
> The problem is as I see it is this.
> 
> Once the transition happens, there is no incentive for anyone to fix
anything that we don't like now.
> 
> ICANN will, in law, simply be a private company, entirely owned by its
Board.
> 
> 
> Nigel
> 
> 
> 
>> On 20/09/15 09:46, Chris Disspain wrote:
>> Hello Nigel,
>> 
>>> ......the perception that ICANN ("the corporation") seems to be
positioning itself as in disagreement with the strategic goal of ensuring
the corporation becomes (I was going to say 'remains' but that's entirely
inaccurate) accountable to the people it was designed to serve.
>> 
>> 
>> I can see a number of examples of the board, as part of the community,
disagreeing with specific aspects of the CCWG proposals but I can see
nothing that might lead to the perception that the board disagrees with the
strategic accountability goal. Unless, of course, the mere disagreement on a
specific aspect is to be taken as evidence of that.
>> 
>> Could you perhaps provide some indications of what might be leading you
to your perception?
>> 
>> Cheers,
>> 
>> Chris
>> 
>>> On 20 Sep 2015, at 18:35, Nigel Roberts <nigel at channelisles.net> wrote:
>>> 
>>> Bruce
>>> 
>>> Here's my impression of where the Board is at.
>>> 
>>> I am starting to get the perception that ICANN ("the corporation") seems
to be positioning itself as in disagreement with the strategic goal of
ensuring the corporation becomes (I was going to say 'remains' but that's
entirely inaccurate) accountable to the people it was designed to serve.
>>> 
>>> I don't see much evidence of the "we are all ICANN" tree-hugging that,
at least, to some extent, is required from time to time in the
organisation's history.
>>> 
>>> 
>>> In the last 10 years I've become able to argue the finer points of legal
construction with the best of them, but that's not what, I feel, is needed
now. But that's what seems to be going on. I feel ICANN's legal advisers are
following their normal instincts -- "protect the client" -- and the client
is seen to be Board/CEO/Staff and the status quo, not the "wider ICANN".
>>> 
>>> I'm willing to be proved wrong, (or as a judge might say: 'I'm prepared
to listen to argument on that point') but I think that, on current
perceptions, that is an uphill road.
>>> 
>>> 
>>> 
>>>> On 20/09/15 09:18, Malcolm Hutty wrote:
>>>> 
>>>> 
>>>> On 20/09/2015 00:48, Bruce Tonkin wrote:
>>>>>>> Except that the Board disagrees with our proposal to extend 
>>>>>>> access to the IRP to all materially affected parties.
>>>>> Where do you get that impression from our submission?
>>>>> 
>>>>> The current state of IRP is:
>>>>> 
>>>>> "Any person materially affected by a decision or action by the 
>>>>> Board that he or she asserts is inconsistent with the Articles of 
>>>>> Incorporation or Bylaws may submit a request for independent 
>>>>> review of that decision or action."
>>>> 
>>>> No, the current state of IRP is:
>>>> 
>>>> "Any person materially affected by a decision or action by the 
>>>> Board that he or she asserts is inconsistent with the Articles of 
>>>> Incorporation or Bylaws may submit a request for independent review 
>>>> of that decision or action. In order to be materially affected, the 
>>>> person must suffer injury or harm that is directly and causally 
>>>> connected to the Board's alleged violation of the Bylaws or the 
>>>> Articles of Incorporation, and not as a result of third parties 
>>>> acting in line with the Board's action."
>>>> 
>>>> That effectively excludes non-contracted parties, who experience 
>>>> ICANN policies "as a result of third parties acting in line with 
>>>> the Board's action" i.e. when ICANN policy is applied to them by
Registries.
>>>> 
>>>> For the IRP to be meaningful to domain registrants, "materially 
>>>> affected" must include materially affected by an ICANN policy.
>>>> 
>>>>> In our submission the Board stated:
>>>>> 
>>>>> "The ICANN Board agrees that any person/group/entity materially 
>>>>> affected by an alleged violation of ICANN's Bylaws or Articles of 
>>>>> Incorporation should have the right to file a complaint under the 
>>>>> IRP."
>>>> 
>>>> If the Board is willing to remove the offending qualification 
>>>> above, then I am glad.
>>>> 
>>>> Malcolm.
>>> _______________________________________________
>>> Accountability-Cross-Community mailing list 
>>> Accountability-Cross-Community at icann.org
>>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>> 
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