[CCWG-ACCT] Summary of current Board sentiment

[Malcolm Hutty]

On 2015-09-27 01:55, Stephen Deerhake wrote:

> Thus it's my
> contention that if the WG continues down this path, this project will
> fail.  Maybe that's what some members of the WG want; I don't know…

If backed into a corner, so be it. I challenge your implication that a
willingness to contemplate continuation of the status quo constitutes 
bad faith.

There are many of us who approached this CCWG in good faith (and 
invested huge
amounts of time and effort in trying to make it work) but who still have
"red lines" - minimum requirements without which they would prefer that 
transition did not
proceed.

I count myself within that class. My own red line is that an aggrieved 
registrant who
stands to lose their domain as a result of ICANN policy must have the 
right to
challenge the legitimacy of that policy on the grounds that it is 
outside ICANN's scope,
and that that challenge must be before a fair and objective independent 
panel with
the power to quash the policy. We have made considerable progress toward 
this goal.
So far, the panel, its independence, its decision-making standard and (I 
think) its power,
have all been accepted. But as for the *right* to challenge, while the 
Board says it
is willing to accept this in principle, it rejects the SMM, which is the 
only mechanism we have found for
making the right to seek redress enforceable. By that I mean, the SMM is 
the only mechanism
which could correct and force ICANN to enter into the IRP if, in a 
particular case, it
refused to do so. The MEM - another layer of arbitration - would not 
give anyone the
capability to force ICANN to enter the IRP, because the Board could also 
refuse to accept
arbitration by the MEM.

This is a problem for me. I have no difficulty or embarrassment about 
saying that I would
prefer that the entire transition failed than that it proceed without a 
satisfactory resolution
of this point.

But my own red line is really very modest. Some may have more ambitious 
demands, and
I don't think that that would be illegitimate. Consider how we began 
this whole process.

The NTIA has exercised a historic stewardship of the DNS and a de facto 
oversight of
ICANN. NTIA periodically imposes on ICANN a new contract, one that ICANN 
simply cannot
reject. As a consequence, NTIA has the effective and enforceable powers 
to initiate and
enforce change in ICANN. As a result of this special relationship NTIA 
was in a position
to, and did in fact, effect change within ICANN that nobody else would 
have been capable
of bringing  about.

When we began this process, NTIA declared that it wanted a proposal to 
transition its historic
role to the global multistakeholder community. If some people 
interpreted this as meaning
that the global multistakeholder community must gain an effective and 
enforceable mechanism
to bring about change within ICANN, over the heads of a Board that 
resisted that change,
I wouldn't think that would be an unreasonable reading of what was 
offered.
Nor do I think it would be unreasonable for someone to conclude  that 
the CCWG's proposal -
much less the  Board's counter-proposal - falls significantly short of 
that ambition.
So if someone concluded that it was better to remain with the current 
position where
at least /someone/ had the power to force ICANN to change (especially 
since the NTIA's record
in this regard is known and benign) then I don't think it would be fair 
to cast a person
with such a view as unreasonable or as some sort of saboteur.

But as I say, I am not myself demanding the full accountability of ICANN 
and the complete
subordination of its institutional bureaucracy to the global 
multistakeholder community.
If I can be certain that it can be contained within its defined scope, I 
will be satisfied.
Sadly, as of today, I am not being offered even that much.

Kind Regards,

Malcolm.

-- 
             Malcolm Hutty | tel: +44 20 7645 3523
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