[CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem

[Jordan Carter]

Tapani: The approach I have suggested could work for none, any or all of
the statutory powers. If it is worth exploring we can explore it. There
might be some statutory rights that should not be subject to this approach,
as Ed has argued.

To address Kavouss' point: Kavouss, I agree with you this is unusual. I
would not suggest this for any of the accountability powers we have
suggested through the CCWG. I would only suggest it as a cast-iron,
impossible-to-avoid, last-resort for powers that AREN'T about
accountability. Dissolving ICANN, to pick the example repeatedly raised by
Board members in LA, isn't an accountability issue. So let's not treat it
as one.

To put it another way: *some* of the powers of a Member in the law of
California [or under any other law, should ICANN's jurisdiction change at
some point] are clearly about accountability.

*Some* of them aren't.

The ones that *aren't* about accountability, the ones that pose some kind
of risk to stability or that just aren't relevant, we can make impossible
to use. We can make them even more impossible to use by including the Board
as a participant for any decision to use them.


All food for thought.


best
Jordan

On 30 September 2015 at 19:36, Tapani Tarvainen <ncuc at tapani.tarvainen.info>
wrote:

> This is worrysome. While I can understand the concern about
> things like dissolving the company, what's the issue with
> document inspection?
>
> After all, transparency is one of the key elements of trust,
> and trust is ultimately what will sustain or kill ICANN.
>
> Perhaps some of the lawyers among us could explain what
> bad could result from document inspection power of the member?
>
> --
> Tapani Tarvainen
>
> On Sep 29 20:48, Rudolph Daniel (rudi.daniel at gmail.com) wrote:
>
> > "the other powers the California law grants to member/s (document
> > inspection, dissolve the company, etc), should face such high thresholds
> to
> > action that they can, practically speaking, never be actioned at all."
> >
> > Yes , interesting, I understood Fadi today expressing a concern (my take
> on
> > it)....how do we ensure ..in the single member model, that we have
> > inclusion in consensus, rather than allowing a subset of the community to
> > exercise that power without the Full acceptance of the community..and
> that
> > can easily be construed as a capture scenario that needs to be stress
> > tested.
> >
> > Interesting take on the problem Jordon, but as you suggest...over to the
> > legal minds..
> > RD
> > On Sep 29, 2015 8:15 PM, "Jordan Carter" <jordan at internetnz.net.nz>
> wrote:
> >
> > > Hi all
> > >
> > > One of the pieces of feedback from Board members I heard in L.A. was a
> > > concern that basically goes like this:
> > >
> > > "The Single Member is a problematic idea because of the incredible
> powers
> > > it has under California law - for instance, it could even dissolve
> ICANN!"
> > >
> > > There were some sub-themes to this concern:
> > >
> > > - the accountability of SO/AC actors in exercising the powers intended
> for
> > > the CMSM
> > > - the absence of fiduciary duties on the Single Member in making its
> > > decisions
> > > - the engineering principle of minimal change at a time
> > >
> > >
> > > Focusing on the overarching concern, it was a tenet of the CCWG's
> Second
> > > Draft Proposal that the CMSM should be largely ruled out from
> exercising
> > > any of the powers the community didn't propose it had.
> > >
> > > That is, aside from the five community powers and the ability to
> enforce
> > > the bylaws against the Board, the other powers the California law
> grants to
> > > member/s (document inspection, dissolve the company, etc), should face
> such
> > > high thresholds to action that they can, practically speaking, never be
> > > actioned at all.
> > >
> > > [The Second Draft Proposal may not have been terribly clear about this,
> > > but that's what it was driving at.]
> > >
> > >
> > > So how to resolve this? The CCWG's choice of a Single Member (following
> > > its earlier choice of multiple members) was to meet the accountability
> > > requirements the community has asked for. But nobody asked for the
> > > community to have these other powers.
> > >
> > > *Here is a suggestion.*
> > >
> > > *For the exercise of any of the Member Powers the CMSM would have
> (beyond
> > > those we "want" it to have), why don't we include the ICANN Board as
> one of
> > > the groups that has to vote / come to consensus to exercise them?*
> > >
> > > This sounds a little strange on the face of it but think it through.
> > >
> > > This seems to me to be a very simple way to avoid the problem.
> > >
> > > It acknowledges that the rights of the Member are set out in law and
> can't
> > > be eroded - that they can only be managed by the decisions that member
> is
> > > able to take. And it acknowledges that the concerns about constraining
> the
> > > possible actions of the member to those that are intended, should be
> > > solved. It shares power in the model in quite a nice, dare-I-say-it,
> > > "multistakeholder" way.
> > >
> > > I'd welcome others' thoughts. I'd welcome views from our lawyers about
> > > this, too. On the face of it I can't see any reason this wouldn't work
> in
> > > law, since the CMSM can be comprised of any set of ICANN actors. But -
> I Am
> > > Not A Lawyer.
> > >
> > >
> > > cheers
> > > Jordan
> > >
> > > --
> > > Jordan Carter
> > >
> > > Chief Executive
> > > *InternetNZ*
> > >
> > > +64-4-495-2118 (office) | +64-21-442-649 (mob)
> > > Email: jordan at internetnz.net.nz
> > > Skype: jordancarter
> > > Web: www.internetnz.nz
> > >
> > > *A better world through a better Internet *
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-- 
Jordan Carter

Chief Executive
*InternetNZ*

+64-4-495-2118 (office) | +64-21-442-649 (mob)
Email: jordan at internetnz.net.nz
Skype: jordancarter
Web: www.internetnz.nz

*A better world through a better Internet *
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