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

Wed Sep 30 09:05:32 UTC 2015

....and I hope we will apply such community wide consensus (or super
majority voting) in any exercise of community powers including removal of
individual board member.

Regards

On Wed, Sep 30, 2015 at 9:22 AM, <Jorge.Cancio at bakom.admin.ch> wrote:

> Kavouss makes a vital point here.
>
>
>
> Any decision-making process needs to be absolutely capture-proof and
> respect the diversity of the ICANN community.
>
>
>
> Hence, large supermajorities and/or consensus might be required for such
> important decisions. This means that those large supermajorities have to be
> measured against the community as a whole (i.e. the seven SO/AC).
>
>
>
> Regards
>
>
>
> Jorge
>
>
>
> *Von:* accountability-cross-community-bounces at icann.org [mailto:
> accountability-cross-community-bounces at icann.org] *Im Auftrag von *Kavouss
> Arasteh
> *Gesendet:* Mittwoch, 30. September 2015 10:15
> *An:* Jordan Carter <jordan at internetnz.net.nz>
> *Cc:* Accountability Cross Community <
> accountability-cross-community at icann.org>
> *Betreff:* Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do
> Anything!' problem
>
>
>
> Dear All,
>
> I also  understood Fadi in LA  expressing a concern on 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.
>
> Let us take a scenario as follows
>
> There is a potion to reject the Budget.
>
> Petition is agreed ( not voted ) in the petition SO
>
> Then it is discussed at Forum
>
> Then put it for voting
>
> SAS,RSSAC and very likely GAC do not participate in  voting
>
> Very probably all 3 OCs participate in voting .
>
> ALAC may or may not to do so
>
>  if three OCs vote ,the super majority would be 2/3 thus out of 15 votes
> currently foreseen 10 is enough to reset or ,at extreme, veto the budget .
>
> Then out of 29 overall weighted /weighting votes 10 succeeded to veto the
> budget and start an unnecessary process of back and fort of the Budget for
> months
>
> Is that a right process?
>
> However, if we first establish a quorum for  decision making with fairly
> high threshold ( 3/4 or  4/5 of the  7 SOs and ACs ) which means 5 SOs and
> ACs or 4 SOs and ACs  are the minimum requirement of quorum to decide on
> the matter .
>
> Then we have to apply the super majority of votes which means 2/3 of 25 or
> 2/3 of 22 or 2/3 of 19 , depending on the SOs and ACs participating which
> becomes  17, 14 and 12 votes out of 29 votes are sufficient to reject the
> budget .This would result in a real capture of the community by a small
> number of subset of that community.
>
> Consequently, should we replace the voting by consensus then we are better
> saved .
>
> In view of the above the decision making process voting versus consensus
> building needs to be seriously re-examined
>
> Kavouss
>
>
>
>
>
>
>
>
>
>
>
> 2015-09-30 9:40 GMT+02:00 Jordan Carter <jordan at internetnz.net.nz>:
>
> 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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