[CCWG-ACCT] U.S. Senate Committee on Commerce, Science, and Transportation Full Hearing on 24 May 2016

Sivasubramanian M isolatedn at gmail.com
Tue May 24 20:07:20 UTC 2016

Halfway through watching the webcast, yet to read the written testimonies
in full, this caught my attention:

The Heritage Foundation's Brett Shaefer:   *A soft extension of the current
contract for a reasonable period of time would allow the community and
ICANN to take the new mechanisms for a sustained test drive to verify to
the Internet community that relies on ICANN that they are working as
envisioned. This would not derail the progress made by the ICG or the CCWG
because the ICANN board has confirmed that virtually all of the recommended
changes, including the new accountability improvements and the EC, would be
adopted and implemented whether the transition proceeds or not. It would
therefore be prudent to maintain U.S. oversight, or at least a means for
reasserting NTIA oversight, for the next two years until the new structure
proves itself and the details of Work Stream 2 are fully developed and
their implications understood.*

The text of Brett Shaefer's 'soft extension' suggestion "*to maintain U.S.
oversight, or at least a means for reasserting NTIA oversight"*, does not
sound soft enough.

Nor was the posture of Steve DelBianco (52:00): ... GAC gets one vote, "but
when it comes it challenging decisions that arise out of Government advice,
we drew the line ... the US Government role can block Government advice.
When the Board of ICANN wants to act on Government advice and the Community
wishes to challenge that advice, we can't allow Governments to block our
ability to challenge it, we carve them out, we exclude the Governments from
having a vote... On Net, we have cabined off the Government power..."  That
would have impressed the US Senate, but at least a few other Governments
wouldn't have liked it.

Steve Delbianco's response to Heritage (57:00) was to say that it would be
a slap on the face of the Community that has worked so hard, and has
produced a proposal is well balanced. "The powers that the community has
are extraordinary powers. We would only invoke our powers to block a
budget, block a bylaw [change], or spill the Board if the Board acted in a
completely inappropriate way" There is no coverage provided by the United
States better than the coverage provided by the California courts,
community's powers to go to courts in California, to force the Board to
follow the Community's Consensus... What we have designed gives the
Community, for the first time ever, the power to go to Court in California,
to force the Board to follow the Community's consensus, to spill the Board,
if that is our Consensus, to overturn the Budget if the Community doesn't
support. That is the kind of back-stop we need, and we have it in
California courts"

Very powerful argument, but what is "Community" in ICANN today? What is the
power dynamics? and, What does that transition proposal contain that is
enough to offer hope that the Community would be well balanced
post-transition?  In terms of the Community's powers to go to California
court, will the Community have a Reserve for legal expenses, who really
gets to decide what issues merit legal action? If there are no Community
funds to take any issue to Court, which participants of the Community would
fund the lawsuit, and what influences would such participants exercise in
the decisions to earmark or escalate an issue for legal action? In a
scenario not altogether unlikely, if the "Community" is willing to spend
ten times as much as the Board's available legal defense Budget, the Board
would be constantly under threat of lawsuits.

Even while continuing to be in the California Jurisdiction, the
Accountability design requires to be one that would move ICANN governance
as farther away from California Courts as possible. Could there be an
Accountability design that could take ICANN governance away from lawyers
(no disrespect intended) but towards a balanced and inherently just
framework? Could there be a "soft enough" or "loose" oversight/observation
by the NTIA at least until Workstream 2 and other Accountability processes
place together such a self-contained framework for global public interest?

In many ways, a soft interim role for the US Government, or a short delay
would actually ensure that the transition details are gracefully accepted
by the whole world.

Sivasubramanian M

Sivasubramanian M <https://www.facebook.com/sivasubramanian.muthusamy>
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