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

[Paul Twomey]

My only comment would be - be careful about propositions from Think 
Tanks etc.    In my experience, there is normally a commercial interest 
behind the think tank's words.  I always think it is useful to ask - 
what US corporation is pushing this line?


On 5/25/16 6:07 AM, Sivasubramanian M wrote:
> 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
>
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>
> -- 
> Sivasubramanian M <https://www.facebook.com/sivasubramanian.muthusamy>
>
>
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-- 
Dr Paul Twomey
Managing Director
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