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

Wed May 25 12:41:16 UTC 2016

I totally disagree with the Heritage Foundation's opposition to the transition and am frankly disappointed in them. However, I think Paul Twomey's attempt to insinuate a commercial interest behind their position pollutes the dialogue. Either _name_ a specific donor whose interests you think they are pursuing, and provide evidence of that connection, or shut up about it and focus on the merits of their argumentation. And it's particularly ironic to see a commercial consultancy firm making this accusation, because Paul's firm is, by definition, "for hire" in a way that Heritage is not.

My personal view is that Heritage's position is motivated more by a misguided conservative/nationalist ideology than by any specific corporate donor in this case.

Dr. Milton L. Mueller
Professor, School of Public Policy
Georgia Institute of Technology

From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Paul Twomey
Sent: Tuesday, May 24, 2016 4:24 PM
To: accountability-cross-community at icann.org
Subject: Re: [CCWG-ACCT] U.S. Senate Committee on Commerce, Science, and Transportation Full Hearing on 24 May 2016

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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