<div dir="ltr"><div class="gmail_default"><font face="verdana, sans-serif">Regardless of the model or path we choose, we need to improve the inclusiveness of our decision-making model. We know this and we have been discussing this actively. As such, I think it is a bit of a red herring to use that as an argument against the designator model.</font></div><div class="gmail_default"><font face="verdana, sans-serif"><br></font></div><div class="gmail_default"><font face="verdana, sans-serif">Most of the concerns the Board expressed regarding the member model are simply absent in the Designator model, so I don't see how it can be flatly stated that "<span style="color:rgb(80,0,80);font-size:12.8px">the concerns that the Board raised on the Sole Member model still apply to a Designator model.</span>" This email seems to gloss over the fact that the powers of designators are far more narrow and limited than those of members, and the use of designators requires only a relatively minor change in the (non-membership) governance structure of the corporation, as compared to the change to a membership structure. (There are two forms of public benefit corporation - member and non-member -- and ICANN would remain a non-member corporation if those appointing board members are deemed "designators.") The various statutory powers of a member are absent in the case of the designator, so I am not clear what is being referred to as "p<span style="color:rgb(80,0,80);font-size:12.8px">owers that are intrinsically beyond the structure we have been using," other than the power to remove individual directors (or to have the designators collectively remove all of the appointed directors) -- just the "community powers" that we are being told the Board supports.</span></font></div><div class="gmail_default"><font face="verdana, sans-serif"><br></font></div><div class="gmail_default"><font face="verdana, sans-serif">If this email is based on advice from counsel, it would be helpful to the transparency of the process if that advice can be shared on this list, just as the advice the CCWG receives is shared on this list.</font></div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Thank you.</div><div class="gmail_default" style="font-family:verdana,sans-serif"><br></div><div class="gmail_default" style="font-family:verdana,sans-serif">Greg</div></div><div class="gmail_extra"><br><div class="gmail_quote">On Tue, Oct 6, 2015 at 12:03 AM, "Kleinwächter, Wolfgang" <span dir="ltr"><<a href="mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de" target="_blank">wolfgang.kleinwaechter@medienkomm.uni-halle.de</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex">Chris 1++<br>
<br>
Wolfgang<br>
<br>
<br>
<br>
<br>
-----Ursprüngliche Nachricht-----<br>
Von: <a href="mailto:accountability-cross-community-bounces@icann.org">accountability-cross-community-bounces@icann.org</a> im Auftrag von Chris Disspain<br>
Gesendet: Di 06.10.2015 05:05<br>
An: Cheryl Langdon-Orr<br>
Cc: <a href="mailto:accountability-cross-community@icann.org">accountability-cross-community@icann.org</a><br>
Betreff: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model<br>
<div class="HOEnZb"><div class="h5"><br>
All,<br>
<br>
I think the key point here is one of timing. Personally I don't disagree with any of the models proposed. But I can't agree them either because I do think the community as a whole should take their time in considering and eventually making such important changes. And I do not agree that "we must do it now because it's our only chance".<br>
<br>
I support the suggestions made by Jonathan Zuck and Steve DelBianco.<br>
<br>
Chris Disspain<br>
CEO - auDA<br>
<br>
> On 6 Oct 2015, at 13:58, Cheryl Langdon-Orr <<a href="mailto:langdonorr@gmail.com">langdonorr@gmail.com</a>> wrote:<br>
><br>
> Jordan you ask what we think.... Well ... I am personally of the belief, that we should as a Community, explore the Zuck / Del Bianco options that were recently raised and mentioned in the correspondence from the ICANN Chair of the Board...<br>
><br>
>> On 6 Oct 2015 13:44, "Jordan Carter" <<a href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a>> wrote:<br>
>> Steve, all<br>
>><br>
>> In finalising the CCWG's proposal, the ICANN board is a stakeholder - an important one.<br>
>><br>
>> It has a later role as a decision-maker, according to criteria that have already been established by Board resolution.<br>
>><br>
>> A careful multi-stakeholder process over almost a year has analysed the community's requirements and come up with a model that can do it - based around membership.<br>
>><br>
>> The Board has abused its role as a decision-maker in this process. In effect, it has sought to replace the open, public, deliberative proposal development process with its own definition of what the community requires, and its own solution that can deliver its evaluation of those requirements.<br>
>><br>
>> In doing so, it has profoundly challenged the legitimacy of the multi-stakeholder model of decision-making that ICANN and its Board claim to uphold.<br>
>><br>
>> Worse, as a matter of process, the Board has attempted to use its decisional role at the end of the Accountability to move the trajectory of debate away from what the community's requirements, fairly analysed dictate -- trying to force the group to "jump the tracks" and into a solution that is unlikely to be able to deliver on those requirements.<br>
>><br>
>> It's an ugly display of force in what should be a rational and requirements-based conversation.<br>
>><br>
>> I sincerely regret the Board's choice as a group to take that approach. The effect is to give fodder to all of those people, countries and groups who have long argued that the entire notion of multi-stakeholder Internet policymaking is a charade, behind which decisions are made simply and alone by "the people who matter".<br>
>><br>
>> In terms of the CCWG's work, this email combined with your statement in Los Angeles reduce the chances of any consensus being able to emerge between what the Board has asked for and what the CCWG has developed.<br>
>><br>
>><br>
>> It leaves me very sad that the groups here (Board and CCWG) have arrived at this position. There is an apparent lack of listening and comprehension; few displays of empathy or willingness to see things from another point of view; and a consequent inability to really talk through and resolve the conflicting perspectives and aims here.<br>
>><br>
>> I hoped the Board might make some overtures in that direction. I know I and other CCWG members have been trying to do. To get this sort of response indicates that that attempt serves no further purpose.<br>
>><br>
>><br>
>> What are others' views about how we proceed from here? I confess myself mystified.<br>
>><br>
>> Look forward to speaking with you all in a few hours.<br>
>><br>
>> Cheers<br>
>><br>
>> Jordan<br>
>><br>
>><br>
>>> On 6 October 2015 at 15:21, Steve Crocker <<a href="mailto:steve.crocker@icann.org">steve.crocker@icann.org</a>> wrote:<br>
>>> CCWG,<br>
>>><br>
>>> We appreciate the continued work that the CCWG is doing to consider the public comments received on its second draft report. Following the Los Angeles F2F we have heard suggestions that a Designator model relying on California statutes may be a replacement for the Sole Member model that was in the second draft report.<br>
>>><br>
>>> To be clear, the concerns that the Board raised on the Sole Member model still apply to a Designator model. The Designator model still introduces a new legal structure with powers that are intrinsically beyond the structure we have been using. We understand that many believe it is possible to constrain these powers in order to provide established protections, accountability and thresholds: This is unproven territory and will require more detail and time to understand and test the impact on our bedrock multistakeholder balance.<br>
>>><br>
>>> Further, it is unclear that this would represent the full multistakeholder community because we do not know yet which SO/ACs will join now or later. Moreover, the same community accountability issues present in the Sole Member are present in the Designator model.<br>
>>><br>
>>> Steve del Bianco's constructive suggestion over the weekend that the Board could commit to a future governance structure review triggered by key factors seems like a good path forward. This can be enshrined in a new fundamental bylaw that would require the holding of a future governance structure review if SOs and ACs agree to kick off that review.<br>
>>><br>
>>> We are all in complete agreement on the objective of enforcement of the five community powers, with new/stronger mechanisms for board removal if/when necessary. Let's focus on finalizing the details on these consensus elements to enable implementation and a successful transition.<br>
>>><br>
>>> Steve Crocker<br>
>>> for the ICANN Board of Directors<br>
>>><br>
>>><br>
>>><br>
>>> _______________________________________________<br>
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>>><br>
>><br>
>><br>
>><br>
>> --<br>
>> Jordan Carter<br>
>><br>
>> Chief Executive<br>
>> InternetNZ<br>
>><br>
>> <a href="tel:%2B64-4-495-2118" value="+6444952118">+64-4-495-2118</a> (office) | <a href="tel:%2B64-21-442-649" value="+6421442649">+64-21-442-649</a> (mob)<br>
>> Email: <a href="mailto:jordan@internetnz.net.nz">jordan@internetnz.net.nz</a><br>
>> Skype: jordancarter<br>
>> Web: <a href="http://www.internetnz.nz" rel="noreferrer" target="_blank">www.internetnz.nz</a><br>
>><br>
>> A better world through a better Internet<br>
>><br>
>><br>
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