<html><head><meta http-equiv="Content-Type" content="text/html; charset=UTF-8"></head><body ><div>Add to that it is not a nominating committe because no one gets to approve the choices. It is a selection committee. It is a completely unaccountable selection committee where only the legal staff reviews the choices.</div><div><br></div><div><br></div><div style="font-size:75%">avri</div><div style="font-size:75%"><br></div><div style="font-size:75%">Sent from a T-Mobile 4G LTE Device</div><br><br><div>-------- Original message --------</div><div>From: Kieren McCarthy <kieren@kierenmccarthy.com> </div><div>Date:10/06/2015 7:29 PM (GMT-05:00) </div><div>To: Phil Corwin <psc@vlaw-dc.com> </div><div>Cc: CCWG Accountability <accountability-cross-community@icann.org> </div><div>Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model </div><div><br></div>Before everyone starts persuading themselves that the NomCom isn't all that<br>bad, please consider:<br><br>* The criteria for selection are secret<br><br>* The meetings are secret<br><br>* The NomCom views public disclosure of any candidates names, even by the<br>candidates themselves, as a bad thing<br><br>* A former chair-elect resigned because he was "sickened" by how it worked<br>(lobbying, abuse of travel support, insider culture, refusal to listen to<br>formal advice)<br><br>* It was set up to replace direct elections and is an active impediment to<br>discussions about how real elections might actually work<br><br>* It has been repeatedly criticized for poor working methods and failure to<br>communicate with candidates<br><br>* It is entirely self-contained. NomCom members often fail to turn up to<br>meetings but it is not reported back; NomCom members are not required to<br>explain their decisions.<br><br>* It gets the same number of people applying each year - 80-90 - and each<br>year says that is a great number with no explanation or analysis<br><br>* It measures its own success. And agrees each year that it has done a<br>terrific job<br><br><br>The fact that the NomCom exists at all is a sign that ICANN has not matured<br>to the point where it can do what thousands of other organizations achieve<br>every year: open elections with selections made by the whole community<br>rather than a secretive subset of community members who lobby extremely<br>hard to be selected.<br><br><br>Kieren<br><br>On Tue, Oct 6, 2015 at 3:18 PM, Phil Corwin <psc@vlaw-dc.com> wrote:<br><br>> Hello George.<br>><br>> I have no quarrel with the fine and dedicated work of the NomCom.<br>><br>> I do have a quarrel with the notion that the Board is significantly more<br>> representative and protective of the global Internet community and its<br>> interests than the members of the ICANN community, who contribute tens of<br>> millions of dollars' worth of unpaid labor on behalf of ICANN and its<br>> objectives each and every year.<br>><br>> Best regards, Philip<br>><br>> Philip S. Corwin, Founding Principal<br>> Virtualaw LLC<br>> 1155 F Street, NW<br>> Suite 1050<br>> Washington, DC 20004<br>> 202-559-8597/Direct<br>> 202-559-8750/Fax<br>> 202-255-6172/cell<br>><br>> Twitter: @VlawDC<br>><br>> "Luck is the residue of design" -- Branch Rickey<br>><br>><br>> -----Original Message-----<br>> From: George Sadowsky [mailto:george.sadowsky@gmail.com]<br>> Sent: Tuesday, October 06, 2015 5:10 PM<br>> To: Kleinwachter Wolfgang<br>> Cc: Phil Corwin; Paul Rosenzweig; Guru Acharya; CCWG Accountability<br>> Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model<br>><br>> Hi, Phil,<br>><br>> I want to align myself 100% with Wolfgang's comments below. I chaired the<br>> NomCom for three successive years, in 2005-2007, and my experience agrees<br>> with Wolfgang's completely.<br>><br>> I cannot duplicate Wolfgang's extensive discussion of how it works and why<br>> it works, but I don't have to. He has already made the case, and<br>> eloquently.<br>><br>> Regards,<br>><br>> George<br>><br>><br>> > On Oct 6, 2015, at 3:14 PM, Kleinwächter, Wolfgang <<br>> wolfgang.kleinwaechter@medienkomm.uni-halle.de> wrote:<br>> ><br>> > Hi Phil,<br>> ><br>> > thanks for your understanding. Unfortunately we have been pulled into a<br>> "we vs. they" constellation which is grotesk.<br>> ><br>> > I served five years in the NomCom, one year as its chair. We had endless<br>> discussion how to send the best people for ICANN and the broader ICANN and<br>> Internet community to the Board. The people who made it to the board are -<br>> in my understanding - the best people you can get in a given year. They are<br>> not hand picked by an outside power which wants to manipulate the<br>> community. The NomCom itself is populated by representatives from the<br>> community. All SOs, ACs and the constituencies are represented with voting<br>> members in the NomCom. I trusted the community that they did send the right<br>> people to the NomCom. In my reports to the ICANN Public Forum - when I<br>> chaired the NomCom - I always presented the NomCom as the most democratic<br>> element in the whole ICANN ecosystem. The community itself selects its<br>> representatives (and should have also the right to spill them if they do<br>> not meet the expected standards, here I agree with the proposed<br>> enhancements). No CEO, no ICANN chair, no ICANN Board member can tell the<br>> NomCom whom to select. The same is true for the seven directors<br>> selected/elected by the SOs and ALAC. Do you know how many interviews and<br>> discussions take place before the 15 ALAC members vote in favor of one<br>> director which goes to the Board? Did you see the debate on the GNSO Seat?<br>> ><br>> > This are very democratic bottom up transparent, diversified and open<br>> processes. If you compare this with the population of other for profit or<br>> non-for profit boards in the world, this is unique. Do you know how FIFA<br>> selects its Executive Committee? Do you know how to become a member of the<br>> IOC ExCom? Do you know how Green Peace selects its Board? There are endless<br>> back-door meetings (in closeed circles) which produce bodies which are<br>> indeed - sometimes - not accountable to the broader public and it is<br>> difficult to remove them.<br>> ><br>> > The procedure how to get a seat in the ICANN Board is - as said above -<br>> one of the most impressive achievements we have in the ICANN family. And we<br>> should be proud to have such good mechanisms. Additionally the principle of<br>> rotation is an extra block against misuse and capture of the board<br>> function. The term is just three years for a director. If he did not<br>> deliver what was expected, the ACs, SOs and the NomCom has no duty to<br>> re-elect/select the candidate. The maximum is three terms (nine years). It<br>> was two terms (six years). The extension was made to have a right mix<br>> between continuation and presence of history knowledge and innovative<br>> newcomers. There is also the democratic element of geographical diversity.<br>> BTW, this is one point I miss in the CCWG discussion. How seriously CCWG<br>> members take arguments from participants from Africa, Latin America and<br>> Asia?<br>> ><br>> > I bring this facts not to undermine the proposed community power of<br>> spilling of the board. I was always behind this extra power for the<br>> community to enhance the inner democratic processes. In my eyes there is no<br>> need to create a new burocracy to achieve this aim. It can be done on the<br>> basis of the tested and workable model. Under the circumstances of the<br>> discussion we have today I have my doubt whether we can introduce the same<br>> high standard for representatives in a new legal entity in the short time<br>> we have (Sole Membership Model). We were fighting over many years to errect<br>> barriers aganist caputre in the board. And I am not ready to open now a<br>> backdoor for capture in a new entity which has not yet clear rules of<br>> procedure how voting and other important elements (including<br>> accountability) can be introduced in a way which does not undermine the<br>> functioning, stability, security and prosperity of ICANN. I am in favor of<br>> power sharing. But I am against power shifting.<br>> ><br>> > As you know I am leaving the board and I will repeat my arguments after<br>> Dublin as a member of the commmunity. I hope that we have more or less<br>> finished the discussion at the end of the Dublin Meeting. But there will be<br>> a lot of things that we have to do beyond Dublin.<br>> ><br>> > Wolfgang<br>> ><br>> ><br>> ><br>> > I agree this is slippery and dangerous territory, Wolfgang. And I have<br>> made clear that I do not agree with that POV.<br>> ><br>> ><br>> ><br>> > However, in its October 1st High Level Response to CCWG Counsel's 29<br>> > September 2015 Slides, Jones Day states: " proponents of the CCWG's<br>> > Proposal minimize or ignore the fact that the shift to the SMM would<br>> > place a significant amount of power in the hands of individuals and<br>> > stakeholders that hold no fiduciary obligations to ICANN or the global<br>> > stakeholder community. These individuals and stakeholders are free to<br>> > act in their personal interest and are not required to make decisions<br>> > based on what is best for ICANN, the ICANN community, and the global<br>> > public interest". (Emphasis added)<br>> ><br>> ><br>> ><br>> > While the Board may credibly state that it has a fiduciary duty to ICANN<br>> and makes decisions beside upon what is best for ICANN (and I am not in any<br>> way implying that the CCWG and ICANN community make decisions based on<br>> anything but what they believe is best for ICANN and its community), it<br>> cannot claim to make decisions based on what is best for the ICANN<br>> community (since its first duty is to the Corporation, and it is quite<br>> evident from the current accountability discussion that its views are at<br>> significant variance from those of the community members comprising the<br>> CCWG) and it has no greater claim to representing the global public<br>> interest than the community from which it is drawn.<br>> ><br>> ><br>> ><br>> > Given that it is ICANN's outside Counsel that has raised this charge,<br>> which has since been echoed in Board member communications, perhaps your<br>> caution to "be careful" should be directed elsewhere.<br>> ><br>> ><br>> ><br>> > Finally, on the matter of the "global public interest", points #2 & 3 of<br>> the CCWG Charter states:<br>> ><br>> > 2. If the Board believes it is not in the global public<br>> interest to implement a recommendation from the Cross Community Working<br>> Group on Enhancing ICANN Accountability and Governance (CCWG<br>> Recommendation), it must initiate a dialogue with the CCWG. A determination<br>> that it is not in the global public interest to implement a CCWG<br>> Recommendation requires a 2/3 majority of the Board.<br>> ><br>> > 3. The Board must provide detailed rationale to accompany the<br>> initiation of dialogue. The Board shall agree with the CCWG the method<br>> (e.g., by teleconference, email or otherwise) by which the dialogue will<br>> occur. The discussions shall be held in good faith and in a timely and<br>> efficient manner, to find a mutually acceptable solution.<br>> ><br>> ><br>> ><br>> > I have previously inquired on this list whether the Board's concerns<br>> regarding the Sole member or Designator models amounted to a formal belief<br>> that they threatened the global public interest, and I do not recall any<br>> statement that they did - much less a formal invoking of the dialogue<br>> process provide for in the Charter.<br>> ><br>> ><br>> ><br>> > If the Board believes that either or both of those models does so it<br>> would seem appropriate to provide the required detailed rationale and start<br>> the dialogue. If it does not, then it seems quite inappropriate and<br>> non-constructive for ICANN Counsel to raise a purported threat to the<br>> global public interest in their memoranda.<br>> ><br>> ><br>> ><br>> > Best,<br>> ><br>> > Philip<br>> ><br>> ><br>> ><br>> > Philip S. Corwin, Founding Principal<br>> ><br>> > Virtualaw LLC<br>> ><br>> > 1155 F Street, NW<br>> ><br>> > Suite 1050<br>> ><br>> > Washington, DC 20004<br>> ><br>> > 202-559-8597/Direct<br>> ><br>> > 202-559-8750/Fax<br>> ><br>> > 202-255-6172/cell<br>> ><br>> ><br>> ><br>> > Twitter: @VlawDC<br>> ><br>> ><br>> ><br>> > "Luck is the residue of design" -- Branch Rickey<br>> ><br>> ><br>> ><br>> ><br>> ><br>> > -----Original Message-----<br>> > From: "Kleinwächter, Wolfgang"<br>> > [mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de]<br>> > Sent: Tuesday, October 06, 2015 1:25 PM<br>> > To: Phil Corwin; Paul Rosenzweig; Guru Acharya<br>> > Cc: CCWG Accountability<br>> > Subject: AW: [CCWG-ACCT] Message from ICANN Board re Designator Model<br>> ><br>> ><br>> ><br>> > Hi Phil,<br>> ><br>> ><br>> ><br>> > this is slippery territory. If you read Parminders comment that it is<br>> only the UN which is the legitimized representative of the global Internet<br>> community (via the elected governments of the UN member states). As said in<br>> previous comments: There are unintended side-effects of our discussion both<br>> for the microcosm of ICANN as well as for the macrocosm of the broader<br>> Internet world. Be careful!<br>> ><br>> ><br>> ><br>> > Wolfgang<br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > -----Ursprüngliche Nachricht-----<br>> ><br>> > Von:<br>> > accountability-cross-community-bounces@icann.org<mailto:accountability<br>> > -cross-community-bounces@icann.org> im Auftrag von Phil Corwin<br>> ><br>> > Gesendet: Di 06.10.2015 19:15<br>> ><br>> > An: Paul Rosenzweig; Guru Acharya<br>> ><br>> > Cc: CCWG Accountability<br>> ><br>> > Betreff: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model<br>> ><br>> > I personally do not buy the argument that the ICANN community is<br>> insufficiently reflective of the global Internet Community, given the very<br>> low barriers to participation as well as the increasing levels of<br>> attendance at ICANN meetings and participation in ICANN activities, with<br>> greater numbers from the developing world as it comes online.<br>> ><br>> ><br>> ><br>> > However, if the community is not reflective of global Internet diversity<br>> then wouldn't the Board members who are drawn from it be equally<br>> non-representative? The logical outcome of this criticism is that the Board<br>> is equally disqualified from being the steward.<br>> ><br>> ><br>> ><br>> > Philip S. Corwin, Founding Principal<br>> ><br>> > Virtualaw LLC<br>> ><br>> > 1155 F Street, NW<br>> ><br>> > Suite 1050<br>> ><br>> > Washington, DC 20004<br>> ><br>> > 202-559-8597/Direct<br>> ><br>> > 202-559-8750/Fax<br>> ><br>> > 202-255-6172/cell<br>> ><br>> ><br>> ><br>> > Twitter: @VlawDC<br>> ><br>> ><br>> ><br>> > "Luck is the residue of design" -- Branch Rickey<br>> ><br>> ><br>> ><br>> > From:<br>> > accountability-cross-community-bounces@icann.org<mailto:accountability<br>> > -cross-community-bounces@icann.org><br>> > [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of<br>> > Paul Rosenzweig<br>> ><br>> > Sent: Tuesday, October 06, 2015 12:47 PM<br>> ><br>> > To: Guru Acharya<br>> ><br>> > Cc: CCWG Accountability<br>> ><br>> > Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model<br>> ><br>> ><br>> ><br>> ><br>> ><br>> > Exactly. The Board is demonstrably speaking with situational<br>> particularity.. Perhaps it is time we think about selecting different<br>> Board members in the next round of elections....<br>> ><br>> ><br>> ><br>> > --<br>> ><br>> > Sent from myMail app for Android<br>> ><br>> > Tuesday, 06 October 2015, 00:40AM -04:00 from Guru Acharya<br>> <gurcharya@gmail..com<mailto:gurcharya@gmail.com<mailto:<br>> gurcharya@gmail.com%3cmailto:gurcharya@gmail.com>>>:<br>> ><br>> ><br>> ><br>> ><br>> ><br>> > I strongly agree with Jordan.<br>> ><br>> ><br>> ><br>> > I personally find that attitude of the board to be very 'convenient'.<br>> ><br>> ><br>> ><br>> > According to them, ICANN is multistakeholder enough to become the<br>> steward of IANA, but the community is not multistakeholder enough to become<br>> a member of ICANN. Effectively, we are making ICANN the corporation the<br>> steward of IANA and not ICANN the community.<br>> ><br>> ><br>> ><br>> > I also find it an extremely convenient argument that 'while entering<br>> uncharted territories to make ICANN the steward is very safe; at the same<br>> entering uncharted territories to make ICANN a membership organisation is<br>> untested and very very unsafe'.<br>> ><br>> ><br>> ><br>> > In the CWG (Stewardship), the board consistently argued that<br>> ><br>> > 1) the CCWG will solve all accountability issues and therefore ICANN<br>> should be made the steward.<br>> ><br>> > 2) the ICANN structures are truly multistakeholder and therefore ICANN<br>> > should be made the steward<br>> ><br>> > 3) entering unchartered territories by making ICANN the steward is<br>> > very very safe<br>> ><br>> > 4) the NTIA may not accept the Contract Co model<br>> ><br>> ><br>> ><br>> > In complete contrast, in the CCWG (Accountability), the board is<br>> > arguing that<br>> ><br>> > 1) the CCWG should postpone major accountability measures to after the<br>> > transition<br>> ><br>> > 2) the ICANN structures are currently not multistakeholder enough to<br>> > become the members of ICANN<br>> ><br>> > 3) entering unchartered territories by making ICANN a membership<br>> organisation is very very unsafe.<br>> ><br>> > 4) the NTIA may not accept the membership model<br>> ><br>> ><br>> ><br>> > I do not find the promises for future change to be trustworthy. I am<br>> strongly against pushing something so important and basic to WS2.<br>> ><br>> ><br>> ><br>> > On Tue, Oct 6, 2015 at 8:26 AM, Aikman-Scalese, Anne <AAikman@lrrlaw.com<br>> <//e-aj.my.com/compose/?mailto=mailto%3aAAikman@lrrlaw.com<mailto:<br>> AAikman@lrrlaw.com%3c//<br>> e-aj.my.com/compose/?mailto=mailto%3aAAikman@lrrlaw.com>>> wrote:<br>> ><br>> ><br>> ><br>> > @ Jordan - well stated. Postponing truly effective accountability<br>> measures developed using the Multistakeholder process in favor of "a<br>> review of structure" as suggested strikes me as another recipe for a<br>> years-long process the elements of which would take months to agree on in<br>> and of themselves - very ineffective.<br>> ><br>> ><br>> ><br>> > Anne<br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > [https://af.mail.my.com/cgi-bin/readmsg?id=14441065090000080418;0;0;1&<br>> > mode=attachment&bs=16497&bl=3767&ct=image%2fgif&cn=image001.gif&cte=ba<br>> > se64]<br>> ><br>> ><br>> ><br>> ><br>> ><br>> > Anne E. Aikman-Scalese, Of Counsel<br>> ><br>> ><br>> ><br>> ><br>> ><br>> > Lewis Roca Rothgerber LLP<br>> ><br>> ><br>> ><br>> ><br>> ><br>> > One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611<br>> ><br>> ><br>> ><br>> ><br>> ><br>> > (T) 520.629.4428 | (F) 520.879.4725<br>> ><br>> ><br>> ><br>> ><br>> ><br>> > AAikman@lrrlaw.com<//e-aj.my.com/compose/?mailto=mailto%3aAAikman@lrrl<br>> > aw.com<mailto:AAikman@lrrlaw.com%3c//e-aj.my.com/compose/?mailto=mailt<br>> > o%3aAAikman@lrrlaw.com>> |<br>> > www.LRRLaw.com<http://www.lrrlaw.com/<http://www.LRRLaw.com%3chttp:/ww<br>> > w.lrrlaw.com/>><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > From:<br>> > accountability-cross-community-bounces@icann.org<//e-aj.my.com/compose<br>> > /?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces@icann.o<br>> > rg<mailto:accountability-cross-community-bounces@icann.org%3c//e-aj.my<br>> > .com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbou<br>> > nces@icann..org>><br>> > [mailto:accountability-cross-community-bounces@icann.org<//e-aj.my.com<br>> > /compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces<br>> > @icann.org><mailto:accountability-cross-community-bounces@icann.org%3c<br>> > //e-aj..my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommu<br>> > nity%2dbounces@icann.org%3e>] On Behalf Of Jordan Carter<br>> ><br>> > Sent: Monday, October 05, 2015 7:44 PM<br>> ><br>> > To: Steve Crocker<br>> ><br>> > Cc: Accountability Cross Community<br>> ><br>> > Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model<br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > Steve, all<br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > In finalising the CCWG's proposal, the ICANN board is a stakeholder - an<br>> important one.<br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > It has a later role as a decision-maker, according to criteria that have<br>> already been established by Board resolution.<br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > A careful multi-stakeholder process over almost a year has analysed the<br>> community's requirements and come up with a model that can do it - based<br>> around membership.<br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > The Board has abused its role as a decision-maker in this process. In<br>> effect, it has sought to replace the open, public, deliberative proposal<br>> development process with its own definition of what the community requires,<br>> and its own solution that can deliver its evaluation of those requirements.<br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > In doing so, it has profoundly challenged the legitimacy of the<br>> multi-stakeholder model of decision-making that ICANN and its Board claim<br>> to uphold.<br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> ><br>> > Worse, as a matter of process, the Board has attempted to use its<br>> decisional role at the end of the Accountability to move the trajectory of<br><br></body>