<table cellspacing="0" cellpadding="0" border="0"><tr><td valign="top"><div>Waiting to sure up th accountability process means that the NTIA, Board and general public will be able to claim that the process is broken and disband the process. With each day goes leverage to those who truly want to make ICANN just a basic corporation like Google, or a organization that can seem to be multiatakeholder but easily influenced behind the scenes, with a whistleblower process no different than your basic mega-corporation,. The strategy is to delay the entire process. They want to give something away for free?<br /><br />Bottom line: Its easier for oligarch system parading itself as a democracy to control something when their regulator, who currently has to file phony reports to the public once in a while about ICANN, no longer has to do that. Some people want you to work on chapters and chapters of work, deciding on this and that specific so you are so
exhausted and therefore more accepting to accept having a post-transition board member calling up a shadowy whistleblower "phone number" to report that some corporation is intimidating the post-transition process, and that is IF that board member has any morality and courage to do so. Human nature folks, needs intelligent safeguards first then build within those safeguards.<br /><br />If they reject an external whistleblower process you know its a completley phony process and they arent the sweet angels they are claiming to be. Get in the game they are playing, they got all the biggest corporations on their team waiting to shut the public out behind the scenes while on the surface it appears to be "multistakeholder", just like the United States appears to be a democracy when it isnt.<br /><br />Ron<br /></div></td></tr></table> <div id="_origMsg_">
<div>
<br />
<div>
<div style="font-size:0.9em">
<hr size="1">
<b>
<span style="font-weight:bold">From:</span>
</b>
Chris Disspain <ceo@auda.org.au>; <br>
<b>
<span style="font-weight:bold">To:</span>
</b>
ccNSO Council <ccnso-council@icann.org>; ccNSO Members <ccnso-members@icann.org>; <br>
<b>
<span style="font-weight:bold">Cc:</span>
</b>
CCWG Accountability <accountability-cross-community@icann.org>; <br>
<b>
<span style="font-weight:bold">Subject:</span>
</b>
[CCWG-ACCT] A plea for time <br>
<b>
<span style="font-weight:bold">Sent:</span>
</b>
Sun, Oct 11, 2015 4:05:15 PM <br>
</div>
<br>
<table cellspacing="0" cellpadding="0" border="0">
<tbody>
<tr>
<td valign="top"><span style="font-family:'Verdana';font-size:13px;color:rgb(102, 102, 102);">
<p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">Greetings,</span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">As we approach ICANN Dublin I have
been asked by some of my ccTLD colleagues to set out clearly why as a ccTLD
manager I support the Board proposals for improving ICANN's accountability as
part of the transition.</span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">In essence for me it’s all about
time.</span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">I believe that we, the
community, can get the enhanced accountability we want now without the need for
wholesale structural change. I'm not against change or indeed any of the models
being proposed but I am against making such changes without carefully
considering them over time. There is a significant amount of work to be done
before deciding to make such important structural changes and all of that will
take time and more research and stress testing and unforeseen consequence
analysis and impact analysis.</span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">In essence the Board has supported
the CCWG’s proposed fundamental bylaws and the binding IRP and has suggested
that there be a Community IRP and a further fundamental bylaw setting in place an
ongoing improvement mechanism that will allow the community to take the
necessary time to consider the structural changes and to have confidence that
the proposals arising from such a process will be implemented.</span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">I believe that the Community IRP
does provide the community with the rights it seeks and that it can be implemented
in a timeframe that does not jeopardise
the transition. The Community IRP is an independent arbitration process for
hearing community claims that the Board has acted outside of its by-laws. Under
the process there is a legally enforceable and contractual obligation on ICANN
to comply with a decision of the arbitration panel.</span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">I believe that the community find
ourselves in our current difficult situation because, with the best of intentions,
the CCWG’s attorneys have been instructed to come up with models that deliver
‘the highest possible levels of enforcement’. It is not that the Community IRP
cannot deliver the enhanced accountability that we want but rather that it is
perceived, by some, as inadequate because there is a different mechanism that delivers a higher
level of enforceability.</span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">The CCWG appears to be requiring
a mechanism that allows the community (in whatever guise we finally agree is
acceptable) the absolute final say. The right to step over the Board's
fiduciary duty without any check or balance in place to allow for the testing
of the Board's claim that acting would indeed be in breach of such duty.</span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">I firmly believe in the
corporate governance structures adopted by most corporate bodies around the
world. Board members are appointed to manage the affairs of the organisation on
the understanding that they are legally bound to act in the best interests of
the organization rather than any one member or community. Such best interests
are set out in the by-laws - in ICANN's case for example, the security and
stability of the Internet as a whole. The Board has a fiduciary obligations to
act in that way.</span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">The ICANN Board has proposed the
Community IRP as binding arbitration. The CCWG’s attorneys have said that the Board
can refuse to implement such a binding arbitration decision if it claims that
to implement it would be a breach of its obligations to act in the best
interests of ICANN. This is true BUT the community representatives can then go
to court and a court will enforce the arbitration decision if it disagrees with
the Board's view. In my opinion this is precisely the type of safeguard we need
to have in place because it ensures that an elected board made up of
representatives of the multi-stakeholder community will always act, first, in
the interests of a stable and secure Internet and it puts in place an independent
arbiter to decide, in the final analysis, if the community or the board is
right. </span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">The alternative, it seems to me,
is to create, now, a system where fiduciary duty is abandoned and the will of
the community holds sway. That is in effect what happens under the membership
model as described by the CCWG’s attorneys. This may well be acceptable in the
future when all of the nuances have been thought through and the necessary
community conflicts and ethics rules, accountability mechanisms and disclosure
requirements have been agreed. But it will take time and testing and a fuller
discussion.</span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">Fiduciary responsibilities and
duties are there for a reason. I think that some in the community feel that
the Board and ICANN legal sometimes use the ‘cloak’ of fiduciary responsibility
to avoid doing what the community wants. Whilst I don’t believe that is true I do
empathise with the feeling. To my mind the solution (at least at this time
during the transition) is NOT to create a mechanism under which fiduciary duty
is held by no one but rather to create a mechanism where the community can test
the Board's claims about such duty. The Community IRP as suggested by the Board
does just that.</span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">I want to stress again that I am
not against any of the proposed models put forward by the CCWG. But I can't
agree the models at this stage because I don’t believe we have enough detail
and I think the community as a whole should take their time in considering making
such important changes. And I do not agree with those who claim that "we
must do it now because it's our only chance". </span><span style="color:rgb(83, 83, 83);" class=""> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83, 83, 83);" class="">I am very much looking forward
to spending time with my ccTLD colleagues during the Dublin meeting and hope we
will have the opportunity to talk, and not just about the transition.</span></p>
<div class="">
<style type="text/css">
p.p1 {margin:0.0px 0.0px 0.0px 0.0px;font:12.0px Helvetica;min-height:14.0px;}
p.p2 {margin:0.0px 0.0px 0.0px 0.0px;font:13.0px Verdana;color:#424242;}
p.p3 {margin:0.0px 0.0px 0.0px 0.0px;font:13.0px Verdana;color:#424242;min-height:16.0px;}
p.p4 {margin:0.0px 0.0px 0.0px 0.0px;font:13.0px Verdana;color:#103ffb;}
p.p5 {margin:0.0px 0.0px 0.0px 0.0px;font:9.0px Verdana;color:#ffa827;min-height:11.0px;}
p.p6 {margin:0.0px 0.0px 0.0px 0.0px;font:10.0px Verdana;color:#424242;}
span.s1 {color:#000000;}
span.s2 {color:#ff9324;}
span.s3 {text-decoration:underline;}
span.s4 {color:#424242;}
span.s5 {text-decoration:underline;color:#0000ee;}
span.s6 {color:#ffa827;}
span.s7 {color:#6c6c6c;}
span.s8 {text-decoration:underline;color:#103ffb;}
</style>
<p class="p1"><br class=""></p>
<p class="p2">Cheers,</p>
<p class="p3"><br class=""></p>
<p class="p2">Chris Disspain<span class="s1"> </span><span class="s2">|</span><span class="s1"> </span>Chief Executive Officer</p>
<p class="p2">.au Domain Administration Ltd</p>
<p class="p2">T: <span class="s3">+61 3 8341 4111</span><span class="s1"> </span><span class="s2">|</span><span class="s1"> </span>F: <span class="s3">+61 3 8341 4112</span></p>
<p class="p4"><span class="s4">E:</span><span class="s1"> <a rel="nofollow" ymailto="mailto:ceo@auda.org.au" target="_blank" href="javascript:return" class=""><span class="s5">ceo@auda.org.au</span></a> </span><span class="s6">|</span><span class="s1"> </span><span class="s4">W:</span><span class="s7"> <a rel="nofollow" target="_blank" href="http://www.auda.org.au/" class=""><span class="s8">www.auda.org.au</span></a></span><span class="Apple-converted-space"> </span></p>
<p class="p2">auDA – Australia’s Domain Name Administrator</p>
<p class="p5"><br class=""></p>
<p class="p6"><span class="s6"><b class="">Important Notice</b></span><span class="s1"><b class=""> </b></span><b class="">- </b>This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.</p>
</div>
<br class=""></span></td>
</tr>
</tbody>
</table>
</div>
</div>
</div>