<div dir="ltr">Hi Chris<div><br></div><div>Thank you for sharing your thinking with us on the current situation. I am sure you and others will be shocked to learn I have a slightly different take on things. To keep it brief, here are four points:</div><div><br></div><div><b><i>1. Why are we in our "current difficult situation"?</i></b></div><div><br></div><div>We are under time pressure because ICANN's Board and staff engaged in a process of delay and deferral that meant that the Accountability discussion didn't properly start until late November/early December 2014. Without that instinctive and disappointing response, we would have had a further ~ 6 months to work through these issues. The CCWG and those interested in improving ICANN's accountability aren't responsible for that situation, and nor are the CCWG's counsel. </div><div><br></div><div><br></div><div><b><i>2. Fiduciary duties are still owed.</i></b></div><div><br></div><div>In AUDA, or InternetNZ, our members (who have some rights of decision) don't owe the organisations they are part of fiduciary duties. Fiduciary duties are owed by the Board/Council to give effect to the organisation's mission and to exercise due judgement and care.</div><div><br></div><div><b>Absolutely nothing in the CCWG Proposal or any of the models under discussion changes that fiduciary responsibility on the Board.</b> There is absolutely nothing novel, disruptive or difficult with the idea that a stakeholder community organised as members don't owe such duties - that is the Board's job, because the Board governs the organisation. People who aren't on the Board can't realise such duties - they don't have the rights of decision, the access to information, and the leverage over the operational staff that a Board does. </div><div><br></div><div>Conflating this argument in the way your email does is a regrettable tactic because it suggests something unusual is being proposed. That isn't the case.</div><div><br></div><div><br></div><div><b><i>3. Limited, carefully constrained powers are all anyone has suggested.</i></b></div><div><br></div><div>Nobody, the CCWG least of all, has suggested a fundamental restructure of ICANN. ICANN's multistakeholder policy process is the core of its activity. That wouldn't change with any of the models set out - not the Board's, not the CCWG's. </div><div><br></div><div>All the CCWG has proposed are reserve accountability powers the Board says it supports - powers to guarantee community rights in respect of planning and budget documents, to appoint and remove directors, and to have a formal role in changes to ICANN's bylaws. Add on more effective dispute resolution and that's it.</div><div><br></div><div>Significant progress is being made in the CCWG to make the decisional rights to exercise such powers more consistent with consensus multistakeholder decision-making. That work will hopefully be shared at Dublin. </div><div><br></div><div>Whether such powers have a backstop of membership, or designator, or binding arbitration, the choice should rely on the objective merits of each approach and how far each one goes in meeting CWG and NTIA requirements.</div><div><br></div><div>To repeat: <b>there is no massive restructuring in any of these models, and all the CCWG proposals have been thoroughly stress tested. It is the Board's MEM model that is the weakest in this regard, having been developed behind closed doors and not subject to rigorous stress testing. It is today the highest risk option on the table.</b></div><div><b><br></b></div><div><b><br></b></div><div><b><i>4. Delaying key decisions isn't credible.</i></b></div><div><br></div><div>The history of accountability progress in ICANN has been of community pressure overcoming ICANN"s resistance to real change. That's not an unkind statement: it is just the only way to understand what actually happens (as opposed to the public arguments used to explain what people want to see happen). </div><div><br></div><div>The CCWG's work has led to a substantive, careful, rigorously tested proposal to improve ICANN accountability, It has only been possible to get this done because of the dynamic created by the IANA Stewardship Transition. </div><div><br></div><div>It is important that the community comes to a consensus around a proposal that creates a durable structure for accountability. I will assert this bluntly: if there isn't a workable and complete basic framework done now that provides for true accountability, once the transition is done such a settlement will *never* come about. The playing field would be forever tilted in the interests of the group with the most power and resources. That's ICANN - not the ICANN community.</div><div><br></div><div><br></div><div><br></div><div><b>In closing, I'd like to stress that the most important thing we can do is be up front and honest about what we do and don't support. </b></div><div><br></div><div><u>I don't support the Board's MEM proposal</u> for the reasons set out above - it is untested and novel and hasn't been developed through a multistakeholder process. To validate it and think it through will delay this process and delay the transition.</div><div><br></div><div><u>I do support the CCWG's proposal</u>. It needs improvement but it is a genuine result of multistakeholder efforts, and after the community dialogue in Dublin we will know the remaining points of modification needed.</div><div><br></div><div><u>I could support, based on what I know today, a new synthesis</u> with no membership but careful use of designators and the revised community consensus decision-making the CCWG is developing.</div><div><br></div><div><u>All of these proposals need further refinement and the discussion has to go on until there is consensus. Until there is, nobody should try and finalise the proposal, because it'd be dead on arrival.</u></div><div><u><br></u></div><div><u><br></u></div><div>That's my starting position at the start of this pre-Dublin week. It would be good to know others'. </div><div><br></div><div>In the end, we can only have an honest dialogue that leads to the sort of collaboration that can drive consensus if we *actually say what we think*, and acknowledge that the end point of the consensus process might absolutely not be what we individually want.</div><div><br></div><div><br></div><div>Looking forward to seeing many of you soon!</div><div><br></div><div>best</div><div>Jordan</div><div><br></div><div class="gmail_extra"><br><div class="gmail_quote">On 12 October 2015 at 05:05, Chris Disspain <span dir="ltr"><<a href="mailto:ceo@auda.org.au" target="_blank">ceo@auda.org.au</a>></span> wrote:<br><blockquote class="gmail_quote" style="margin:0 0 0 .8ex;border-left:1px #ccc solid;padding-left:1ex"><div style="word-wrap:break-word"><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)">Greetings,</span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">In essence for me it’s all about
time.</span><span style="color:rgb(83,83,83)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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)">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)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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)">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)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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)"> </span></p><p class="MsoNormal"><span lang="EN-US" style="color:rgb(83,83,83)">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>
<p><br></p>
<p>Cheers,</p>
<p><br></p>
<p>Chris Disspain<span> </span><span>|</span><span> </span>Chief Executive Officer</p>
<p>.au Domain Administration Ltd</p>
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<br></blockquote></div><br><br clear="all"><div><br></div>-- <br><div class="gmail_signature"><div dir="ltr"><div><div dir="ltr"><div><div dir="ltr"><div dir="ltr"><div dir="ltr"><div dir="ltr" style="font-size:small">Jordan Carter<br><br>Chief Executive <br><b>InternetNZ</b><br></div><div dir="ltr" style="font-size:small"><br>+64-4-495-2118 (office) | +64-21-442-649 (mob)<br>Email: <a href="mailto:jordan@internetnz.net.nz" style="color:rgb(17,85,204)" target="_blank">jordan@internetnz.net.nz</a> <br>Skype: jordancarter<br></div><div style="font-size:small">Web: <a href="http://www.internetnz.nz" target="_blank">www.internetnz.nz</a> </div><div dir="ltr" style="font-size:small"><br><i>A better world through a better Internet </i></div><br></div></div></div></div></div></div></div></div>
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