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James, I am not George, but I will give you my response (and that of the
ALAC), at least in regard to the GNSO.<br><br>
We have significant concerns in this area and have said that a number of
times. You will find ATRT2 recommendations which are aimed at making the
GNSO decision making more representative and, we have said it in all of
our comments on the Policy and Implementation WG and in the more recent
instance, as formal ALAC Advice to the Board. However, at the moment, the
GNSO only makes recommendations and the Board has the freedom to reject
them and remand them back to the GNSO if there is a strong belief within
the Board that the public interest is not being met or if there is a
belief that for whatever reason the recommendations do not sufficiently
balance the needs and desires of the various stakeholders. <br><br>
That is the backstop function that the Board, and no other part of ICANN,
plays and it is for that reason that the ALAC and At-Large has not been a
fan of the absolute ability of the community to over-rule the Board in
the current accountability proposals.<br><br>
Alan<br><br>
At 12/10/2015 07:21 AM, James Gannon wrote:<br><br>
<blockquote type=cite class=cite cite="">George,<br><br>
<br>
Thank you for your thoughts. One question that comes to mind is how then
does the board reconcile the issue of current consensus policy as defined
through the bottom up multistakeholder process in the ASO, GNSO and ccNSO
with its apparent mistrust and concerns over the governance an structure
of the current SO's. <br><br>
<br>
Jeff Neuman touched on this in his email to the list last week, some
selected quotes below (Links to his full post below). <br>
<br>
"<br><br>
<pre>If the ICANN Board is basically saying that the community is not
sufficiently representative for purposes of holding ICANN accountable,
then
how can they ever argue that the community is sufficiently representative
to
produce a consensus of Internet stakeholders for the purpose of
developing
Consensus Policies. I have never heard the Board before make that
argument...that it could not take a proposed policy and impose it on the
contracted parties because they did not believe the community was
sufficiently representative.</pre><br><br>
<pre>
</pre><br><br>
<pre>...
You shouldn't be able to argue that the community is sufficiently
representative for one purpose (Consensus Policies), but not for the
purposes of holding itself accountable </pre><br>
"<br><br>
<br>
If this is the position of the board then we are opening serious and
dangerous debate.<br><br>
<a href="https://mm.icann.org/pipermail/accountability-cross-community/2015-October/006324.html">
https://mm.icann.org/pipermail/accountability-cross-community/2015-October/006324.html</a>
<br><br>
<br>
-jg<br><br>
<br>
<hr>
<font face="Calibri"><b>From:</b>
accountability-cross-community-bounces@icann.org
<accountability-cross-community-bounces@icann.org> on behalf of
George Sadowsky <george.sadowsky@gmail.com><br>
<b>Sent:</b> 12 October 2015 08:33:13<br>
<b>To:</b> CCWG Accountability; Icann-board ICANN<br>
<b>Subject:</b> [CCWG-ACCT] Where do we stand?</font> <br>
<br>
All,<br>
<font face="Arial, Helvetica" color="#011993"><br>
Where indeed? I'd like to contribute some thoughts, with a view toward
helping the process toward closure, if possible. <br><br>
My goal is to try to find a way through the issues that appear to
separate us, and to look for areas in which agreement might be able to be
reached, and reasonably soon. By "us" in the previous
sentence, I mean all of the people who have been involved in the CCWG
deliberations in any way whatsoever, including Board members in their
individual capacity. <br><br>
This is not an "us" versus "them" discussion; there
are a lot of different opinions among this larger group of involved
people, not to mention the larger ICANN community that has been rather
silent but nevertheless observing. <br><br>
<b><u>This entire message represents only my own personal opinions and
concerns.</u></b><br><br>
I would like to make a contribution into resolving the apparent stumbling
blocks that impede our progress on the accountability issue. This
is the purpose of this message.<br><br>
I've now followed and occasionally contributed to this discussion for
over two months. It has been difficult following the various
discussions on the list because of the multiple issues that are threaded
and intermingled. The descent of the discussion into opposing and
apparently irreconcilable legal views has not assisted my understanding
much and, perhaps naïvely, I had hoped for a clearer set of answers that
would provide resolution on certain aspect.<br><br>
With respect to clarity of legal opinions and options, I understand that
sometimes what is allowed is based on precedent, and where there is no
precedent, it may be impossible to say with certainty what is allowed and
what is not. Given the level of uncertainty that this introduces,
I'd settle for 'relative certainty' if appropriately qualified.<br><br>
I'd like to provide two lists: (1) those things that guide my own
thinking regarding acceptable solutions, and (2) questions that I wish
could be answered with short, definitive and useful responses and that
might contribute to some convergence in thinking.<br><br>
In my view, her are some of the issues that concern me in my attempt to
think through the issues that we have been discussing:<br><br>
1. ICANN does have responsibility for more than just being a secretariat
for the ACs and the SOs, i.e. what I think of as the inner ICANN
community. I put this in the category of the global public
interest. It doesn't dominate our responsibilities, and in general
it may only be a sliver of what we think about, but it exists. The
ACs and the SOs may also reflect and respond to their notion of the
public interest, but they are by their nature sectoral, and I don't
expect them to be totally neutral in their thoughts or actions.
They represent their constituencies. Perhaps in theory, the varied
stakeholders cover the complete spectrum of interests and balance each
other out, but there is no guarantee of this. <br><br>
The overriding responsibility for balance and interpretation for that
sliver, even if it just a very very small part of what comes up at ICANN,
is the Board's role and responsibility. Any changes in structure
that have the possibility of the ICANN inner community totally capturing
the Board are therefore not acceptable. <br><br>
2. I understand and accept that there needs to be an equilibration of
power and authority in any change in ICANN's structure. However,
the change should result in a balance, and not in a reversal of what
people believe is the current situation, i.e.that the Board has all of
the power and the community has no recourse. Such a reversal
would be equally bad. <br><br>
This is what causes me to discount any model that can lead to
capture. The statutory powers of the member or designator appear to
be powerful, and even if some are severely limited, I worry that these
limitations can be overcome, and the Board will be disenfranchised.
This amounts to capture. I know that there is disagreement about
the nature an extent of such statutory powers and the extent to which
they can be limited, temporarily or permanently and, among other things,
this uncertainty translates for me into the possibility of capture.
<br><br>
3. Replacement of the entire Board, if it occurs, is a very serious
event, It will have significant repercussions not only within ICANN
but internationally with respect to competing venues for so-called
Internet governance. For this reason, we need both a very high bar
to it occurring, and we need to ensure that there are very good reasons
for the action to be taken. <br><br>
For example, if every AC ad SO in the inner community decided that the
Board should be replaced, that would be a signal that something was
seriously wrong, and the Board should be replaced. However,if there
were any significant part of the inner community that disagreed with
replacing the Board, then initiating the action to replace would be seen
as a dispute between parts of that community, taking the Board as hostage
and employing a Draconian procedure to force a majority opinion on a
minority of the community. If this happens, it will turn
ICANN into a battleground, and we won't have to worry about being taken
seriously; we won't. The bar should be high enough so that if this
action is taken, fit should be quite clear that no significant part of
the community is against it.<br><br>
4. I agree with the implication of Cherine's argument that removal of any
director should be based upon a public rationale, an appropriate due
process, and should be the result of broader community action, rather
than that of a single AC or SO. The counter argument that I've
heard is that other not-for-profit organizations can replace their
directors if they want, so why can't we? <br><br>
My response is that ICANN is not an ordinary not-forprofit. On the
contrary, the totality of our membership consists of stakeholder groups
with different and often competing goals, and under the currently
proposed plan the manipulation of Board representation therefore can
reflect attempts at control through the Board. Such a change of
behavior would contradict current bylaws in ways that have been
articulated by Cherine and others. Most other not-for-profits are
considerably more homogeneous and have shared goals, and the Board is
generally not an arbiter of long run competing sectoral goals.<br><br>
5. The models that we have been talking about are legal constructs, and
we will need to respect their existence as frameworks for
governance. But we need to remember that are the means to the ends
that we want to achieve. I would rather prefer to define the goals
precisely -- both the powers given to the actors as well as
the constraints on their activities, and then see which model fits
best. <br><br>
To do that, we need to understand well the differences between what the
models offer, but first we need to agree upon the goals in terms of scope
of authority, power and constraints. Sometimes it seems we mix them
up in ways that obscure and even retard progress. progress.</font> <br>
<font face="Arial, Helvetica" color="#011993"><br>
6. I watch in horror the multi-million dollar duel of lawyers that has
been going on for some time and appears to have no end. Why is it
not possible to give them free rein to discuss the issue more
dispassionately and come up with common positions with the possibility of
deviations? I fear that a need to win may be transforming this part
of our discussion into a lose-lose scenario. If so, the lawyers
will still get rich, but ICANN, the community, and the whole world will
lose. Can't we lock them in a room and not let them out until we
see the white smoke coming from the chimney? (:-)<br><br>
<br><br>
In order to assist in resolving our current difficulties, here are some
issues that I believe are pertinent. I raise them in the form of
questions., for I believe that there is not a common precise
understanding of them. Is it possible to provide simple and direct
answers to them that might be useful for establishing greater
understanding of the differences that still exist and beginning to bridge
them? That would be helpful.<br><br>
A. It appears that the single designator model is very much the
same as the single member mode, but with the only statutory power being
to select or remove directors. In general, is this
correct? In brief, what are the other differences?<br><br>
To establish any new structure the community still needs to address
a range of open topics to ensure ICANN’s stability and freedom from
capture: </font>
<ul>
<li><font face="Arial, Helvetica" color="#011993">• which SO
and AC will participate in the decision-making mechanism (which SOs and
ACs will opt-in)? For dismissal of the entire Board, why should it
not require active assent of all ACs and SOs?</font>
<li><font face="Arial, Helvetica" color="#011993">• what will
be the Decision basis among participating SOs and ACs by _____ % of all
SOs and ACs??</font>
<li><font face="Arial, Helvetica" color="#011993">• how will
advice from those SOs and ACs opting-out of the decision-making mechanism
(similar to GAC/Board advice?) be taken into consideration?</font>
<li><font face="Arial, Helvetica" color="#011993">• how
will will conflicts of interest and fiduciary or other
responsibilities (such as public interest) will be factored into overall
decision-making ?
</ul><br>
B. In Buenos Aires, there was discussion and convergence (I thought) on
an "empowered AC/SO" model. Does this model offer any
initial point for movement to convergence of opinion?<br><br>
C. The Board proposal calls for each AC/SO to decide if they are for or
against and issue instead of possibly dividing its "vote". Is
this a show-stopper?<br><br>
D. The Board proposal allows any AC/SO to weigh in on a particular issue
(and decide to exercise or oppose the use of one of the powers. The CCWG
proposal requires and AC/SO to decide ahead of time whether it will
participate in future uses of the powers. Is this a
show-stopper?<br><br>
E. What would the community take as evidence in the short term that the
Board is acting in good faith? I'm concerned by what appears to be
Board bashing on the list, wherein many things that any of us say or do
are interpreted negatively and perhaps conspiratorially. I realize
that the great majority of people involved int he CCSG process do not
have such attitudes, but predictably it only takes a very few individuals
to sour and confuse a discussion and lessen its utility.<br><br>
I'm sure that these questions reflect my limited and imperfect
understanding of the situation, and perhaps some naïveté also, but there
aren't many other ways to gain a productive understanding of it.<br><br>
<br>
Comments welcome.<br><br>
George<br><br>
<br>
</font><br>
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