[Area 1] Sub Group 1 - Preliminary Draft

[David W. Maher]

Thanks, Samantha.
On the subject of contractual sources of accountability, it should be
noted that the proposed withdrawal of NTIA from IANA functions will remove
NTIA as a source of accountability enforcement.
I propose that the Sub Group look for other contractual sources and at the
same time explore the possibility of broadening the scope of
accountability enforceable by contract.
For example, the registries and registrars could enter into contracts with
ICANN covering the IANA functions in addition to the following:
1. ICANN could agree by binding contract not to impose rules on third
parties (by means of policies, accreditation standards, or required
contract terms) that are not supported by a demonstrated consensus among
affected parties.
2. ICANN could agree by binding contract not to impose rules on third
parties (by means of policies, accreditation standards, or required
contract terms) that do not relate to issues the uniform resolution of
which is necessary to assure sound operation of the domain name system.
3. ICANN could agree by binding contract not to impose rules on third
parties (by means of policies, accreditation standards, or required
contract terms) that relate to online content or to online behavior that
does not threaten the sound operation of the domain name system?
4. ICANN could agree that any claim that it has not complied with the
previous three obligations may be brought by any adversely affected party
before an independent review panel that can issue decisions that are
binding on ICANN.

David


David W. Maher
Senior Vice President ­ Law & Policy
Public Interest Registry
312 375 4849 






On 12/15/14 9:30 AM, "Samantha Eisner" <Samantha.Eisner at icann.org> wrote:

>Hi all - 
>
>I posted a new version of the document on the wiki page in clean and
>redline form.  The proposed changes include:
>1. To address Malcolm Hutty¹s edit regarding contractual sources of
>accountability, I made a ³contract² heading and also listed Registry and
>Registrar Contracts under there.
>2. To address David¹s inclusion of SSAC recommendations as a source of
>accountability, I incorporated a heading under Bylaws that accounted for
>Advisory Committee inputs.  (Note that action is pending on ATRT2
>recommendations regarding ICANN¹s obligations on considerate of advice
>from ACs other than the GAC).  Because identifying accountability in terms
>of advice did not then seem complete without reference to the policy
>recommendations upon which that advice is often given, I referenced the
>policy development/Board consideration of policy recommendations for each
>of the SOs. 
>3. Inserted summary listings of all ATRT recommendations (1 and 2)
>
>In terms of background documentation, I modified the page to make a clear
>delineation between the background info and the drafting work ongoing.  In
>line with David¹s concern and Bruce¹s suggestion, I excerpted the
>presentation I previously circulated, and posted only the part that deals
>with the inventory effort, so as not to bring all the questions in at this
>stage.
>
>I also included an excerpt to the inventory effort undertaken by ICANN in
>advance of the first postings on Enhancing ICANN Accountability.
>
>Please let me know if you have any questions.
>
>Sam
>
>
>
>On 12/13/14, 4:01 PM, "Bruce Tonkin" <Bruce.Tonkin at melbourneit.com.au>
>wrote:
>
>>Hello Samantha,
>>
>>Is it possible to split this presentation from London into its two
>>components?
>>
>>The first few slides list some of the accountability mechanisms available
>>within the ICANN structure.   The ATRT2 review identified some
>>improvements to make to these mechanisms.
>>
>>The slides from 11-28 are a general presentation about accountability
>>from Professor Jan Aart Scholte, School of Global Studies, .University of
>>Gothenburg.
>>
>>He lists 9  framing questions to consider when looking at accountability
>>mechanisms:
>>
>>(1) What is accountability?
>>
>>	- processes whereby an actor answers to other actors for the impacts on
>>them of its actions and omissions
>>
>>(2) with what components?
>>
>>	- transparency
>>
>>	- consultation
>>
>>	-  monitoring and evaluation
>>
>>	-  correction and redress
>>
>>
>>(3) for what purpose?
>>
>>	- financial review; 'the accounts'
>>
>>	- performance measurement
>>
>>	- democratic participation/control
>>
>>	- moral probity; ecological integrity; peace; etc.
>>
>>
>>(4) Accountability by whom?
>>
>>	- challenge of pinning down and specifying impact in the context of
>>complex polycentric governance
>>
>>
>>(5) for what?
>>
>>	- actual formal mandate
>>
>>	- desired mandate (content? spam? digital access?)
>>
>>
>>(6) to whom?
>>
>>	- 'the public' of significantly affected people (but metaphysical,
>>ecological?)
>>	
>>	- 'the public' not unitary, as different people are differently affected
>>
>>	-  constituencies (divisions within and overlaps between)
>>
>>
>>(7) for whom?
>>
>>	- myth of a universal 'global community' with same interests and equal
>>power
>>
>>	- skewed accountability on lines of age, caste, class, (dis)ability,
>>faith, gender, geography, language, nationality, race, sexuality
>>
>>
>>(8) via what channels?
>>
>>	- hegemonic veto
>>
>>	- intergovernmental multilateralism
>>
>>	- (global) political parties and parliaments
>>
>>	- multi-stakeholder arrangements
>>
>>	- civil society deliberation and mobilization
>>
>>	- judiciary (court, inspection panel, evaluation exercises, ombudsman)
>>
>>	- mass media
>>
>>
>>(9) how accountably?
>>
>>	- 'When you point a finger, you need to do it with a clean hand'
>>	
>>	-  transparency, consultation, monitoring and redress of those who
>>(claim to) speak for affected publics
>>
>>Regards,
>>Bruce Tonkin
>