[Area 1] Sub Group 1 - Preliminary Draft

Tue Dec 23 14:19:38 UTC 2014

Dear all,

As discussed, I suggest the table to be expanded with at least one column
„final say” or „stops the buck” or something, that states where the final
decision lies. 
I bet that in most cases we will find that this is the ICANN Board. Which
is not a flaw in the system, but -as I am sure you are all aware- just the
logic result of the present (common) governance structure of the
corporation, whereby board members have a fiduciary duty and ultimately
(only) serve the best interests of the corporation.

As long as the best interests of ICANN the corporation and the „public
interest” are aligned (or are so in the opinion of the board) all is
probably well. If they are not, if the are not in the opinion of the
board, or if the board misinterprets the public interests and/or the
corporations interests, problems arise.

It surely has not always been the case, but in my opinion the board and
CEO have done pretty well over the last years in finding the right balance
(or alignment) between corporate and public/community interests.
No guarantee that that will remain the case indefinitely however,
especially if there’s no longer the NTIA/USG to subtly threaten with
corrective measures...

As far as I understand it, we mean by „enhanced accountability” that
ultimately, when the *stuff*  hits the fan, the public interest will be
the decisive interest and NOT the corporation's.

I do not think that can be demanded from the board.
I agree that we should consider multiple solutions to this challenge.
One of which might be assigning the task and the authority required for
it, to an external or semi-external structure, through the bylaws of that
corporation. In such a situation, the members of that structure should
obviously not be appointed by (the board of) the corporation. But by those
representing the public interest.

Cheers,

Roelof Meijer

SIDN
| Meander 501 | 6825 MD | P.O. Box 5022 | 6802 EA | ARNHEM | THE
NETHERLANDS
T +31 (0)26 352 55 00 | M +31 (0)6 11 395 775 | F +31 (0)26 352 55 05
roelof.meijer at sidn.nl
| www.sidn.nl <http://www.sidn.nl/>

On 23-12-14 06:18, "Mathieu Weill" <mathieu.weill at afnic.fr> wrote:

>Thanks Samantha,
>
>Just adding a link to the resource for everyone to access easily :
>DOC version : 
>https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun
>tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141
>9299658000&api=v2 
>
>PDF version : 
>https://community.icann.org/download/attachments/51414329/WS1%20-%20Accoun
>tability%20Inventory%20with%20Questions.doc?version=1&modificationDate=141
>9299658000&api=v2 
>
>
>Mathieu
>
>Le 23/12/2014 02:57, Samantha Eisner a écrit :
>> Hi -
>>
>> I’ve done a first attempt (which is by no means comprehensive) of our
>> assigned task and uploaded to the wiki.  I think we’d benefit from
>>seeing
>> what other detail we’d like in there, so I put this out to start the
>> conversation.
>>
>> Best,
>>
>> Sam
>>
>> On 12/16/14, 1:43 PM, "David W. Maher" <dmaher at pir.org> wrote:
>>
>>> I agree
>>> David
>>> David W. Maher
>>> Senior Vice President – Law & Policy
>>> Public Interest Registry
>>> 312 375 4849
>>>
>>>
>>>
>>>
>>>
>>>
>>> On 12/16/14 2:04 PM, "Mathieu Weill" <mathieu.weill at afnic.fr> wrote:
>>>
>>>> Samantha, Colleagues,
>>>>
>>>> That is indeed what I understand from the discussion. You could also
>>>>add
>>>> a 3) is it review, redress or check & balance (see Netmundial
>>>>definition
>>>> of Accountability).
>>>>
>>>> Best
>>>> Mathieu
>>>>
>>>> Le 16/12/2014 13:04, Samantha Eisner a écrit :
>>>>> Colleagues,
>>>>>
>>>>> Listening to the discussion, I propose think that one of the new
>>>>> refined
>>>>> tasks that we could undertake would be, for each mechanism that we’ve
>>>>> identified on the inventory, first try to answer the questions of:
>>>>>
>>>>> 1) To whom does this mechanism seek to make ICANN accountable; and
>>>>> 2) For what
>>>>>
>>>>> This could be a starting point for parsing through the next wave of
>>>>> issues
>>>>> that we are agreeing to take on.
>>>>>
>>>>> Best,
>>>>>
>>>>> Sam
>>>>>
>>>>> On 12/15/14, 9:23 AM, "David W. Maher" <dmaher at pir.org> wrote:
>>>>>
>>>>>> 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
>>>>> _______________________________________________
>>>>> Ccwg-accountability1 mailing list
>>>>> Ccwg-accountability1 at icann.org
>>>>> https://mm.icann.org/mailman/listinfo/ccwg-accountability1
>>>> -- 
>>>> *****************************
>>>> Mathieu WEILL
>>>> AFNIC - directeur général
>>>> Tél: +33 1 39 30 83 06
>>>> mathieu.weill at afnic.fr
>>>> Twitter : @mathieuweill
>>>> *****************************
>>>>
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>>> _______________________________________________
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>
>-- 
>*****************************
>Mathieu WEILL
>AFNIC - directeur général
>Tél: +33 1 39 30 83 06
>mathieu.weill at afnic.fr
>Twitter : @mathieuweill
>*****************************
>
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