[Area 1] Sub Group 1 - Preliminary Draft

Fri Dec 26 08:36:39 UTC 2014

Bruce:

Thank you for your contribution to the dialogue.

This email addresses two issues, the first of which is the propriety of the Board as a whole and individual members weighing in on the discussion taking place within stewardship and accountability work streams. Noting that in the "ICANN Board Comments on Cross Community Working Group (CWG) Draft Transition Proposal for Naming Related Functions" http://forum.icann.org/lists/comments-cwg-naming-transition-01dec14/pdf20pTv25T9l.pdf  states "We have been conscious of two guideposts during this process: to remain fairly silent so as not to attempt or seem to be attempting to inappropriately influence the process, and, at the same time to share our thinking with the community." That appears to be as reasonable a description as any of the proper bounds of collective Board and individual member input, although I would think that the community would benefit from the Board's actual experience as well as its thinking. I have no doubt that if the Board's participation is ever perceived as attempting to inappropriately influence the process the community participants will have no hesitation in pointing that out.

Of more substantive concern are your comments that " the most difficult decisions for Board directors have been on matters in the public interest" and that " The interesting thing about making a decision in the public interest is that it is usually subjective and often subject to the cultural backgrounds and experiences of the individual Board directors". The Board's October 16th Resolution, "Board Consideration of Recommendations from the Cross Community Working Group on Enhancing ICANN Accountability" https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2.d states " 2.If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board." This means that the final work product of this CCWG will, by your own evaluation, be evaluated -- and significant provisions possibly rejected -- based upon a subjective standard subject to the individual cultural backgrounds and experiences of Board members. That is concerning, although hopefully the final recommendations will be so broadly supported within the community that Board cherry-picking will be limited or nonexistent.

What is most concerning is that the community has little or any information by which to judge how the Board has reached difficult decisions on public interest matters in the past. As you note in regard to the .XXX decision, "Several directors spent considerable time preparing their own personal statements on that matter that were delivered in the public forum." Similarly, I remember a vigorous public debate and statements when the Board voted to let the new gTLD program proceed and accept applications. But we no longer have public Board meetings, and the materials released pertaining to Board meetings are quite opaque regarding how decisions are reached or whether dissents took place, and of course we have no transcripts of Board meetings or access to other relevant communications related to Board decision-making. I do note that the October 16th resolution further states that a rationale will be provided for any Board rejection of CCWG recommendations, and a further dialogue initiated, but that is still inferior to being able to witness or at least read the full Board debate on such matters.

It has been widely recognized that transparency is a fundamental requirement for accountability, yet the transparency of the Board's decision-making process is greatly lacking at present. I know that view prevails within the Commercial Stakeholders Group, and my perception is that other parts of the community share it as well. It is my hope that this CCWG process will lead to much greater transparency in that area and that the Board will recognize that such transparency is very much in the global public interest.

With best regards,
Philip

Philip S. Corwin, Founding Principal
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-----Original Message-----
From: ccwg-accountability1-bounces at icann.org [mailto:ccwg-accountability1-bounces at icann.org] On Behalf Of Bruce Tonkin
Sent: Thursday, December 25, 2014 8:13 PM
To: ccwg-accountability1 at icann.org
Subject: Re: [Area 1] Sub Group 1 - Preliminary Draft

Hello Roelof,

>>  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.

Just reflecting on your statement above.   I have been on the ICANN Board now as a director for approximately 7 years.   In that time the most difficult decisions for Board directors have been on matters in the public interest.   The decisions related to the "corporation", such as appointing auditors, CEOs etc have usually been unanimous.

The interesting thing about making a decision in the public interest is that it is usually subjective and often subject to the cultural backgrounds and experiences of the individual Board directors.  

 For example after the decision of the Independent Review panel on .xxx, the easiest thing for the Board to do would have been to just endorse the decision.   However individual Board directors still spent considerable time considering the issue from a public interest perspective.    The final decision was not unanimous, yet each of the individual Board directors felt they were making a decision in the public interest.   Several directors spent considerable time preparing their own personal statements on that matter that were delivered in the public forum.

Ultimately one of the strengths of the Board is that it is quite big - (16 voting members) and also quite diverse (people from 5 geographic regions with a range of cultural backgrounds and a range of life experience).   The exact cultural composition of the Board varies from year to year, but on matters of public interest there has always been a great diversity of viewpoints.

For me it has always been a privilege to spend time with such a group of people that are devoted to the public interest.

Regards,
Bruce Tonkin

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