[Area 2] Updated draft 3 for Work Area 2
Kavouss Arasteh
kavouss.arasteh at gmail.com
Sat Dec 20 14:23:51 UTC 2014
Dear Paul,
Further to the message that sent as immediate reaction to your proposal,
While I fully appreciate yours and other distinguished colleagues in CCWG
for their efforts and hard works I wish to come back to your message and
reply to it paragraph by paragraph
See attachement
Regards
Kavouss
2014-12-19 22:15 GMT+01:00 Kavouss Arasteh <kavouss.arasteh at gmail.com>:
> Dear All,
> Thank you very much for the real hard works done.
> Serious objections to delete GAC Role
> Either we accept the multistakeholder Approach/ Concept or not
> If we don not accept then the whole exercise is useless.
> If we accept multistakeholder approach, Governments are part of the
> community
> I do not understand the incoherence in the debate
> I do not agree and in fact strongly object that the new arrangement be
> subject to any individual government's law such as USG.
> This is inconsistent with NTIA announcemnet
> The deletion of some of the important items has been done based on
> individual views and has not been yet even discussed
> I understand that there are people attepmting to further reduce the role
> of governmnets WHY?
> What is wrong with goverments role in the process?
> Why there is such a hostility in reghard with governments ' role
> Is the Internet an noninclussive issue?
> Where is the democratic arrangemnts in this process
> Are we just propagating slogans such as inclussive, democtartic ,
> multistakeholder model whereby we exclude governments from the voting
> process.
> Pls kindly do not take that radical approach
> It is totally inacceptable
> Tks
> Kavouss participamnt AS to CCWG
>
>
> We need to work Under the unbrella of international law
>
> 2014-12-19 15:32 GMT+01:00 Paul Rosenzweig <
> paul.rosenzweig at redbranchconsulting.com>:
>
>> Colleagues
>>
>>
>>
>> First, my congratulations to Steve for doing such an effective job of
>> creating our working catalog. In response to the call of the chair (“ACTION:
>> review the inventory list compiled by WA2 and suggest either additions to
>> or deletions from the list”) herewith my general thoughts on our draft
>> paper, along with some specific things worth considering.
>>
>>
>>
>> First, and foremost, the list, while comprehensive now is far too large
>> to be useful as a guide to implementation. My concern is that if we throw
>> 50 items at the Board and NTIA they will just throw up their hands and say
>> that there is so much here that we really can’t do any of it. If you have
>> 50 priorities you really have none.
>>
>>
>>
>> As a result, I think that part of what we should be doing in the long run
>> is focusing on the core/critical 3-5 items that are absolutely essential to
>> ensuring accountability. In short, I think there is actually a
>> sub-category of WS1 (call it *WS0* for want of a better term) that would
>> be fundamental red-lines for the community.
>>
>>
>>
>> Second, I was surprised to see, on review, that two of the items that I
>> (at least) would think of as a *WS0* requirement are listed as WS2 –
>> prohibitions on fee structure changes without a supermajority and keeping
>> ICANN subject to external judicial review. I will address those both more
>> below, but call them out here so that you can look for it. J
>>
>>
>>
>> With those two introductory points, I now turn to the list of items and
>> offer my reaction to them as part of the review requested by the Chair:
>>
>>
>>
>> *Control of ICANN by Community*
>>
>>
>>
>> · Move AOCs to the Bylaws – This is now in WS1 and is essential to
>> complete as part of the bylaw revision package that must occur before the
>> transition. Retain as is.
>>
>>
>>
>> · Create permanent cross community group review structure – This
>> is one of the *WS0* requirements. The community should absolutely
>> insist on this form of oversight. Of the powers listed for the new
>> structure, I think some are more important than others. I would consider
>> WS1 to include appointing an Affirmation review team; and approval of the
>> budget; along with recall of the Board. Controlling review, funding, and
>> misconduct are the essential components of the review structure. Other
>> powers, are probably best put elsewhere (dispute resolution should be by an
>> independent arbiter – since even the cross-community structure will be
>> somewhat self-interested) or not appropriate (bylaw changes should be made
>> by the Board, but on a much higher threshold than currently).
>>
>>
>>
>> · Revise reconsideration process – Delete or move to WS2. I see
>> no evidence this is really necessary or has been a big problem thus far.
>>
>>
>>
>> · Require Board Supermajority to reject AO advise – Keep in WS1.
>> This insures that the community is in control
>>
>>
>>
>> · Independent adjudicator for disputes – This is another *WS0*
>> requirement.
>>
>>
>>
>> · Prevent revision of bylaws/mission – Agree. The best way to do
>> this is as part of the Bylaw revision to require both AC/SO approval and a
>> Board supermajority to change the bylaws.
>>
>>
>>
>> · Access to internal documents – Yes. WS2
>>
>>
>>
>> · Sunset of original reviews and create new ones – I think this is
>> implicit in existing rule sets. At most WS2 if not unnecessary.
>>
>>
>>
>> · “Human rights” v. “public interest” – Delete. As we have seen
>> on the list, the definition of both terms is horribly contested. Making
>> the change part of the discussion of the transition will stop the
>> transition in its tracks
>>
>>
>>
>> · Local courts to hear complaints – Delete. This is just a bad
>> recommendation that would subject ICANN to review by 190+ different legal
>> systems. As I said at the top, I think that one such system is required …
>> but not a multiplicity.
>>
>>
>>
>> · Inspector general – Keep in WS2. A good long term plan. Should
>> be selected by the cross-community review group.
>>
>>
>>
>> · Channels for inquiry/complaint --- Delete as redundant to
>> creation of an IG and an independent arbiter and the retention of court
>> jurisdiction.
>>
>>
>>
>> · Recall mechanisms – Delete as redundant to creation of the
>> permanent cross-community oversight structure.
>>
>>
>>
>> · Engage with all governments – Delete as redundant. Governments
>> are already represented in the GAC
>>
>>
>>
>> · GAC to get 2-4 voting members – Delete. Inconsistent with the
>> conditions of NTIA transition to avoid governmental control. Inconsistent
>> with community rejection of GAC proposal Board review proposal.
>>
>>
>>
>> · Ombudsman referall power – Delete as redundant to creation of IG
>>
>>
>>
>> · Allow NomCoim to select Ombudsman – Delete as reduntant to
>> selection of IG by cross-community review group.
>>
>>
>>
>> · Expand grounds to challenge ICANN decision – Delete as
>> unnecessary given proposal to retrict ICANN strictly to limited functions.
>>
>>
>>
>> *Limits on ICANN Activities*
>>
>>
>>
>> · Require GAC consensus – Keep in WS1. Essential to preventing
>> government capture. Consistent with NTIA requirements. Needs to be
>> incorporated in bylaws.
>>
>>
>>
>> · Prevent ICANN from doing non-DNS/IANA functions – Keep in WS1,
>> if not *WS0*. Almost all problems with ICANN accountability can be
>> traced to concerns about the exercise of non-IANA functions (e.g.
>> specification 11 requirements in the gTLD contracts). If ICANN is
>> appropriately restricted to the function it needs to do through bylaw
>> amendment, the prospect of mission creep goes away.
>>
>>
>>
>> · Maintain freedom of expression – WS2. But unnecessary if
>> restricted function is adopted.
>>
>>
>>
>> · Prevent ICANN acting “ultra vires” – Same as non-DNS/IANA
>> function. Merge this into earlier recommendation with sam analysis.
>>
>>
>>
>> · Registry and Registrar agreements be
>> equitable/non-discriminatory – Should be stated as the principle on which
>> agreements are made and subject to independent review if allegedly
>> breached. Statement of the principle is WS1 as is commitment to creating
>> review mechanism. Actual mechanism itself is WS2.
>>
>>
>>
>> · Supermajority to change fee structure. This is currently WS2.
>> I am surprised that the community thinks so. To my mind the greatest risk
>> in the ICANN transition is not the risk to free expression. Rather it is
>> the creation of an unregulated monopoly controlling a scarce resource (the
>> domain names). I would have thought that the community would be deeply
>> concerned about the creation of excess profits that ICANN could devote to
>> other purposes (e.g. the proposal to fund broadband expansion) that would
>> allow it to, in effect, buy support and create independence. For me, this
>> is a *WS0* requirement or at a minimum a WS1 part of the bylaw
>> revision.
>>
>>
>>
>> · Term limits for ICANN Board – WS2 or delete. With a good
>> oversight structure, Board membership limits become less necessary.
>>
>>
>>
>> · ICANN to remain subject to US law – Currently WS2. I think it
>> should be *WS0*. In this I am supported by no less an authority than
>> the CEO Mr. Chehade. Yesterday in a small meeting he said that one of the
>> reasons that the US should not oppose the ICANN transition is that it would
>> always be subject to legal jurisdiction in California. This is the
>> ultimate backstop against a rogue ICANN. Without some guarantee of
>> external legal mechanisms to control we run the risk of ICANN becoming
>> FIFA-like – an unaccountable international body. We do not want a
>> situation where worldwide bodies like FIFA or ICANN are not beholden to
>> any set of laws or codes other than their own.
>>
>>
>>
>> Some may suggest that US law is not the appropriate backdrop. Fair
>> enough – but then what is the alternative? Some might suggest the Swiss,
>> but the reality is that organizations that are based in Switzerland
>> (including the International Olympic Committee and FIFA), are not really
>> subject to control.: “The Swiss government has no interest in being
>> involved in things like this. Switzerland attracts all these sports bodies
>> but doesn’t oversee any of it. These things seem to be related.” (
>> http://www.nytimes.com/2014/12/19/sports/soccer/fifa-investigator-michael-j-garcias-resignation-ended-an-uneasy-marriage.html?_r=0).
>> In short we need a locale that is committed to the rule of law; dedicated
>> to freedom of expression; is transparent; and open to all. That describes
>> the US legal system pretty well – and it may also describe the one in
>> London.
>>
>>
>>
>> · Require supermajority to change incorporation and require cost
>> benefit of leaving California – Delete. Inconsistent with need to maintain
>> legal presence in US.
>>
>>
>>
>> · Incorporate as international organization – Delete.
>>
>>
>>
>> · Limit ICANN executive function to implementation of polies – I
>> don’t understand this one. As opposed to what? Making policy?
>>
>>
>>
>> · Operate under rule of law in jurisdications that support
>> redress – Delete. Generally covered by independent arbiter idea.
>> Particularized special request of copyright holders that is outside scope.
>>
>>
>>
>> · One third Board on ICANN full time – Delete. Barely disguised
>> effort to enable governments to place members on the Board as full time
>> government employees. Inconsistent with NTIA requirements and with
>> bottom-up community system of review.
>>
>>
>>
>> · Separate policy function from Root Zone Management – Keep as
>> WS1. A critical structural idea that will go a long way to avoiding
>> mission creep.
>>
>>
>>
>> *Transparency*
>>
>>
>>
>> · Transparency International audit – Duplicative of other audit
>> requriementes. Delete
>>
>>
>>
>> · Limit ability to deny transparency requrests/create mechanism
>> akin to FOIA – This is clearly a commitment that needs to be in WS1.
>> Implementation can be in WS2
>>
>>
>>
>> · Annual audits – WS2 for implementation but WS1 for commitment.
>> Should be both for transparency (see earlier suggestion) and also forensic
>> financial audit. Follow the money …..
>>
>>
>>
>> · Board deliberations transparent – Move to WS1 and make part of
>> the Bylaw revision.
>>
>>
>>
>> · SOs to have aligned transparency mechanisms – Keep in WS2
>>
>>
>>
>> I apologize for the length of this note, but I wanted to be
>> comprehensive. If I could summarize my most important point it would be
>> that there are *five* critical *WS0* items that should be our focus.
>> You may disagree with which these are, but I really do think that the best
>> approach is to narrow down our focus to be more effective. My five are:
>>
>>
>>
>> 1. Create a permanent cross-community review structure
>>
>> 2. Mandate independent arbiters for dispute resolution
>>
>> 3. Change ICANN bylaws to clearly prohibit any non-IANA management
>> related activity
>>
>> 4. Require a supermajority of the Board to raise fees
>>
>> 5. Keep ICANN permanently incorporated in California.
>>
>>
>>
>> I suspect there will be strong agreement on #1, #2 and #3. I think #4 is
>> essential. I realize #5 may get some dispute.
>>
>>
>>
>> Happy holidays to all,
>>
>> Paul
>>
>>
>>
>> ***NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
>>
>> 509 C St. NE
>>
>> Washington, DC 20002
>>
>>
>>
>> Paul Rosenzweig
>>
>> paul.rosenzweig at redbranchconsulting.com
>> <paul.rosenzweigesq at redbranchconsulting.com>
>>
>> O: +1 (202) 547-0660
>>
>> M: +1 (202) 329-9650
>>
>> Skype: +1 (202) 738-1739 or paul.rosenzweig1066
>>
>> Link to my PGP Key
>> <http://www.redbranchconsulting.com/index.php?option=com_content&view=article&id=19&Itemid=9>
>>
>>
>>
>> *From:* Steve DelBianco [mailto:sdelbianco at netchoice.org]
>> *Sent:* Sunday, December 14, 2014 5:05 PM
>> *To:* ccwg-accountability2 at icann.org
>> *Subject:* [Area 2] Updated draft 3 for Work Area 2
>>
>>
>>
>> In this draft, I have merely re-arranged the accountability suggestions,
>> into 3 sections:
>>
>>
>>
>> 1. Mechanisms to give the community authority over the ICANN corporation
>>
>> 2. Mechanisms to prescribe or restrict actions of the ICANN corporation
>>
>> 3. Mechanisms to ensure transparency of the ICANN corporation and the
>> broader community
>>
>>
>>
>> I presume staff will post this version to our Wiki so that all CCWG
>> colleagues can review before our call on Tuesday. Both a pdf and Word doc
>> are attached.
>>
>>
>>
>> --Steve
>>
>>
>>
>>
>>
>> On 12/12/14, 8:30 PM, "Steve DelBianco" <sdelbianco at netchoice.org> wrote:
>>
>>
>>
>> Thanks to Malcolm Hutty for his edits today. And thanks to Marika
>> Konings for sharing a staff summary
>> <https://community.icann.org/x/nCbxAg> of accountability proposals taken
>> from the public comment period. This made our job much easier.
>>
>>
>>
>> That staff document had about 250 ideas. I skipped those focusing on
>> IANA functions since that is out of our CCWG scope. I skipped items that
>> were just comments on current accountability. About 100 of the items were
>> consolidated into the second draft of our deliverable (attached).
>>
>>
>>
>> Our current draft list is very manageable, at under 2 pages. Mathieu
>> suggests we eventually add tags so that related items can be grouped
>> together (e.g., “Checks and Balances”, “Review”, Redress”, etc.)
>>
>>
>>
>> Per a question from Mathieu, I propose this rationale to designate
>> whether in work stream 1 or 2:
>>
>> Work Stream 1 is designated for accountability enhancements that must be
>> in-place or firmly committed before IANA transition occurs. All other
>> items are Work Stream 2, provided there are mechanisms in WS1 adequate to
>> force implementation of WS2 items despite resistance from ICANN management
>> and board.
>>
>>
>>
>> How does that sound to you?
>>
>>
>>
>> Please review and comment over the weekend, so we can send to our
>> colleagues on Monday morning. Feel free to add accountability mechanisms
>> that were suggested earlier this year, even if outside of ICANN’s public
>> comment forum.
>>
>>
>>
>> As I noted earlier, we are tasked now just to give a starting point of
>> accountability enhancement suggestions. Our entire CCWG will surely develop
>> more enhancements over the course of our work.
>>
>>
>>
>> —Steve
>>
>>
>>
>>
>>
>>
>>
>> On 12/12/14, 5:08 AM, "Steve DelBianco" <sdelbianco at netchoice.org> wrote:
>>
>>
>>
>> Thanks for volunteering to help with Work Area 2: to Review Input from
>> Public Comment and Categorize Items into Work Streams 1 & 2.
>>
>>
>>
>> Our deliverable (by Monday) is a list of items that have been suggested,
>> and identify whether these belong in WS1 or WS2.
>>
>>
>>
>> As our rapporteur, I drafted a format that might be useful to our working
>> group colleagues. And I filled-in about a page of items to show how this
>> format could work. (attached)
>>
>>
>>
>> There are around 70 comments in the two comment periods we need to
>> examine. Not every comment includes suggested accountability mechanisms.
>> The process I recommend is:
>>
>> First, scan the comment and for any accountability suggestion,and see if
>> there’s already a similar item in the list/table. If so, add the comment
>> source under the Source column (Google, BC, etc.) If not in the list yet,
>> add the row and the source.
>>
>>
>>
>> Second, Indicate whether this accountability item should be required
>> before the IANA contract is relinquished (WS1). If it can wait until after
>> transition, it goes into Work Stream 2 (WS2)
>>
>>
>>
>> Finally, add a hyperlink to the comment at the bottom of our document, so
>> readers can find it easily.
>>
>>
>>
>> Make sense? Now, how to divide the work?
>>
>>
>>
>> I suggest that Paul Rosenzweig, Jordan Carter, and I go thru the 53
>> submissions in the Public comments on enhancing ICANN Accountability
>> <http://forum.icann.org/lists/comments-enhancing-accountability-06may14/>,
>> 7-May thru 30-Jul, 2014.
>>
>>
>>
>> Could we have a few others volunteer to go thru the second set of
>> comments? There are 21 submissions in the Public comments on enhancing
>> ICANN Accountability
>> <http://forum.icann.org/lists/comments-enhancing-accountability-06sep14/index.html#00014>,
>> 6-Sep thru 13-Oct, 2014
>>
>>
>>
>> Ideas welcome!
>>
>>
>>
>> —
>>
>> Steve DelBianco
>>
>> Executive Director
>>
>> NetChoice
>>
>> http://www.NetChoice.org <http://www.netchoice.org/> and
>> http://blog.netchoice.org
>>
>> +1.202.420.7482
>>
>>
>>
>>
>>
>>
>>
>> On 12/11/14, 5:11 AM, "Grace Abuhamad" <grace.abuhamad at icann.org> wrote:
>>
>>
>>
>> *Work Area 2: Review Input from Public Comment and Categorize Items into
>> Work Streams 1 & 2*
>>
>> Deliverable: list of items that have been suggested and identify whether
>> these belong in WS1, WS2 or both.
>>
>> *Coordinator/Rapporteur*: Steve DelBianco
>>
>> Volunteers:
>>
>> - Jordan Carter
>> - Leon Sanchez
>>
>>
>>
>> Wiki Link: https://community.icann.org/x/YoMQAw
>>
>> Mailing list address: ccwg-accountability2 at icann.org
>>
>> Public Archives: http://mm.icann.org/pipermail/ccwg-accountability2/
>>
>>
>>
>> _______________________________________________
>> Ccwg-accountability2 mailing list
>> Ccwg-accountability2 at icann.org
>> https://mm.icann.org/mailman/listinfo/ccwg-accountability2
>>
>>
>
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