[Area 2] Updated draft 3 for Work Area 2

Sat Dec 20 13:40:02 UTC 2014

Dear Mr. Arasteh

With respect, I am not suggesting deleting the GAC role, nor I am proposing anything “radical.”  [I should also note that these are just my proposals and not something our group has adopted]

Rather, I am proposing that we keep the system exactly as it is – with the GAC operating as an independent body that can provide consensus based advice to the Board.  For that reason, I do suggest rejecting GAC authority by giving it two seats on the Board itself (which is one of the proposals addressed below).  I also suggest making the current practice of consensus-based advice GAC permanent and mandatory so that we do not see GAC advice adopted by a narrow majority of States.  This, too, is not radical – it is only enshrining current practice (and it is consistent with the Board’s rejection of the recent proposal to privilege GAC advice).  Finally, though I did not address it directly in my note below, by accepting the idea of a member-based supervisory structure that monitors and can overrule the Board I am actually implicitly accepting a slightly enhanced role for governments.  The oversight structure will include membership from every part of the ICANN community – the Advisory Committees, the Stakeholder Organizations and the GAC as well.  Though that structure has not yet been defined, I expect that the GAC constituency would get a Member slot on the oversight entity and a vote – which is something more than GAC has now.

I hope that helps explain my position a bit more.

Warm regards

Paul

**NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***

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Paul Rosenzweig

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From: Kavouss Arasteh [mailto:kavouss.arasteh at gmail.com] 
Sent: Friday, December 19, 2014 4:16 PM
To: Paul Rosenzweig
Cc: Steve DelBianco; ccwg-accountability2 at icann.org
Subject: Re: [Area 2] Updated draft 3 for Work Area 2

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 <mailto: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.  :)   

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 <mailto:paul.rosenzweigesq at redbranchconsulting.com>  

O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> 

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Skype: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739>  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 <mailto:sdelbianco at netchoice.org> ] 
Sent: Sunday, December 14, 2014 5:05 PM
To: ccwg-accountability2 at icann.org <mailto: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 <mailto: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 <mailto: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 <http://blog.netchoice.org/> 

+1.202.420.7482 <tel:%2B1.202.420.7482> 

On 12/11/14, 5:11 AM, "Grace Abuhamad" <grace.abuhamad at icann.org <mailto: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 <mailto:ccwg-accountability2 at icann.org>  

Public Archives: http://mm.icann.org/pipermail/ccwg-accountability2/ 

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