[Comments-enhancing-accountability-07mar17] Comments on Enhancing Accountability Guidelines for Good Faith

[Jason Schiller]

Disclaimer:

Speaking as an individual in the Internet Numbers Community (with a general
perspective on concerns of the Internet Numbers Community but NOT on behalf
of the Internet Numbers Community).

Speaking as an individual who is a community elected ASO AC representative
(having a general perspective of these issues discussed within the ASO AC,
but NOT on behalf of the ASO AC and NOT on behalf of the ASO).

/End Disclaimer


In general, I am comfortable with the spirit of the document.
"As long as the Indemnified Party participant is truthful, acting for the
benefit of the community
and following established, transparent procedures, the good faith standard
should be met." (P.3)

And that the petition for removal must be made in good faith that any
claims included are true
and any substantiating proof (which is also believed to be true in good
faith) be included in the
claim in writing.  (p.3 III.a.1)


While removal of director(s) can be without cause, I would prefer the
document more clearly indicate that the rational is intended to be useful
to prevent malicious and/or capricious removal of director(s).

While this is sufficiently and clearly supported by "Recommendation 4 of
the final report of the Cross Community Working Group on Enhancing ICANN
Accountability (CCWG-Accountability) includes a process by which the
Empowered Community or the nominating SO or AC can remove a voting director
of the ICANN Board. It further stipulates that if those parties who
undertake to remove a director using this process are sued by that
director, that ICANN will indemnify those parties subject to a set of
conditions which include acting in good faith.", it was not immediately
apparent to me.  This is not specifically a concern, as it is sufficiently
and adequately addressed, just not clearly apparent to me.


My concerns generally are around specific phrases that have been used and
likely connotations that may be problematic, and potentially complicated
for the ASO.  This can be generally summed up as 1. "representing the
communities", 2. "membership of the SO", what a 3. "community process"
connotates,  a 4. "recommended standard framework", and 5. the requirement
that the process be imitated by the So chair.


In the Executive Summary there is the following text:
"The result is that individuals who are representing their communities in a
Director removal
process are shielded from the costs of responding to Director initiated
actions during or
after the escalation and enforcement process for Director removal."

1. "individuals who are representing their communities"

"individuals who are representing their communities" (p.2) is contrary to
the norms of RIR
process.  In the RIR system it is understood that people have
affiliations.  This may be
one or more current or past corporate associations, as well as a community
elected
position.  These affiliations are often noted, and inform the perspective
of an individual,
and occasionally recognize expertise, but individuals speak as individuals.


Likewise, when an ASO AC member speaks, they are usually speaking as an
individual
of the numbers community, with their view on general participation of the
numbers community,
with the support of the numbers community, and in the interest of all of
the regional
numbers communities.

An ASO AC member can only speak on behalf of the numbers community when
that
proposed position has been expressly shared with the numbers community and
input,
responses, and concerns have been gathered.  In this case the ASO AC member
may
speak on behalf of one or all the regional communities in summarizing the
position posed,
the process used, the general position of the community in relation to the
proposed position,
and noting any outlying positions.

An ASO AC member may only speak on behalf of the ASO AC or NRO NC with
permission
of the ASO AC chair (or NRO NC chair in the case of the NRO NC if such a
chair is established).
An ASO AC member may otherwise summarize their perspective, as a
participant of the
ASO AC or NRO NC, on views that have been expressed within the ASO AC or
NRO NC,
or may provide information relating to published procedures, published
positions, or their
individual understanding of the informal workings of the ASO AC.


The NRO shall fulfill the roll of the ASO per the ASO MoU.  Per the NRO
MoU,
the NRO EC shall be the sole body empowered to represent the NRO (and by
extension, the ASO).

ASO AC members can not speak on behalf of the ASO.  ASO AC members may
provide information on published positions of the ASO, NRO, or NRO EC.


2. III.a.2. Review by the entire membership of the SO/AC

There a two issues here.

The first is that it seems there is a recommendation that SOs have a
procedure
for each of the types of Board removal.

During our periodic SO review, it became clear that the recent changes
in ICANN to deal with accountability and oversight of IANA in a post NTIA
world,
that there are many new requirements placed on the ASO that are outside of
the
ASO MoU which has narrowly defined the tasks of the ASO AC.

At the current time it is unclear if participation in all of these
activities are
germane to the numbers community and/or numbers policy, and if the ASO's
participation is beneficial to the numbers community, and if it is even
appropriate
for the ASO to participate in some of these activities (noting that some of
the
numbers community member organizations also have separate and direct
participation in other ICANN SO/ACs).

Section III.a.2. seems to suggest that the ASO AC must have a process for
each
of the board removal types.  At the current time, it is unclear which of
board
removal processes it is appropriate for the ASO to participate in, and of
those
which would fall to the ASO AC.  This work is currently underway, and
should be
sorted soon, but not likely prior to the close of the comment period.

In the event that it is determined that the ASO should not participate in
one or more
of the board removal processes, would it be acceptable to lack a procedure
for such,
or have a procedure that states that the ASO or ASO AC will not participate?

The second is the recommendation that the SO/AC's process for board removal
include
the entire membership of the SO/AC (p.3, III.a.2.b)

" 2. SO/AC’s shall have procedures for consideration of board removal
notices to
include:
[snip]
   b. period of review by the entire membership of the SO/AC"

The current ASO AC procedure for the appointment and removal of ICANN
seats 9 & 10 is through a clearly established process that only involves
(if eligible) the 15 members of the NRO NC (10 who are elected by their
individual
regional numbers community, and 5 who are appointed by their regional RIR
boards)
who serve the role of the ASO AC.

This neither includes the 5 members of the NRO EC who are not elected by
the community, nor the NRO secretariat, all of which make up the NRO which
serves as the ASO.

Furthermore policy development and the numbers community activities happen
at the individual RIR meetings and mailing lists. Unlike normal SOs, ASO is
not
made up of the numbers community.  As such it is not entirely clear that
the
phrase "entire membership of the SO/AC" captures the desired population, or
makes sense in the case of the ASO.

Same with respect to "The [good faith] guidelines developed by the
community..."
(p. 5, 2.d.2.e)

3. Similar concerns apply to page 4 (III.a.2.d) where it states a
recommendation for
documentation of a "community process" for how the decision to remove the
ICANN director was reached.

4. Similar concerns apply to the recommended "standard framework" (p.4,
III.b.1.).
Application of such a framework may not make sense in the case of the ASO AC
if the framework does consider that accountability, transparency, and
community
involvement are all handled in the RIR system.  Furthermore some of these
tasks
may be delegated to the ASO AC, and some may remain with the NRO EC.  In
these cases it may not make sense to refer to the ASO as a single unit.

For example the current ASO MoU clearly places the appointment of seats 9 &
10
as a responsibility of the ASO AC.  Prior to recent bylaws changes, it was
anticipated that removal of those seats may also fall to the appointing
party.  As such
the ASO AC also has a removal process.  Both are predicated on a vote of
the
ASO AC 10 community selected members, and 5 RIR board selected members.

5. The new ICANN Bylaw changes require the SO chair to initiate the
petition process.
This is problematic if you think the appointment and removal of seats 9 &
10 should
rest solely with the 15 ASO AC members.  The ASO has no chair.  The NRO
serves
as the ASO per the ASO MoU.  The NRO EC represents the NRO per the NRO MoU.
By extension, the NRO EC chair would be the only party to be qualified to
serve as
the ASO chair.  As such all 5 RIR CEOs would need to agree to support the
decision
of the ASO AC to remove ICANN Board seat 9/10 in order for the NRO EC chair
to initiate the petition process.  It is likely that some or all of the RIR
CEOs would also
look to their boards for approval.

Lastly section IV.b.i.2 states "In the case of an individual SO/AC, the
guidelines will
assist the voting process that requires a majority in order for the
escalation to move
to the Community Forum phase."

The current ASO AC removal procedure has a very high bar, requiring
unanimous
support of the 15 ASO AC with less than half of the eligible voters
abstaining.
We noted that this is a much higher bar then specified in the ICANN Bylaws
for
initiating a petition, or removing a director.

The ASO AC has not had formal discussions about modifying their operation
procedures as we are awaiting the resolution of the question of which SO
tasks
that are outside of those clearly defined in the ASO MoU are appropriate for
the ASO's participation, and furthermore, of those tasks which would fall
in part
or whole to the ASO AC.

There has been a preliminary discussion where it was suggested that the ASO
AC
would prefer not to have a lower bar for starting the petition process
specifically for
seats 9 & 10 than for the final decision for removal, in that it makes no
sense to
initiate the petition process for seats 9 & 10 if there is not the support
for removal.
It has even been suggested that our current procedure to remove seats 9 &
10 be
considered as the requirement to initiate the petition process, and the
final vote for
removal default to "Yes, remove the seat 9/10 director(s)" unless there is
unanimous support to keep the director with less than half the ASO AC
abstaining.

We also noted requiring action from the ASO chair, will require action from
the NRO EC
chair which will require agreement among the 5 RIR CEOs, and perhaps the
support
of some or all of their individual board of directors.

Again, there is no position of the ASO AC on this matter, as changes to our
operating
rules have not been considered until the larger​ question of which SO tasks
outside of
those clearly described in the ASO MoU are appropriate for the ASO, and of
those
tasks which will fall in part or whole to the ASO AC.



Unrelated is an editorial question:
There is a section III.2.d.b.  There is no section III.2.d.a.
Is section III.2.d.b intended to be III.2.d.1 or additional III.2 text
following the sub-sections of III.2. (a-d)?

__Jason
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/comments-enhancing-accountability-07mar17/attachments/20170424/ac49ae62/attachment.html>