[CCWG-ACCT] The big test of effective accountability

Tue Feb 3 01:36:07 UTC 2015

I agree with Keith, Alan and Robin: what is important is not the facade of 
accountability, we already have that, but true transparency and 
accountability that ensures ICANN is truly responsive to the desires of the 
community and of the larger world.

That's one of the reasons I'm supportive, in a general sense, of proposals 
to transform ICANN into a membership structure under California law. Members 
of a California public benefits corporation are entitled to file derivative 
actions against the Board and Board members thereof for fraud and other 
egregious actions contrary to the best interests of the corporation. It's 
not a cure all, being limited to those instances where the corporation has 
failed to enforce it's rights against third parties, broadly construed, but 
it is a powerful weapon that vests in the membership the ultimate conduct 
and direction of the corporation in some very important operational areas. 

One negative aspect of the California Corporations Code in this regard is 
the possibility of a bond of up to $50,000 being required by the court to 
pursue a derivative action (California Corporations Code §5710 ). This 
highlights an issue we are going to have to face in constructing an 
effective accountability scheme: affordability. Our current accountability 
structure falls flat in this area, with access to an IRP being effectively 
denied to those without extensive resources. This limits the ability of 
small businesses, nonprofits and many individual registrants to hold ICANN 
accountable for it's actions. We need to do better in this area as we 
transform ICANN into a true model of accountable corporate governance and, 
working together, I'm sure we will.

-----Original Message-----
From: "Drazek, Keith" <kdrazek at verisign.com>
To: "'Accountability Cross Community'" 
<accountability-cross-community at icann.org>
Date: Mon, 2 Feb 2015 15:05:59 +0000
Subject: Re: [CCWG-ACCT] The big test of effective accountability

Completely agree with Alan and Robin.

Keith

From: accountability-cross-community-bounces at icann.org 
[mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Alan 
Greenberg
Sent: Saturday, January 31, 2015 1:35 PM
To: Robin Gross; Paul Rosenzweig
Cc: 'Accountability Cross Community'
Subject: Re: [CCWG-ACCT] The big test of effective accountability

Correct, a Bylaw alone is not sufficient. What is needed is a way to ensure 
that if the Board does not follow its Bylaws, the community can take action. 
Whether that means we can overturn a Board action or force an action (in the 
case of inaction), remove part or all of the Board, have clear standing to 
take them to court, or some other remedy or combination of remedies is what 
we are here for.

Alan

At 31/01/2015 01:05 PM, Robin Gross wrote:

I think we'd need more than a bylaw amendment because the problem is at the 
level of the enforcement of the bylaws.  For example Annex A in ICANN's 
bylaws describes the way GNSO policy must be made in a bottom-up fashion.  
The existence of the bylaws has not stopped the staff from changing GNSO 
policy and the bylaws have not stopped the board from looking the other way 
when staff does.  We need those bylaws enforced and it is the board's job to 
do that. 

So I do not believe a bylaw amendment on its own is sufficient to provide 
the assurance that the bylaws will be enforced.

Robin

On Jan 30, 2015, at 7:37 PM, Paul Rosenzweig wrote:

I agree Robin.  So then what is your view on a Bylaw amendment as a 
commitment with teeth/inevitability?  Prior to this discussion, I was of the 
view that changing the Bylaws was both a necessary and sufficient condition 
to satisfy a WS1 requirement.  Now I see that we have at least one case 
scenario where a Bylaw mandate has gone unexecuted for years, despite e.g. 
the failure being called out in ATRT1 and ATRT2.    This makes me concerned 
that one could, hypothetically, change the Bylaws to require our new 
membership organization, or the redress mechanism that is my own focus, have 
the Bylaw passed and written in stone and still not see the actual 
membership or redress change take effect because ICANN as an institution 
slow-walks the change.  This makes me want to consider strongly whether our 
phrasing in WS1 of “implemented or committed to” is too loose and ought 
not to be changed to “implemented” ….

Paul

**NOTE:  OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ***
509 C St. NE
Washington, DC 20002

Paul Rosenzweig
paul.rosenzweig 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

From: Robin Gross [ mailto:robin at ipjustice.org]
Sent: Friday, January 30, 2015 4:19 PM
To: Accountability Cross Community
Subject: Re: [CCWG-ACCT] The big test of effective accountability

I interpret WS1 as those items for which more than mere promises have been 
made to implement, but rather items where commitments that have some teeth 
(or inevitability) are in place, such that they couldn't be left lingering 
indefinitely.

Robin

On Jan 30, 2015, at 12:39 PM, David W. Maher wrote:

+1

David W. Maher

Senior Vice President – Law & Policy

Public Interest Registry

312 375 4849

From: Jonathan Zuck <JZuck at actonline.org>

Date: Friday, January 30, 2015 2:30 PM

To: Paul Rosenzweig < paul.rosenzweig at redbranchconsulting.com>, "'McAuley, 
David'" <dmcauley at verisign.com>, 'Accountability Cross Community' < 
accountability-cross-community at icann.org>

Subject: Re: [CCWG-ACCT] The big test of effective accountability

Indeed

Sent from my Windows Phone

From: Paul Rosenzweig

Sent: 1/30/2015 3:29 PM

To: 'McAuley, David'; 'Accountability Cross Community'

Subject: Re: [CCWG-ACCT] The big test of effective accountability

Thank you David for that explanation.  To be candid it only heightens my 
view that the accountability measures the community wants need to be both 
committed to and actually implemented in place before the IANA transition 
occurs.

Paul

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

509 C St. NE

Washington, DC 20002

Paul Rosenzweig

paul.rosenzweig 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

From: McAuley, David [mailto:dmcauley at verisign.com]

Sent: Friday, January 30, 2015 1:42 PM

To: Paul Rosenzweig; 'Accountability Cross Community'

Subject: RE: [CCWG-ACCT] The big test of effective accountability

That is how the DCA Trust IRP panel seemed to see it, Paul.

Bylaw Art. IV, Section 3.6 says this:

There shall be an omnibus standing panel of between six and nine members 
with a variety of expertise, including jurisprudence, judicial experience, 
alternative dispute resolution and knowledge of ICANN's mission and work 
from which each specific IRP Panel shall be selected. The panelists shall 
serve for terms that are staggered to allow for continued review of the size 
of the panel and the range of expertise. A Chair of the standing panel shall 
be appointed for a term not to exceed three years. Individuals holding an 
official position or office within the ICANN structure are not eligible to 
serve on the standing panel. In the event that an omnibus standing panel: 
(i) is not in place when an IRP Panel must be convened for a given 
proceeding, the IRP proceeding will be considered by a one- or three-member 
panel comprised in accordance with the rules of the IRP Provider; or (ii) is 
in place but does not have the requisite diversity of skill and experience 
needed for a particular proceeding, the IRP Provider shall identify one or 
more panelists, as required, from outside the omnibus standing panel to 
augment the panel members for that proceeding.

It is open to some interpretation because it instructs how to choose a panel 
if a standing panel is not in place. A reasonable (to me) interpretation of 
the provision is that the alternative way of selecting a panel is for those 
cases prior to a standing panel being stood up. But it has been years and 
the introductory language to the bylaw is: “There shall be …”

Here is the full paragraph of what the DCA Trust IRP panel said in the 
procedural ruling in August:

114) The need for a compulsory remedy is concretely shown by ICANN’s 
longstanding failure to implement the provision of the Bylaws and 
Supplementary Procedures requiring the creation of a standing panel. ICANN 
has offered no explanation for this failure, which evidences that a 
self-policing regime at ICANN is insufficient. The failure to create a 
standing panel has consequences, as this case shows, delaying the processing 
of DCA Trust’s claim, and also prejudicing the interest of a competing 
.AFRICA applicant.  ( 
https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug14-en.pdf 
)

To be fair, this was an interim ruling by a single panel and ICANN would 
most assuredly not agree with this decision.

To your question, regarding “failed to implement,” I would say failed so 
far. I think Avri’s term “lingering” is a good one – this is 
lingering so far.

David

From: Paul Rosenzweig [ mailto:paul.rosenzweig at redbranchconsulting.com]

Sent: Friday, January 30, 2015 11:45 AM

To: McAuley, David; 'Accountability Cross Community'

Subject: RE: [CCWG-ACCT] The big test of effective accountability

David

Can you elaborate on this please?  This is the first instance I’ve read of 
in which it is said that ICANN failed to implement a Bylaw mandate.  Is that 
a fair description?  Because if it is, that suggests to me the possibility 
that even a Bylaw change might not be adequate to satisfy accountability 
requirements until the bylaw as actually implemented.

Or am I misreading what you are saying?

Paul

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

509 C St. NE

Washington, DC 20002

Paul Rosenzweig

paul.rosenzweig 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

From: McAuley, David [mailto:dmcauley at verisign.com]

Sent: Friday, January 30, 2015 9:26 AM

To: Accountability Cross Community

Subject: Re: [CCWG-ACCT] The big test of effective accountability

Another thing that ICANN has let linger (and which is not a recommendation 
but a bylaw) is the creation of a standing IRP panel that would have “a 
variety of expertise, including jurisprudence, judicial experience, 
alternative dispute resolution and knowledge of ICANN's mission and work” 
to populate panels on individual IRP cases.

The panel in the (still ongoing) IRP case brought by DotConnectAfrica (DCA) 
Trust over the handling of the new .africa TLD recognized that the lack of a 
standing panel had an impact ( 
https://www.icann.org/en/system/files/files/irp-procedure-declaration-14aug14-en.pdf 
):

“The failure to create a standing panel has consequences, as this case 
shows, delaying the processing of DCA Trust’s claim, and also prejudicing 
the interest of a competing .AFRICA applicant.”

David

From: accountability-cross-community-bounces at icann.org [ 
mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Avri 
Doria

Sent: Thursday, January 29, 2015 6:27 PM

To: Accountability Cross Community

Subject: Re: [CCWG-ACCT] The big test of effective accountability

Hi,

And unfortunately they ignored the ASEP recommendations.  The ASEP was 
recommended by ATRT1, and its recommendations have been recommend by ATRT2 
for the committee working on Accountability it recommended - ie. us.

The fact that those recommendations lingered is indeed why we need the 
binding bits.

So often we come close, yet at the last minute we let something go undone 
and the work gets lost.

Stuff like this needs fixing.

avri

On 29-Jan-15 17:37, Kieren McCarthy wrote:

I don't like this line about the Reconsideration Committee not being 
"understood", Chris.

ICANN's staff and Board have developed the rules by which the committee acts 
and the way in which it decides to apply those rules. Those rules have also 
changed over time.

This is part of the problem - ICANN corporate lives within its own world 
half the time. I can recall several conversations I had with ICANN's general 
counsel when on staff where he presented me with an entirely different 
perspective on critical matters to the one that I and much of the community 
felt existed.

There is an internal body of belief that stands in stark contrast to the 
outside view. And that body of belief is consciously shielded.

If ICANN wants the Reconsideration Committee to stop being misunderstood, it 
should rename it the "Policy Process Double-checking Committee".

Or, alternatively, and preferably, changing the functioning of the committee 
to actually "reconsider" decisions. And include people other than Board 
members (one of the accountability recommendations made many years ago but 
never implemented).

Kieren

On Thu, Jan 29, 2015 at 1:59 PM, Chris Disspain <ceo at auda.org.au> wrote:

Agree Avri. And whilst the reconsideration request process is widely 
pilloried it does, in fact, provide a level of accountability. It may not be 
understood, it may not provide the sort of or level of accountability that 
is desirable but, I for one, would want it to be improved/expanded rather 
than see it disappear as in a [very] narrow band of cases it does work.

Cheers,

Chris

On 30 Jan 2015, at 08:34 , Avri Doria <avri at acm.org> wrote:

Hi,

I think Zero is a wee bit hyperbolic.

I believe that the AOC does provide for accountability in the ATRT reviews.

We also vote on some Board seats and people have lost their seats. 

Too slow and not as good as a recall procedure, but accountabilty.

Nomcom also does not always renew terms,

even if the people want them too. 

That is also accountability.

The IRT can also provide accountability.

and does.

It is true none of these bind the board,

and that needs fixing,

but I strongly disagree with the statement that there is no accountability.

Sure, none are as stringent as taking out

and executing at dawn (I've been catching up on  Marco Polo on Netflix)

but they are accountability,

though of a lesser degree.

avri

On 29-Jan-15 14:14, Jonathan Zuck wrote:

Kieren,

That hard truth here is that while we endeavor to list existing 
“accountability” mechanisms, there are, in fact, none. It’s a complete 
red herring to explore them as part of this process. There are plenty of 
opportunities to “vent” but there are, in fact, ZERO accountability 
mechanisms in place, with the exception often cited but ridiculous “elect 
a different board.” No one wants to hear that but it’s the truth. Our 
goal here, in the near term is essentially to create ONE mechanism of 
accountability in place, perhaps two. It is my sincere belief that the 
presence of even a singleaccountability mechanism will go a long way to 
change the culture inside ICANN because the net result will be to turn the 
light back on the community to reach consensus. This is a GROSS 
oversimplification, not meant to inspire nit picking but a return to the 
task at hand which is to create a framework for reform which, if the 
community remains motivated, will allow major cultural changes to take 
place.

JZ

From: Kieren McCarthy [ mailto:kierenmccarthy at gmail.com]

Sent: Thursday, January 29, 2015 1:57 PM

To: McAuley, David

Cc: Jonathan Zuck; Accountability Cross Community

Subject: Re: [CCWG-ACCT] The big test of effective accountability

One more thing from me and then I'll shut up.

I'd be interested to hear from people that have actually gone through the 
various accountability mechanisms what they thought of the experience.

For example:

* Were you happy with the process?

* Were you happy with the outcome?

* Did you feel your points were understand and considered?

* What would have improved the process for you?

* If you lost, why did you not progress further in the appeal process?

This kind of feedback should be being done by ICANN itself but I'm willing 
to bet it hasn't been. It's also not that hard to do: their names are 
publicly available. ICANN has all their contact details. I bet many of them 
would be happy to talk.

Kieren

On Thu, Jan 29, 2015 at 9:58 AM, McAuley, David <dmcauley at verisign.com> 
wrote:

Hi Kieran,

Thank you for this human-element discussion, most interesting and helpful 
for me.

I differ with one remark you made in the last post: “yes, the Board can be 
overruled but only on issues of process.”

It’s actually not all that positive, if I have things correctly concerning 
accountability measures within the ICANN environment (not addressing courts 
here).

At present the board can be overruled in reconsideration requests – but 
only by the board itself on, as you say, process issues. This probably does 
not meet any realistic, objective accountability standard.

In IRP before independent panels, the board can take the panel’s decision 
or leave it – it is nothing more than a recommendation, again on 
process-based issues.

The IRP panel in the DotConnectAfrica (DCA) Trust case ruled that it could 
bind ICANN in a procedural ruling this past year, but ICANN’s subsequent 
arguments before the same panel as well as other IRP panels indicate that it 
does not accept that decision. It could be interesting to see what ICANN 
does with the eventual final ruling in the case, depending on whether the 
panel rules in DCA’s favor. .

David McAuley

From: accountability-cross-community-bounces at icann.org [mailto: 
accountability-cross-community-bounces at icann.org] On Behalf Of Kieren 
McCarthy

Sent: Thursday, January 29, 2015 11:17 AM

To: Jonathan Zuck

Cc: Accountability Cross Community

Subject: Re: [CCWG-ACCT] The big test of effective accountability

Quick thoughts on this:

Yes, what the staff and Board end up doing is partly the community's fault.

Where I do place fault is in both continuing to do so, and failing to make 
changes despite clear signs that it is not working effectively and is even 
damaging trust.

The Board seem confused and frustrated that they continue to be yelled at. 
The community can't believe that the Board still hasn't heard them. I think 
the gap is the lack of human judgement and the priority of process and legal 
argument.

I am a big fan of solid changes over long discourse. But what I started to 
see on this group was a tendency toward process solutions and legal-style 
decision making.

Just one example: yes, the Board can be overruled but only on issues of 
process.

This just creates one more layer and process that ICANN will hold up as 
accountability and the community will be completely dissatisfied with.

ICANN's staff will defend to the hilt the Board's initial decision, creating 
a fight and tension, limiting discussion and sharing of information, 
increasing distrust, reinforcing the barrier between Corporate and 
community.

And this is the big change we introduce this time around.

My fear is that unless we break that habit, there will be another 10 years 
of dissatisfaction and another group like this one trying again to bring 
'accountability' in 2025.

Kieren

-

[sent through phone]

On Thu, Jan 29, 2015 at 7:35 AM, Jonathan Zuck <JZuck at actonline.org> wrote:

I’m somewhat hesitant to speak up given Malcolm’s excellent treatise but 
a few things spring to mind. The first and simplest is that process still 
provides a structure the re-humanization you seek. In a large organization 
if there isn’t a way to trigger the group “rethinking” an issue, it 
will never happen.  I believe that while this conversation is emotionally 
rewarding, we need to be very careful to stay inside our remit to come up 
with some very specific recommendations for increasing accountability (in a 
legal sense) to replace the somewhat “legal” accountability that exists 
today so my first inclination is to table this discussion and get back to 
work.

My second inclination is to dive in <g> and to come to the defense of the 
board and ICANN staff a little bit. The buzzing in the back of my head for 
the past year or so is that the “community” is partially to blame for 
the environment in which we find ourselves.  ICANN is afraid of litigation 
because we are litigious. The board does our job for us often because we 
have failed to do it ourselves.

If the result of a policy development process is a failure to find 
consensus, to compromise, to be “human” as you suggest  Kieren, the 
board is faced with the unenviable task of playing Solomon because the 
community have essentially abdicated our responsibility.  The boards entire 
job is supposed to ONLY be about process and whether we’ve followed it. 
Instead, we present the board with unfinished work, expect them to 
“rule” on it and threaten to sue if we don’t get our way. If the board 
is guilty of anything in this context, it is their willingness to accept 
this challenge, which I suggest is dehumanizing because, like Solomon, they 
are not in the best position to find a solution and often create arbitrary 
compromise which is the number one characteristic of an arbitration 
environment. More often than not, the board should simply reject the 
unfinished work and send it back to the community to get it done right. So I 
think there’s a lot to Kieren’s concern but I think the community plays 
a significant role in the problem and must therefore play a significant role 
in the solution and I’m ready for us to tackle it.

All that said, it’s not really relevant to the task at hand. Obviously 
this whole situation has us “navel gazing,” and that’s not all bad but 
we do have a very specific task to accomplish in the here and now and we 
would do well to focus on that alone, at least for the time being.

My two cents

Jonathan

From: accountability-cross-community-bounces at icann.org [ 
mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Kieren 
McCarthy

Sent: Thursday, January 29, 2015 9:39 AM

To: Malcolm Hutty

Cc: Accountability Cross Community

Subject: Re: [CCWG-ACCT] The big test of effective accountability

Like this. Excellent food for thought.

Will dig out Steve's mission email - had completely missed it. You have the 
email header handy?

Kieren

-

[sent through phone]

On Thu, Jan 29, 2015 at 6:00 AM, Malcolm Hutty <malcolm at linx.net> wrote:

On 29/01/2015 11:45, Bruce Tonkin wrote:

> In terms of reviewing the new gTLD program

Kieren may correct me, but I read his essay as being about more than

just the gTLD program alone, albeit that that was the example given. I

read it as a general complaint that ICANN tends to be to formalistic,

and loses sight of the substance of the issue, not only in gTLD

applications, but often. And I think that he's far from alone in that

view, especially amongst those who engage with ICANN peripherally rather

than intensively.

> I compare this to a jury process in the legal system. I don’t think

> you can just ask for another jury to hear the case when the first

> jury finds against you. There needs to be some basis for the appeal

> other than that you disagree with the initial finding.

[...]

> So careful work is needed to ensure that we have a process that

> ensures independent reviews of decisions, and also appropriate

> criteria to initiate a review of a decision.

There I think you get to the heart of the matter.

Kieren's complaint about formalism is interesting insofar as it goes,

and I think it is a very useful contribution, but it is only identifies

a problem, it doesn't analyse it or propose a solution. I would like to

try to work from where Kieren left off.

Kieren, you're a journalist. You live and breathe five-Ws and an H.

Let's apply that here.

WHAT's the problem? (Excessive legal formalism, resulting in loss of

sight of the substance of the question).

WHY do we have that problem?

WHO caused it and who can address that?

HOW should it be addressed?

(OK, I'm leaving out "when". Cut me some slack.)

WHY do we have the excessive legalistic formalism Kieren complains about?

To some extent, this is characteristic of all large bureaucracies. They

are instinctively defensive, and any individual within them wants to

show that they discharged their own responsibilities properly even -

perhaps especially - when they don't, as an individual, necessarily

agree personally with the organisation position.

But Kieren suggests that ICANN is particularly susceptible to this

tendency, and I think I agree. An organisation with a highly empowered

single leader (think Apple under Steve Jobs) can cut through process

easily. I imagine an early conversation at Apple going like this:

Product Manager: We assembled focus groups in all our major target

markets to identify the key characteristics of a

revolutionary, magical new phone. We planted the best

UI theorists in those groups, to guide them towards

characteristics and away from mere features. We then

tested the output with surveys from the best polling

companies, scientifically designed to ensure all user

groups had balanced representation. Using their

answers we ranked and prioritised development goals.

We hired the best and brightest designers to deliver

against that design brief, and I proudly present,

the You-Phone.

Steve Jobs: The user experience sucks and it feels like it was

designed by a committee. Go back and start again.

Would we want ICANN to work like this? No! We'd be rightly terrified of

leaving that much power in one person's hands. We want ICANN to be run

by the community, with the Board acting as an arm of the community

conducting executive oversight, not ruled by any single Global King of DNS.

So we create structures designed to ensure that everybody's voice is

heard and that everybody's interests are taken into account, that

competing positions are balanced as fairly as it is possible to be, and

that decisions are demonstrably rationally arrived at on the basis of

previously agreed consensus policy. And we create more structures to

appeal cases to on the basis that any of those things failed in this

instance.

And we end up with the legalistic formalism of which Kieren speaks.

Why?

I suggest that it is because we have such a diverse community, and so

the only thing we agree on is the process criteria. We agree that

everybody should be heard. We agree that there should be periods of

public comment, and then further periods of reply comment. We agree that

policy should require consensus support. But we're so anxious that that

might be the only thing we agree on that we stop there. And so when a

decision looks bad, the only thing we have to fall back on is an appeal

to process.

And mostly the process was followed (at least in a narrow sense) so it's

very hard to reverse the decision, even if you might like to (as Bruce

has described). And the dissatisfied party becomes embroiled in an

increasingly embittered proxy fight with an increasingly defensive

bureaucracy, when everybody knows that the gravamen of the complaint

isn't really about process at all, it is, as Kieren says, about the

substance.

Some would say this means we need to "unshackle" the Board, to give them

a wide-ranging and broad discretion to "do the right thing", or

sometimes "to take decision based in the public interest". Removing or

reducing external constraints would enable "effective leadership" and

give the Board "flexibility to respond to a changing world" without

being "buried in legal challenges".

I consider such an approach to be a trap. Those arguments are the same

arguments one would make if an avowed enemy of community accountability.

Following such recommendations will lead inevitably to a Board with a

top-down, paternalistic view of governing the community at best, if not

something even worse.

Instead, let us look to other I* communities, which do not seem to have

the same problem, to see how the IETF and the RIRs maintain genuine

bottom-up community governance, and at the same time remain focused on

the substance.

Let me tell a story about how one of the RIRs recently dealt with a

potentially difficult problem.

Towards the end of last year, on the mailing list for the RIPE NCC, a

Ukrainian who seemed to be a partisan of the government in Kiev, and an

opponent of the regime in Crimea and Donetsk, raised a point about the

rules. RIPE NCC rules say that organisations applying from IP addresses

must supply government issued ID, he said. Why does the RIPE NCC

continue to serve users in Crimea? Does the RIPE NCC accept the validity

of the Donetsk regime? On what basis and with what justification? Surely

the only proper course is for the RIPE NCC to cease to support

organisations in Crimea until the legitimately recognised government of

Ukraine is restored in the region (I am using his voice, you understand,

not my own, but this is a paraphrase, not a direct quote).

The RIPE community immediately saw this intervention for what it was in

substance: an attempt to embroil the RIPE NCC in the ongoing regional

conflict, on the side to which he was partisan. It was not really a

genuine enquiry about the rules, it was an attempt to force a legalistic

interpretation that would subvert their intended substance.

And the RIPE community responded swiftly, vocally, and overwhelmingly of

one view. The mission of RIPE NCC is to support users by helping to

coordinate the distribution of IP addresses to those that need them.

Networks in Crimea need IP addresses. This does not change because the

legitimacy of the claimed government with effective control of the

region is disputed. Many members of the RIPE Community had considerable

sympathy with the Ukrainian partisan, and deep personal opposition to

Russian intervention in Eastern Ukraine. Nonetheless, they agreed on one

thing: the geopolitics of the Ukraine is not the responsibility of the

RIPE NCC. The rule requiring government issued ID is there to support

RIPE NCC's mission to coordination IP address distribution so that

networks are allocated the address space they require (so that RIPE NCC

can identify the entities to which it has made allocations); to apply

the same rule to prevent IP address block allocation would be to subvert

the mission. While there is no universally recognised government in

Eastern Ukraine, the RIPE NCC should accept such ID from entities in

that area as they are reasonably able to provide.

This story, I think, exemplifies the ability to cut to the substance of

the issue that Kieren seeks. How is it arrived at? Not by the

introduction of any strong central leader: the NCC staff and Board was

almost silent while this discussion played out amongst the community.

It was arrived at because the community had a strongly unified sense of

its own limited mission (to support the distribution of IP addresses to

those that need them, through coordinated allocation policies) and the

members of that community were overwhelmingly willing to set aside their

own views on a matter outside the scope of that mission when it was

suggested that some other reasoning requires an effect fundamentally

contrary to the mission. We will not have an argument about whether RIPE

NCC should act to /limit/ the allocation of IP addresses to entities in

Crimea, not even dressed in the coat of a rules interpretation. Maybe

action should be taken against the regime in Crimea - but not by RIPE

NCC. RIPE NCC will discharge its own mission, and leave the geopolitics

to others.

Is this not the same culture we want to inculcate in ICANN?

I believe that story exemplifies the strength of the RIRs, and describes

exactly what we want from ICANN too.

And it is very far from the ICANN Kieren describes.

WHO can bring this change about?

Only us.

When we look to Kieren's complaint, and see how far short ICANN falls of

the strong culture shows by the RIRs and the IETF, the "fault" lies with

us, the community. We don't *want* the Board, or the CEO, or the staff

to come up with a dramatically developed version of the ICANN Mission

that will then overrule existing processes and policies.

The Mission must be developed by, and founded in, the community itself.

What we need is for the community to develop a much clearer idea of the

Mission, and an exposition of what that means and how it is to be

applied. Then all the accountability structures we create, the Review

Boards and Reconsideration Panels and Ombudsmen and the rest, they will

have a proper standard for review. Not a sterile standard that looks

only to bare process, but one that asks "Is this consistent with the

fundamental mission?"

Consider how this might work in practice.

For .gay, there are many objections one might make. One might say the

proposed registrar was not suitable - but that should only lead to the

selection of an alternative, or the imposition of tighter control, not

to refusal to delegate. If you're not confident in the registrar you

might impose behavioural controls (e.g. to prevent limitation of supply)

or structural controls (e.g. a shorter contract, to require renunciation

of any presumption of renewal of the registry contract etc) or some

combination of the two. There will be plenty of room for arguments about

the best way to proceed.

But arguments that resolve to (or are recognisable as a mere pretext

for) the claim that .gay ought not to exist can be dismissed: ICANN's

mission is to make domains available, not to prevent their availability.

I promised a HOW.

Here is HOW I think we should proceed.

In our Frankfurt face-to-face we constructed, yet again, a map of

possible new structures, and most of the focus went on that. But there

was also a slot on it for the question of clarifying the mission, as the

basis for review. A few weeks ago, on this list, Steve DelBianco made a

very valuable start, suggesting a new codification of the mission. That

contribution has passed almost without notice.

I don't necessarily think Steve's formulation is perfect, but it's a lot

better than anything else I've yet seen, and it has the virtue of being

a contribution on this critical subject, almost alone. Let us work

together on that, to build that common shared sense of Mission.

Not an infinitely broad Mission, intended to allow any possible action

in an unknowable future, but a narrow mission, intended to guide, to

help make decisions which are choices, that can, as Bruce says, act as a

meaningful criterion for review of decisions.

Let us have the courage to believe we can build a strong consensus on a

meaningfully limited mission, not merely on narrow questions of process.

If we can succeed in that, we can succeed in creating an ICANN that is

meaningfully accountable to the community on matters of essential

substance, not merely failures of process.

Kind Regards,

Malcolm.

--

Malcolm Hutty | tel: +44 20 7645 3523

Head of Public Affairs | Read the LINX Public Affairs blog

London Internet Exchange | http://publicaffairs.linx.net/

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Trinity Court, Trinity Street, Peterborough PE1 1DA

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