[CCWG-ACCT] got some lawyerly answers on membership structure

[Drazek, Keith]

Thanks Eberhard.

Having spent several years active on the ccNSO Council, I am very aware of the unique concerns of ccTLD managers and the history you refer to. I know there are many ccTLDs who have strong reservations against engaging within the ICANN community and I understand why. It’s a shame, but I recognize it’s the reality we face.

What I don’t understand is the reasoning behind your argument that, due to a subset of ccTLD managers who choose to avoid the ICANN community, a membership structure comprised of those who *do* participate would be somehow unacceptable in holding ICANN Management accountable to its community.

To your second point below, fortunately, for “such a TLD,” the parallel, interrelated and interdependent CWG Transition effort should address the operational accountability of the IANA Function Manager to the ccTLD registries and gTLD registries (as direct customers and first affected parties) regardless of whether they participate in the ICANN policy development community or not.

These broader ICANN Accountability discussions are about creating a bottom-up, consensus-based, multi-stakeholder structure to replace the backstop we’ll lose when NTIA disengages. It’s about ensuring that ICANN management is directly accountable to the community it serves. Allow me to re-state what I’ve said several times recently….I view any possible membership structure, rooted in the existing (or evolving) ICANN community structures, as a lever of last resort with very narrowly scoped powers and responsibilities. It would not be a replacement for other critical components of a robust accountability regime, such as those established by the CWG Transition to serve the direct customers of IANA.

A membership structure or approach is only one of several options, and I expect we will seriously consider a blend of various options to arrive at the most appropriate balance of cross-community accountability. The SO-AC-SG membership structure may be a new concept, but it also makes sense because it relies on community participants to appoint the members and to ensure the appointed member (whether an individual or entity) is acting in the interests of that community as determined by their respective processes. How much more bottom-up, consensus-based and multi-stakeholder could it get? If the suggested list of eleven SO-AC-SG groups is somehow insufficient, let’s discuss how it could be augmented with other appropriate groups that have the same commitments.

At this point, I think we should be adding to the list of options before  us, not dismissing anything out of hand just because there are details and nuances and sensitivities to be hashed out.

Best,
Keith


From: accountability-cross-community-bounces at icann.org [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Dr Eberhard W Lisse
Sent: Wednesday, January 28, 2015 1:27 PM
To: CCWG Accountability
Cc: directors at omadhina.net
Subject: Re: [CCWG-ACCT] got some lawyerly answers on membership structure

Keith,

this is the part of the problem, you are not aware how this works for ccTLDs or rather what ICANN has done to some ccTLD (Managers).

And, such a ccTLD doesn't bother about ICANN's accountability to the community, it bothers about the lack of the IANA Function Manager's accountability to it (the ccTld).

Before AND after the transition.

el



Sent from Dr Lisse's iPad mini

On Jan 28, 2015, at 18:50, Drazek, Keith <kdrazek at verisign.com<mailto:kdrazek at verisign.com>> wrote:
+1 Roelof.

Also, in response to Eberhard’s previous post:

I'm curious why you think a ccTLD manager's choice to not join the ccNSO equates to an unworkable accountability model for those who have opted to join and participate and bind themselves to ccNSO policy.

If a ccTLD manager is not a member of the ccNSO, is paying no fees to ICANN and is not bound by ccNSO policy, please help me understand how they are impacted and why they would care about the ICANN Board's accountability mechanisms to its community. I fully understand why every TLD registry cares about the IANA functions and changes to the root zone file, but our issue of greater ICANN Accountability is a broader discussion than the IANA-specific concerns and accountability mechanisms currently being addressed via the CWG Transition.

As you have acknowledged, unlike the gTLD registries (and the broader community interested in gTLD policies), ccTLD managers have a built-in accountability mechanism...their ability to  "leave to become unbound by ccNSO developed policy." As you well know, the gTLD registries and the GNSO do not currently enjoy that luxury.

Best,
Keith



From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org] On Behalf Of Roelof Meijer
Sent: Wednesday, January 28, 2015 9:19 AM
To: CCWG Accountability
Subject: Re: [CCWG-ACCT] got some lawyerly answers on membership structure

I wonder in which direction you would see a solution to this, Eberhard. To work properly, and especially if that influence will increase, the influence of stakeholders will have to be organized in one way or another.
Which is probably why the SO’s and AC’s were created.
Without them, I suggest, there would be a lot more noise, combined with (even) less progress. Could a gathering of all individual stakeholders ever come up with any useful decision on the crucial subjects that we forsee?

Cheers,

Roelof

From: Eberhard Lisse <el at lisse.na<mailto:el at lisse.na>>
Date: woensdag 28 januari 2015 06:33
To: CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Cc: "directors at omadhina.net<mailto:directors at omadhina.net>" <directors at omadhina.net<mailto:directors at omadhina.net>>
Subject: Re: [CCWG-ACCT] got some lawyerly answers on membership structure

Will not fly, because for example not all ccTLD Managers are members of the ccNSO, and nothing prevents a ccTLD Manager from leaving to become unbound by ccNSO developed ICANN Policy.

And the structures are so diverse internally that once someone is elected a recall is never going to happen.

el

Sent from Dr Lisse's iPad mini

On Jan 28, 2015, at 03:32, Drazek, Keith <kdrazek at verisign.com<mailto:kdrazek at verisign.com>> wrote:
Hi Rudolph,

In this context, ICANN's "shareholders" or "members" would be the elected or appointed Chairs of the existing ICANN community's bottom-up, consensus-based, multi-stakeholder structures. If those Chairs aren't ethical, then they could and should be replaced by their respective groups. I believe this would give us a built-in and permanent accountability loop rooted in the multi-stakeholder system, which is precisely what NTIA has asked for.

Regards,
Keith

Sent from my iPhone

On Jan 27, 2015, at 6:50 PM, "Rudolph Daniel" <rudi.daniel at gmail.com<mailto:rudi.daniel at gmail.com>> wrote:

No nuance missing Jonathan. :)
Likening to shareholders reminded me that shareholders are not always ethical in their pursuit of accountability.
RD

On Jan 27, 2015 6:58 PM, "Jonathan Zuck" <JZuck at actonline.org<mailto:JZuck at actonline.org>> wrote:
>
> Hmmm. I guess “we” is the community that have reached a fairly solid consensus that new accountability mechanisms need to be put in place at ICANN. And the role “we” seek them to play is exactly what EBW outlined below as aspirational. The issue is structural reform that empowers the community to hold the board of ICANN accountable going forward. Likening it to “shareholder” accountability is not about turning ICANN into a commercial organization, merely addressing concerns surrounding liability. What nuance am I missing here?
>
>
>
> From: Rudolph Daniel [mailto:rudi.daniel at gmail.com<mailto:rudi.daniel at gmail.com>]
> Sent: Tuesday, January 27, 2015 5:55 PM
> To: Jonathan Zuck
> Cc: Accountability Cross Community; Eric Brunner-Williams
> Subject: RE: [CCWG-ACCT] got some lawyerly answers on membership structure
>
>
>
> Not sure I get who 'we' is and  'seek them to play'  ?
> RD
>
> On Jan 27, 2015 6:44 PM, "Jonathan Zuck" <JZuck at actonline.org<mailto:JZuck at actonline.org>> wrote:
>>
>> Agree but the point of accountability mechanisms is to ensure the board continues to play the role we seek them to play.
>>
>>
>>
>> From: accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org> [mailto:accountability-cross-community-bounces at icann.org<mailto:accountability-cross-community-bounces at icann.org>] On Behalf Of Rudolph Daniel
>> Sent: Tuesday, January 27, 2015 5:38 PM
>> To: Eric Brunner-Williams
>> Cc: Accountability Cross Community
>> Subject: Re: [CCWG-ACCT] got some lawyerly answers on membership structure
>>
>>
>>
>> I would think, and  certainly it has been suggested elsewhere that public accountably be less of the shareholder kind and more of the ethical variety.
>> RD
>>
>> On Jan 27, 2015 3:04 PM, "Eric Brunner-Williams" <ebw at abenaki.wabanaki.net<mailto:ebw at abenaki.wabanaki.net>> wrote:
>>>
>>> All,
>>>
>>> I would not like to see the Board's duty as stewards of the public trust -- exercising reasonable care, inquisitive,  ... the strictest standard of duty of care in American law -- reduced to the pursuit of quarterly profits maximization prevalent in for-profit Boards.
>>>>
>>>> ICANN’s Board of Directors would become accountable to the community, in much the same way that the Boards of publicly-traded companies are ultimately accountable to their shareholders.
>>>
>>>
>>> I suggest our standards are, by initial design, higher than the likeness proposed.
>>>
>>> Eric Brunner-Williams
>>> Eugene, Oregon
>>>
>>>
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