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

[James M. Bladel]

Eberhard outlines the complexities of the cc’s relationship with ICANN, and the unique challenges it presents to our work.

In order to help us move forward, I would note that:

  *   These problems exist today, under the current IANA/ICANN arrangement.
  *   Our proposed accountability mechanisms (membership, trust, whatever) should try to address them, if possible.
  *   However, if they fall short of the second point, that doesn’t mean we should abandon the idea.  It simply indicates that we need to go further to accommodate the cc community.

In short, I don’t think we should give up on one or more proposals that do not solve everyone’s issues.  But consider including them as part of a portfolio of options that might include separate accountability mechanisms that address the unique needs of ccTLDs (or others) not served by the general proposal.

Hope that made sense.

J.


From: <Drazek>, Keith Drazek <kdrazek at verisign.com<mailto:kdrazek at verisign.com>>
Date: Wednesday, January 28, 2015 at 15:35
To: Dr Eberhard W Lisse <el at lisse.na<mailto:el at lisse.na>>
Cc: Lisse Eberhard <directors at omadhina.NET<mailto:directors at omadhina.NET>>, CCWG Accountability <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] got some lawyerly answers on membership structure

Eberhard,

Thank you for the detailed, constructive and comprehensive response.

I agree that the direct and bilateral relationship you describe is important and I have no interest in undermining it.

The improvements we seek and secure should be improvements for all.

Regards,
Keith



Sent from my iPhone

On Jan 28, 2015, at 4:18 PM, "Dr Eberhard W Lisse" <el at lisse.na<mailto:el at lisse.na>> wrote:

Keith,

there have been a number of revocations against the ccTLD Manager's wishes which are more or less all irregular. There is one non-delegation still pending which is irregular. There are a number of delegations that are highly irregular.

What recourse does the railroaded ccTLD Manager have? None within ICANN.

The position advanced by some within the GAC that states have an intrinsic sovereignty over the ccTLD corresponding to an ISO code and hence can do whatever they want with the ccTLD Manager discarding any property rights developed by the wayside is wrong.

The notion that the IANA Function Manager would follow the wishes of the government over them of the ccTLD Manager as a matter of Policy is wrong.

That some governments do not follow the rule of law that we want ICANN to follow, should not be to their advantage.  (A position that I voiced already at ICANN Wellington)

The Framework of Interpretation Working Group and its predecessor spent 5 years of work of interpreting the (pre-)existing policy documents into reasonable Principles. That the IANA Function Manager should discard them for any reason is wrong, in particular if a GAC rep decides to interrupt the proceedings.

I can go on and on about why we need Accountability.

Sent from Dr Lisse's iPad mini

On Jan 28, 2015, at 21:42, Drazek, Keith <kdrazek at verisign.com<mailto:kdrazek at verisign.com>> wrote:

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.

Oops :-)-O


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.

I am not saying this, I am saying that the IANA Function Manager must be held accountable to individual ccTLD Managers, for acts or omissions that affect those individual ccTLD Managers.



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.

It has nothing to do with participating in the PDP, it is the BILATERAL relationship between an individual ccTLD Manager and the IANA function Manager.

I can't care less whether any "community", SO, AC or whatever is involved, they have no impact on individual ccTLD Managers.

So if the IANA Function Manager does anything affecting ccTLD Manager .ZZ said ccTLD Manager for .ZZ does not have to turn to someone else, try to convince them to intervene and so on, but needs a DIRECT avenue of recourse against the IANA function Manager.



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.

I am not against the "membership" idea per se, though I don't see what value this additional layer will add other than bureaucracy, but the DIRECT recourse for ccTLD Managers MUST be included.

I will not accept a worsening of an already bad situation in the guise of improvement.



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 Dr Eberhard W Lisse
Sent: Wednesday, January 28, 2015 1:27 PM
To: CCWG Accountability
Cc: directors at omadhina.net<mailto: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
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