[CCWG-ACCT] Unintended Consequences of the CCWG proposal
Matthew Shears
mshears at cdt.org
Thu Jul 9 12:33:06 UTC 2015
I agree, well put.
On 7/8/2015 4:27 PM, Burr, Becky wrote:
> +1
>
> J. Beckwith Burr
>
> *Neustar, Inc. /* Deputy General Counsel and Chief Privacy Officer
>
> 1775 Pennsylvania Avenue NW, Washington, DC 20006
>
> Office: + 1.202.533.2932 Mobile: +1.202.352.6367 /
> becky.burr at neustar.biz <mailto:becky.burr at neustar.biz> / www.neustar.biz
>
>
> From: <Drazek>, Keith Drazek <kdrazek at verisign.com
> <mailto:kdrazek at verisign.com>>
> Date: Wednesday, July 8, 2015 at 8:08 AM
> To: "Mathieu.Weill at afnic.fr <mailto:Mathieu.Weill at afnic.fr>"
> <Mathieu.Weill at afnic.fr <mailto:Mathieu.Weill at afnic.fr>>,
> "cherine.chalaby at icann.org <mailto:cherine.chalaby at icann.org>"
> <cherine.chalaby at icann.org <mailto:cherine.chalaby at icann.org>>
> Cc: Accountability Community <accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>>
> Subject: Re: [CCWG-ACCT] Unintended Consequences of the CCWG proposal
>
> I fully support Mathieu’s points. Exceptionally well said.
>
> Regards,
>
> 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 *Mathieu Weill
> *Sent:* Wednesday, July 08, 2015 7:41 AM
> *To:* Cherine Chalaby
> *Cc:* accountability-cross-community at icann.org
> <mailto:accountability-cross-community at icann.org>
> *Subject:* Re: [CCWG-ACCT] Unintended Consequences of the CCWG proposal
>
> Dear Cherine,
>
> Thank you very much for taking the time to articulate your concerns
> and share them openly on this list. This is very useful to achieve
> what we called for in Buenos Aires : a fruitful dialogue with mutual
> respect. Your points are very useful to highlight what we need to keep
> in mind and improve, including the communication about our proposals.
>
> The comments I make below are not CCWG comments, but rather personal
> thoughts about the purpose of Enhancing Icann's Accountability.
> Sometimes we get lost in the details of the mechanisms and tend to
> lose track of the reasons why we go through this process. That is why
> this note is not much about the mechanisms but rather the vision our
> group is developing.
>
> If you find it appropriate, feel free to share these comments with the
> rest of the Board. I am certain that the concerns you raise are shared
> by other Board members, and it is certainly valuable to have this
> dialogue with the whole Board.
>
> Unintended Consequence 1: Weakening ICANN's Governance model ?
>
> The headline of this section highlights the difference of perspective
> one can have of Icann's Governance model. I believe personnaly that
> the empowered community strengthens Icann's Governance model by
> setting up a *mutual accountability* between the Board and the
> Community, instead of the currrent model where the Board is fully
> empowered on all issues : it has the last word on Bylaws, budgets,
> policies, disputes, etc. The only *perceived* backstop is the NTIA,
> thanks to the leverage provided by the IANA contract and the AoC.
>
> It is true that the CCWG proposals have focused so far on providing
> more powers to the Community. But I insist the underlying model is
> about mutual accountability, separation of powers. The community holds
> the Board accountable through this limited but powerful set of rights
> ; the Board is still in charge of running the corporations and holds
> SO and ACs accountable in terms of policy making or structural
> improvements. SO/AC accountability is an item of work we are currently
> investigating further, taking into account the comments we have
> received so far.
>
> So both bodies are selected by the community, both bodies must be
> accountable, both bodies pursue the same Purpose, which is the Purpose
> of the organisation. The big change is that they are mutually
> accountable and powers are shared.
>
> Unintended Consequence 2: Threatening ICANN's financial stability ?
>
> In this section you mention three threats : budget paralysis,
> instability of the business environment and unfairness to minority
> interests. As a reminder the current proposal would enable the
> community, if a SO/AC approved a petition against a budget or
> strategic plan, to vote on this budget. Only if 2/3 of the communitty
> votes against the budget or strategic plan would it be rejected. This
> means that a budget that would secure support from only 1/3 of the
> community would not be blocked.
>
> We are aware of the need to review our proposals to mitigate any risk
> of budget paralysis, and provide more details on the continuity
> measures in case a budget would be rejected. Just like the Board
> usually asks to be trusted by the Community, I guess we should also
> consider the opposite : can we seriously imagine a situation where
> more than 2/3 of the community would become so obsessed with their
> respective "pet" projects that they would jeopardize Icann's stability
> ? Does a strategic plan or budget that gets less than 33% support
> deserve to be carried forward ? There needs to be a balance found, and
> I am confident this can be achieved.
>
> Regarding business environment stability I must admit I can't really
> see how our proposals are degrading the current situation. Icann
> policy decisions often are decried as creating instability for
> business, I have difficulties anticipating that budget decisions by
> themselves would have such an impact ?
>
> And with regards to unfairness for a minority, I believe your point
> raises a fundamental question : should Icann be funding anything "for
> the benefit of a minority" if the rest of the community disagrees ? If
> Icann decisions are based on consensus and aim at fulfilling a common
> purpose, then I would argue that no project should raise opposition by
> 2 thirds of the community, even though direct beneficiaries might be a
> subset of stakeholders only.
>
> In conclusion on this point, budgets and strategic plans are tough,
> and I know that. Especially in the multistakeholder environment where
> bottom up is key. And it is a key responsibility for the Board to
> define these plans and budgets not only so that they enable continuity
> of operations, but also so that they are supported by the community.
> This means that the Board needs to ensure, not only that it takes
> input into account but also that it gets buy-in. This is in my
> opinion, what our proposals will enable to achieve : greater alignment
> behind the strategy and budgets, for the benefit of the Purpose of Icann.
>
>
> Unintended Consequence 3: Dysfunctional Board ?
>
> Your concern is that the threat of removal of Board members without
> justification would lead to Board members fearing the loss of their
> seats if they do not adhere to the wishes of the constituency which
> appointed them. This concern has been raised by others in our public
> comment and we have launched additional work to see how best to
> address this.
>
> While I agree with you that a Board that would function as a
> representative body would not be appropriate, I also have to question
> whether a Board functioning on the basis of the addition of 16+
> individual views (which are also subjective and certainly have no way
> to exclude some personal agendas) would be more, or less, appropriate
> to ensure that Icann fulfills its Mission. I see no contradiction
> between the Board being a place for debates, sometimes clashes, then
> reconciliation behind a common goal, and the fact that the Board would
> then act as a body in the interest of the Purpose of the organization
> (note that I am not mentioning the the interest of the organization
> itself but its purpose here).
>
> You have more experience than I have, but it seems to me that most
> Boards across the globe acknowledge the fact that shareholders (or
> stakeholders) appoint Board members, that some of these Board members
> take the interests of certain shareholders to heart, and that they can
> be removed at will. To my knowlege this is the situation in most
> corporations, as well as in many membership organizations.
>
> Being a Board member is not a "regular" job. It is always a service,
> to a company, to a community, and it is not always rewarding : the CEO
> gets the media attention and fancy presentations when everything's ok
> while you work in the background, and the Board members are liable,
> and people turn to them when things go wrong. I believe accepting the
> fact that one can be removed at any time would actually enhance Board
> member's ability to contribute : it reminds everyone out of the Board
> that THEY appointed you, and could remove you if need be. And until
> then, you are doing your best to serve the Purpose of Icann.
>
>
> To conclude, I hope we can pursue this dialogue and, at the same time,
> focus our efforts to deliver proposals in time. We need Board members
> inputs, we also need your support and efforts to get to a point of
> consensus that is sufficient to get approval in Dublin. There is no
> question to me that we are all in this together, trying to demonstrate
> the value of the multistakeholder model and its ability to "up its
> game" to face the challenge of the transition. This implies that we
> all, co-chairs, members, leaders of Icann, feel accountable to
> reaching consensus.
>
> Best,
> Mathieu
> PS: For full disclosure, I acknowledge that in my role as co Chair of
> the CCWG-Accountability I can be removed without cause at any point
> (some argue that I should say "be relieved") ;-)
>
>
>
>
> Le 07/07/2015 08:45, Cherine Chalaby a écrit :
>
> Dear Mathieu and the CCWG group,
>
> In Buenos Aires, I attended most of the sessions on the CCWG
> proposal and made several comments. I wish to share these
> comments in writing with you and the
> accountability-cross-community group as you prepare for the F2F
> meeting in Paris. As I said in Buenos Aires, please do not take
> my comments as fierce criticism but more as constructive suggestions.
>
> Let me start by saying that as a Director of the Board, I believe
> in (a) appropriate empowerment of the community within the
> multi-stakeholder model, (b) strengthening of the the bottom-up
> process, and (c) enhancing accountability without destabilising
> the security and stability of ICANN or introducing opportunities
> for capture.
>
> In my personal capacity as a member of the community, I support
> the CWG proposal, but I have concerns that the CCWG draft
> proposal, discussed in Buenos Aires, could lead to three
> unintended consequences that could seriously damage ICANN in the
> long run. These unintended consequences apply to both the
> Membership model as well as the Designator (Hybrid) model.
>
> *_Unintended Consequence 1: Weakening ICANN's Governance model_*
>
> The CCWG has asserted that the “empowered community” will have
> control over the Board in the following areas: Strategic Plan,
> Operating Plan, Budget and Bylaws changes, fundamental or not. As
> a consequence, there will be no decision that the Board can make
> in those core fiduciary responsibilities that cannot be rejected
> or stopped by the proposed new community-empowerment mechanism.
>
> The CCWG draft proposal indicates that the Board would always have
> the ability to exercise its own judgment after the
> community-empowerment mechanism makes its decisions. But the
> proposal also states that if the community-empowrment mechanism
> does not like what the Board has done, it can remove the Board
> individually or collectively. Hence, the new
> community-empowerment mechanism in fact has the ultimate power to
> control the activities of ICANN. While as a community member who
> believes in the bottom-up model, I support the principles behind
> this objective, I believe it is vitally important that these newly
> transferred powers are paired with the transfer of corresponding
> accountability. The CCWG proposal in effect creates two bodies –
> one that is empowered (the community) and a separate one that is
> accountable (the Board). This, in my view, breaches a fundamental
> principle of governance, weakens the overall structure of ICANN,
> and is not sustainable.
>
> *_Unintended Consequence 2: Threatening ICANN's financial
> stability _*
>
> The CCWG draft proposal gives the community the right to reject
> the Board approved budget. I have not yet seen proposed
> mechanisms to prevent the following from happening:
>
> (a) Budget paralysis, whereby members of the community will vote
> against each other rather than be accountable to each other. For
> example, given budget limitations, what will stop members from
> voting against funding projects that do not facilitate their
> personal interest. This could lead to a situation where the
> budget is never adopted or takes too long to adopt,
> therefore jeopardising ICANN’s ability to deliver on key
> commitments such as contractual compliance enforcement , including
> issues relating to enhanced consumer protections and enhanced IP
> and rights protections, and other initiatives important to the
> community. This budget paralysis could also risk the stable and
> continued funding of the IANA functions. That is why I suggested
> in Buenos Aires that a commitment to fund the IANA functions
> should be separated from this budgetary process and embodied in
> the ICANN Bylaws.
>
> (b) Threat to the stability of the business environment in which
> many have invested and rely on ICANN’s ability to maintain, as
> under the new proposal, members of the community will have the
> right to reject the budget, but not a single member of the
> community will be accountable for the budget bottom line.
>
> (c) Unfairness, where the financial needs of the minority will
> seldom be fulfilled because final budget decisions will be made
> as a result of a majority voting by members of the community who
> do not have an obligation to act in the collective interest of all
> stakeholders.
>
> it is worth noting that the current budget process is robust and
> transparent and ensures that none of the above consequences can
> occur. It also ensures community participation and it can always
> be improved.
>
> *_Unintended Consequence 3: Dysfunctional Board_*
>
> The CCWG draft proposal gives the community the right to remove an
> individual board member. The CCWG proposed mechanism for
> implementing this right will in my view lead to the creation of
> two classes of board members. Those that will act in sole the
> interest of the SO/AC that has elected them, and the others who
> will be free to act in the collective interest of all
> stakeholders. The threat of removal without significant
> justification runs the risk of having individual Board members
> fear the loss of their seats if they do not adhere to the wishes
> of the constituency from which they come. This could turn the
> Board into a representative body, or a parliament, i.e. a place
> where opposing interests clash and are reconciled, rather than the
> present situation in which all Board members are obligated to act
> as a body in the best interests of the overall organization.
>
> Furthermore, Board deliberations and decisions would be at risk
> of being driven to a large extent by subjective goals and personal
> compromise.
>
> I do not have concrete suggestions to prevent these unintended
> consequences from happening, but I sincerely hope that the CCWG
> takes my concerns into account when it prepares its 2nd draft
> proposal at its F2F meeting in Paris.
>
> Thank you for listening.
>
> Regards
>
> Cherine Chalaby
>
> On 6 Jul 2015, at 22:10, Mathieu Weill <mathieu.weill at afnic.fr
> <mailto:mathieu.weill at afnic.fr>> wrote:
>
> Dear Colleagues,
>
> In anticipation of our call tomorrow, here are a few points
> outlining the current thinking about the face to face in Paris.
>
> Goal of the meeting :
> 2 weeks before the publication of our second (and hopefully
> last) WS1 public comment the overarching goal will be to find
> the common views that will be detailed in our 2nd draft
> proposals. The expected outcome of the meeting is that we find
> common ground on most of, if not all the open discussions.
>
> Agenda of the meeting :
> Our plans are to work 8.30-18.00 local time (CEST, UTC+2),
> with lunch break from 12.00 to 13.00.
>
> Our plan is to define a topic based agenda, including :
> - WP3 proposals (emerging issues)
> - Community mechanism model (including thorough Q&A with lawyers)
> - modalities of of community mechanisms
> - Removal / recall Board members refinements
> - Government input related discussions (the BA GAC communiqué
> announced upcoming contributions before Paris)
> - IRP refinements
>
> We might have to plan sessions on the most difficult topics on
> day 1 and on day 2 to enable consensus building.
>
> Please let us know either on list or during the call tomorrow
> if you have specific suggestions or feedbacks regarding this
> plan for the meeting.
>
> Best regards,
>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06
> mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
> Twitter : @mathieuweill
> *****************************
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> <mailto:Accountability-Cross-Community at icann.org>
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=JCr2GFZkZoXBUWV4fYtrTpyge15IvMjomyUz83QZSqs&s=2kXNtLp6gJbc8dC0pluue3-8vQJT6q8oKKiBXCdmNYc&e=>
>
>
>
> --
> *****************************
> Mathieu WEILL
> AFNIC - directeur général
> Tél: +33 1 39 30 83 06
> mathieu.weill at afnic.fr <mailto:mathieu.weill at afnic.fr>
> Twitter : @mathieuweill
> *****************************
>
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
--
Matthew Shears
Global Internet Policy and Human Rights
Center for Democracy & Technology (CDT)
+ 44 (0)771 247 2987
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150709/a60d954a/attachment.html>
More information about the Accountability-Cross-Community
mailing list