[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

Sun Jun 14 05:46:51 UTC 2015

On Saturday 13 June 2015 12:40 PM, Avri Doria wrote:
> Hi,
>
> We have a difference in perception on this.

I agree, and can understand that. What however I cannot understand is
why the perspective that I present - seeking external accountability
mechanism - has not been given adequate consideration by the CCWG. And
questions arising from this perspective have never been responded to
properly. Does that not put in question the fairness of the process,
especially when the perspective that you hold and which is overwhelming
dominant in the process, to the complete exclusion of the other one, is
in favour of giving ultimate power to the SO/ACs (or the ICANN
community) whose reps also happen to fully dominate the process. Do you
not find something problematic here?

But perhaps one may want to argue that my perspective is a fringe view
with little or no support. Before I (once again) argue the rationale of
this perspective, let me present some empirical points.

The public submission by Roberto Bissio who serves as an advisor to the
CCWG process says that the two issues of jurisdiction and external
accountability were raised in the advisory group meetings but "were not
taken into account or properly responded to in the draft recommendations".

Further, in the last few weeks I have been at two meetings organised in
India on the IANA transition issue, organised by groups that clearly
have no unfriendliness towards ICANN. Both meetings were attended by a
full range of stakeholders. In both the meetings there was clearly a
preponderance of view that (1) jurisdiction and (2) even more, 'external
accountability' are the key issues that should be focussed on. The
organisers of one of these meetings did a extensive survey of views of
different stakeholders and the report that was presented at the meeting
again focussed on external accountability.

These are the only two meetings that I know to have taken place in India
in the last many weeks, and which included a full range of stakeholders.
If the general outcomes of both these meetings (plus the survey) tend
towards seekinfg focus on 'external accountability' than I think it
means that this perhaps is what the overwhelming number of people in
India want. India has about a 7th of the world's population. I dont
think China with about one sixth would be thinking any differently. In
fact, I am convinced that all developing countries will be thinking
quite similarly. Among US allied developed countries there may be
slightly greater ambiguity, but I still think a very big majority which
if asked would be inclined towards external accountability. Not sure
about people in the US though bec they do have considerable leverage
over ICANN through various institutions of the US state, though I think
most people understand the need for clear mechanisms of external
accountability for such institutions like ICANN.

Many governments' current submissions, including India's and Brazil's,
seek mechanisms of external accountability, and I am sure their reps
would have said things to that effect during the process.

Very interestingly, the NetMundial statement, much respected and
celebrated by the ICANN community, says that “it is expected that the
process of globalization of ICANN speeds up leading to a truly
international and global organization serving the public interest with
clearly implementable and verifiable accountability and transparency
mechanisms that */*satisfy requirements from both internal stakeholders
and the global community*/*” (emphasis added).

So, no, my perspective is not fringe, and it can be empirically shown
that it is not fringe. I would rather think that the view presented and
pressed by the ICANN community (AO/SCs) is largely just the view of the
ICANN community, with has little support outside it. And when this view
is in fact for ICANN community retaining or taking up full and final
power in all ICANN affairs, for the CWCG process, itself made up mostly
of the ICANN community, to unilaterally proceed with it as a kind of
received wisdom, to the complete exclusion of the other perspective
(calling for 'external accountability'), really throws up extremely
troubling questions.

Someone must explain why the other perspective was not taken seriously
by the CCWG, and its all requirements and possibilities not fully
explored. Why did it just got shut up, when there has been so much
support for it.

It is extremely clear that *at least* a very large number, if not a very
large majority of people (which is in fact the case), *do not* consider
ICANN community as being adequately representative of the global
community which is why they are asking for 'external accountability'.
This is empirically provable, and this proof provides enough basis why
this perspective should have been fully and thoroughly considered, which
did not happen. The further fact that such a partisan take actually
benefits the same community that dominates the process in my view fully
vitiates it.

As for the arguments by Avri, supported by Wolfgang, that the ICANN
community does in fact adequately represent the global community, or is
adequately inclusive of it - just by the fact of formal openness of its
design, I strongly disagree with it and but will respond to it in a
separate email. I do not want to mix a logical argument with one based
on empirical facts that are immediately  verifiable,  about (1) there
being a very large support for instituting 'external accountability'
mechanisms and (2) it having not been considered or responded to properly  .

parminder

> Whereas I believe you think of ICANN as a closed community that
> excludes, I see the ICANN community as an open community that reaches
> out to all participants and is always reaching towards the global
> multistakeholder community.  There is an ICANN subgroup ready to welcome
> and include anyone interested.  And if some set of people approaches the
> ICANN community and says there is no place for them, and indeed we find
> there there isn't, then something will be done accommodate that new need.
>
> Even though it is an open community that welcomes everyone who wants to
> get involved, it recognizes that not all can or would join in this open
> community.  To make sure they are not left out of the processes, they
> are always open to those others who do not wish to associate with the
> ICANN community, but want to participate nonetheless. Nt only can they
> participate fully in building the consensus in the working groups, they
> can stand on the outside, follow the process and submit comments. 
> Comments that a taken quite seriously by the working group.
>
> Between these two elements, I see the process as indeed inclusive of the
> global multistakeholder community.  I can think of no better existing
> process for doing so, though readily acknowledge that of course the
> process needs to do ever better at outreach and ever better at inclusion.
>
>
> avri
>
>
>
> On 13-Jun-15 01:52, parminder wrote:
>> On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
>>> Thanks Becky,
>>>
>>> I think you highlight a key point.
>>>
>>> Currently, NTIA and the California Attorney General are the only
>>> enforcement bodies ensuring ICANN remains committed to its bylaws.
>>>
>>> The membership structure would give some of that authority to the
>>> ICANN community through its existing structures -- the SOs and ACs.
>>>
>>> Isn’t that the definition of transitioning the United States
>>> government (in its various forms) out of its unique role?
>>>
>> Being at definitional matters; in my understanding, the definition of
>> 'transitioning the US government (in its various forms) out if its
>> unique role' is that the US government, and its agencies, have no role
>> that is not equivalent to that of any other government and its
>> agencies. That has always been the intent and purpose of the long
>> standing global demand for getting rid of US's unilateral oversight
>> over ICANN.
>>
>> A wrong definition of the problem obviously leads to wrong solutions,
>> as is happening currently with the 'transition process'.
>>
>>> After NTIA disengages, don’t we want the community to have shared
>>> authority for enforcement,
>>>
>> As you mention in an earlier part of your email, with community you of
>> course mean 'ICANN community'. Whatever be the intention of the 'ICANN
>> community', even NTIA's announcement asked for the oversight to pass
>> to 'global multistakeholder community' and not to the 'ICANN
>> community'.  Now if the 'ICANN community' being in charge of running
>> the transition process appropriates that new (partly) transitioned
>> oversight role to itself, it is perhaps an understandable human
>> failing, but that would normally be called as an illegitimate capture.
>>
>> parminder
>>
>>
>>> rather than leaving it to the California Attorney General alone?
>>>
>>> Regards,
>>> Keith
>>>
>>> *From:*accountability-cross-community-bounces at icann.org
>>> [mailto:accountability-cross-community-bounces at icann.org] *On Behalf
>>> Of *Burr, Becky
>>> *Sent:* Friday, June 12, 2015 11:07 AM
>>> *To:* Roelof Meijer; Accountability Cross Community
>>> *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers
>>> Chart, Voluntary Model
>>>
>>>  
>>>
>>> Roelof,
>>>
>>> shi
>>>
>>> As I understand it, Courts view the bylaws as a contract between a
>>> corporation and its members/shareholders.  If ICANN has no members,
>>> the bylaws are not a contract with anyone, so the only party with
>>> authority to enforce would be the Attorney General.  (As discussed
>>> elsewhere, this is extremely unlikely to happen outside of a
>>> fraud/corruption situation.)
>>>
>>>  
>>>
>>> The fact that members of SO’s are legal entities doesn’t change this.
>>>  Unless they are members of ICANN, they are not a party to the bylaws
>>> “contract.”
>>>
>>>  
>>>
>>> B
>>>
>>> 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
>>> <http://www.neustar.biz>
>>>
>>>  
>>>
>>> *From: *Roelof Meijer <Roelof.Meijer at sidn.nl
>>> <mailto:Roelof.Meijer at sidn.nl>>
>>> *Date: *Friday, June 12, 2015 at 8:18 AM
>>> *To: *Accountability Community
>>> <accountability-cross-community at icann.org
>>> <mailto:accountability-cross-community at icann.org>>
>>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart,
>>> Voluntary Model
>>>
>>>  
>>>
>>> Dear all, and especially dear legal colleagues,
>>>
>>>  
>>>
>>> The memo states:
>>>
>>>  
>>>
>>> "If there were a dispute between ICANN and an SO/AC, the parties
>>> could agree to an IRP and binding arbitration, but there would be no
>>> mechanism to restrain ICANN from acting contrary to these decisions,
>>> nor would there be a mechanism to challenge an arbitration decision
>>> that exceeded the scope of authority of the arbitration panel,
>>> outside an unlikely, independent intervention by the California
>>> Attorney General. "
>>>
>>>  
>>>
>>> I understand that the SO/AC’s, not being legal entities, cannot take
>>> legal action to enforce. However, does that really equal "no
>>> mechanism to restrain ICANN from acting contrary to these decisions”?
>>>
>>>  
>>>
>>> Most members of SO’s are legal entities, many members of AC’s are
>>> too, couldn’t those members, being affected parties, individually or
>>> collectively take legal action?
>>>
>>>  
>>>
>>> Alternatively, I would assume that before the ultimate step of
>>> talking legal action against ICANN, the community will have escalated
>>> through its powers and thus has completed the procedure to recall the
>>> entire board. The power to recall the entire board will have to be
>>> combined with the power to in one way or another appoint an interim
>>> board. So, the community, through due process, recalls the board. The
>>> board, in contradiction with the bylaws, refuses “to go”. The
>>> community has recalled the board and thus, through the defined
>>> process (also in the bylaws), appoints an interim board. According to
>>> the bylaws, this interim board is now the legal representative of
>>> ICANN. And can take the required legal action (if necessary) to force
>>> the “old” board to go away and get lost.
>>>
>>>  
>>>
>>> Would one of these two work?
>>>
>>>  
>>>
>>> Best,
>>>
>>>  
>>>
>>> Roelof Meijer
>>>
>>>  
>>>
>>> *From: *<Hofheimer>, "Joshua T." <jhofheimer at sidley.com
>>> <mailto:jhofheimer at sidley.com>>
>>> *Date: *donderdag 11 juni 2015 06:09
>>> *To: *"ccwg-accountability5 at icann.org
>>> <mailto:ccwg-accountability5 at icann.org>"
>>> <ccwg-accountability5 at icann.org <mailto:ccwg-accountability5 at icann.org>>
>>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg at sidley.com
>>> <mailto:sidleyicannccwg at sidley.com>>, ICANN-Adler
>>> <ICANN at adlercolvin.com <mailto:ICANN at adlercolvin.com>>
>>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
>>>
>>>  
>>>
>>> Dear Legal Sub-Team,
>>>
>>>  
>>>
>>> Further to the CCWG request on the call last Friday, attached is a
>>> memo revising the summary chart describing the viability of the
>>> enumerated powers under the three models – Member model, Designator
>>> Model and Voluntary Model.  We also explore the impact of not having
>>> the SO/ACs organized legal persons to represent their interests.
>>>
>>>  
>>>
>>> Cheers,
>>>
>>> Josh
>>>
>>> *JOSHUA* *HOFHEIMER  *
>>>
>>> Sidley Austin LLP
>>> +1.213.896.6061 (LA direct)
>>> +1.650.565.7561 (PA direct)
>>> +1.323.708.2405 (cell)
>>> jhofheimer at sidley.com <mailto:jhofheimer at sidley.com>
>>> www.sidley.com
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=>
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>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> *SIDLEY
>>> AUSTIN LLP*
>>>
>>>  
>>>
>>>  
>>>
>>> *From:*ccwg-accountability5-bounces at icann.org
>>> <mailto:ccwg-accountability5-bounces at icann.org>
>>> [mailto:ccwg-accountability5-bounces at icann.org] *On Behalf Of
>>> *Hilton, Tyler
>>> *Sent:* Monday, June 08, 2015 8:29 PM
>>> *To:* ccwg-accountability5 at icann.org
>>> <mailto:ccwg-accountability5 at icann.org>
>>> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
>>>
>>>  
>>>
>>> Dear Legal Sub-team,
>>>
>>>  
>>>
>>> Attached please find a memo responding to the list of questions from
>>> the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
>>>
>>>  
>>>
>>> Best,
>>>
>>>  
>>>
>>> *TYLER* *HILTON*
>>> Associate
>>>
>>> Sidley Austin LLP
>>> 555 West Fifth Street
>>> Los Angeles, CA 90013
>>> +1.213.896.6130
>>> thilton at sidley.com <mailto:thilton at sidley.com>
>>> www.sidley.com
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=RZAttuK9gIR-rWhgnzzBCJwmd-AX6TvLB6W-cfwGyV4&e=>
>>>
>>> http://www.sidley.com/files/upload/signatures/SA-autosig.png
>>> <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=QOhQjQwFElYq1-xAGs6TVUWxpVd3OZaCVRq9bV-0pUg&s=8g0nj7XBKequ4xTeqTLzy3EvyRZsOpZlGqNG7PIfFS4&e=> *SIDLEY
>>> AUSTIN LLP*
>>>
>>>  
>>>
>>>  
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