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

Sun Jun 14 21:03:31 UTC 2015

Parminder -

Could I ask you to explain what you mean by “external” accountability mechanisms?  ICANN has both internal and external mechanisms designed to ensure that it is accountable to the global Internet community.  Are you referring to courts or another body as the source of external accountability?

Thank you.

Becky

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: parminder <parminder at itforchange.net<mailto:parminder at itforchange.net>>
Date: Sunday, June 14, 2015 at 1:46 AM
To: Accountability Community <accountability-cross-community at icann.org<mailto:accountability-cross-community at icann.org>>
Subject: Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model

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>
[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><mailto:becky.burr at neustar.biz><mailto:becky.burr at neustar.biz> / www.neustar.biz<http://www.neustar.biz><http://www.neustar.biz><http://www.neustar.biz>

*From: *Roelof Meijer <Roelof.Meijer at sidn.nl<mailto:Roelof.Meijer at sidn.nl><mailto: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><mailto: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><mailto: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><mailto:ccwg-accountability5 at icann.org><mailto:ccwg-accountability5 at icann.org>"
<ccwg-accountability5 at icann.org<mailto:ccwg-accountability5 at icann.org> <mailto:ccwg-accountability5 at icann.org><mailto:ccwg-accountability5 at icann.org>>
*Cc: *Sidley ICANN CCWG <sidleyicannccwg at sidley.com<mailto:sidleyicannccwg at sidley.com><mailto:sidleyicannccwg at sidley.com><mailto:sidleyicannccwg at sidley.com>>, ICANN-Adler
<ICANN at adlercolvin.com<mailto:ICANN at adlercolvin.com> <mailto: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> <mailto: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=AwMD-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NEQCuKxgzBGINaKYToS1ZKhmB4LB1F9b0TgX1tYAW90&s=pPlologuN9DxNa1GiZvRQWzs6WUNvBkRSAf8sB4Xsq4&e=><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=><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=>http://www.sidley.com/files/upload/signatures/SA-autosig.png<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_files_upload_signatures_SA-2Dautosig.png&d=AwMD-g&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=NEQCuKxgzBGINaKYToS1ZKhmB4LB1F9b0TgX1tYAW90&s=1ObJ9pEAN3l1QxB-0XXgl1pM_KtluxcynWOP1tXuqiY&e=><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=><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><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><mailto: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
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