[CCWG-ACCT] External accountability (Was: Re: FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model)
Mathieu Weill
mathieu.weill at afnic.fr
Mon Jun 15 16:21:14 UTC 2015
Dear Colleagues, Dear Parminder,
Noting that Parminder's feedback on external accountability reflects a
discussion that takes place regularly when reaching out of the Icann
community to discuss about the current transition process, I think it's
worth our time reflecting on how our group discussions took it into
account.
First, the term "external accountability", while frequently used, may
have different meanings for different stakeholders. I concur with Becky
who suggested that you clarify your meaning.
If external accountability means "Icann is accountable to an overseeing
body outside of Icann", then we should note that we had this very
discussion several times in the requirement phase, and tended to
conclude that, because of the "who guards the guardian" issue, our
group's preferred option was to find an internal option which would
introduce better checks and balances ("mutual accountability").
If external accountability means accountability to stakeholders outside
of the regular Icann participants, then I think our current proposals
introduce significant enhancements :
- the IRP is accessible to any materially affected party, made more
accessible and, above all, becomes binding on the Board.
- the current discussions on SO/AC accountability, diversity within the
community and the accountability mechanisms, are all related to this
issue of accountability to external stakeholders.
It is perfectly fair and welcome to challenge these options, which does
not mean that have not been considered. Our role as a group will be
respond to such concern properly, but also to identify associated
requirements. I am confident we'll find some in the public comments, as
well as in further discussions of our group.
Best,
Mathieu
Le 14/06/2015 07:46, parminder a écrit :
>
>
> 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=>
>>>>
>>>> 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*
>>>>
>>>>
>>>>
>>>>
>>>>
>>>> *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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