[CCWG-ACCT] Question regarding UAs
Jordan Carter
jordan at internetnz.net.nz
Wed May 20 13:20:49 UTC 2015
Hi all, hi Chris:
A few points in line. For some reason this app won't allow me to break the
alignment so I have italicised and added JC.
On Wednesday, 20 May 2015, Chris Disspain <ceo at auda.org.au
<javascript:_e(%7B%7D,'cvml','ceo at auda.org.au');>> wrote:
> Jordan, All,
>
> Thank you Jordan, for attempting to bring some focus to the current
> discussion about the UA model, membership structures and all of the related
> issues.
>
> First of all, I want to acknowledge that I concur with you on a number
> points.
>
> I agree that we need to develop a model that disrupts ICANN's operation as
> little as possible. We can argue about how much disruption is either
> possible or preferable, but the principle is agreed.
>
> I also agree that levels of accountability are not "up to scratch" and,
> irrespective of the model we arrive at post-transition, these need to be
> improved. Many of the improvements proposed by the CCWG: to the IRP,
> reconsideration mechanisms and the role of the ombudsman, the introduction
> of fundamental bylaws and binding arbitration, and the empowerment of the
> community to spill the ICANN Board, are also supported.
>
> However, where I disagree with you is in respect to the absolute need for
> an *additional* mechanism, to supersede the current IANA functions
> contract, in order to ensure that the community can 'control'
> the Board because it has the right to bring a legal action in a US court.
>
> *JC: Chris, two things.*
>
> *JC: First, this isn't an additional mechanism. That continues with the
> argument you have been making at least since the AUIGF nine months ago that
> "nothing really changes" when the contract with NTIA goes away. That would
> mark the end of any legally enforceable accountability tool - that is what
> we have today. Nobody is talking about "Adding" things - this is about
> maintaining. You seem to be arguing for a subtraction - from legally
> enforceable accountability to none.*
>
> *JC: Second point, this lawsuits talk puzzles me greatly. We are talking
> about exercising powers that are granted by the law in which ICANN
> operates, not about going on Judge Judy or hiring lawyers before we
> breathe. I can't imagine any logical situation where the membership/UA
> structure gets sued - but that's certainly a stress test that could be run.*
>
>
> I disagree with the characterisation that the purpose of the CCWG's work
> is to wrest "control" from the ICANN Board and deliver it to the community. From
> your email, I gather that you are fundamentally tying the concept of
> control to "enforceability", neither of which are goals for the current
> process. Rather, I believe we are aiming to deliver a structure where
> ICANN and its Board are held accountable to the community, via the number
> of improvements I mentioned above.
>
> *JC: Accountability is providing effective review and redress, etc, as
> defined in our report. Today that's provided by the laws of California and
> an enforceable contract between ICANN and NTIA. It is a fiction to suggest
> enforceable control is anywhere other than at the very centre of
> accountability arrangements. The goal of this CCWG's work is an
> accountability settlement that can survive the end of the contract.
> Control, enforcement, are totally central. *
>
>
>
> The need to assert absolute "control" or enforceability could only arise
> in the most catastrophic of circumstances. If we assume a situation where
> proposed mechanisms for escalation, independent review, *binding *arbitration
> and direct instruction by the SOs and ACs are not acknowledged by ICANN,
> wouldn't the entire multi-stakeholder model be irreparably broken? Is
> addressing this most unlikely scenario worth the significant structural
> changes a membership model would require?
>
> *JC: the opposite is the case. I invite you to reflect on a situation in
> business where people haven't sorted out a contract and things go wrong. Is
> that harder, or easier, to resolve than when things are set out clearly? In
> my fifteen years of experience in the world of work, problems are *always*
> more likely to arise when there aren't clear frameworks. Our job is to
> provide for the security, stability and resilience of the Internet's DNS.
> That responsibility is a big one - it doesn't really allow for "this will
> be fine when things are fine" situations.*
>
>
> Further, you refer to a "long list" of community concerns about ICANN's
> current operations. I wonder whether these concerns are actually held by
> individuals (or individual constituencies) on particular issues and have
> been aggregated in to a larger picture of overall community
> dissatisfaction? Concerns by distinct groups on particular topics can
> certainly be dealt with by the increased robustness proposed to ICANN's
> bylaws and operations. However, I cannot think of a single example of a
> failure throughout the history of ICANN that did result or would have
> resulted in the community as one against an action or decision of the ICANN
> Board.
>
> *JC: I am not sure how this fits. The large list of examples I referred to
> simply was designed to remind people that things ain't perfect, and our job
> should be to improve the situation. I think we are in agreement about that.*
>
>
>
> To be clear - I am 100% supportive of improvements to accountability. I
> believe that the CCWG has initiated extremely useful work in identifying
> these mechanisms.
>
> I remain unconvinced regarding the argument that
> accountability=control=enforceability, and the subsequent recommendations
> of the CCWG that arise from this assumption.
>
>
> *JC: All I ask is that we all keep working through the issues in good
> faith. There are a number of ways to implement a membership model. There
> are a number of consequences to a non-enforceable accountability
> settlement. The likely key consequence is no transition. That's the stakes
> we are dealing with here. *
>
> *JTC*
>
>
> Cheers,
>
>
> Chris
>
> On 20 May 2015, at 15:33 , Jordan Carter <jordan at internetnz.net.nz> wrote:
>
> We need legal persons to be members of ICANN.
>
> They can be individual humans or they can be organisations.
>
> UAs are the lightest touch, most easily controlled, non-human form of
> person that can fit this mould.
>
> I do not understand the propensity of parts of our community to
> over-complicate things that look reasonably straight forward from other
> points of view. Has ICANN always been like this? (Answers own question - it
> can't have been, otherwise it would never be organised the way it is
> today....)
>
> cheers
> Jordan
>
>
> On 20 May 2015 at 17:21, Alan Greenberg <alan.greenberg at mcgill.ca> wrote:
>
>> Avri, I think that you are generally correct. We are putting this entire
>> infrastructure in place because we want to be able to take ICANN or the
>> Board to court if they do not follow the rules. I tend to agree with the
>> auDA comment that if it ever gets to that stage, we are REALLY in trouble,
>> and a simple court decision is not likelt to fix it.
>>
>> But that nothwithstanding, we supposedly ned that UA because they can
>> take legal action. But if the UA representatives do not listen to the
>> SO/AC. the SO/AC cannot take that rep to court, because the SO/AC has no
>> legal persona. So we are again left with a discontinuity where something is
>> largely unenforceable and we have to take it on faith that they will do the
>> right thing.
>>
>> Of course, the UA reps and the Board members we select are basically
>> drawn from the same pool, perhaps separated by a few years.
>>
>> The difference between a Board member and a UA rep is the Board member
>> has a duty to the corporation, and the UA rep can, in theory, be required
>> to take instruction from the SO/AC. But enforcing that theory may be the
>> rub.
>>
>> Alan
>>
>>
>> At 20/05/2015 12:41 AM, Avri Doria wrote:
>>
>>> Hi,
>>>
>>> I think I understand the argument about members becoming that to which
>>> ICANN, and its Board, are responsible and accountable. From that
>>> perspective it sounds really good.
>>>
>>> What I have having trouble understanding is an accountability structure
>>> were there is a discontinuity between the SOAC and the UA. If each of
>>> the Board designating SOAC were the UA, it think I would understand.
>>> But I just do not see how the UA are accountable to the people and
>>> organizations that participate in each of the SOAC. Yes, the SOAC
>>> designates it UA representative, but how is (s)electing one of these any
>>> more accountable than (s)electing the Board as we do now. Don't we just
>>> move the perceived/possible unaccountability down a layer in the
>>> hierarchy?
>>>
>>> I think I am as comfortable with complexity as the next person. And I
>>> understand how in computer science any problem can solved by adding
>>> another layer of indirection, but in this case the extra layer we are
>>> creating does not seem to really be accountable to anyone but itself,
>>> except by (s)election procedures.
>>>
>>> I am sure I am missing some critical bit of understanding and hope
>>> someone can explain the chain of accountability in the membership
>>> model. I feel that we are still hand-waving a bit in the explanations.
>>> In a sense it seems as if we are creating a 'council' that is omnipotent
>>> in the powers it is given, except that they can somehow be replaced.
>>>
>>> Thanks and apologies for my persistent confusion.
>>>
>>> avri
>>>
>>>
>>>
>>> On 20-May-15 01:14, Jordan Carter wrote:
>>> > Hi all
>>> >
>>> > This thread is useful to tease out some of the questions and concerns
>>> > and confusions with the UA model, and as rapporteur for the WP
>>> > responsible for refining this part of the proposal I am reading it
>>> avidly.
>>> >
>>> > I just want to take the opportunity to remind us all why membership
>>> > (or something analogous) is an important aspect of the reforms we are
>>> > proposing - no matter the precise details.
>>> >
>>> > At the moment without members, ICANN is fundamentally controlled by
>>> > the Board. The only external constraint is the IANA functions contract
>>> > with NTIA. The long list of community concerns and examples detailed
>>> > by our earlier work in this CCWG shows that even with that constraint,
>>> > accountability isn't up to scratch.
>>> >
>>> > We are working on a settlement without that NTIA contract.
>>> > Accountability has to get better even *with* the contract.
>>> > Fundamentally better, without it.
>>> >
>>> > Either we have a membership structure or some other durable approach
>>> > that firmly embeds the stewardship of ICANN and the DNS in the ICANN
>>> > community, or... we remain with Board control.
>>> >
>>> > Given ICANN's history, anyone who is advocating a continuation of
>>> > Board control is arguing for a model that can't be suitably
>>> > accountable, and that seems highly likely to fail over time, with real
>>> > risks to the security and stability of the DNS.
>>> >
>>> > A real, fundamental source of power over the company absent the
>>> > contract *has* to be established. The membership model is the most
>>> > suitable one to achieve that that we have considered so far.
>>> >
>>> > So: we need to be creative and thoughtful in how we make that model
>>> > work in a fashion that disrupts ICANN's general operation as little as
>>> > possible. But the key there is "as possible." Real change is needed
>>> > and much refinement and comment is needed.
>>> >
>>> > If there are proposals to achieve the same shift in control from ICANN
>>> > the corporation to ICANN the community, I hope they come through in
>>> > the comment period. So far, none have - but there are still two weeks
>>> > of comments to go.
>>> >
>>> > cheers
>>> > Jordan
>>> >
>>> >
>>> > On 20 May 2015 at 10:45, Malcolm Hutty <malcolm at linx.net
>>> > <mailto:malcolm at linx.net>> wrote:
>>> >
>>> > This whole thread seems to have massively overcomplicated the
>>> > question.
>>> >
>>> >
>>> > Unless I have missed something, the only reason we need "members"
>>> > is to
>>> > stand as plaintiff-of-record in a lawsuit against the ICANN Board
>>> > complaining that the Board has failed to adhere to the corporations
>>> > bylaws. Such a lawsuit would in reality be conducted by an SO or
>>> > AC, but
>>> > a person with legal personality needs to act as
>>> plaintiff-of-record.
>>> >
>>> > Why not simply proceed, as Samantha suggested, with the SOACs'
>>> > Chairs as
>>> > the members of the corporation? Could the Articles (or Bylaws, as
>>> > appropriate) not simply identify the SOACs' Chairs as the members,
>>> ex
>>> > officio and pro tempore?
>>> >
>>> > An SOAC Chair that refused to act as plaintiff-of-record when
>>> required
>>> > to do so by his SOAC could simply be replaced. Likewise a Chair
>>> that
>>> > went rogue and initiated a lawsuit without their consent.
>>> >
>>> > You can't make the SOAC a member without turning them into UAs,
>>> > with all
>>> > the attendent complexity. But I don't see that there should be any
>>> > such
>>> > problem with designating the chair of a SOAC, who will be a natural
>>> > person, as a member of the corporation; the fact that the SOAC is
>>> > not a
>>> > UA is then irrelevant.
>>> >
>>> > In the event that there were any dispute as to whether a particular
>>> > person is in truth an SOAC Chair, this would surely be a simple
>>> > preliminary matter of fact for the court. It is surely beyond
>>> dispute
>>> > that if the Articles designated "Alan Greenberg" as the member, it
>>> > would
>>> > be a matter of fact as to whether or not the person before the
>>> > court was
>>> > indeed Alan Greenberg; surely it is the same as to whether the
>>> person
>>> > before the court is "the current Chair of ALAC", if that should be
>>> > what
>>> > is specified in the Articles?
>>> >
>>> > Malcolm.
>>> >
>>> > --
>>> > Malcolm Hutty | tel: +44 20 7645 3523
>>> > <tel:%2B44%2020%207645%203523>
>>> > Head of Public Affairs | Read the LINX Public Affairs blog
>>> > London Internet Exchange | http://publicaffairs.linx.net/
>>> >
>>> > London Internet Exchange Ltd
>>> > 21-27 St Thomas Street, London SE1 9RY
>>> >
>>> > Company Registered in England No. 3137929
>>> > Trinity Court, Trinity Street, Peterborough PE1 1DA
>>> >
>>> >
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>>> >
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>>> >
>>> >
>>> >
>>> >
>>> > --
>>> > Jordan Carter
>>> >
>>> > Chief Executive
>>> > *InternetNZ*
>>> >
>>> > 04 495 2118 (office) | +64 21 442 649 (mob)
>>> > jordan at internetnz.net.nz <mailto:jordan at internetnz.net.nz>
>>> > Skype: jordancarter
>>> >
>>> > /A better world through a better Internet /
>>> >
>>> >
>>> >
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>>>
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>>
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>
>
>
> --
> Jordan Carter
>
> Chief Executive
> *InternetNZ*
>
> 04 495 2118 (office) | +64 21 442 649 (mob)
> jordan at internetnz.net.nz
> Skype: jordancarter
>
> *A better world through a better Internet *
>
> _______________________________________________
> Accountability-Cross-Community mailing list
> Accountability-Cross-Community at icann.org
> https://mm.icann.org/mailman/listinfo/accountability-cross-community
>
>
>
--
Jordan Carter
Chief Executive, InternetNZ
+64-21-442-649 | jordan at internetnz.net.nz
Sent on the run, apologies for brevity
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