[CCWG-ACCT] Question regarding UAs
Seun Ojedeji
seun.ojedeji at gmail.com
Wed May 20 15:10:30 UTC 2015
On Wed, May 20, 2015 at 3:43 PM, Kieren McCarthy <kierenmccarthy at gmail.com>
wrote:
>
> Fundamentally the CCWG on accountability is about two things:
>
> 1. Moving control away from the Board (and staff) and giving it to the
> community, with the Board acting as true representatives.
>
I think control always needs to be with the board as they represent the
organisation and would be accountable to it. So i will disagree with the
first part of your statement but agree with the last part which is to
ensure that board acts in the interest of the community as defined in the
governing principles of the organisation.
>
> 2. Putting in place changes that overcome the ability of ICANN corporate
> to resist future changes (as it has done for over a decade).
>
I won't want a board that would be incapacitated by the community neither
do i want a board that would not be attentive and responsive to concerns of
the community. There needs to be a balance and i believe thats what the
CCWG should pay careful attention to as the various mechanisms are
developed. Its easier to point accusing finger at a defined board, won't be
as easy with a dynamic community like that of ICANN.
>
> I think we should force the Board members to talk openly about their
> thoughts on these two points and so start on the path of actual
> accountability rather than engage in this fruitless and time consuming
> nitpicking and faux outrage.
>
Not necessarily forcing, but we should encourage good interaction among
both sides, there seem to be huge fence developing which may not foster
good interaction. Board members will one day return back to being community
member (and vice versa). So discussions between board and community needs
to go beyond being defensive/offensive but rather more interactive. I
particularly appreciate the level of interaction with board Liaison to CCWG.
Regards
>
>
> Kieren
>
>
> -
> [sent through phone]
>
>
> On Wed, May 20, 2015 at 6:58 AM, Phil Corwin <psc at vlaw-dc.com> wrote:
>
>> Absent legal enforceability the accountability measures being discussed
>> would only amount to an enhanced advisory role.
>>
>>
>>
>> That is insufficient and would be getting this whole exercise wrong.
>>
>>
>>
>> *Philip S. Corwin, Founding Principal*
>>
>> *Virtualaw LLC*
>>
>> *1155 F Street, NW*
>>
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>>
>>
>> *Twitter: @VlawDC*
>>
>>
>>
>> *"Luck is the residue of design" -- Branch Rickey*
>>
>>
>>
>> *From:* accountability-cross-community-bounces at icann.org [mailto:
>> accountability-cross-community-bounces at icann.org] *On Behalf Of *Drazek,
>> Keith
>> *Sent:* Wednesday, May 20, 2015 7:45 AM
>> *To:* Chris Disspain
>> *Cc:* Accountability Cross Community
>> *Subject:* Re: [CCWG-ACCT] Question regarding UAs
>>
>>
>>
>> Hi Chris,
>>
>>
>>
>> I think there's a fundamental flaw in your assessment. You appear to be
>> looking at this question through the lens of the past and present, where
>> NTIA holds the enforcement function ("enforceability") through its ability
>> to rebid and transfer the IANA functions contract if the ICANN Board and
>> management acts inappropriately. That is the existing and necessary check
>> on the Board's decision-making power.
>>
>>
>>
>> Without NTIA in its current role, the community MUST have the ability to
>> check the Board's power, and the only way to secure that check is to create
>> legal enforceability. Otherwise, the Board has ultimate authority, even if
>> its decisions are inconsistent with the interests and desires of the
>> community ICANN is supposed to serve.
>>
>>
>>
>> You are proposing a transfer of power from NTIA to the ICANN Board, which
>> has a fiduciary obligation to first serve the interests of the corporation.
>> Alternatively, proponents of legal enforceability are in favor of
>> transferring final authority to ICANN's multi-stakeholder community.
>>
>>
>>
>> We should all be looking at this through the lens of the future, when
>> NTIA no longer holds the tether and is only participating through the GAC.
>> How do we, the multi-stakeholder community, ensure that ICANN and its
>> future Boards and management are truly accountable once the NTIA back-stop
>> is gone?
>>
>>
>>
>> The answer is to ensure the Board's decisions, in very limited areas, can
>> be challenged and overturned by a significant majority of the community. We
>> need to protect against the "catastrophic" scenario you referenced.
>> According to our independent legal advisors, the best (and perhaps only)
>> way to guarantee this is through legal enforceability.
>>
>>
>>
>> You asked, *"Is addressing this most unlikely scenario worth the
>> significant structural changes a membership model would require?" *I
>> believe the answer is yes. Not only worth it, but necessary.
>>
>>
>>
>> Regards,
>>
>> Keith
>>
>>
>>
>>
>> On May 20, 2015, at 2:40 AM, Chris Disspain <ceo at auda.org.au> wrote:
>>
>> For clarity, the last sentence of paragraph 8 below should read:
>>
>>
>>
>> "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 acting as one against an action or decision of the ICANN Board."
>>
>>
>>
>>
>>
>> Cheers,
>>
>>
>>
>> Chris
>>
>>
>>
>> On 20 May 2015, at 16:13 , Chris Disspain <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.
>>
>>
>>
>> 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.
>>
>>
>>
>> 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?
>>
>>
>>
>> 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.
>>
>>
>>
>> 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.
>>
>>
>>
>>
>>
>> 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 <%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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>> >
>> >
>> > --
>> > Jordan Carter
>> >
>> > Chief Executive
>> > *InternetNZ*
>> >
>> > 04 495 2118 (office) | +64 21 442 649 <%2B64%2021%20442%20649> (mob)
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>> > Skype: jordancarter
>> >
>> > /A better world through a better Internet /
>> >
>> >
>> >
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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 *
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--
------------------------------------------------------------------------
*Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng
<http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email:
<http://goog_1872880453>seun.ojedeji at fuoye.edu.ng
<seun.ojedeji at fuoye.edu.ng>*
The key to understanding is humility - my view !
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