[CCWG-ACCT] Question regarding UAs

Kieren McCarthy kieren at kierenmccarthy.com
Wed May 20 22:46:40 UTC 2015


If only you could retweet an email...


Kieren

On Wed, May 20, 2015 at 2:51 PM, Burr, Becky <Becky.Burr at neustar.biz> wrote:

>   The “enforceability" issue is not about litigation at all, and it isn’t
> really about whether the Board or some newly invented group is more
> likely to get it right.  Rather, it’s about checks and balances.  Without
> the membership structure, the revised bylaws that empower the community to
> block certain actions, for example, are by definition advisory – they
> impose no *legal* obligation whatsoever on the Board and staff.   I don’t
> dispute that the Board would have a compelling interest in respecting
> community input, but as a legal matter without the membership structure, the
> Board would be *required* to treat any community vote to block, for
> example, as merely advisory and would have an affirmative obligation to do
> what it concludes is consistent with its fiduciary duty.  The membership
> model affirmatively shifts some of that fiduciary responsibility to the
> community.  It’s not a statement of who is right or wrong, but who has
> authority.  Steve raises a reasonable question about how the
> members/unincorporated associations are accountable to their respective
> communities.  But IMHO, the legitimate questions and concerns in this
> debate are getting obscured by polarizing language and assertions that
> it’s inappropriate to express a particular point of view.
>
>  The argument that there are no examples of situations that did result or
> would have resulted in the community acting as one against an action or
> decision of the ICANN Board.”  The community has never had any authority
> or tool to do so, so the fact that it never has is irrelevant and the
> assertion that it would not have is speculation.  I certainly would have
> tried to get the community to overturn the Board’s decision to abandon the
> substantive standard for IRPs in favor of the “good faith” test.  As it
> happens,  none of the existing review and redress mechanisms would have
> worked in that case, and they probably wouldn’t work in the future either.
>
>
>
>  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 / www.neustar.biz
>
>   From: Steve DelBianco <sdelbianco at netchoice.org>
> Date: Wednesday, May 20, 2015 at 12:37 PM
> To: "Chartier, Mike S" <mike.s.chartier at intel.com>, Steve Crocker <
> steve at shinkuro.com>, Keith Drazek <kdrazek at verisign.com>
> Cc: Accountability Community <accountability-cross-community at icann.org>
>
> Subject: Re: [CCWG-ACCT] Question regarding UAs
>
>   I don’t think there’s any question that the Board’s primary duty (not
> their only duty) is to ICANN the Corporation.   In addition to Mike’s
> citation of ICANN bylaws Section 7 (below), see ICANN’s Management
> Operating Principles (2008):
>
>
>  "The third and perhaps most critical point of tension is between the
> accountability to the participating community to perform functions in
> keeping with the expectations of the community and the corporate and legal
> responsibilities of the Board to meet its fiduciary obligations.”
>
>   Source:  ICANN Accountability & Transparency Frameworks and Principles,
> Jan-2008, p.5, at
> https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf
> <https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_en_system_files_files_acct-2Dtrans-2Dframeworks-2Dprinciples-2D10jan08-2Den.pdf&d=AwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=N94BFwt7XlN1luKY2YsAlg92HkXfJ8UfYuQCH-3B3bY&s=-nHIJ38MbHZo2QiXUiLPqBi6YeaesFEbRqTO3RL3Jew&e=>
>
>
>
>   From: "Chartier, Mike S"
> Date: Wednesday, May 20, 2015 at 9:56 AM
> To: Steve Crocker, Keith Drazek
> Cc: Accountability Cross Community
> Subject: Re: [CCWG-ACCT] Question regarding UAs
>
>   No comment on actual practice, but from a textual basis (which is what
> matters now since we are debating new text), I can’t see any inconsistency
> between the following statements:
>
> “Directors shall serve as individuals who have the duty to act in what
> they reasonably believe are the best interests of ICANN and not as
> representatives of the entity that selected them, their employers, or any
> other organizations or constituencies.”
>
> “the ICANN Board, which has a fiduciary obligation to first serve the
> interests of the corporation,”
>
>
>
>
>
> *From:*accountability-cross-community-bounces at icann.org [
> mailto:accountability-cross-community-bounces at icann.org
> <accountability-cross-community-bounces at icann.org>] *On Behalf Of *Steve
> Crocker
> *Sent:* Wednesday, May 20, 2015 9:47 AM
> *To:* Drazek, Keith
> *Cc:* Accountability Cross Community
> *Subject:* Re: [CCWG-ACCT] Question regarding UAs
>
>
>
> I didn’t take it personally.  I took it as a factually inaccurate
> statement that creates misunderstanding.  Future boards are bound by the
> same rules as the past and current boards.  The language you used is taken
> by many as a basis for believing there is a significant difference in
> alignment toward public responsibility between the ICANN Board and some
> newly invented grouping of community members.  It ain’t so and it’s
> inappropriate to suggest so.
>
>
>
> Steve
>
>
>
>
>
> On May 20, 2015, at 9:39 AM, Drazek, Keith <kdrazek at verisign.com> wrote:
>
>
> Steve,
>
>
>
> With all due respect, I think you’re taking this too personally and/or
> making it too personal. This is not about the current ICANN Board.
>
>
>
> None of us know what future ICANN Boards will do, or what future ICANN
> Boards will permit ICANN’s management to do. Will future Boards always
> exercise appropriate oversight over management? Could there be instances
> where ICANN’s legal counsel advises a future Board to make a decision that
> is counter to the interests of the community to protect the financial
> interests of the corporation?
>
>
>
> I see the proposed community membership structure simply as a check on the
> power of the Board, nothing more. It’s not about “controlling” or replacing
> the Board. The Board has its legitimate function, but its decisions cannot
> be unchallengeable. The community must have the ability to tell the Board
> it got a decision wrong and to enforce the will of the multi-stakeholder
> community in rare/limited instances and based on a very high threshold of
> community agreement/consensus.
>
>
>
> I would certainly trust the proposed community members, representing their
> SOs and ACs, to be balanced, inclusive and trustworthy in protecting the
> interests of the overall community -- in their role as the aforementioned
> check on the powers of the Board. Not as a replacement.
>
>
>
> Would you trust a future Board of sixteen unknown individuals more than
> you trust the multi-stakeholder, bottom-up, consensus-based community and
> process? It appears so.
>
>
>
> I stand by and reaffirm my previous email. I hope my clarification helps.
>
>
>
> Sincerely,
>
>
>
> Keith
>
>
>
>
>
> *From:* Steve Crocker [mailto:steve at shinkuro.com <steve at shinkuro.com>]
> *Sent:* Wednesday, May 20, 2015 8:27 AM
> *To:* Drazek, Keith
> *Cc:* Stephen D. Crocker; Chris Disspain; Accountability Cross Community;
> mshears at cdt.org; egmorris1 at toast.net
> *Subject:* Re: [CCWG-ACCT] Question regarding UAs
>
>
>
>
>
> On May 20, 2015, at 7:44 AM, Drazek, Keith <kdrazek at verisign.com> wrote:
>
>
>
>
>    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.
>
>
>
> Keith, Edward and Edward,
>
>
>
> We have covered the point above several times and it’s long past time to
> stop throwing this half-trust around.  Yes, ICANN is legally a corporation,
> and, yes, directors of a corporation have a duty to protect the
> corporation.  But that generality has a far different meaning in a for
> profit corporation like Verisign than it does in a not-for-profit public
> benefit corporation like ICANN.  The directors are obliged to pursue the
> purpose and mission stated in the incorporation papers and the bylaws.  The
> directors serve the community, and we do so by exercising oversight over
> the corporation toward that end.
>
>
>
> There will always be differences of opinion about the particular details,
> but those sorts of differences of opinion will arise in *any* governance
> model.  The prevailing assumption in much of the correspondence on this
> list is that the proposed members will somehow be more balanced, more
> inclusive and more trustworthy in protecting the interests of the overall
> community than the ICANN Board is.  That’s simply false.  And I think you
> know that it is.
>
>
>
> Please correct yourself and apologize.
>
>
>
> Thanks,
>
>
>
> Steve
>
>
>
>
>
>
>
>
>
>
>
>
> 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
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> > --
> > Jordan Carter
> >
> > Chief Executive
> > *InternetNZ*
> >
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> >
> > /A better world through a better Internet /
> >
> >
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