[CCWG-ACCT] Message from ICANN Board re Designator Model

Tue Oct 6 19:28:57 UTC 2015

Hi Phil,

Considering that there has been significant discussion made on the
structural change route, I think we can also focus some energy on asking
board/discussing how to achieve accountability of the community and of the
board without structural change. As to fiduciary duties of the communities,
I don't think it's out of line to say that as it's indeed the reality(as
much as I hate to say it); ICANN is a very unique dynamic volunteer
community that should always prompt us to be cautious of how much power we
are assigning. I don't know of any organisation that operates on such
status.

It will really provoke my curiosity on what our personal intentions were if
we don't all have doubts of the possible consequences/effect of jumping
into a huge structural change during the transition, but we went ahead with
the mindset of "its either now or never" and also the mindset that we need
to keep board accountable at all cost! Even though it could directly or
indirectly affect some members of the community. It's like causing an
earthquake in order to mine a mineral resource, while that may achieve the
goal it most likely will not leave the landscape the same again.

Going through a significant structural change will most likely achieve the
expected accountability goal on board but could create an unpredictable
situation within the community and that in turn would negatively affect the
entire organisation. The transition is already a huge
operational(administrative) change, will it not be good to avoid using the
structural change as the reason for any possible operational instability
post-transition?

There are reasons why we appoint board members and one of the reason is
based on trust, I believe that should be evident in the ccwg proposal as
much as possible. Whether we like it or not, the board is the only
"neutral" stakeholder that can observe consensus and execute the community
request, let's not loose that unique role of the board.  I urge us all to
continue on the path of checking/understanding how much accountability we
can get to complete the transition without structural change. I believe we
all want an improved accountability and whatever we finally come up with
will certainly provide such improvement.

Regards
Sent from my Asus Zenfone2
Kindly excuse brevity and typos.
On 6 Oct 2015 19:03, "Phil Corwin" <psc at vlaw-dc.com> wrote:

> I agree this is slippery and dangerous territory, Wolfgang. And I have
> made clear that I do not agree with that POV.
>
>
>
> However, in its October 1st High Level Response to CCWG Counsel’s 29
> September 2015 Slides, Jones Day states: " proponents of the CCWG’s
> Proposal minimize or ignore the fact that the shift to the SMM would place
> a significant amount of power in the hands of *individuals and
> stakeholders that hold no fiduciary obligations to* ICANN or *the global
> stakeholder community*. *These individuals and stakeholders* are free to
> act in their personal interest and *are not required to make decisions
> based on what is best for* ICANN, the ICANN community, and *the global
> public interest*".  (Emphasis added)
>
>
>
> While the Board may credibly state that it has a fiduciary duty to ICANN
> and makes decisions beside upon what is best for ICANN (and I am not in any
> way implying that the CCWG and ICANN community make decisions based on
> anything but what they believe is best for ICANN and its community), it
> cannot claim to make decisions based on what is best for the ICANN
> community (since its first duty is to the Corporation, and it is quite
> evident from the current accountability discussion that its views are at
> significant variance from those of the community members comprising the
> CCWG) and it has no greater claim to representing the global public
> interest than the community from which it is drawn.
>
>
>
> Given that it is ICANN’s outside Counsel that has raised this charge,
> which has since been echoed in Board member communications, perhaps your
> caution to “be careful” should be directed elsewhere.
>
>
>
> Finally, on the matter of the “global public interest”, points #2 & 3 of
> the CCWG Charter states:
>
> 2.            If the Board believes it is not in the global public
> interest to implement a recommendation from the Cross Community Working
> Group on Enhancing ICANN Accountability and Governance (CCWG
> Recommendation), it must initiate a dialogue with the CCWG. A determination
> that it is not in the global public interest to implement a CCWG
> Recommendation requires a 2/3 majority of the Board.
>
> 3.            The Board must provide detailed rationale to accompany the
> initiation of dialogue. The Board shall agree with the CCWG the method
> (e.g., by teleconference, email or otherwise) by which the dialogue will
> occur. The discussions shall be held in good faith and in a timely and
> efficient manner, to find a mutually acceptable solution.
>
>
>
> I have previously inquired on this list whether the Board’s concerns
> regarding the Sole member or Designator models amounted to a formal belief
> that they threatened the global public interest, and I do not recall any
> statement that they did – much less a formal invoking of the dialogue
> process provide for in the Charter.
>
>
>
> If the Board believes that either or both of those models does so it would
> seem appropriate to provide the required detailed rationale and start the
> dialogue. If it does not, then it seems quite inappropriate and
> non-constructive for ICANN Counsel to raise a purported threat to the
> global public interest in their memoranda.
>
>
>
> Best,
>
> Philip
>
>
>
> Philip S. Corwin, Founding Principal
>
> Virtualaw LLC
>
> 1155 F Street, NW
>
> Suite 1050
>
> Washington, DC 20004
>
> 202-559-8597/Direct
>
> 202-559-8750/Fax
>
> 202-255-6172/cell
>
>
>
> Twitter: @VlawDC
>
>
>
> "Luck is the residue of design" -- Branch Rickey
>
>
>
>
>
> -----Original Message-----
> From: "Kleinwächter, Wolfgang" [mailto:
> wolfgang.kleinwaechter at medienkomm.uni-halle.de]
> Sent: Tuesday, October 06, 2015 1:25 PM
> To: Phil Corwin; Paul Rosenzweig; Guru Acharya
> Cc: CCWG Accountability
> Subject: AW: [CCWG-ACCT] Message from ICANN Board re Designator Model
>
>
>
> Hi Phil,
>
>
>
> this is slippery territory. If you read Parminders comment that it is only
> the UN which is the legitimized representative of the global Internet
> community (via the elected governments of the UN member states). As said in
> previous comments: There are unintended side-effects of our discussion both
> for the microcosm of ICANN as well as for the macrocosm of the broader
> Internet world. Be careful!
>
>
>
> Wolfgang
>
>
>
>
>
>
>
> -----Ursprüngliche Nachricht-----
>
> Von: accountability-cross-community-bounces at icann.org im Auftrag von Phil
> Corwin
>
> Gesendet: Di 06.10.2015 19:15
>
> An: Paul Rosenzweig; Guru Acharya
>
> Cc: CCWG Accountability
>
> Betreff: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model
>
> I personally do not buy the argument that the ICANN community is
> insufficiently reflective of the global Internet Community, given the very
> low barriers to participation as well as the increasing levels of
> attendance at ICANN meetings and participation in ICANN activities, with
> greater numbers from the developing world as it comes online.
>
>
>
> However, if the community is not reflective of global Internet diversity
> then wouldn't the Board members who are drawn from it be equally
> non-representative? The logical outcome of this criticism is that the Board
> is equally disqualified from being the steward.
>
>
>
> Philip S. Corwin, Founding Principal
>
> Virtualaw LLC
>
> 1155 F Street, NW
>
> Suite 1050
>
> Washington, DC 20004
>
> 202-559-8597/Direct
>
> 202-559-8750/Fax
>
> 202-255-6172/cell
>
>
>
> 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
> <accountability-cross-community-bounces at icann.org>] On Behalf Of Paul
> Rosenzweig
>
> Sent: Tuesday, October 06, 2015 12:47 PM
>
> To: Guru Acharya
>
> Cc: CCWG Accountability
>
> Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model
>
>
>
>
>
> Exactly.  The Board is demonstrably speaking with situational
> particularity.  Perhaps it is time we think about selecting different Board
> members in the next round of elections....
>
>
>
> --
>
> Sent from myMail app for Android
>
> Tuesday, 06 October 2015, 00:40AM -04:00 from Guru Acharya <
> gurcharya at gmail.com<mailto:gurcharya at gmail.com>>:
>
>
>
>
>
> I strongly agree with Jordan.
>
>
>
> I personally find that attitude of the board to be very 'convenient'.
>
>
>
> According to them, ICANN is multistakeholder enough to become the steward
> of IANA, but the community is not multistakeholder enough to become a
> member of ICANN. Effectively, we are making ICANN the corporation the
> steward of IANA and not ICANN the community.
>
>
>
> I also find it an extremely convenient argument that 'while entering
> uncharted territories to make ICANN the steward is very safe; at the same
> entering uncharted territories to make ICANN a membership organisation is
> untested and very very unsafe'.
>
>
>
> In the CWG (Stewardship), the board consistently argued that
>
> 1) the CCWG will solve all accountability issues and therefore ICANN
> should be made the steward.
>
> 2) the ICANN structures are truly multistakeholder and therefore ICANN
> should be made the steward
>
> 3) entering unchartered territories by making ICANN the steward is very
> very safe
>
> 4) the NTIA may not accept the Contract Co model
>
>
>
> In complete contrast, in the CCWG (Accountability), the board is arguing
> that
>
> 1) the CCWG should postpone major accountability measures to after the
> transition
>
> 2) the ICANN structures are currently not multistakeholder enough to
> become the members of ICANN
>
> 3) entering unchartered territories by making ICANN a membership
> organisation is very very unsafe.
>
> 4) the NTIA may not accept the membership model
>
>
>
> I do not find the promises for future change to be trustworthy. I am
> strongly against pushing something so important and basic to WS2.
>
>
>
> On Tue, Oct 6, 2015 at 8:26 AM, Aikman-Scalese, Anne <
> AAikman at lrrlaw.com<//e-aj.my.com/compose/?mailto=mailto%3aAAikman at lrrlaw.com
> <AAikman at lrrlaw.com%3c//e-aj.my.com/compose/?mailto=mailto%3aAAikman at lrrlaw.com>>>
> wrote:
>
>
>
> @ Jordan - well stated.   Postponing truly effective accountability
> measures developed using the Multistakeholder process  in favor of  "a
> review of structure" as suggested strikes me as another recipe for a
> years-long process the elements of which would take months to agree on in
> and of themselves - very ineffective.
>
>
>
> Anne
>
>
>
>
>
>
>
> [
> https://af.mail.my.com/cgi-bin/readmsg?id=14441065090000080418;0;0;1&mode=attachment&bs=16497&bl=3767&ct=image%2fgif&cn=image001.gif&cte=base64
> ]
>
>
>
>
>
> Anne E. Aikman-Scalese, Of Counsel
>
>
>
>
>
> Lewis Roca Rothgerber LLP
>
>
>
>
>
> One South Church Avenue Suite 700 | Tucson, Arizona 85701-1611
>
>
>
>
>
> (T) 520.629.4428 | (F) 520.879.4725
>
>
>
>
>
>
> AAikman at lrrlaw.com<//e-aj.my.com/compose/?mailto=mailto%3aAAikman at lrrlaw.com
> <AAikman at lrrlaw.com%3c//e-aj.my.com/compose/?mailto=mailto%3aAAikman at lrrlaw.com>>
> | www.LRRLaw.com<http://www.lrrlaw.com/
> <http://www.LRRLaw.com%3chttp:/www.lrrlaw.com/>>
>
>
>
>
>
>
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>
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>
>
> From:
> accountability-cross-community-bounces at icann.org<//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces at icann.org
> <accountability-cross-community-bounces at icann.org%3c//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces at icann.org>>
> [
> mailto:accountability-cross-community-bounces at icann.org<//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces at icann.org>
> <accountability-cross-community-bounces at icann.org%3c//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity%2dbounces at icann.org%3e>]
> On Behalf Of Jordan Carter
>
> Sent: Monday, October 05, 2015 7:44 PM
>
> To: Steve Crocker
>
> Cc: Accountability Cross Community
>
> Subject: Re: [CCWG-ACCT] Message from ICANN Board re Designator Model
>
>
>
>
>
>
>
> Steve, all
>
>
>
>
>
>
>
> In finalising the CCWG's proposal, the ICANN board is a stakeholder - an
> important one.
>
>
>
>
>
>
>
> It has a later role as a decision-maker, according to criteria that have
> already been established by Board resolution.
>
>
>
>
>
>
>
> A careful multi-stakeholder process over almost a year has analysed the
> community's requirements and come up with a model that can do it - based
> around membership.
>
>
>
>
>
>
>
> The Board has abused its role as a decision-maker in this process. In
> effect, it has sought to replace the open, public, deliberative proposal
> development process with its own definition of what the community requires,
> and its own solution that can deliver its evaluation of those requirements.
>
>
>
>
>
>
>
> In doing so, it has profoundly challenged the legitimacy of the
> multi-stakeholder model of decision-making that ICANN and its Board claim
> to uphold.
>
>
>
>
>
>
>
> Worse, as a matter of process, the Board has attempted to use its
> decisional role at the end of the Accountability to move the trajectory of
> debate away from what the community's requirements, fairly analysed dictate
> -- trying to force the group to "jump the tracks" and into a solution that
> is unlikely to be able to deliver on those requirements.
>
>
>
>
>
>
>
> It's an ugly display of force in what should be a rational and
> requirements-based conversation.
>
>
>
>
>
>
>
> I sincerely regret the Board's choice as a group to take that approach.
> The effect is to give fodder to all of those people, countries and groups
> who have long argued that the entire notion of multi-stakeholder Internet
> policymaking is a charade, behind which decisions are made simply and alone
> by "the people who matter".
>
>
>
>
>
>
>
> In terms of the CCWG's work, this email combined with your statement in
> Los Angeles reduce the chances of any consensus being able to emerge
> between what the Board has asked for and what the CCWG has developed.
>
>
>
>
>
>
>
>
>
>
>
> It leaves me very sad that the groups here (Board and CCWG) have arrived
> at this position. There is an apparent lack of listening and comprehension;
> few displays of empathy or willingness to see things from another point of
> view; and a consequent inability to really talk through and resolve the
> conflicting perspectives and aims here.
>
>
>
>
>
>
>
> I hoped the Board might make some overtures in that direction. I know I
> and other CCWG members have been trying to do. To get this sort of response
> indicates that that attempt serves no further purpose.
>
>
>
>
>
>
>
>
>
>
>
> What are others' views about how we proceed from here? I confess myself
> mystified.
>
>
>
>
>
>
>
> Look forward to speaking with you all in a few hours.
>
>
>
>
>
>
>
> Cheers
>
>
>
>
>
>
>
> Jordan
>
>
>
>
>
>
>
>
>
>
>
> On 6 October 2015 at 15:21, Steve Crocker <
> steve.crocker at icann.org<//e-aj.my.com/compose/?mailto=mailto%3asteve.crocker at icann.org
> <steve.crocker at icann.org%3c//e-aj.my.com/compose/?mailto=mailto%3asteve.crocker at icann.org>>>
> wrote:
>
>
>
> CCWG,
>
>
>
>
>
>
>
> We appreciate the continued work that the CCWG is doing to consider the
> public comments received on its second draft report.  Following the Los
> Angeles F2F we have heard suggestions that a Designator model relying on
> California statutes may be a replacement for the Sole Member model that was
> in the second draft report.
>
>
>
>
>
>
>
> To be clear, the concerns that the Board raised on the Sole Member model
> still apply to a Designator model.  The Designator model still introduces a
> new legal structure with powers that are intrinsically beyond the structure
> we have been using.  We understand that many believe it is possible to
> constrain these powers in order to provide established protections,
> accountability and thresholds: This is unproven territory and will require
> more detail and time to understand and test the impact on our bedrock
> multistakeholder balance.
>
>
>
>
>
>
>
> Further, it is unclear that this would represent the full multistakeholder
> community because we do not know yet which SO/ACs will join now or later.
> Moreover, the same community accountability issues present in the Sole
> Member are present in the Designator model.
>
>
>
>
>
>
>
> Steve del Bianco's constructive suggestion over the weekend that the Board
> could commit to a future governance structure review triggered by key
> factors seems like a good path forward.  This can be enshrined in a new
> fundamental bylaw that would require the holding of a future governance
> structure review if SOs and ACs agree to kick off that review.
>
>
>
>
>
>
>
> We are all in complete agreement on the objective of enforcement of the
> five community powers, with new/stronger mechanisms for board removal
> if/when necessary.  Let's focus on finalizing the details on these
> consensus elements to enable implementation and a successful transition.
>
>
>
>
>
>
>
> Steve Crocker
>
>
>
> for the ICANN Board of Directors
>
>
>
>
>
>
>
>
>
>
>
> _______________________________________________
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>
> --
>
>
>
> Jordan Carter
>
>
>
> Chief Executive
>
> InternetNZ
>
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>
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