[CPWG] Calif. AG mentions ALAC advice in note to ICANN re: PIR

Fri May 8 09:16:33 UTC 2020

The fact is there was no real consensus among the At-Large about the acquisition of PIR. There were essentially 4 proposals on the table:

  1.  Approve the sale
  2.  Approve the sale with conditions (which is what both the ALAC and NCSG settled upon)
  3.  Deny the sale (essentially what happened)
  4.  Take .ORG away from PIR and move it to a new entity

There WAS a strong consensus, led primarily by Roberto Gaetano, NOT to let the sale go through without concessions so the group was motivated to identify the appropriate concessions and perhaps bake them into the .ORG contract so they would. Survive changes of ownership.

If we took the time to GREP (or more likely Amazon Comprehend) the listserv archives they would reveal fewer than 5 people (nearly if not ALL new to the list), a few more expressing a preference for option 3 and the huge majority (though still not a LOT of people total) supporting everything Roberto  proposed.

Now we can argue that many in the At-Large had a relationship to ISOC which may have convoluted this discussion but there were also serious issues with the public comments that arrived in volume and form the primary indication of “public” dissatisfaction with the deal.

We also need to set aside the fact that while many in the At-Large work for non-profits, we are not the voice of non-profits at ICANN. The NPOC are and they, together with the rest of the NCSG, chose a similar direction to the ALAC. There were, of course, dissenters in the NCSG as well, such as Kathy Kleinman, who believed that PICs were inherently evil and a product of a top down decision making process under Fadi.

I say this all to say that I’m not sure WHAT would have made a better consensus “process” as David has been discussing. The only body with actual decision making ability is the ALAC and all the rest are just advising the ALAC and they certainly received no clear recommendation to oppose the sale from the CPWG or the At-Large generally.

Now Evan, you might think that means they are not “fit for “purpose” because of your belief in what represented the public interest but I find it difficult to believe that the At-Large is somehow corrupt and purposefully subverted that public interest.  I’m sure there might have been some bias towards ISOC (as well as some disappointment in them), some measure of defeatism believing they should take what they could get and some measure of belief that a for profit registry might NOT, in fact, be the end of the world.

David, I know that you asked me about how to better take the temperature of the listserv, since we really only took the temperature of an 80 person CPWG call. I remain flummoxed about how best to do that given the openness of the CPWG and At-Large lists. You don’t need to even be a member of the At-Large to be on the CPWG list,  for example.  This list has always been a freeform discussion in  which board members and even contracted parties have joined in. Polling a  group like that is problematic but I remained committed to finding a way to make better use of the list because the calls are overwhelmed.

I don’t know if any of this helps but I thought I would put it out there.
Jonathan

From: CPWG <cpwg-bounces at icann.org> on behalf of David Mackey <mackey361 at gmail.com>
Date: Tuesday, May 5, 2020 at 3:09 PM
To: Evan Leibovitch <evan at telly.org>
Cc: CPWG <cpwg at icann.org>
Subject: Re: [CPWG] Calif. AG mentions ALAC advice in note to ICANN re: PIR

Hi Evan,

Thank you for the summary.

Do you have any suggestions on how our process could be improved to produce outcomes which better "filter, judge, vet or micromanage the global end user response to DNS-related issues" and help us "discover, understand, articulate and advance it" better too?

Cheers!

On Tue, May 5, 2020 at 1:24 PM Evan Leibovitch <evan at telly.org<mailto:evan at telly.org>> wrote:
Hi David,

I hope that I'd given my response to your question in my post of 10 minutes ago, which I would summarize with these two sentences from it:

  *   We are not here to filter, judge, vet or micromanage the global end user response to DNS-related issues. We are here to discover, understand, articulate and advance it.
  *   That we did not reflect the overwhelming [public] opposition [to the Ethos sale] in our dealings with ICANN is an indictment of ALAC's fitness for purpose.
- Evan

On Tue, 5 May 2020 at 13:14, David Mackey <mackey361 at gmail.com<mailto:mackey361 at gmail.com>> wrote:
Evan, Johnathon, Greg,

Looking back at the path for how this issue worked itself out, are any of you able to identify specific opportunities for improvement in the At-Large consensus and policy development process, or it do you think it worked as it should be expected?

Others are welcome to answer too, of course. I just thought Evan's, Jonathan's and Greg's opinions might be interesting, because of their consistent engagement in the policy discussion.

Cheers!
David

On Tue, May 5, 2020 at 1:03 PM Evan Leibovitch <evan at telly.org<mailto:evan at telly.org>> wrote:
I'm happy to read that we're generally agreed, which is why I'm going to push back on places where I still see dismissal and disenfranchisement. I will assume in good faith that it's unintentional so I hope that pointing it out will help correct.

You wrote:

The fact that a particular part of the community is displeased does not, in and of itself, represent a failure of the organization, nor an advancement of the “public interest.”

This is a problematic statement to me.

That "particular part of the community" just happens to be OUR community, the only one ICANN At-Large is bylaw-mandated to be speaking for. The world out there. No other community should matter to us, the rest have plenty of their own mouthpieces and mercenaries. And on the ISOC/Ethis issue there was absolutely no question that this community -- OURS -- was well beyond consensus in opposing the sale. That we did not reflect that overwhelming opposition in our dealings with ICANN is an indictment of ALAC's fitness for purpose.

We are not here to filter, judge, vet or micromanage the global end user response to DNS-related issues. We are here to discover, understand, articulate and advance it. ICANN is chock-full of constituencies eager to belittle and lobby against the public interest. In the face of this ALAC needs to be the advocate for the outside worldview, not its first obstacle.

If this "particular part of the community" is displeased with a DNS, we must too be displeased because we are their voice -- their ONLY voice -- within ICANN. If that voice is silenced or overlooked it is absolutely a failure of ICANN's governance design, including its design of At-Large.

I have never said that the AG -- any AG or government overseer -- is without a political agenda of its own, and it would be foolish to deny that this agenda can shift with the wind. What I am saying is that, right now, I trust the AG's closed, hyper-political ability to weigh the various interests on major DNS issues infinitely more than I trust ICANN's vaunted MSM, which is truly pathetic.

I too agree with your frustrations about ICANN and the public interest and have fought hard to improve that situation and will continue to do so. That said, NO DECISION HAD BEEN MADE here.

So if no decision were made, we would have sat back and let ICANN make a decision without being made aware of the massive public outcry against the sale. That would essentially render ALAC impotent in the face of one of ICANN's most important decisions in a decade. You've just made the case for the AG intervention in our absence.

We might rightly believe that the board would have made the wrong decision because they have made many wrong decisions but, as a matter of process, I would have preferred to have seen their unvarnished decision first.

This is where you and I disagree, and see past each other, the most. You have this (IMO vastly overrated) faith in reviews and appeals. I, OTOH, see these as being too little too late (and you KNOW ICANN would have been unable to roll back the Ethos sale once approved).

Spending so much effort on damage control rather than damage prevention is to me a clear indication that things are very wrong. It's as if you too don't trust the decision process either, because of all the effort spent on after-the-fact cleanup. Cheering on a bad decision in order to test the appeal process is just incomprehensible to me, especially  when the option exists to avoid the bad decision at the outset. What, thankfully, is what happened.

ALL I’m saying is that even if the organization had a perfect reputation for upholding the public interest, the AG could easily have been convinced otherwise, prodded to weigh in and sent a letter written by a lobbyist.

And if the Queen had testicles she's be King¹

"Perfect reputation"? ICANN has so much ground to gain just to upgrade to "poor". Heaven knows there have been many previous opportunities for the AG to intervene.  Ages ago the AG should have blocked ICANN's elimination of direct Board elections and the sham of its Nominating Committee process. But it didn't, so to my mind the AG has been even more hands-off than it should have been. There are many other jurisdictions, including Canada and Switzerland, where such shenanigans absolutely would have been voided by the public trustee.

What happened here was that the AG intervened on behalf of a community -- the general public -- that was otherwise unheard within ICANN. That *should* have been ALAC's job but the AG did it because we couldn't or wouldn't. As I said before ALAC totally missed the point of the public objection, playing with PICs and other minutiae rather than the fundamental badness of turning a non-profit.

That’s all that happened. It wasn’t some careful study of ICANN’s history that led the AG to act. You give him FAR too much credit, that’s all.

On the contrary, I give the AG no credit at all except that it's currently being more trustworthy than ICANN -- and more effective than ALAC -- in considering and advancing the public interest. Sure, the AG can shift for the worst, but then so can ICANN.

- Evan
¹ - Sorry if that offended but it just seemed so appropriate. My family used that saying a lot when presented with fanciful conditionals.

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--
Evan Leibovitch, Toronto Canada
@evanleibovitch or @el56
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