George, Thank you for your thoughts. One question that comes to mind is how then does the board reconcile the issue of current consensus policy as defined through the bottom up multistakeholder process in the ASO, GNSO and ccNSO with its apparent mistrust and concerns over the governance an structure of the current SO's. Jeff Neuman touched on this in his email to the list last week, some selected quotes below (Links to his full post below). " If the ICANN Board is basically saying that the community is not sufficiently representative for purposes of holding ICANN accountable, then how can they ever argue that the community is sufficiently representative to produce a consensus of Internet stakeholders for the purpose of developing Consensus Policies. I have never heard the Board before make that argument...that it could not take a proposed policy and impose it on the contracted parties because they did not believe the community was sufficiently representative. ... You shouldn't be able to argue that the community is sufficiently representative for one purpose (Consensus Policies), but not for the purposes of holding itself accountable " If this is the position of the board then we are opening serious and dangerous debate. https://mm.icann.org/pipermail/accountability-cross-community/2015-October/0... -jg ________________________________ From: accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org> on behalf of George Sadowsky <george.sadowsky@gmail.com> Sent: 12 October 2015 08:33:13 To: CCWG Accountability; Icann-board ICANN Subject: [CCWG-ACCT] Where do we stand? All, Where indeed? I'd like to contribute some thoughts, with a view toward helping the process toward closure, if possible. My goal is to try to find a way through the issues that appear to separate us, and to look for areas in which agreement might be able to be reached, and reasonably soon. By "us" in the previous sentence, I mean all of the people who have been involved in the CCWG deliberations in any way whatsoever, including Board members in their individual capacity. This is not an "us" versus "them" discussion; there are a lot of different opinions among this larger group of involved people, not to mention the larger ICANN community that has been rather silent but nevertheless observing. This entire message represents only my own personal opinions and concerns. I would like to make a contribution into resolving the apparent stumbling blocks that impede our progress on the accountability issue. This is the purpose of this message. I've now followed and occasionally contributed to this discussion for over two months. It has been difficult following the various discussions on the list because of the multiple issues that are threaded and intermingled. The descent of the discussion into opposing and apparently irreconcilable legal views has not assisted my understanding much and, perhaps naïvely, I had hoped for a clearer set of answers that would provide resolution on certain aspect. With respect to clarity of legal opinions and options, I understand that sometimes what is allowed is based on precedent, and where there is no precedent, it may be impossible to say with certainty what is allowed and what is not. Given the level of uncertainty that this introduces, I'd settle for 'relative certainty' if appropriately qualified. I'd like to provide two lists: (1) those things that guide my own thinking regarding acceptable solutions, and (2) questions that I wish could be answered with short, definitive and useful responses and that might contribute to some convergence in thinking. In my view, her are some of the issues that concern me in my attempt to think through the issues that we have been discussing: 1. ICANN does have responsibility for more than just being a secretariat for the ACs and the SOs, i.e. what I think of as the inner ICANN community. I put this in the category of the global public interest. It doesn't dominate our responsibilities, and in general it may only be a sliver of what we think about, but it exists. The ACs and the SOs may also reflect and respond to their notion of the public interest, but they are by their nature sectoral, and I don't expect them to be totally neutral in their thoughts or actions. They represent their constituencies. Perhaps in theory, the varied stakeholders cover the complete spectrum of interests and balance each other out, but there is no guarantee of this. The overriding responsibility for balance and interpretation for that sliver, even if it just a very very small part of what comes up at ICANN, is the Board's role and responsibility. Any changes in structure that have the possibility of the ICANN inner community totally capturing the Board are therefore not acceptable. 2. I understand and accept that there needs to be an equilibration of power and authority in any change in ICANN's structure. However, the change should result in a balance, and not in a reversal of what people believe is the current situation, i.e.that the Board has all of the power and the community has no recourse. Such a reversal would be equally bad. This is what causes me to discount any model that can lead to capture. The statutory powers of the member or designator appear to be powerful, and even if some are severely limited, I worry that these limitations can be overcome, and the Board will be disenfranchised. This amounts to capture. I know that there is disagreement about the nature an extent of such statutory powers and the extent to which they can be limited, temporarily or permanently and, among other things, this uncertainty translates for me into the possibility of capture. 3. Replacement of the entire Board, if it occurs, is a very serious event, It will have significant repercussions not only within ICANN but internationally with respect to competing venues for so-called Internet governance. For this reason, we need both a very high bar to it occurring, and we need to ensure that there are very good reasons for the action to be taken. For example, if every AC ad SO in the inner community decided that the Board should be replaced, that would be a signal that something was seriously wrong, and the Board should be replaced. However,if there were any significant part of the inner community that disagreed with replacing the Board, then initiating the action to replace would be seen as a dispute between parts of that community, taking the Board as hostage and employing a Draconian procedure to force a majority opinion on a minority of the community. If this happens, it will turn ICANN into a battleground, and we won't have to worry about being taken seriously; we won't. The bar should be high enough so that if this action is taken, fit should be quite clear that no significant part of the community is against it. 4. I agree with the implication of Cherine's argument that removal of any director should be based upon a public rationale, an appropriate due process, and should be the result of broader community action, rather than that of a single AC or SO. The counter argument that I've heard is that other not-for-profit organizations can replace their directors if they want, so why can't we? My response is that ICANN is not an ordinary not-forprofit. On the contrary, the totality of our membership consists of stakeholder groups with different and often competing goals, and under the currently proposed plan the manipulation of Board representation therefore can reflect attempts at control through the Board. Such a change of behavior would contradict current bylaws in ways that have been articulated by Cherine and others. Most other not-for-profits are considerably more homogeneous and have shared goals, and the Board is generally not an arbiter of long run competing sectoral goals. 5. The models that we have been talking about are legal constructs, and we will need to respect their existence as frameworks for governance. But we need to remember that are the means to the ends that we want to achieve. I would rather prefer to define the goals precisely -- both the powers given to the actors as well as the constraints on their activities, and then see which model fits best. To do that, we need to understand well the differences between what the models offer, but first we need to agree upon the goals in terms of scope of authority, power and constraints. Sometimes it seems we mix them up in ways that obscure and even retard progress. progress. 6. I watch in horror the multi-million dollar duel of lawyers that has been going on for some time and appears to have no end. Why is it not possible to give them free rein to discuss the issue more dispassionately and come up with common positions with the possibility of deviations? I fear that a need to win may be transforming this part of our discussion into a lose-lose scenario. If so, the lawyers will still get rich, but ICANN, the community, and the whole world will lose. Can't we lock them in a room and not let them out until we see the white smoke coming from the chimney? (:-) In order to assist in resolving our current difficulties, here are some issues that I believe are pertinent. I raise them in the form of questions., for I believe that there is not a common precise understanding of them. Is it possible to provide simple and direct answers to them that might be useful for establishing greater understanding of the differences that still exist and beginning to bridge them? That would be helpful. A. It appears that the single designator model is very much the same as the single member mode, but with the only statutory power being to select or remove directors. In general, is this correct? In brief, what are the other differences? To establish any new structure the community still needs to address a range of open topics to ensure ICANN’s stability and freedom from capture: * • which SO and AC will participate in the decision-making mechanism (which SOs and ACs will opt-in)? For dismissal of the entire Board, why should it not require active assent of all ACs and SOs? * • what will be the Decision basis among participating SOs and ACs by _____ % of all SOs and ACs?? * • how will advice from those SOs and ACs opting-out of the decision-making mechanism (similar to GAC/Board advice?) be taken into consideration? * • how will will conflicts of interest and fiduciary or other responsibilities (such as public interest) will be factored into overall decision-making ? B. In Buenos Aires, there was discussion and convergence (I thought) on an "empowered AC/SO" model. Does this model offer any initial point for movement to convergence of opinion? C. The Board proposal calls for each AC/SO to decide if they are for or against and issue instead of possibly dividing its "vote". Is this a show-stopper? D. The Board proposal allows any AC/SO to weigh in on a particular issue (and decide to exercise or oppose the use of one of the powers. The CCWG proposal requires and AC/SO to decide ahead of time whether it will participate in future uses of the powers. Is this a show-stopper? E. What would the community take as evidence in the short term that the Board is acting in good faith? I'm concerned by what appears to be Board bashing on the list, wherein many things that any of us say or do are interpreted negatively and perhaps conspiratorially. I realize that the great majority of people involved int he CCSG process do not have such attitudes, but predictably it only takes a very few individuals to sour and confuse a discussion and lessen its utility. I'm sure that these questions reflect my limited and imperfect understanding of the situation, and perhaps some naïveté also, but there aren't many other ways to gain a productive understanding of it. Comments welcome. George