Dear Colleagues, Dear Parminder, Noting that Parminder's feedback on external accountability reflects a discussion that takes place regularly when reaching out of the Icann community to discuss about the current transition process, I think it's worth our time reflecting on how our group discussions took it into account. First, the term "external accountability", while frequently used, may have different meanings for different stakeholders. I concur with Becky who suggested that you clarify your meaning. If external accountability means "Icann is accountable to an overseeing body outside of Icann", then we should note that we had this very discussion several times in the requirement phase, and tended to conclude that, because of the "who guards the guardian" issue, our group's preferred option was to find an internal option which would introduce better checks and balances ("mutual accountability"). If external accountability means accountability to stakeholders outside of the regular Icann participants, then I think our current proposals introduce significant enhancements : - the IRP is accessible to any materially affected party, made more accessible and, above all, becomes binding on the Board. - the current discussions on SO/AC accountability, diversity within the community and the accountability mechanisms, are all related to this issue of accountability to external stakeholders. It is perfectly fair and welcome to challenge these options, which does not mean that have not been considered. Our role as a group will be respond to such concern properly, but also to identify associated requirements. I am confident we'll find some in the public comments, as well as in further discussions of our group. Best, Mathieu Le 14/06/2015 07:46, parminder a écrit :
On Saturday 13 June 2015 12:40 PM, Avri Doria wrote:
Hi,
We have a difference in perception on this.
I agree, and can understand that. What however I cannot understand is why the perspective that I present - seeking external accountability mechanism - has not been given adequate consideration by the CCWG. And questions arising from this perspective have never been responded to properly. Does that not put in question the fairness of the process, especially when the perspective that you hold and which is overwhelming dominant in the process, to the complete exclusion of the other one, is in favour of giving ultimate power to the SO/ACs (or the ICANN community) whose reps also happen to fully dominate the process. Do you not find something problematic here?
But perhaps one may want to argue that my perspective is a fringe view with little or no support. Before I (once again) argue the rationale of this perspective, let me present some empirical points.
The public submission by Roberto Bissio who serves as an advisor to the CCWG process says that the two issues of jurisdiction and external accountability were raised in the advisory group meetings but "were not taken into account or properly responded to in the draft recommendations".
Further, in the last few weeks I have been at two meetings organised in India on the IANA transition issue, organised by groups that clearly have no unfriendliness towards ICANN. Both meetings were attended by a full range of stakeholders. In both the meetings there was clearly a preponderance of view that (1) jurisdiction and (2) even more, 'external accountability' are the key issues that should be focussed on. The organisers of one of these meetings did a extensive survey of views of different stakeholders and the report that was presented at the meeting again focussed on external accountability.
These are the only two meetings that I know to have taken place in India in the last many weeks, and which included a full range of stakeholders. If the general outcomes of both these meetings (plus the survey) tend towards seekinfg focus on 'external accountability' than I think it means that this perhaps is what the overwhelming number of people in India want. India has about a 7th of the world's population. I dont think China with about one sixth would be thinking any differently. In fact, I am convinced that all developing countries will be thinking quite similarly. Among US allied developed countries there may be slightly greater ambiguity, but I still think a very big majority which if asked would be inclined towards external accountability. Not sure about people in the US though bec they do have considerable leverage over ICANN through various institutions of the US state, though I think most people understand the need for clear mechanisms of external accountability for such institutions like ICANN.
Many governments' current submissions, including India's and Brazil's, seek mechanisms of external accountability, and I am sure their reps would have said things to that effect during the process.
Very interestingly, the NetMundial statement, much respected and celebrated by the ICANN community, says that “it is expected that the process of globalization of ICANN speeds up leading to a truly international and global organization serving the public interest with clearly implementable and verifiable accountability and transparency mechanisms that */*satisfy requirements from both internal stakeholders and the global community*/*” (emphasis added).
So, no, my perspective is not fringe, and it can be empirically shown that it is not fringe. I would rather think that the view presented and pressed by the ICANN community (AO/SCs) is largely just the view of the ICANN community, with has little support outside it. And when this view is in fact for ICANN community retaining or taking up full and final power in all ICANN affairs, for the CWCG process, itself made up mostly of the ICANN community, to unilaterally proceed with it as a kind of received wisdom, to the complete exclusion of the other perspective (calling for 'external accountability'), really throws up extremely troubling questions.
Someone must explain why the other perspective was not taken seriously by the CCWG, and its all requirements and possibilities not fully explored. Why did it just got shut up, when there has been so much support for it.
It is extremely clear that *at least* a very large number, if not a very large majority of people (which is in fact the case), *do not* consider ICANN community as being adequately representative of the global community which is why they are asking for 'external accountability'. This is empirically provable, and this proof provides enough basis why this perspective should have been fully and thoroughly considered, which did not happen. The further fact that such a partisan take actually benefits the same community that dominates the process in my view fully vitiates it.
As for the arguments by Avri, supported by Wolfgang, that the ICANN community does in fact adequately represent the global community, or is adequately inclusive of it - just by the fact of formal openness of its design, I strongly disagree with it and but will respond to it in a separate email. I do not want to mix a logical argument with one based on empirical facts that are immediately verifiable, about (1) there being a very large support for instituting 'external accountability' mechanisms and (2) it having not been considered or responded to properly .
parminder
Whereas I believe you think of ICANN as a closed community that excludes, I see the ICANN community as an open community that reaches out to all participants and is always reaching towards the global multistakeholder community. There is an ICANN subgroup ready to welcome and include anyone interested. And if some set of people approaches the ICANN community and says there is no place for them, and indeed we find there there isn't, then something will be done accommodate that new need.
Even though it is an open community that welcomes everyone who wants to get involved, it recognizes that not all can or would join in this open community. To make sure they are not left out of the processes, they are always open to those others who do not wish to associate with the ICANN community, but want to participate nonetheless. Nt only can they participate fully in building the consensus in the working groups, they can stand on the outside, follow the process and submit comments. Comments that a taken quite seriously by the working group.
Between these two elements, I see the process as indeed inclusive of the global multistakeholder community. I can think of no better existing process for doing so, though readily acknowledge that of course the process needs to do ever better at outreach and ever better at inclusion.
avri
On 13-Jun-15 01:52, parminder wrote:
On Friday 12 June 2015 09:35 PM, Drazek, Keith wrote:
Thanks Becky,
I think you highlight a key point.
Currently, NTIA and the California Attorney General are the only enforcement bodies ensuring ICANN remains committed to its bylaws.
The membership structure would give some of that authority to the ICANN community through its existing structures -- the SOs and ACs.
Isn’t that the definition of transitioning the United States government (in its various forms) out of its unique role?
Being at definitional matters; in my understanding, the definition of 'transitioning the US government (in its various forms) out if its unique role' is that the US government, and its agencies, have no role that is not equivalent to that of any other government and its agencies. That has always been the intent and purpose of the long standing global demand for getting rid of US's unilateral oversight over ICANN.
A wrong definition of the problem obviously leads to wrong solutions, as is happening currently with the 'transition process'.
After NTIA disengages, don’t we want the community to have shared authority for enforcement,
As you mention in an earlier part of your email, with community you of course mean 'ICANN community'. Whatever be the intention of the 'ICANN community', even NTIA's announcement asked for the oversight to pass to 'global multistakeholder community' and not to the 'ICANN community'. Now if the 'ICANN community' being in charge of running the transition process appropriates that new (partly) transitioned oversight role to itself, it is perhaps an understandable human failing, but that would normally be called as an illegitimate capture.
parminder
rather than leaving it to the California Attorney General alone?
Regards, Keith
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Burr, Becky *Sent:* Friday, June 12, 2015 11:07 AM *To:* Roelof Meijer; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Roelof,
shi
As I understand it, Courts view the bylaws as a contract between a corporation and its members/shareholders. If ICANN has no members, the bylaws are not a contract with anyone, so the only party with authority to enforce would be the Attorney General. (As discussed elsewhere, this is extremely unlikely to happen outside of a fraud/corruption situation.)
The fact that members of SO’s are legal entities doesn’t change this. Unless they are members of ICANN, they are not a party to the bylaws “contract.”
B
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@neustar.biz <mailto:becky.burr@neustar.biz> /www.neustar.biz <http://www.neustar.biz>
*From: *Roelof Meijer <Roelof.Meijer@sidn.nl <mailto:Roelof.Meijer@sidn.nl>> *Date: *Friday, June 12, 2015 at 8:18 AM *To: *Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject: *[CCWG-ACCT] FW: [Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear all, and especially dear legal colleagues,
The memo states:
"If there were a dispute between ICANN and an SO/AC, the parties could agree to an IRP and binding arbitration, but there would be no mechanism to restrain ICANN from acting contrary to these decisions, nor would there be a mechanism to challenge an arbitration decision that exceeded the scope of authority of the arbitration panel, outside an unlikely, independent intervention by the California Attorney General. "
I understand that the SO/AC’s, not being legal entities, cannot take legal action to enforce. However, does that really equal "no mechanism to restrain ICANN from acting contrary to these decisions”?
Most members of SO’s are legal entities, many members of AC’s are too, couldn’t those members, being affected parties, individually or collectively take legal action?
Alternatively, I would assume that before the ultimate step of talking legal action against ICANN, the community will have escalated through its powers and thus has completed the procedure to recall the entire board. The power to recall the entire board will have to be combined with the power to in one way or another appoint an interim board. So, the community, through due process, recalls the board. The board, in contradiction with the bylaws, refuses “to go”. The community has recalled the board and thus, through the defined process (also in the bylaws), appoints an interim board. According to the bylaws, this interim board is now the legal representative of ICANN. And can take the required legal action (if necessary) to force the “old” board to go away and get lost.
Would one of these two work?
Best,
Roelof Meijer
*From: *<Hofheimer>, "Joshua T." <jhofheimer@sidley.com <mailto:jhofheimer@sidley.com>> *Date: *donderdag 11 juni 2015 06:09 *To: *"ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>" <ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org>> *Cc: *Sidley ICANN CCWG <sidleyicannccwg@sidley.com <mailto:sidleyicannccwg@sidley.com>>, ICANN-Adler <ICANN@adlercolvin.com <mailto:ICANN@adlercolvin.com>> *Subject: *[Acct-Legal] Memo - Revised Powers Chart, Voluntary Model
Dear Legal Sub-Team,
Further to the CCWG request on the call last Friday, attached is a memo revising the summary chart describing the viability of the enumerated powers under the three models – Member model, Designator Model and Voluntary Model. We also explore the impact of not having the SO/ACs organized legal persons to represent their interests.
Cheers,
Josh
*JOSHUA* *HOFHEIMER *
Sidley Austin LLP +1.213.896.6061 (LA direct) +1.650.565.7561 (PA direct) +1.323.708.2405 (cell) jhofheimer@sidley.com <mailto:jhofheimer@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
*From:*ccwg-accountability5-bounces@icann.org <mailto:ccwg-accountability5-bounces@icann.org> [mailto:ccwg-accountability5-bounces@icann.org] *On Behalf Of *Hilton, Tyler *Sent:* Monday, June 08, 2015 8:29 PM *To:*ccwg-accountability5@icann.org <mailto:ccwg-accountability5@icann.org> *Subject:* [Acct-Legal] Memo - Responses to CCWG GAC Questions
Dear Legal Sub-team,
Attached please find a memo responding to the list of questions from the Governmental Advisory Committee (GAC) provided to us on June 5, 2015.
Best,
*TYLER* *HILTON* Associate
Sidley Austin LLP 555 West Fifth Street Los Angeles, CA 90013 +1.213.896.6130 thilton@sidley.com <mailto:thilton@sidley.com> www.sidley.com <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com&d=AwMF-g&...>
http://www.sidley.com/files/upload/signatures/SA-autosig.png <https://urldefense.proofpoint.com/v2/url?u=http-3A__www.sidley.com_&d=AwMF-g...> *SIDLEY AUSTIN LLP*
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