I'll take Avri's point one step further: the GAC is essentially a "red herring" (a misleading or distracting item) when it comes to the membership model. The GAC currently does not (s)elect a director, so GAC does not need to be a member for that purpose. Since the GAC doesn't have a director in the first place, the GAC would not need the power to remove a director, and they would not be involved in "spilling" the board either. GAC member status would only be an issue if they demanded participation in rejecting/approving the budget and strategic plan.

Furthermore, saying that "The current recommended model does not provide any viable solution for dealing with the GAC" begs the question (or several questions): have we attempted to fashion a viable solution for dealing with the GAC as a member (assuming for the sake of argument we would need to)? Have we asked counsel for a viable solution for dealing with the GAC as a member? I believe the answer to both is "no." As counsel has advised us, "the devil is in the details," and I think these are details (albeit possibly important ones) we just haven't reached yet.

Also, since counsel has advised that a designator must also be a legal person (e.g., an unincorporated association), doesn't the designator model have the same problem in this regard as the member model? I believe the answer to this is "yes."

As for the ccNSO issue, I think my two questions above (and answers) apply as well. With regard to the questions Chris has raised (or recalled) those all seem answerable as well. We should explore solutions before we decide there aren't any.

As for Avri's points, I am not sure I understand what the "new accountability issues and capture scenarios of the membership model" are. I can't think of any that don't exist in the current situation (but it's late, so maybe I'm not being creative). (And, if these issues and scenarios involve the unincorporated association status, then these are also problems of the designator model.) The SOAC unincorporated associations would be new structures from a technical legal point of view, but very few practical changes would need to take place, as far as I know (indeed, some if not most of the SOACs may already be de facto unincorporated associations anyway).

On the issue of the Board and its SIC (Structural Improvements Committee) being "the effective oversight for the SOAC (except the GAC)," I think we need to get more concrete about what that means. I'm trying to think of any meaningful oversight by the Board and SIC over the GNSO, CSG or IPC in the time I've been involved, and I can't think of any instances. If there is some meaningful oversight, it would be peculiar for the Board to have oversight over members, since the idea of members is the other way around (which is of course why we've been talking about members in the first place -- in order to exercise effective oversight over the Board). If you take this point to its logical conclusion, how could we ever use structures that are under Board oversight to provide oversight for the Board? As for proving "accountability and non-capture" (putting aside issues in proving a negative) -- how do we do it today? Let's start working from there (wherever there is).

With regard to ATRT issues, I don't think there needs to be any functional change. At most, the bylaws might need to be tweaked and/or the SOACs may need to agree to be subject to ATRT on the same terms. But the SOACs will still be performing the same role and will still be part of the ICANN ecosystem.

I don't deny that we need to drill down on these questions. But there's no reason to believe we are going to hit insurmountable obstacles when we do so.

Greg

On Wed, Apr 22, 2015 at 12:51 AM, Avri Doria <avri@acm.org> wrote:

Hi,

While not arguing for the member model, as I have my own concerns with the model ...

On 21-Apr-15 19:07, Chris Disspain wrote:

The current recommended model does not provide any viable solution for dealing with the GAC. It seems obvious to me that the governments involved in the GAC are not going to agree to form an unincorporated association under Californian law. If I'm right then presumably the GAC would remain as an advisory committee and would not be able to have a vote in any of the escalation mechanisms. That may be fine as the GAC may not want to have a vote anyway.

The GAC currently does not have a voting Board Director. I have understood that the reason is that they don't want one. Becoming a member is largely about (s)electing a Director. While there are other member oversight powers, the GAC has a special Bylaw status that gives it a degree of ICANN oversight and takes it out of the standard AC model; no other SOAC has the degree of control over the Board that the GAC does. I see no reason why difficulties they might have deciding to become members would be a gating consideration on picking this model. I think that one of the points about their special advice status is that they don't need to become ICANN members to influence the Board.

I have a viewpoint on the ccNSO and its ability to adequately represent the interests of all ccTLDs, but figure the better part of valor requires me to remain silent on that.

On the other hand,

As mentioned above, I have concerns with a member model as a WS1 solution, especially its implementation in the required time frame. I also see the new accountability issues and capture scenarios of the membership model as something that would need to explored and documented; all of the SOAC legal entitieis would be new structures and we would need to provide the details - WS1 is part of the IANA submission. These days, the Board and its SIC (Structural Improvements Committee) are the effective oversight for the SOAC (except the GAC). Would that still be the case when they were independent legal entities? If not, how would they prove accountability and non-capture to their respective communities or to the other members? I believe it could be done, but it is not a quick job. Or does the Board and its SIC remain responsible as today - if so, how would that work?

Another question I have is on the member model as related to the ATRT. The ATRT can make recommendations regarding any part of ICANN, including the SOAC structure, both internal and in their relationship to each other. As part of ATRT2, we made recommendations related to GNSO policy development process, ATRT1 made recommendations about the relationship between the Board and the GAC. Would that still be in scope when to the SOAC became independent legal entities? Would we need to modify the AOC derivative bylaws to deal with that?

The more I think about the member model, the more questions I come up with.
Do we absolutely need this to achieve what we need for WS1?
Or is it the 'Tesla' we wish we had.

avri

This email has been checked for viruses by Avast antivirus software.
www.avast.com

_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community