On 21 May 2015, at 17:14 ,
Mathieu Weill
<mathieu.weill@afnic.fr
> wrote:
Dear Chris, All,
Many thanks for explaining the concern through this step by step
scenario. This is taking us closer to a stress test approach, which is
not only valuable but also mandatory for our group, as per our Charter. I
understand your concern is (quoting your email) "handing ultimate
authority to a state based American court and allowing it to make binding
and precedent setting decisions about the interpretation of ICANN’s
mission."
There is however something I do not understand in your "steps":
Le 21/05/2015 03:45, Chris Disspain a écrit :
Second, I
would like to use a step-by-step scenario to explain where my concerns
lie. Under the CCWG’s currently proposed mechanisms:
1. The community, pursuant to powers defined in a “fundamental bylaw”,
and through a vote of that meeting the required threshold for support,
directs the Board to do X
2. The Board refuses to do X because it maintains that X is outside of
the mission of ICANN
3. The community triggers escalation mechanisms
4. Escalation proceeds to binding arbitration (as defined by another
fundamental bylaw)
5. The arbitrator finds in favour of the community and directs ICANN to
do X
6. The Board refuses to act, citing, again, that it believes the action
is outside of ICANN’s mission
7. After the necessary community votes etc., the community now heads to
court. In the State of California.
I have four questions :
- In your scenario the community would "mission creep". I am
not clear how in our report the community would direct the Board to do X.
Community powers as we have defined them are restricted to reject /
review on budgets or bylaws. Could you clarify this part of the scenario
?
- If the Board refuses to act on the arbitrator findings, why would the
community turn to California Court instead of recall the Board ?
- Given that there was a a binding arbitration decision directing Icann
to do X, my understanding was that the court of California would have
very limited grounds to turn the decision around. Is that not already
addressing the concern of allowing a court of california to decide on
what is or is not within Icann's mission ?
- And finally, is it not the case today that a Court of California could
make such a binding decision ?
Best
Mathieu
As I understand it, the role of the court in this scenario would be to
determine whether the Board is acting in a way that is serving the public
interest within ICANN’s mission. It would not be to decide whether, on
balance, the community was ‘more right’ than the Board.
Right now as a global multi-stakeholder body we decide the nuances of the
meaning of ICANN’s mission and the way ICANN acts under that mission by
using the multi-stakeholder process and by compromise and nuanced
decision making.
If we agree to the CCWG recommendations we will not be handing ultimate
authority to the members but rather we will be handing ultimate authority
to a state based American court and allowing it to make binding and
precedent setting decisions about the interpretation of ICANN’s mission.
Does the ICANN community really want the specific nuances of
ICANN’s mission to be held up to scrutiny and have decisions made, at the
highest level, through such a mechanism? Whilst that may give comfort to,
for example, US members of the intellectual property community or US
listed registries, it gives me no comfort whatsoever.
Cheers,
Chris Disspain | Chief Executive Officer
.au Domain Administration Ltd
T: +61 3 8341 4111 | F: +61 3 8341 4112
E: ceo@auda.org.au | W:
www.auda.org.au
auDA – Australia’s Domain Name Administrator
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On 21 May 2015, at 07:51 , Burr,
Becky
<Becky.Burr@neustar.biz
> wrote:
The “enforceability" issue is not
about litigation at all, and it isn’t really about whether the Board or
some newly invented group is more likely to get it right. Rather,
it’s about checks and balances. Without the membership structure,
the revised bylaws that empower the community to block certain actions,
for example, are by definition advisory – they impose no
legal obligation whatsoever on the Board and
staff. I don’t dispute that the Board would have a compelling
interest in respecting community input, but as a legal matter without the
membership structure, the Board would be required to treat any
community vote to block, for example, as merely advisory and would have
an affirmative obligation to do what it concludes is consistent with its
fiduciary duty. The membership model affirmatively shifts some of
that fiduciary responsibility to the community. It’s not a
statement of who is right or wrong, but who has authority.
Steve raises a reasonable question about how the
members/unincorporated associations are accountable to their respective
communities. But IMHO, the legitimate questions and concerns in
this debate are getting obscured by polarizing language and assertions
that it’s inappropriate to express a particular point of view.
The argument that there are no examples of situations that did result or
would have resulted in the community acting as one against an action or
decision of the ICANN Board.” The community has never had any
authority or tool to do so, so the fact that it never has is irrelevant
and the assertion that it would not have is speculation. I
certainly would have tried to get the community to overturn the Board’s
decision to abandon the substantive standard for IRPs in favor of the
“good faith” test. As it happens, none of the existing review
and redress mechanisms would have worked in that case, and they probably
wouldn’t work in the future either.
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 /
www.neustar.biz
From: Steve DelBianco
<sdelbianco@netchoice.org
>
Date: Wednesday, May 20, 2015 at 12:37 PM
To: "Chartier, Mike S"
<
mike.s.chartier@intel.com>, Steve Crocker
<steve@shinkuro.com>, Keith
Drazek
<kdrazek@verisign.com>
Cc: Accountability Community
<
accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] Question regarding UAs
I don’t think there’s any question that the Board’s primary duty (not
their only duty) is to ICANN the Corporation. In addition to
Mike’s citation of ICANN bylaws Section 7 (below), see ICANN’s Management
Operating Principles (2008):
"The third and perhaps most critical point of tension is between the
accountability to the participating community to perform functions in
keeping with the expectations of the community and the corporate and
legal responsibilities of the Board to meet its fiduciary
obligations.”
Source: ICANN Accountability & Transparency Frameworks and
Principles, Jan-2008, p.5, at
https://www.icann.org/en/system/files/files/acct-trans-frameworks-principles-10jan08-en.pdf
From: "Chartier, Mike S"
Date: Wednesday, May 20, 2015 at 9:56 AM
To: Steve Crocker, Keith Drazek
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Question regarding UAs
No comment on actual practice, but from a textual basis (which is what
matters now since we are debating new text), I can’t see any
inconsistency between the following statements:
“Directors shall serve as
individuals who have the duty to act in what they reasonably believe are
the best interests of ICANN and not as representatives of the entity that
selected them, their employers, or any other organizations or
constituencies.”
“the ICANN Board, which has a fiduciary obligation to first serve the
interests of the corporation,”
From:
accountability-cross-community-bounces@icann.org
[
mailto:accountability-cross-community-bounces@icann.org] On Behalf
Of Steve Crocker
Sent: Wednesday, May 20, 2015 9:47 AM
To: Drazek, Keith
Cc: Accountability Cross Community
Subject: Re: [CCWG-ACCT] Question regarding UAs
I didn’t take it personally. I took it as a factually inaccurate
statement that creates misunderstanding. Future boards are bound by
the same rules as the past and current boards. The language you
used is taken by many as a basis for believing there is a significant
difference in alignment toward public responsibility between the ICANN
Board and some newly
invented
grouping of community members. It ain’t so and it’s inappropriate
to suggest so.
Steve
On May 20, 2015, at 9:39 AM, Drazek, Keith
<kdrazek@verisign.com>
wrote:
Steve,
With all due respect, I think you’re taking this too personally and/or
making it too personal. This is not about the current ICANN Board.
None of us know what future ICANN Boards will do, or what future ICANN
Boards will permit ICANN’s management to do. Will future Boards always
exercise appropriate oversight over management? Could there be instances
where ICANN’s legal counsel advises a future Board to make a decision
that is counter to the interests of the community to protect the
financial interests of the corporation?
I see the proposed community membership structure simply as a check on
the power of the Board, nothing more. It’s not about “controlling” or
replacing the Board. The Board has its legitimate function, but its
decisions cannot be unchallengeable. The community must have the ability
to tell the Board it got a decision wrong and to enforce the will of the
multi-stakeholder community in rare/limited instances and based on a very
high threshold of community agreement/consensus.
I would certainly trust the proposed community members, representing
their SOs and ACs, to be balanced, inclusive and trustworthy in
protecting the interests of the overall community -- in their role as the
aforementioned check on the powers of the Board. Not as a
replacement.
Would you trust a future Board of sixteen unknown individuals more than
you trust the multi-stakeholder, bottom-up, consensus-based community and
process? It appears so.
I stand by and reaffirm my previous email. I hope my clarification
helps.
Sincerely,
Keith
From: Steve Crocker
[mailto:steve@shinkuro.com]
Sent: Wednesday, May 20, 2015 8:27 AM
To: Drazek, Keith
Cc: Stephen D. Crocker; Chris Disspain; Accountability Cross
Community; mshears@cdt.org;
egmorris1@toast.net
Subject: Re: [CCWG-ACCT] Question regarding UAs
On May 20, 2015, at 7:44 AM, Drazek, Keith
<kdrazek@verisign.com>
wrote:
Hi Chris,
I think there's a fundamental flaw in your assessment. You appear to be
looking at this question through the lens of the past and present, where
NTIA holds the enforcement function ("enforceability") through
its ability to rebid and transfer the IANA functions contract if the
ICANN Board and management acts inappropriately. That is the existing and
necessary check on the Board's decision-making power.
Without NTIA in its current role, the community MUST have the ability to
check the Board's power, and the only way to secure that check is to
create legal enforceability. Otherwise, the Board has ultimate authority,
even if its decisions are inconsistent with the interests and desires of
the community ICANN is supposed to serve.
You are proposing a transfer of power from NTIA to the ICANN Board, which
has a fiduciary obligation to first serve the interests of the
corporation. Alternatively, proponents of legal enforceability are in
favor of transferring final authority to ICANN's multi-stakeholder
community.
Keith, Edward and Edward,
We have covered the point above several times and it’s long past time to
stop throwing this half-trust around. Yes, ICANN is legally a
corporation, and, yes, directors of a corporation have a duty to protect
the corporation. But that generality has
a
far different meaning in a for profit corporation like Verisign than it
does in a not-for-profit public benefit corporation like ICANN. The
directors are obliged to pursue the purpose and mission stated in the
incorporation papers and the bylaws. The directors serve the
community, and we do so by exercising oversight over the corporation
toward that end.
There will always be differences of opinion about the particular details,
but those sorts of differences of opinion will arise in *any* governance
model. The prevailing assumption in much of the correspondence on
this list is that the proposed members will somehow be more balanced,
more inclusive and more trustworthy in protecting the interests of the
overall community than the ICANN Board is. That’s simply
false. And I think you know that it is.
Please correct yourself and apologize.
Thanks,
Steve
We should all be looking at this through the lens of the future, when
NTIA no longer holds the tether and is only participating through the
GAC. How do we, the multi-stakeholder community, ensure that ICANN and
its future Boards and management are truly accountable once the NTIA
back-stop is gone?
The answer is to ensure the Board's decisions, in very limited areas, can
be challenged and overturned by a significant
majority
of the community. We need to protect against the "catastrophic"
scenario you referenced. According to our independent legal advisors, the
best (and perhaps only) way to guarantee this is through legal
enforceability.
You asked, "Is addressing this most unlikely scenario worth the
significant structural changes a membership model would require?"
I believe the answer is yes. Not only worth it, but necessary.
Regards,
Keith
On May 20, 2015, at 2:40 AM, Chris Disspain
<ceo@auda.org.au> wrote:
For clarity, the last sentence
of paragraph 8 below should read:
"However, I cannot think of a single example of a failure throughout
the history of ICANN that did result or would have resulted in the
community acting as one against an action or decision of the ICANN
Board."
Cheers,
Chris
On 20 May 2015, at 16:13 , Chris
Disspain <ceo@auda.org.au>
wrote:
Jordan, All,
Thank you Jordan, for attempting to bring some focus to the current
discussion about the UA model, membership structures and all of the
related issues.
First of all, I want to acknowledge that I concur with you on a number
points.
I agree that we need to develop a model that disrupts ICANN’s operation
as little as possible. We can argue about how much disruption is either
possible or preferable, but the principle is agreed.
I also agree that levels of accountability are not “up to scratch” and,
irrespective of the model we arrive at post-transition, these need to be
improved. Many of the improvements proposed by the CCWG: to the IRP,
reconsideration mechanisms and the role of the ombudsman, the
introduction of fundamental bylaws and binding arbitration, and the
empowerment of the community to spill the ICANN Board, are also
supported.
However, where I disagree with you is in respect to the absolute need for
an additional mechanism, to supersede the current IANA functions
contract, in order to ensure that the community can ‘control’ the Board
because it has the right to bring a legal action in a US court.
I disagree with the characterisation that the purpose of the CCWG’s work
is to wrest “control” from the ICANN Board and deliver it to the
community. From your email, I gather that you are fundamentally tying the
concept of control to “enforceability”, neither of which are goals for
the current process. Rather, I believe we are aiming to deliver a
structure where ICANN and its Board are held accountable to the
community, via the number of improvements I mentioned above.
The need to assert absolute “control” or enforceability could only arise
in the most catastrophic of circumstances. If we assume a situation where
proposed mechanisms for escalation, independent review, binding
arbitration and direct instruction by the SOs and ACs are not
acknowledged by ICANN, wouldn’t the entire multi-stakeholder model be
irreparably broken? Is addressing this most unlikely scenario worth
the significant structural changes a membership model would
require?
Further, you refer to a “long list” of community concerns about ICANN’s
current operations. I wonder whether these concerns are actually held by
individuals (or individual constituencies) on particular issues and have
been aggregated in to a larger picture of overall community
dissatisfaction? Concerns by distinct groups on particular topics can
certainly be dealt with by the increased robustness proposed to ICANN’s
bylaws and operations. However, I cannot think of a single example of a
failure throughout the history of ICANN that did result or would have
resulted in the community as one against an action or decision of the
ICANN Board.
To be clear – I am 100% supportive of improvements to accountability. I
believe that the CCWG has initiated extremely useful work in identifying
these mechanisms.
I remain unconvinced regarding the argument that
accountability=control=enforceability, and the subsequent recommendations
of the CCWG that arise from this assumption.
Cheers,
Chris
On 20 May 2015, at 15:33 ,
Jordan Carter
<jordan@internetnz.net.nz
> wrote:
We need legal persons to be members of ICANN.
They can be individual humans or they can be organisations.
UAs are the lightest touch, most easily controlled, non-human form of
person that can fit this mould.
I do not understand the propensity of parts of our community to
over-complicate things that look reasonably
straight
forward from other points of view. Has ICANN always been like this?
(Answers own question - it can't have been, otherwise it would never be
organised the way it is today....)
cheers
Jordan
On 20 May 2015 at 17:21, Alan Greenberg
<alan.greenberg@mcgill.ca
> wrote:
Avri, I think that you are generally correct. We are putting this entire
infrastructure in place because we want to be able to take ICANN or the
Board to court if they do not follow the rules. I tend to agree with the
auDA comment that if it ever gets to that stage, we are REALLY in
trouble, and a simple court decision is not likelt to fix it.
But that nothwithstanding, we supposedly ned that UA because they can
take legal action. But if the UA
representatives
do not listen to the SO/AC. the SO/AC cannot take that rep to court,
because the SO/AC has no legal persona. So we are again left with a
discontinuity where something is largely unenforceable and we have to
take it on faith that they will do the right thing.
Of course, the UA reps and the Board members we select are basically
drawn from the same pool, perhaps separated by a few years.
The difference between a Board member and a UA rep is the Board member
has a duty to the corporation, and the UA rep can, in theory, be required
to take instruction from the SO/AC. But enforcing that theory may be the
rub.
Alan
At 20/05/2015 12:41 AM, Avri Doria wrote:
Hi,
I think I understand the argument about members becoming that to
which
ICANN, and its Board, are responsible and accountable. From that
perspective it sounds really good.
What I have having trouble understanding is an accountability
structure
were there is a discontinuity between the SOAC and the UA. If each
of
the Board designating SOAC were the UA, it think I would understand.
But I just do not see how the UA are accountable to the people and
organizations that participate in each of the SOAC. Yes, the SOAC
designates it UA representative, but how is (s)electing one of these
any
more accountable than (s)electing the Board as we do now. Don't we
just
move the perceived/possible unaccountability down a layer in the
hierarchy?
I think I am as comfortable with complexity as the next person. And
I
understand how in computer science any problem can solved by adding
another layer of indirection, but in this case the extra layer we
are
creating does not seem to really be accountable to anyone but
itself,
except by (s)election procedures.
I am sure I am missing some critical bit of understanding and hope
someone can explain the chain of accountability in the membership
model. I feel that we are still hand-waving a bit in the
explanations.
In a sense it seems as if we are creating a 'council' that is
omnipotent
in the powers it is given, except that they can somehow be
replaced.
Thanks and apologies for my persistent confusion.
avri
On 20-May-15 01:14, Jordan Carter wrote:
> Hi all
>
> This thread is useful to tease out some of the questions and
concerns
> and confusions with the UA model, and as rapporteur for the WP
> responsible for refining this part of the proposal I am reading it
avidly.
>
> I just want to take the opportunity to remind us all why
membership
> (or something analogous) is an important aspect of the reforms we
are
> proposing - no matter the precise details.
>
> At the moment without members, ICANN is fundamentally controlled
by
> the Board. The only external constraint is the IANA functions
contract
> with NTIA. The long list of community concerns and examples
detailed
> by our earlier work in this CCWG shows that even with that
constraint,
> accountability isn't up to scratch.
>
> We are working on a settlement without that NTIA contract.
> Accountability has to get better even *with* the contract.
> Fundamentally better, without it.
>
> Either we have a membership structure or some other durable
approach
> that firmly embeds the stewardship of ICANN and the DNS in the
ICANN
> community, or... we remain with Board control.
>
> Given ICANN's history, anyone who is advocating a continuation
of
> Board control is arguing for a model that can't be suitably
> accountable, and that seems highly likely to fail over time, with
real
> risks to the security and stability of the DNS.
>
> A real, fundamental source of power over the company absent the
> contract *has* to be established. The membership model is the
most
> suitable one to achieve that that we have considered so far.
>
> So: we need to be creative and thoughtful in how we make that
model
> work in a fashion that disrupts ICANN's general operation as little
as
> possible. But the key there is "as possible." Real change
is needed
> and much refinement and comment is needed.
>
> If there are proposals to achieve the same shift in control from
ICANN
> the corporation to ICANN the community, I hope they come through
in
> the comment period. So far, none have - but there are still two
weeks
> of comments to go.
>
> cheers
> Jordan
>
>
> On 20 May 2015 at 10:45, Malcolm Hutty
<malcolm@linx.net
>
<
mailto:malcolm@linx.net>> wrote:
>
> This whole thread seems to have massively
overcomplicated the
> question.
>
>
> Unless I have missed something, the only reason we
need "members"
> is to
> stand as plaintiff-of-record in a lawsuit against the
ICANN Board
> complaining that the Board has failed to adhere to the
corporations
> bylaws. Such a lawsuit would in reality be conducted
by an SO or
> AC, but
> a person with legal personality needs to act as
plaintiff-of-record.
>
> Why not simply proceed, as Samantha suggested, with
the SOACs'
> Chairs as
> the members of the corporation? Could the Articles (or
Bylaws, as
> appropriate) not simply identify the SOACs' Chairs as
the members, ex
> officio and pro tempore?
>
> An SOAC Chair that refused to act as
plaintiff-of-record when required
> to do so by his SOAC could simply be replaced.
Likewise a Chair that
> went rogue and initiated a lawsuit without their
consent.
>
> You can't make the SOAC a member without turning them
into UAs,
> with all
> the attendent complexity. But I don't see that there
should be any
> such
> problem with designating the chair of a SOAC, who will
be a natural
> person, as a member of the corporation; the fact that
the SOAC is
> not a
> UA is then irrelevant.
>
> In the event that there were any dispute as to whether
a particular
> person is in truth an SOAC Chair, this would surely be
a simple
> preliminary matter of fact for the court. It is surely
beyond dispute
> that if the Articles designated "Alan
Greenberg" as the member, it
> would
> be a matter of fact as to whether or not the person
before the
> court was
> indeed Alan Greenberg; surely it is the same as to
whether the person
> before the court is "the current Chair of
ALAC", if that should be
> what
> is specified in the Articles?
>
> Malcolm.
>
> --
> Malcolm
Hutty | tel: +44 20 7645
3523
>
<
tel:%2B44%2020%207645%203523>
> Head of Public Affairs | Read the LINX Public
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