Let me chime in to recall everyone that NTIA expects the “global multistakeholder community” to replace its role. Hence, concentration of power in parts of the community and risk of capture should be avoided at any rate, and that applies to all and every stakeholder in this environment. The GAC has already expressed that a model subject to capture by specific interests should not be approved. The Sole Member (or whatever other Community organization or mechanism is devised to empower the community) should only make decisions supported by most of the stakeholders (be it via voting or be it via positioning). Otherwise, the CCWG proposal would jeopardize the fulfillment of NTIA’s first condition (“support and enhance the multistakeholder model”) as it would be in practice substituting the NTIA by a subset of stakeholders. That is something we should avoid if the transition is to take place. Best Rafael De: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] En nombre de Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch> Enviado el: miércoles, 30 de septiembre de 2015 10:44 Para: james@cyberinvasion.net<mailto:james@cyberinvasion.net>; kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>; jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> CC: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Asunto: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem Community powers only are meaningful if they represent the “community” as a whole, which is the collective we want to empower to check the power exercised by the executive power designated to represent that same community. That’s the key point. And I would beg you to avoid qualifying opinions different to yours as “autocratic” or the like. Regards Jorge Von: James Gannon [mailto:james@cyberinvasion.net] Gesendet: Mittwoch, 30. September 2015 10:36 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>; kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>; jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Betreff: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem I have said it before and will repeat it here again, it is not our place to force parts of the community into exercising a vote, our voting thresholds should reflect variable participation to allow groups such as the SSAC and RSSAC to participate when they feel the need to, but we should not be forcing any part of our community into a role that they do not wish to have. To do so is in my mind autocratic and does not reflect the wishes of these groups as expressed through the bottom up multistakeholder process. -James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" Date: Wednesday 30 September 2015 09:22 To: "kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>", "jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>" Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" Subject: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem Kavouss makes a vital point here. Any decision-making process needs to be absolutely capture-proof and respect the diversity of the ICANN community. Hence, large supermajorities and/or consensus might be required for such important decisions. This means that those large supermajorities have to be measured against the community as a whole (i.e. the seven SO/AC). Regards Jorge Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Kavouss Arasteh Gesendet: Mittwoch, 30. September 2015 10:15 An: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Betreff: Re: [CCWG-ACCT] A way to avoid the 'The Single Member Can Do Anything!' problem Dear All, I also understood Fadi in LA expressing a concern on how do we ensure ..in the single member model, that we have inclusion in consensus, rather than allowing a subset of the community to exercise that power without the Full acceptance of the community..and that can easily be construed as a capture scenario that needs to be stress tested. Let us take a scenario as follows There is a potion to reject the Budget. Petition is agreed ( not voted ) in the petition SO Then it is discussed at Forum Then put it for voting SAS,RSSAC and very likely GAC do not participate in voting Very probably all 3 OCs participate in voting . ALAC may or may not to do so if three OCs vote ,the super majority would be 2/3 thus out of 15 votes currently foreseen 10 is enough to reset or ,at extreme, veto the budget . Then out of 29 overall weighted /weighting votes 10 succeeded to veto the budget and start an unnecessary process of back and fort of the Budget for months Is that a right process? However, if we first establish a quorum for decision making with fairly high threshold ( 3/4 or 4/5 of the 7 SOs and ACs ) which means 5 SOs and ACs or 4 SOs and ACs are the minimum requirement of quorum to decide on the matter . Then we have to apply the super majority of votes which means 2/3 of 25 or 2/3 of 22 or 2/3 of 19 , depending on the SOs and ACs participating which becomes 17, 14 and 12 votes out of 29 votes are sufficient to reject the budget .This would result in a real capture of the community by a small number of subset of that community. Consequently, should we replace the voting by consensus then we are better saved . In view of the above the decision making process voting versus consensus building needs to be seriously re-examined Kavouss 2015-09-30 9:40 GMT+02:00 Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>: Tapani: The approach I have suggested could work for none, any or all of the statutory powers. If it is worth exploring we can explore it. There might be some statutory rights that should not be subject to this approach, as Ed has argued. To address Kavouss' point: Kavouss, I agree with you this is unusual. I would not suggest this for any of the accountability powers we have suggested through the CCWG. I would only suggest it as a cast-iron, impossible-to-avoid, last-resort for powers that AREN'T about accountability. Dissolving ICANN, to pick the example repeatedly raised by Board members in LA, isn't an accountability issue. So let's not treat it as one. To put it another way: some of the powers of a Member in the law of California [or under any other law, should ICANN's jurisdiction change at some point] are clearly about accountability. Some of them aren't. The ones that aren't about accountability, the ones that pose some kind of risk to stability or that just aren't relevant, we can make impossible to use. We can make them even more impossible to use by including the Board as a participant for any decision to use them. All food for thought. best Jordan On 30 September 2015 at 19:36, Tapani Tarvainen <ncuc@tapani.tarvainen.info<mailto:ncuc@tapani.tarvainen.info>> wrote: This is worrysome. While I can understand the concern about things like dissolving the company, what's the issue with document inspection? After all, transparency is one of the key elements of trust, and trust is ultimately what will sustain or kill ICANN. Perhaps some of the lawyers among us could explain what bad could result from document inspection power of the member? -- Tapani Tarvainen On Sep 29 20:48, Rudolph Daniel (rudi.daniel@gmail.com<mailto:rudi.daniel@gmail.com>) wrote:
"the other powers the California law grants to member/s (document inspection, dissolve the company, etc), should face such high thresholds to action that they can, practically speaking, never be actioned at all."
Yes , interesting, I understood Fadi today expressing a concern (my take on it)....how do we ensure ..in the single member model, that we have inclusion in consensus, rather than allowing a subset of the community to exercise that power without the Full acceptance of the community..and that can easily be construed as a capture scenario that needs to be stress tested.
Interesting take on the problem Jordon, but as you suggest...over to the legal minds.. RD On Sep 29, 2015 8:15 PM, "Jordan Carter" <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote:
Hi all
One of the pieces of feedback from Board members I heard in L.A. was a concern that basically goes like this:
"The Single Member is a problematic idea because of the incredible powers it has under California law - for instance, it could even dissolve ICANN!"
There were some sub-themes to this concern:
- the accountability of SO/AC actors in exercising the powers intended for the CMSM - the absence of fiduciary duties on the Single Member in making its decisions - the engineering principle of minimal change at a time
Focusing on the overarching concern, it was a tenet of the CCWG's Second Draft Proposal that the CMSM should be largely ruled out from exercising any of the powers the community didn't propose it had.
That is, aside from the five community powers and the ability to enforce the bylaws against the Board, the other powers the California law grants to member/s (document inspection, dissolve the company, etc), should face such high thresholds to action that they can, practically speaking, never be actioned at all.
[The Second Draft Proposal may not have been terribly clear about this, but that's what it was driving at.]
So how to resolve this? The CCWG's choice of a Single Member (following its earlier choice of multiple members) was to meet the accountability requirements the community has asked for. But nobody asked for the community to have these other powers.
*Here is a suggestion.*
*For the exercise of any of the Member Powers the CMSM would have (beyond those we "want" it to have), why don't we include the ICANN Board as one of the groups that has to vote / come to consensus to exercise them?*
This sounds a little strange on the face of it but think it through.
This seems to me to be a very simple way to avoid the problem.
It acknowledges that the rights of the Member are set out in law and can't be eroded - that they can only be managed by the decisions that member is able to take. And it acknowledges that the concerns about constraining the possible actions of the member to those that are intended, should be solved. It shares power in the model in quite a nice, dare-I-say-it, "multistakeholder" way.
I'd welcome others' thoughts. I'd welcome views from our lawyers about this, too. On the face of it I can't see any reason this wouldn't work in law, since the CMSM can be comprised of any set of ICANN actors. But - I Am Not A Lawyer.
cheers Jordan
-- Jordan Carter
Chief Executive *InternetNZ*
+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz>
*A better world through a better Internet *
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community