Chris's summary of current thinking
Hello All, Below are some notes relating to Chris's summary that reflects a DRAFT of current thinking. We will refine these and post the final points into the public comment forum, once we get feedback during this call. Regards, Bruce Tonkin CCWG-Accountability Proposal Delivery Framework 1. Develop Fundamental Bylaws and Process for Modification a. Bylaws areas: i. ICANN's Mission and Core Values. ii. Reviews imported from the Affirmation of Commitments, including modifications with community consensus. iii. The requirements for having community input and consultation on development of ICANN Budget, Strategic Plans, Operating Plans and Standard Bylaws. This includes the IANA Functions Budget as well. iv. Commitment to fund IANA Functions housed within ICANN. v. IANA Functions Reviews called for within the CWG Report, with commitment to implement recommendations from those reviews. b. Change process - When Board proposes changes to Fundamental Bylaws (including amendments, additions or deletions): i. Incorporate into the Bylaws a requirement for community comment and input. ii. Empower the community to support such a change through a demonstration of consensus in the community. Consensus in this situation is demonstrated through meeting the specified threshold of numbers of SOs or ACs needed to support the proposed change. iii. Once there is community consensus to support the change, the change is effective upon 3/4 of the Board voting in favour of the change. 2. IRP Enhancements a. Roll back modification of standard of review that was in place before 2013. b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements. 3. Expand Reconsideration Process and Define Clear Escalation Path For Accountability a. Expand scope of reconsideration process to define as an initial step in seeking challenge against Board or staff action. Expansion could include: i. Allowance of Reconsideration Process to be used in allegations that the Board acted in violation of the Articles of Incorporation or Bylaws. ii. Increase from current process-driven bases to areas of more substantive concern, such as unfairness of a decision or inconsistency of logic. b. Following Reconsideration Process, use IRP and build escalation through accountability mechanisms, resulting in development of full appeals process. 4. Establish new Multistakeholder Enforcement Mechanism (MEM): =============================================================== a. Process for community to bring challenges against Board action that is alleged to be inconsistent with specified fundamental Bylaws. b. Binding arbitration process that is enforceable in California Courts c. ICANN funds MEM arbitrations. d. The MEM shall not be available for challenges based upon the adoption of ICANN's annual budget or annual operating plan. 5. Community Involvement in Development of Standard Bylaws Changes, Budgets, Operating Plans and Strategic Plans a. Incorporate into the Bylaws a requirement for community comment and input on each of these areas. b. Empower the community to raise timely consensus-based issues or concerns on a proposed Board action ("Community Concerns"). Consensus in this situation is demonstrated through meeting the specified threshold of numbers of SOs or ACs needed to support the raising of an issue or concern. c. ICANN commits to working with the community to resolve areas of Community Concerns, through a consultation process. d. Provide a consultation process (borrowing from the GAC/Board consultation requirement), if the Board intends to take action that is inconsistent with the Community Concerns, to work to resolve the inconsistencies where possible, or if not possible, then a 2/3 Board threshold needed for Board to act against the general Community Concerns. 6. Board Removal/Recall =========================== a. Institute pre-service letters to require the resignation of each director upon the occurrence of specific events: i. Serious violation of governance standard, including statutory causes for removal (such as fraud). ii. Refusal to abide by the processes set forth to enable new community empowerment areas. iii. Failure to abide by outcome of Multistakeholder Enforcement Mechanism (defined in #5 below). b. Process for invoking the resignation requirement. Any removal of a director is a very serious action, which must include a special community rationale and justification for removal of any individual directors and a special process for removals that would impact a significant number of voting directors. The process should allow for Board members to have an opportunity to defend against allegations that could support removal, and also include the potential for the imposition of sanctions less severe than removal. 7. Incorporate Affirmation of Commitments Reviews into Bylaws a. Consider proper edits to WHOIS review. b. Commitment to work with community on guidelines for reviews: i. Review team size and composition. ii. Budget. iii. Access to experts. iv. Access to ICANN documentation. v. Expectations on process for adoption and implementation of reviews. vi. Optimization and standardization of review team processes. 8. Implement All ICG Contingencies a. Confirm CSC is included in enhancements. b. Work with ccNSO and GNSO to confirm ability to address performance-related issues is appropriately documented. 9. Institutionalize in Bylaws the current practice of Board/GAC consultation requirement used only over consensus advice 10. Identify and commit to a process for defining continuous improvement work how the Board will consider those recommendations a. Bylaws requirement that continuous improvement ideas must be supported by a high threshold of the community and to uphold the following criteria consistent with the lines of the NTIA Criteria, which are: i. Support and enhance the multistakeholder model; ii. Maintain the security, stability, and resiliency of the Internet DNS; iii. Meet the needs and expectation of the global customers and partners of the IANA services; iv. Maintain the openness of the Internet; and v. Not result in ICANN becoming a government-led or an inter-governmental organization. b. Utilize existing mechanisms as home for some of the other identified areas of continuous improvement, including ATRT3.
Thank you Bruce for sharing this. Can someone advise if my bold interspersed summary comments (comparing this material with the CCWG's proposal) are accurate? On 3 September 2015 at 10:35, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
Below are some notes relating to Chris's summary that reflects a DRAFT of current thinking.
We will refine these and post the final points into the public comment forum, once we get feedback during this call.
Regards, Bruce Tonkin
CCWG-Accountability Proposal Delivery Framework
1. Develop Fundamental Bylaws and Process for Modification
a. Bylaws areas:
i. ICANN's Mission and Core Values.
ii. Reviews imported from the Affirmation of Commitments, including modifications with community consensus.
iii. The requirements for having community input and consultation on development of ICANN Budget, Strategic Plans, Operating Plans and Standard Bylaws. This includes the IANA Functions Budget as well.
iv. Commitment to fund IANA Functions housed within ICANN.
v. IANA Functions Reviews called for within the CWG Report, with commitment to implement recommendations from those reviews.
*AN ABBREVIATED (SHORTER) SET OF FUNDAMENTAL BYLAWS*
b. Change process - When Board proposes changes to Fundamental Bylaws (including amendments, additions or deletions):
i. Incorporate into the Bylaws a requirement for community comment and input.
ii. Empower the community to support such a change through a demonstration of consensus in the community. Consensus in this situation is demonstrated through meeting the specified threshold of numbers of SOs or ACs needed to support the proposed change.
iii. Once there is community consensus to support the change, the change is effective upon 3/4 of the Board voting in favour of the change.
*NO CO-DECISION ON CHANGES TO FUNDAMENTAL BYLAWS - REMAINS BOARD DECISION FOLLOWING INFORMAL COMMUNITY CONSENSUS PROCESS*
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
*[NOT MY AREA]*
3. Expand Reconsideration Process and Define Clear Escalation Path For Accountability
a. Expand scope of reconsideration process to define as an initial step in seeking challenge against Board or staff action. Expansion could include:
i. Allowance of Reconsideration Process to be used in allegations that the Board acted in violation of the Articles of Incorporation or Bylaws.
ii. Increase from current process-driven bases to areas of more substantive concern, such as unfairness of a decision or inconsistency of logic.
b. Following Reconsideration Process, use IRP and build escalation through accountability mechanisms, resulting in development of full appeals process.
*[NOT MY AREA]*
4. Establish new Multistakeholder Enforcement Mechanism (MEM):
===============================================================
a. Process for community to bring challenges against Board action that is alleged to be inconsistent with specified fundamental Bylaws.
b. Binding arbitration process that is enforceable in California Courts
c. ICANN funds MEM arbitrations.
d. The MEM shall not be available for challenges based upon the adoption of ICANN's annual budget or annual operating plan.
*ABOLISH COMMUNITY MECHANISM AS SINGLE MEMBER AND RELY ON AN ARBITRATION PROCESS*
5. Community Involvement in Development of Standard Bylaws Changes, Budgets, Operating Plans and Strategic Plans
a. Incorporate into the Bylaws a requirement for community comment and input on each of these areas.
b. Empower the community to raise timely consensus-based issues or concerns on a proposed Board action ("Community Concerns"). Consensus in this situation is demonstrated through meeting the specified threshold of numbers of SOs or ACs needed to support the raising of an issue or concern.
c. ICANN commits to working with the community to resolve areas of Community Concerns, through a consultation process.
d. Provide a consultation process (borrowing from the GAC/Board consultation requirement), if the Board intends to take action that is inconsistent with the Community Concerns, to work to resolve the inconsistencies where possible, or if not possible, then a 2/3 Board threshold needed for Board to act against the general Community Concerns.
*ABOLITION OF COMMUNITY BUDGET / PLAN VETO POWER*
6. Board Removal/Recall ===========================
a. Institute pre-service letters to require the resignation of each director upon the occurrence of specific events:
i. Serious violation of governance standard, including statutory causes for removal (such as fraud).
ii. Refusal to abide by the processes set forth to enable new community empowerment areas.
iii. Failure to abide by outcome of Multistakeholder Enforcement Mechanism (defined in #5 below).
b. Process for invoking the resignation requirement. Any removal of a director is a very serious action, which must include a special community rationale and justification for removal of any individual directors and a special process for removals that would impact a significant number of voting directors. The process should allow for Board members to have an opportunity to defend against allegations that could support removal, and also include the potential for the imposition of sanctions less severe than removal.
*UNCLEAR - MAY PROPOSE REMOVAL OF COMMUNITY POWER TO RECALL DIRECTORS OR BOARD. * *PROPOSES LIMITED GROUNDS (NOT VALID IN A MEMBERSHIP-BASED MODEL).* *[CCWG PROPOSAL DOES GIVE OPPORTUNITY TO DEFEND ALLEGATIONS.]*
7. Incorporate Affirmation of Commitments Reviews into Bylaws
a. Consider proper edits to WHOIS review.
b. Commitment to work with community on guidelines for reviews:
i. Review team size and composition.
ii. Budget.
iii. Access to experts.
iv. Access to ICANN documentation.
v. Expectations on process for adoption and implementation of reviews.
vi. Optimization and standardization of review team processes.
*UNCLEAR WHETHER THIS SEEKS TO REWRITE CCWG PROPOSAL (ASIDE FROM KNOWN WHOIS ITEM) OR SOMETHING ELSE. *
8. Implement All ICG Contingencies
a. Confirm CSC is included in enhancements.
b. Work with ccNSO and GNSO to confirm ability to address performance-related issues is appropriately documented.
*PREVIOUS POINTS RENDER ICG CONTINGENCIES UNMET (IN THIS AUTHOR'S OPINION)*
9. Institutionalize in Bylaws the current practice of Board/GAC consultation requirement used only over consensus advice
*SUPPORTS CCWG PROPOSAL?*
10. Identify and commit to a process for defining continuous improvement work how the Board will consider those recommendations
a. Bylaws requirement that continuous improvement ideas must be supported by a high threshold of the community and to uphold the following criteria consistent with the lines of the NTIA Criteria, which are:
i. Support and enhance the multistakeholder model;
ii. Maintain the security, stability, and resiliency of the Internet DNS;
iii. Meet the needs and expectation of the global customers and partners of the IANA services;
iv. Maintain the openness of the Internet; and
v. Not result in ICANN becoming a government-led or an inter-governmental organization.
b. Utilize existing mechanisms as home for some of the other identified areas of continuous improvement, including ATRT3.
*MAY BE BEYOND THE SCOPE OF WS1.* thanks Jordan
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Chief Executive *InternetNZ* +64-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
I regret that I was unable to make the Board call last night. I hope a recording and, ideally, transcript, will be made available soon. On 02/09/2015 23:47, Jordan Carter wrote:
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
[NOT MY AREA]
I would read this as "* Reject CCWG proposals for IRP reforms * Promise to come back to look at reforms to IRP after transition" Is that reading correct? If so, I would be very disappointed. This was identified from the start as THE core WS1 issue. If the Board is saying that the principles as to how the compatibility of their actions with the bylaws is adjudicated, to what standard, by whom, and whom can complain and thereby initiate such review, to say that all that should be left to WS2 is not something I can support. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
I think the "nutshell" version of many of these suggestions (if they may be called that) is that the Board will not be told what to do by the Community. Community "Powers" would be replaced by either the "right to arbitrate" (and thus attempt to convince a panel to accept the Community's position), the "right to consult" (and thus attempt to convince the Board to accept the Community's position) or the "right to reconsideration" (and thus attempt to convince the Board to accept the Community's position). Thus, the balance (if it may be called that) of power remains largely unchanged. "Board on Top" survives, and "Member on Top" (as membership organizations are constituted under US nonprofit law) is eliminated. By repeatedly casting this as a discussion of "enforceability" this fundamental dichotomy was obscured (though Jordan among others did point it out). In spite of that recasting, "enforceability" (i.e., going to court) under this model was never successfully demonstrated in spite of repeated request to do so (and in spite of repeated assertions by CCWG participants that enforceability could not be achieved without a "legal person"). I hope that a more detailed review reveals a more nuanced view, but that is my first reaction to the events of a few hours ago. Greg On Thu, Sep 3, 2015 at 5:02 AM, Malcolm Hutty <malcolm@linx.net> wrote:
I regret that I was unable to make the Board call last night. I hope a recording and, ideally, transcript, will be made available soon.
On 02/09/2015 23:47, Jordan Carter wrote:
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
[NOT MY AREA]
I would read this as
"* Reject CCWG proposals for IRP reforms * Promise to come back to look at reforms to IRP after transition"
Is that reading correct?
If so, I would be very disappointed. This was identified from the start as THE core WS1 issue.
If the Board is saying that the principles as to how the compatibility of their actions with the bylaws is adjudicated, to what standard, by whom, and whom can complain and thereby initiate such review, to say that all that should be left to WS2 is not something I can support.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Greg, I think you hit well on the key points. And the fundamental changes the board proposed must be seen as just that: fundamental. J On Thursday, 3 September 2015, Greg Shatan <gregshatanipc@gmail.com> wrote:
I think the "nutshell" version of many of these suggestions (if they may be called that) is that the Board will not be told what to do by the Community.
Community "Powers" would be replaced by either the "right to arbitrate" (and thus attempt to convince a panel to accept the Community's position), the "right to consult" (and thus attempt to convince the Board to accept the Community's position) or the "right to reconsideration" (and thus attempt to convince the Board to accept the Community's position).
Thus, the balance (if it may be called that) of power remains largely unchanged. "Board on Top" survives, and "Member on Top" (as membership organizations are constituted under US nonprofit law) is eliminated. By repeatedly casting this as a discussion of "enforceability" this fundamental dichotomy was obscured (though Jordan among others did point it out). In spite of that recasting, "enforceability" (i.e., going to court) under this model was never successfully demonstrated in spite of repeated request to do so (and in spite of repeated assertions by CCWG participants that enforceability could not be achieved without a "legal person").
I hope that a more detailed review reveals a more nuanced view, but that is my first reaction to the events of a few hours ago.
Greg
On Thu, Sep 3, 2015 at 5:02 AM, Malcolm Hutty <malcolm@linx.net <javascript:_e(%7B%7D,'cvml','malcolm@linx.net');>> wrote:
I regret that I was unable to make the Board call last night. I hope a recording and, ideally, transcript, will be made available soon.
On 02/09/2015 23:47, Jordan Carter wrote:
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
[NOT MY AREA]
I would read this as
"* Reject CCWG proposals for IRP reforms * Promise to come back to look at reforms to IRP after transition"
Is that reading correct?
If so, I would be very disappointed. This was identified from the start as THE core WS1 issue.
If the Board is saying that the principles as to how the compatibility of their actions with the bylaws is adjudicated, to what standard, by whom, and whom can complain and thereby initiate such review, to say that all that should be left to WS2 is not something I can support.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <javascript:_e(%7B%7D,'cvml','Accountability-Cross-Community@icann.org');> https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz Sent on the run, apologies for brevity
Hi Greg, I think you frame the problem in a wrong way. In my eyes it is not "Board on Top" vs. "Member on Top". We have to find an innovative solution which balances the various interests in a non-hierarchical way which delivers a stable, secure and workable governance structure. We have 90 per cent agreement on substance. I have concerns with elements (unintended side effects) of the proposed mechanism which I raised in BA, Paris and in various telcos. But this concerns are based on my full agreement with the substantial part of the CCWG proposal. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Greg Shatan Gesendet: Do 03.09.2015 13:48 An: Malcolm Hutty Cc: accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] Chris's summary of current thinking I think the "nutshell" version of many of these suggestions (if they may be called that) is that the Board will not be told what to do by the Community. Community "Powers" would be replaced by either the "right to arbitrate" (and thus attempt to convince a panel to accept the Community's position), the "right to consult" (and thus attempt to convince the Board to accept the Community's position) or the "right to reconsideration" (and thus attempt to convince the Board to accept the Community's position). Thus, the balance (if it may be called that) of power remains largely unchanged. "Board on Top" survives, and "Member on Top" (as membership organizations are constituted under US nonprofit law) is eliminated. By repeatedly casting this as a discussion of "enforceability" this fundamental dichotomy was obscured (though Jordan among others did point it out). In spite of that recasting, "enforceability" (i.e., going to court) under this model was never successfully demonstrated in spite of repeated request to do so (and in spite of repeated assertions by CCWG participants that enforceability could not be achieved without a "legal person"). I hope that a more detailed review reveals a more nuanced view, but that is my first reaction to the events of a few hours ago. Greg On Thu, Sep 3, 2015 at 5:02 AM, Malcolm Hutty <malcolm@linx.net> wrote:
I regret that I was unable to make the Board call last night. I hope a recording and, ideally, transcript, will be made available soon.
On 02/09/2015 23:47, Jordan Carter wrote:
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
[NOT MY AREA]
I would read this as
"* Reject CCWG proposals for IRP reforms * Promise to come back to look at reforms to IRP after transition"
Is that reading correct?
If so, I would be very disappointed. This was identified from the start as THE core WS1 issue.
If the Board is saying that the principles as to how the compatibility of their actions with the bylaws is adjudicated, to what standard, by whom, and whom can complain and thereby initiate such review, to say that all that should be left to WS2 is not something I can support.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Wolfgang With respect we do not have a 90% agreement on substance. To the contrary, I have read closely the Board's proposal and it is fundamentally at odds with the CCWG proposal, Though couched as a modification, it is, in effect a rejection of the Single Member model of community control. We are in agreement on relatively little, I fear since the single most vital question of all is in dispute -- viz., who controls in the event of disagreement. The Board says "the Board" and the Community says "the Community." Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: "Kleinwächter, Wolfgang" [mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de] Sent: Thursday, September 3, 2015 10:14 AM To: Greg Shatan <gregshatanipc@gmail.com>; Malcolm Hutty <malcolm@linx.net> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Chris's summary of current thinking Hi Greg, I think you frame the problem in a wrong way. In my eyes it is not "Board on Top" vs. "Member on Top". We have to find an innovative solution which balances the various interests in a non-hierarchical way which delivers a stable, secure and workable governance structure. We have 90 per cent agreement on substance. I have concerns with elements (unintended side effects) of the proposed mechanism which I raised in BA, Paris and in various telcos. But this concerns are based on my full agreement with the substantial part of the CCWG proposal. Wolfgang -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Greg Shatan Gesendet: Do 03.09.2015 13:48 An: Malcolm Hutty Cc: accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] Chris's summary of current thinking I think the "nutshell" version of many of these suggestions (if they may be called that) is that the Board will not be told what to do by the Community. Community "Powers" would be replaced by either the "right to arbitrate" (and thus attempt to convince a panel to accept the Community's position), the "right to consult" (and thus attempt to convince the Board to accept the Community's position) or the "right to reconsideration" (and thus attempt to convince the Board to accept the Community's position). Thus, the balance (if it may be called that) of power remains largely unchanged. "Board on Top" survives, and "Member on Top" (as membership organizations are constituted under US nonprofit law) is eliminated. By repeatedly casting this as a discussion of "enforceability" this fundamental dichotomy was obscured (though Jordan among others did point it out). In spite of that recasting, "enforceability" (i.e., going to court) under this model was never successfully demonstrated in spite of repeated request to do so (and in spite of repeated assertions by CCWG participants that enforceability could not be achieved without a "legal person"). I hope that a more detailed review reveals a more nuanced view, but that is my first reaction to the events of a few hours ago. Greg On Thu, Sep 3, 2015 at 5:02 AM, Malcolm Hutty <malcolm@linx.net> wrote:
I regret that I was unable to make the Board call last night. I hope a recording and, ideally, transcript, will be made available soon.
On 02/09/2015 23:47, Jordan Carter wrote:
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
[NOT MY AREA]
I would read this as
"* Reject CCWG proposals for IRP reforms * Promise to come back to look at reforms to IRP after transition"
Is that reading correct?
If so, I would be very disappointed. This was identified from the start as THE core WS1 issue.
If the Board is saying that the principles as to how the compatibility of their actions with the bylaws is adjudicated, to what standard, by whom, and whom can complain and thereby initiate such review, to say that all that should be left to WS2 is not something I can support.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 03/09/2015 16:37, Paul Rosenzweig wrote:
Dear Wolfgang
With respect we do not have a 90% agreement on substance. To the contrary, I have read closely the Board's proposal and it is fundamentally at odds with the CCWG proposal, Though couched as a modification, it is, in effect a rejection of the Single Member model of community control. We are in agreement on relatively little, I fear since the single most vital question of all is in dispute -- viz., who controls in the event of disagreement. The Board says "the Board" and the Community says "the Community."
Dear Paul and Wolfgang, I think "in the event of disagreement" is over-stating the CCWG's ambition somewhat. We aren't trying to assert that "the Community" should prevail in every disagreement with the Board, only in a specific number of very narrow classes of disagreement: the five powers. Powers which are all designed to be used only in rare, exceptional cases. We also think that an /independent adjudicator/ (not the Community) should prevail in a disagreement over whether the Board has exceeded its own powers, by acting in a manner inconsistent with the Bylaws. This is much more narrow than "any disagreement". We have been very careful to avoid creating anything that would interfere with the Board's ordinary running of the company, or upset the bottom-up processes that currently exist. These are *fallback* accountability safeguards only, and we propose no changes to the day-to-day processes, mechanisms or structures. It's very important to keep that in mind when evaluating alarmist and unsubstantiated fears of "capture" or "paralysis". Nonetheless, I do agree that failing to agree on these points would indeed be fundamental. If the Board isn't willing to let the Community prevail in those specific backstop cases, or to accept the authority of the IRP to arbitrate complaints of contravention of the Bylaws, then we do indeed have a serious problem. "90% of the substance" is not measured by word count. Malcolm.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: "Kleinwächter, Wolfgang" [mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de] Sent: Thursday, September 3, 2015 10:14 AM To: Greg Shatan <gregshatanipc@gmail.com>; Malcolm Hutty <malcolm@linx.net> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Chris's summary of current thinking
Hi Greg,
I think you frame the problem in a wrong way. In my eyes it is not "Board on Top" vs. "Member on Top". We have to find an innovative solution which balances the various interests in a non-hierarchical way which delivers a stable, secure and workable governance structure. We have 90 per cent agreement on substance. I have concerns with elements (unintended side effects) of the proposed mechanism which I raised in BA, Paris and in various telcos. But this concerns are based on my full agreement with the substantial part of the CCWG proposal.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Greg Shatan Gesendet: Do 03.09.2015 13:48 An: Malcolm Hutty Cc: accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] Chris's summary of current thinking
I think the "nutshell" version of many of these suggestions (if they may be called that) is that the Board will not be told what to do by the Community.
Community "Powers" would be replaced by either the "right to arbitrate" (and thus attempt to convince a panel to accept the Community's position), the "right to consult" (and thus attempt to convince the Board to accept the Community's position) or the "right to reconsideration" (and thus attempt to convince the Board to accept the Community's position).
Thus, the balance (if it may be called that) of power remains largely unchanged. "Board on Top" survives, and "Member on Top" (as membership organizations are constituted under US nonprofit law) is eliminated. By repeatedly casting this as a discussion of "enforceability" this fundamental dichotomy was obscured (though Jordan among others did point it out). In spite of that recasting, "enforceability" (i.e., going to court) under this model was never successfully demonstrated in spite of repeated request to do so (and in spite of repeated assertions by CCWG participants that enforceability could not be achieved without a "legal person").
I hope that a more detailed review reveals a more nuanced view, but that is my first reaction to the events of a few hours ago.
Greg
On Thu, Sep 3, 2015 at 5:02 AM, Malcolm Hutty <malcolm@linx.net> wrote:
I regret that I was unable to make the Board call last night. I hope a recording and, ideally, transcript, will be made available soon.
On 02/09/2015 23:47, Jordan Carter wrote:
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
[NOT MY AREA]
I would read this as
"* Reject CCWG proposals for IRP reforms * Promise to come back to look at reforms to IRP after transition"
Is that reading correct?
If so, I would be very disappointed. This was identified from the start as THE core WS1 issue.
If the Board is saying that the principles as to how the compatibility of their actions with the bylaws is adjudicated, to what standard, by whom, and whom can complain and thereby initiate such review, to say that all that should be left to WS2 is not something I can support.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
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-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Agree completely Malcolm, and apologies for my somewhat loose language. But, as you say, there is a narrow range where we think the community and/or the IRP should prevail. I read the board as rejecting that ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Malcolm Hutty [mailto:malcolm@linx.net] Sent: Thursday, September 3, 2015 12:26 PM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>; '"Kleinwächter, Wolfgang"' <wolfgang.kleinwaechter@medienkomm.uni-halle.de>; 'Greg Shatan' <gregshatanipc@gmail.com> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Chris's summary of current thinking On 03/09/2015 16:37, Paul Rosenzweig wrote:
Dear Wolfgang
With respect we do not have a 90% agreement on substance. To the contrary, I have read closely the Board's proposal and it is fundamentally at odds with the CCWG proposal, Though couched as a modification, it is, in effect a rejection of the Single Member model of community control. We are in agreement on relatively little, I fear since the single most vital question of all is in dispute -- viz., who controls in the event of disagreement. The Board says "the Board" and the Community says "the Community."
Dear Paul and Wolfgang, I think "in the event of disagreement" is over-stating the CCWG's ambition somewhat. We aren't trying to assert that "the Community" should prevail in every disagreement with the Board, only in a specific number of very narrow classes of disagreement: the five powers. Powers which are all designed to be used only in rare, exceptional cases. We also think that an /independent adjudicator/ (not the Community) should prevail in a disagreement over whether the Board has exceeded its own powers, by acting in a manner inconsistent with the Bylaws. This is much more narrow than "any disagreement". We have been very careful to avoid creating anything that would interfere with the Board's ordinary running of the company, or upset the bottom-up processes that currently exist. These are *fallback* accountability safeguards only, and we propose no changes to the day-to-day processes, mechanisms or structures. It's very important to keep that in mind when evaluating alarmist and unsubstantiated fears of "capture" or "paralysis". Nonetheless, I do agree that failing to agree on these points would indeed be fundamental. If the Board isn't willing to let the Community prevail in those specific backstop cases, or to accept the authority of the IRP to arbitrate complaints of contravention of the Bylaws, then we do indeed have a serious problem. "90% of the substance" is not measured by word count. Malcolm.
Paul
Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key
-----Original Message----- From: "Kleinwächter, Wolfgang" [mailto:wolfgang.kleinwaechter@medienkomm.uni-halle.de] Sent: Thursday, September 3, 2015 10:14 AM To: Greg Shatan <gregshatanipc@gmail.com>; Malcolm Hutty <malcolm@linx.net> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Chris's summary of current thinking
Hi Greg,
I think you frame the problem in a wrong way. In my eyes it is not "Board on Top" vs. "Member on Top". We have to find an innovative solution which balances the various interests in a non-hierarchical way which delivers a stable, secure and workable governance structure. We have 90 per cent agreement on substance. I have concerns with elements (unintended side effects) of the proposed mechanism which I raised in BA, Paris and in various telcos. But this concerns are based on my full agreement with the substantial part of the CCWG proposal.
Wolfgang
-----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org im Auftrag von Greg Shatan Gesendet: Do 03.09.2015 13:48 An: Malcolm Hutty Cc: accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] Chris's summary of current thinking
I think the "nutshell" version of many of these suggestions (if they may be called that) is that the Board will not be told what to do by the Community.
Community "Powers" would be replaced by either the "right to arbitrate" (and thus attempt to convince a panel to accept the Community's position), the "right to consult" (and thus attempt to convince the Board to accept the Community's position) or the "right to reconsideration" (and thus attempt to convince the Board to accept the Community's position).
Thus, the balance (if it may be called that) of power remains largely unchanged. "Board on Top" survives, and "Member on Top" (as membership organizations are constituted under US nonprofit law) is eliminated. By repeatedly casting this as a discussion of "enforceability" this fundamental dichotomy was obscured (though Jordan among others did point it out). In spite of that recasting, "enforceability" (i.e., going to court) under this model was never successfully demonstrated in spite of repeated request to do so (and in spite of repeated assertions by CCWG participants that enforceability could not be achieved without a "legal person").
I hope that a more detailed review reveals a more nuanced view, but that is my first reaction to the events of a few hours ago.
Greg
On Thu, Sep 3, 2015 at 5:02 AM, Malcolm Hutty <malcolm@linx.net> wrote:
I regret that I was unable to make the Board call last night. I hope a recording and, ideally, transcript, will be made available soon.
On 02/09/2015 23:47, Jordan Carter wrote:
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
[NOT MY AREA]
I would read this as
"* Reject CCWG proposals for IRP reforms * Promise to come back to look at reforms to IRP after transition"
Is that reading correct?
If so, I would be very disappointed. This was identified from the start as THE core WS1 issue.
If the Board is saying that the principles as to how the compatibility of their actions with the bylaws is adjudicated, to what standard, by whom, and whom can complain and thereby initiate such review, to say that all that should be left to WS2 is not something I can support.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Hello Malcolm,
We also think that an /independent adjudicator/ (not the Community) should prevail in a disagreement over whether the Board has exceeded its own powers, by acting in a manner inconsistent with the Bylaws.
Yes - I thought the board was quite clear that it supports an independent adjudicator process as well. For example, yesterday, Chris stated that the board supports a process for community to bring challenges against Board action that is alleged to be inconsistent with specified fundamental Bylaws, and supports a binding arbitration process that is enforceable in California Courts . Chris also noted that ICANN would fund such community arbitrations. Regards, Bruce Tonkin
Thanks Greg for this useful nutshell version. Helps to have such clear hypothesis to test
By repeatedly casting this as a discussion of "enforceability" this fundamental dichotomy was obscured (though Jordan among others did point it out). In spite of that recasting, "enforceability" (i.e., going to court) under this model was never successfully demonstrated in spite of repeated request to do so (and in spite of repeated assertions by CCWG participants that enforceability could not be achieved without a "legal person”).
Very important consideration to analyse the written proposal. I still mis the rationale for changing the Community mechanism to the new MEM, and more worrysome is the fact to delegate the fleshing out of this issue to the inner circle of all outside attorneys Carlos Raul
I hope that a more detailed review reveals a more nuanced view, but that is my first reaction to the events of a few hours ago.
Greg
On Thu, Sep 3, 2015 at 5:02 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote: I regret that I was unable to make the Board call last night. I hope a recording and, ideally, transcript, will be made available soon.
On 02/09/2015 23:47, Jordan Carter wrote:
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
[NOT MY AREA]
I would read this as
"* Reject CCWG proposals for IRP reforms * Promise to come back to look at reforms to IRP after transition"
Is that reading correct?
If so, I would be very disappointed. This was identified from the start as THE core WS1 issue.
If the Board is saying that the principles as to how the compatibility of their actions with the bylaws is adjudicated, to what standard, by whom, and whom can complain and thereby initiate such review, to say that all that should be left to WS2 is not something I can support.
-- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ <http://publicaffairs.linx.net/>
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ 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 <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
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Me too Cheers, Roelof On 03-09-15 05:02, "accountability-cross-community-bounces@icann.org on behalf of Malcolm Hutty" <accountability-cross-community-bounces@icann.org on behalf of malcolm@linx.net> wrote:
I regret that I was unable to make the Board call last night. I hope a recording and, ideally, transcript, will be made available soon.
On 02/09/2015 23:47, Jordan Carter wrote:
2. IRP Enhancements
a. Roll back modification of standard of review that was in place before 2013.
b. Commitment that revised standard of review, standing panel and procedural improvements will be part of next phase of work on IRP enhancements.
[NOT MY AREA]
I would read this as
"* Reject CCWG proposals for IRP reforms * Promise to come back to look at reforms to IRP after transition"
Is that reading correct?
If so, I would be very disappointed. This was identified from the start as THE core WS1 issue.
If the Board is saying that the principles as to how the compatibility of their actions with the bylaws is adjudicated, to what standard, by whom, and whom can complain and thereby initiate such review, to say that all that should be left to WS2 is not something I can support.
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
participants (8)
-
"Kleinwächter, Wolfgang" -
Bruce Tonkin -
Carlos Raúl Gutiérrez -
Greg Shatan -
Jordan Carter -
Malcolm Hutty -
Paul Rosenzweig -
Roelof Meijer