Update on Board discussions on the CCWG Update
Hello All, As noted last week, the Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015. The Board is preparing for the Public Comment period on the Third Draft Proposal, and intends to submit its comments on the Third Draft Proposal by mid-December. The Board thought it may be useful to share some initial comments based on the information in the CCWG Update. For ease of reference, the page number in the Update Document has been included for each item below. . Human Rights (pages 25-26) The Board is committed to upholding human rights as appropriate within its limited Mission and scope of responsibilities. We appreciate the community's interest in reflecting human rights in the ICANN Bylaws, but we remain concerned that the placement of such language into the Bylaws requires full consideration of the impact of that language across all of ICANN's activities. We note that a potential approach is for a group to develop a Framework of Interpretation as part of Work Steam 2. It is important that this topic has comprehensive community discussion, including impact on policy development and identification of how those developing policy recommendations should consider human rights within their work, as well as any implications such as on ccTLD re-delegations. Any final formulation of human rights must not extend ICANN's limited mission and scope of responsibilities. . Inspection Rights and Transparency (page 12) The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency, including a review of the DIDP and assessment of what additional information (such as financial information) should be made publicly available, is an item for further work. In the Board's view, prior to the development of an inspection right, consideration should be given to what sort of information is expected to be requested, for what purpose and by whom. Further, to address the concerns over increased financial transparency, the Board will be proposing a methodology during the upcoming public comment period through which an independent audit can be initiated, and has instructed staff to start considering how additional financial transparency can be achieved. . Removal of the Board (individual/entire) (pages 21-23) The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter. Additionally, the Board strongly believes the threshold for the removal of the entire board should not go below a total of four SOs and ACs in support of removal. . Board Consideration of GAC advice (page 34) The Board will continue to monitor the discussions. We note that any solution should include a provision that, in the event of the rejection of GAC advice, the Board is only required to enter into a formal consultation process where the GAC advice is consensus advice based on the current definition within the GAC's Operating Procedures (which relies on the UN definition of consensus). The Board values receipt of consensus advice as reflected in the current GAC Operating Procedures. Since the first ATRT, there has been a lot of effort made to clarify what "GAC Advice" means and does not mean within GAC Communiqués. Care should be taken not to introduce language into the Bylaws that reduces that clarity and returns the Board to a position of having to negotiate among various positions in its consultation processes. . Sole Designator Model (page 11) The Board supports the Sole Designator model with the understanding that limited powers of appointment, removal and enforcement are maintained as the guiding principles for this model. . AoC Reviews and Implementation Factors (page 31) The Board appreciates the work to incorporate the AOC reviews into the Bylaws and reiterates as a principle that operational/administrative details not be inserted into the Bylaws, in favor of defined standards for such reviews that can be changed (with community participation) through processes that do not require Bylaws changes. . Community Decision-Making Power (page 12) The Board believes it is important that the Community Decision Making Power has appropriate thresholds that are defined in ways that reflect a community decision, and are flexible enough to allow entrance (or exit) of existing or new SOs or ACs. Regards, Bruce Tonkin ICANN Board Liaison to the CCWG
Bruce, Thanks, this is useful. RE: "The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter." There seems to be two elements here, that were pretty well vetted and discussed; 1.) Re "rationale"- There was strong support for clearly documenting the rationale (indeed developing a full public record via a call for comments), if you think the proposal is deficient in this area it will be great to know the details. 2.) Re "cause"- There was strong opposition to a set of ex anti "causes for removal". So, it will be great to get further clarification. Mike -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Monday, November 23, 2015 8:21 PM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Update on Board discussions on the CCWG Update Hello All, As noted last week, the Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015. The Board is preparing for the Public Comment period on the Third Draft Proposal, and intends to submit its comments on the Third Draft Proposal by mid-December. The Board thought it may be useful to share some initial comments based on the information in the CCWG Update. For ease of reference, the page number in the Update Document has been included for each item below. . Human Rights (pages 25-26) The Board is committed to upholding human rights as appropriate within its limited Mission and scope of responsibilities. We appreciate the community's interest in reflecting human rights in the ICANN Bylaws, but we remain concerned that the placement of such language into the Bylaws requires full consideration of the impact of that language across all of ICANN's activities. We note that a potential approach is for a group to develop a Framework of Interpretation as part of Work Steam 2. It is important that this topic has comprehensive community discussion, including impact on policy development and identification of how those developing policy recommendations should consider human rights within their work, as well as any implications such as on ccTLD re-delegations. Any final formulation of human rights must not extend ICANN's limited mission and scope of responsibilities. . Inspection Rights and Transparency (page 12) The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency, including a review of the DIDP and assessment of what additional information (such as financial information) should be made publicly available, is an item for further work. In the Board's view, prior to the development of an inspection right, consideration should be given to what sort of information is expected to be requested, for what purpose and by whom. Further, to address the concerns over increased financial transparency, the Board will be proposing a methodology during the upcoming public comment period through which an independent audit can be initiated, and has instructed staff to start considering how additional financial transparency can be achieved. . Removal of the Board (individual/entire) (pages 21-23) The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter. Additionally, the Board strongly believes the threshold for the removal of the entire board should not go below a total of four SOs and ACs in support of removal. . Board Consideration of GAC advice (page 34) The Board will continue to monitor the discussions. We note that any solution should include a provision that, in the event of the rejection of GAC advice, the Board is only required to enter into a formal consultation process where the GAC advice is consensus advice based on the current definition within the GAC's Operating Procedures (which relies on the UN definition of consensus). The Board values receipt of consensus advice as reflected in the current GAC Operating Procedures. Since the first ATRT, there has been a lot of effort made to clarify what "GAC Advice" means and does not mean within GAC Communiqués. Care should be taken not to introduce language into the Bylaws that reduces that clarity and returns the Board to a position of having to negotiate among various positions in its consultation processes. . Sole Designator Model (page 11) The Board supports the Sole Designator model with the understanding that limited powers of appointment, removal and enforcement are maintained as the guiding principles for this model. . AoC Reviews and Implementation Factors (page 31) The Board appreciates the work to incorporate the AOC reviews into the Bylaws and reiterates as a principle that operational/administrative details not be inserted into the Bylaws, in favor of defined standards for such reviews that can be changed (with community participation) through processes that do not require Bylaws changes. . Community Decision-Making Power (page 12) The Board believes it is important that the Community Decision Making Power has appropriate thresholds that are defined in ways that reflect a community decision, and are flexible enough to allow entrance (or exit) of existing or new SOs or ACs. Regards, Bruce Tonkin ICANN Board Liaison to the CCWG _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hello Mike,
1.) Re "rationale"- There was strong support for clearly documenting the rationale (indeed developing a full public record via a call for comments), if you think the proposal is deficient in this area it will be great to know the details.
Yes - I think the intent here is that it is helpful for both the recruitment and ongoing improvements to personal performance to clearly identify the duties and expectations of a director in advance. We do this through role descriptions and code of conducts. We are also proposing to introduce a service letter that clearly sets out those expectations. As part of developing a rationale to remove a Board director - these reference documents can form a useful framework to identify why the community is proposing removal of the director. It is not intended to be limiting however - e.g. the community might want to remove someone because they are racist - and that may not be something that is explicitly set out in a document. 2.) Re "cause"- There was strong opposition to a set of ex anti "causes for removal". Yes understood. See notes above. I think there is common agreement that removal shouldn't be arbitrary - and a rationale for removal should be clearly set out as part of the process. We have suggested that it would be helpful for a rationale to at least reference the duties, codes of conduct and/or a service letter where possible. Regards, Bruce Tonkin
Bruce, Lightning Response! Bodes well for the proposal. Thanks, mike -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Monday, November 23, 2015 9:41 PM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Hello Mike,
1.) Re "rationale"- There was strong support for clearly documenting the rationale (indeed developing a full public record via a call for comments), if you think the proposal is deficient in this area it will be great to know the details.
Yes - I think the intent here is that it is helpful for both the recruitment and ongoing improvements to personal performance to clearly identify the duties and expectations of a director in advance. We do this through role descriptions and code of conducts. We are also proposing to introduce a service letter that clearly sets out those expectations. As part of developing a rationale to remove a Board director - these reference documents can form a useful framework to identify why the community is proposing removal of the director. It is not intended to be limiting however - e.g. the community might want to remove someone because they are racist - and that may not be something that is explicitly set out in a document. 2.) Re "cause"- There was strong opposition to a set of ex anti "causes for removal". Yes understood. See notes above. I think there is common agreement that removal shouldn't be arbitrary - and a rationale for removal should be clearly set out as part of the process. We have suggested that it would be helpful for a rationale to at least reference the duties, codes of conduct and/or a service letter where possible. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Many thanks for the comprehensive feedback Bruce. Best Regards On Nov 24, 2015 4:21 AM, "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
As noted last week, the Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015.
The Board is preparing for the Public Comment period on the Third Draft Proposal, and intends to submit its comments on the Third Draft Proposal by mid-December.
The Board thought it may be useful to share some initial comments based on the information in the CCWG Update.
For ease of reference, the page number in the Update Document has been included for each item below.
. Human Rights (pages 25-26)
The Board is committed to upholding human rights as appropriate within its limited Mission and scope of responsibilities. We appreciate the community's interest in reflecting human rights in the ICANN Bylaws, but we remain concerned that the placement of such language into the Bylaws requires full consideration of the impact of that language across all of ICANN's activities. We note that a potential approach is for a group to develop a Framework of Interpretation as part of Work Steam 2. It is important that this topic has comprehensive community discussion, including impact on policy development and identification of how those developing policy recommendations should consider human rights within their work, as well as any implications such as on ccTLD re-delegations. Any final formulation of human rights must not extend ICANN's limited mission and scope of responsibilities.
. Inspection Rights and Transparency (page 12)
The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency, including a review of the DIDP and assessment of what additional information (such as financial information) should be made publicly available, is an item for further work. In the Board's view, prior to the development of an inspection right, consideration should be given to what sort of information is expected to be requested, for what purpose and by whom. Further, to address the concerns over increased financial transparency, the Board will be proposing a methodology during the upcoming public comment period through which an independent audit can be initiated, and has instructed staff to start considering how additional financial transparency can be achieved.
. Removal of the Board (individual/entire) (pages 21-23)
The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter.
Additionally, the Board strongly believes the threshold for the removal of the entire board should not go below a total of four SOs and ACs in support of removal.
. Board Consideration of GAC advice (page 34)
The Board will continue to monitor the discussions. We note that any solution should include a provision that, in the event of the rejection of GAC advice, the Board is only required to enter into a formal consultation process where the GAC advice is consensus advice based on the current definition within the GAC's Operating Procedures (which relies on the UN definition of consensus). The Board values receipt of consensus advice as reflected in the current GAC Operating Procedures. Since the first ATRT, there has been a lot of effort made to clarify what "GAC Advice" means and does not mean within GAC Communiqués. Care should be taken not to introduce language into the Bylaws that reduces that clarity and returns the Board to a position of having to negotiate among various positions in its consultation processes.
. Sole Designator Model (page 11)
The Board supports the Sole Designator model with the understanding that limited powers of appointment, removal and enforcement are maintained as the guiding principles for this model.
. AoC Reviews and Implementation Factors (page 31)
The Board appreciates the work to incorporate the AOC reviews into the Bylaws and reiterates as a principle that operational/administrative details not be inserted into the Bylaws, in favor of defined standards for such reviews that can be changed (with community participation) through processes that do not require Bylaws changes.
. Community Decision-Making Power (page 12)
The Board believes it is important that the Community Decision Making Power has appropriate thresholds that are defined in ways that reflect a community decision, and are flexible enough to allow entrance (or exit) of existing or new SOs or ACs.
Regards,
Bruce Tonkin
ICANN Board Liaison to the CCWG _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Bruce: Happy to see that the board comment that "Care should be taken not to introduce language into the Bylaws that reduces that clarity [about what constitutes GAC 'advice'] and returns the Board to a position of having to negotiate among various positions in its consultation processes."
. Inspection Rights and Transparency (page 12)
The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency,
I am surprised by the resistance we are seeing to what I thought was a fairly clear bargain: in exchange for yielding on membership, which included inspection rights, the CCWG expected stronger transparency and inspection rights in the Sole Designator model. As has been noted many times in our deliberations, SD relies heavily, if not near-exclusively, on the threat of board member removal, and it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights. Those enhancements are not going to come from vague promises to "review" the DIDP in WS2 or from additional information about the finances. I would caution the board not to attempt to evade this point by calling for additional specifications of " what sort of information is expected to be requested, for what purpose and by whom," as those things be specified in advance.
. Removal of the Board (individual/entire) (pages 21-23)
The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter.
This approach was considered and rejected by the CCWG.
Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 24 Nov 2015 06:23, "Mueller, Milton L" <milton@gatech.edu> wrote:
. Removal of the Board (individual/entire) (pages 21-23)
The Board believes that the rationale for the removal of the entire
board or an
individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter.
This approach was considered and rejected by the CCWG.
SO: While reference to cause was not indicated in the CCWG proposal, I believe the motivation/reasons for removal by the appointing SO/AC would have to be indicated one way or the other. Otherwise I don't see the essence of the community forum as its on that basis that the said board will defend him/herself, it is also on that same basis that other SO/AC will evaluate the legitimacy of the removal (even though decision still rest on the appointing SO/AC ). Regards
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Seun, Of course, given the high bar of community consensus for required to remove a board member, arguments about cause would have to be made during a challenge. But there is no need to limit what those arguments are. Making board members accountable to the community means that the community can remove them for any reason they choose. No one can predict what a board member might do that would legitimately trigger demand for their removal, so it makes no sense to specify criteria in advance. --MM From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Tuesday, November 24, 2015 12:31 AM To: Mueller, Milton L <milton@gatech.edu> Cc: accountability-cross-community@icann.org; Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 24 Nov 2015 06:23, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> wrote:
. Removal of the Board (individual/entire) (pages 21-23)
The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter.
This approach was considered and rejected by the CCWG.
SO: While reference to cause was not indicated in the CCWG proposal, I believe the motivation/reasons for removal by the appointing SO/AC would have to be indicated one way or the other. Otherwise I don't see the essence of the community forum as its on that basis that the said board will defend him/herself, it is also on that same basis that other SO/AC will evaluate the legitimacy of the removal (even though decision still rest on the appointing SO/AC ). Regards
_______________________________________________ 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
Hi all, On 24 November 2015 at 18:08, Mueller, Milton L <milton@gatech.edu> wrote:
Bruce: Happy to see that the board comment that "Care should be taken not to introduce language into the Bylaws that reduces that clarity [about what constitutes GAC 'advice'] and returns the Board to a position of having to negotiate among various positions in its consultation processes."
. Inspection Rights and Transparency (page 12)
The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency,
I am surprised by the resistance we are seeing to what I thought was a fairly clear bargain: in exchange for yielding on membership, which included inspection rights, the CCWG expected stronger transparency and inspection rights in the Sole Designator model. As has been noted many times in our deliberations, SD relies heavily, if not near-exclusively, on the threat of board member removal, and it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights. Those enhancements are not going to come from vague promises to "review" the DIDP in WS2 or from additional information about the finances. I would caution the board not to attempt to evade this point by calling for additional specifications of " what sort of information is expected to be requested, for what purpose and by whom," as those things be specified in advance.
I entirely agree with Milton.
. Removal of the Board (individual/entire) (pages 21-23)
The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter.
This approach was considered and rejected by the CCWG.
Being able to explain the cause of the removal wasn't ruled out. Perhaps pointing to such documents as assistance wasn't ruled out. But requiring the cause of removal to be against grounds listed in any documents was entirely ruled out, for sure. best Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
+1 on inspection rights. Without adequate transparency there can be no meaningful accountability. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Tuesday, November 24, 2015 12:08 AM To: Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Bruce: Happy to see that the board comment that "Care should be taken not to introduce language into the Bylaws that reduces that clarity [about what constitutes GAC 'advice'] and returns the Board to a position of having to negotiate among various positions in its consultation processes."
. Inspection Rights and Transparency (page 12)
The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency,
I am surprised by the resistance we are seeing to what I thought was a fairly clear bargain: in exchange for yielding on membership, which included inspection rights, the CCWG expected stronger transparency and inspection rights in the Sole Designator model. As has been noted many times in our deliberations, SD relies heavily, if not near-exclusively, on the threat of board member removal, and it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights. Those enhancements are not going to come from vague promises to "review" the DIDP in WS2 or from additional information about the finances. I would caution the board not to attempt to evade this point by calling for additional specifications of " what sort of information is expected to be requested, for what purpose and by whom," as those things be specified in advance.
. Removal of the Board (individual/entire) (pages 21-23)
The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter.
This approach was considered and rejected by the CCWG. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I will take any opportunity I get to agree with Milton. I agree with Milton. Greg On Tue, Nov 24, 2015 at 1:05 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1 on inspection rights.
Without adequate transparency there can be no meaningful accountability.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Tuesday, November 24, 2015 12:08 AM To: Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update
Bruce: Happy to see that the board comment that "Care should be taken not to introduce language into the Bylaws that reduces that clarity [about what constitutes GAC 'advice'] and returns the Board to a position of having to negotiate among various positions in its consultation processes."
. Inspection Rights and Transparency (page 12)
The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency,
I am surprised by the resistance we are seeing to what I thought was a fairly clear bargain: in exchange for yielding on membership, which included inspection rights, the CCWG expected stronger transparency and inspection rights in the Sole Designator model. As has been noted many times in our deliberations, SD relies heavily, if not near-exclusively, on the threat of board member removal, and it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights. Those enhancements are not going to come from vague promises to "review" the DIDP in WS2 or from additional information about the finances. I would caution the board not to attempt to evade this point by calling for additional specifications of " what sort of information is expected to be requested, for what purpose and by whom," as those things be specified in advance.
. Removal of the Board (individual/entire) (pages 21-23)
The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter.
This approach was considered and rejected by the CCWG.
_______________________________________________ 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
I will take any opportunity I get to DISAGREE with Herrn Professor Dr Mueller. I AGREE with Herrn Professor Dr Mueller. el On 2015-11-24 08:13, Greg Shatan wrote:
I will take any opportunity I get to agree with Milton. I agree with Milton.
Greg
On Tue, Nov 24, 2015 at 1:05 AM, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> wrote:
+1 on inspection rights.
Without adequate transparency there can be no meaningful accountability.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597 <tel:202-559-8597>/Direct 202-559-8750 <tel:202-559-8750>/Fax 202-255-6172 <tel:202-255-6172>/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Mueller, Milton L Sent: Tuesday, November 24, 2015 12:08 AM To: Bruce Tonkin; Accountability Cross Community Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update
Bruce: Happy to see that the board comment that "Care should be taken not to introduce language into the Bylaws that reduces that clarity [about what constitutes GAC 'advice'] and returns the Board to a position of having to negotiate among various positions in its consultation processes."
> > . Inspection Rights and Transparency (page 12) > > The Board remains concerned about the insertion of inspection rights > premised on the fact that they would have been available under a > member structure. The Board has already agreed that the issues of > transparency,
I am surprised by the resistance we are seeing to what I thought was a fairly clear bargain: in exchange for yielding on membership, which included inspection rights, the CCWG expected stronger transparency and inspection rights in the Sole Designator model. As has been noted many times in our deliberations, SD relies heavily, if not near-exclusively, on the threat of board member removal, and it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights. Those enhancements are not going to come from vague promises to "review" the DIDP in WS2 or from additional information about the finances. I would caution the board not to attempt to evade this point by calling for additional specifications of " what sort of information is expected to be requested, for what purpose and by whom," as those things be specified in advance.
> . Removal of the Board (individual/entire) (pages 21-23) > > The Board believes that the rationale for the removal of the entire > board or an individual Board member must be clearly set out, for > example, through reference to a cause for removal that could be set out in a pre-service letter.
This approach was considered and rejected by the CCWG.
_______________________________________________ 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 _______________________________________________ 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
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/
Hello Milton,
it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights.
Understood. The Board agrees that additional transparency and reporting is necessary. What the Board is noting is that the details of what this means needs to be developed for practical use. ICANN already makes many more documents public than is typical for non-profits. This includes minutes of Board meetings and committee meetings, quarterly financial reporting, detailed annual operating plans, reporting on projects etc. Where additional information is required by the community - our standard response should be to make it public - rather than rely on having to come into an office an inspect some records. It is only where a document can't be made public (such as staff salaries) - then it is necessary to have some sort of process for an independent party to inspect and confirm that it is consistent with published policies (e.g the compensation policy). Regards, Bruce Tonkin
Bruce, I find it sad, although expected, that the Board continues to show intransigence and in some areas an unwillingness to compromise by continuing to revisit issues many of us in the community have already settled on. As Milton accurately pointed out, in response to the community backing away from our second reference model in response to the Board's rather brutal attack on it several patches were taken from the membership model and applied to the designator approach so we as a collective could move forward. It was a compromise, a grand bargain if you will, that kept hope for this transition alive. Now the Board has come back to express "concern" over those areas of the compromise they never agreed with in the first place. Let me be clear if that if there is further retrenchment from our second reference model, an elimination of the patches which allowed people like myself to give support, however tepid, to the process going forward, an eroding of the comprise that was developed, this transition should and will die an unfortunate death. I would suggest that this Board needs to look forward rather than backwards, stop fighting battles of the past and instead work with the community to reach solutions on new issues heretofore not resolved or subject to a compromise agreement. It comes as no surprise that the Board, and ICANN corporate generally, has "concern" over the Inspection right. Those conversant in ICANN history will recall that ICANN corporate n the early days of this charitable corporation attempted to deny Board members themselves this right. Litigation ensued. Now those with the right, the Board, wishes to deny it to others who will post transition be jointly assuming some of the authority today possessed by the Board alone. I guess that s a sad commentary on human nature as much as anything else. The Inspection right is nor principally an instrument of transparency, although it certainly does contribute to same, rather it is an instrument of fraud prevention. It is the principle means by which this community post transition will have to investigate and ensure itself and the global community of internet users that this corporation's finances and governing Board is acting ethically and with due propriety. It is a guarantee that ICANN will not morph into the mode another private organisation with public responsibilities has recently assumed, it is a guarantee that ICANN will not become another FIFA. There have been reform elements within FIFA for many years warning of the scandalous conduct of leaders of that organisation. Sadly these reformers could not prove what they knew to be true because the organisation itself was shrouded in secrecy at the highest levels. Accounting records were held to be propriety, executive meetings were closed. There were no inspection rights to members of thos organisation under Swiss law. Without access to the records it was impossible to bring malfeasors to account short of government intervention. If we do not grant the community Inspection, the only recourse to guard against corruption at the Board level, to hold the Board accountable to maintaining ethical and proper conduct, would be the intervention of the Attorney General of the State of California pursuant to his of her §5250 examination rights under the California Corporations Code. I thought one of the purposes of the transition was to wean ICANN away from the oversight of territorially baed governments. By taking away the communities principle tool, a tool to be used only after the same threshold other community rights must reach has been met, to investigate suspected malfeasance the Board's preference would have the opposite result. Larry Strickling had an interesting take on this issue during a session on jurisdiction at the Internet Governance Forum. Starting at approximately the 1:15 mark here: http://youtu.be/gHtj4KdmYlc Secretary Strickling extols the virtue of the American and California legal systems. He mentions the deference courts in these jurisdictions give to shareholders and members in corporate disputes. He specifically contrasts this with the Swiss system, noting that the FIFA scandal happened in Switzerland are not in the United States of America. Yet by attempting to pare back those antifraud aspects of the membership model that we have ported to the new model the Board seems intent on making ICANN's governing structure more like Switzerland's than like California's. What Secretary Strickling saw as advantages of American jurisprudence the Board seems to view as a disadvantage. I applaud the stated commitment of the Board to increased transparency. Reform of the DIDP and other transparency mechanisms are overdue and should be a principle element of work stream 2 reforms. Yet they are not a substitute for the Inspection right contained, amongst other places, in §6333 of the California Corporations Code. Publishing items on a website is no substitute for access to raw data in times of dispute, crisis or when fraud or malfeasance is suspected. With regards to financial data I draw an analogy to our current position regarding legal counsel: the community has been greatly empowered by it's ability to retain it's own counsel. If we had to rely upon Jones Day I suspect our position would not at all be independent from that of the Board's. Professional opinions and competence may differ. Similarly if financial impropriety is suspected this communities ability to have it's own independent auditors inspect the corporate books is essential. As would be in such situations unfettered access to the records and documents presented at Board meetings. Inspection is an exceptional right granted the community to ensure the base integrity of the corporation. It should not be confused with transparency reforms that pertain more to operational concerns and integrity and are made available to third parties on a request basis. To confuse the two or to offer one as a substitute for another is an attempt to create FUD of the highest order. I certainly hope the Board reconsiders it's position on Inspection. Equally I hope the community does not. Without the few plugs ported from membership the new reference model is certainly not acceptable to me nor, I presume, to many others inside and outside this community. It's time to move forward, not time to constantly re-litigate the settled issues of the past. Regards, Ed Morris ---------------------------------------- From: "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> Sent: Tuesday, November 24, 2015 9:53 AM To: "Accountability Cross Community" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Hello Milton,
it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights.
Understood. The Board agrees that additional transparency and reporting is necessary. What the Board is noting is that the details of what this means needs to be developed for practical use. ICANN already makes many more documents public than is typical for non-profits. This includes minutes of Board meetings and committee meetings, quarterly financial reporting, detailed annual operating plans, reporting on projects etc. Where additional information is required by the community - our standard response should be to make it public - rather than rely on having to come into an office an inspect some records. It is only where a document can't be made public (such as staff salaries) - then it is necessary to have some sort of process for an independent party to inspect and confirm that it is consistent with published policies (e.g the compensation policy). Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Well said, Ed. _____________________________ From: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Sent: Tuesday, November 24, 2015 8:33 AM Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update To: Bruce Tonkin <bruce.tonkin@melbourneit.com.au<mailto:bruce.tonkin@melbourneit.com.au>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Bruce, I find it sad, although expected, that the Board continues to show intransigence and in some areas an unwillingness to compromise by continuing to revisit issues many of us in the community have already settled on. As Milton accurately pointed out, in response to the community backing away from our second reference model in response to the Board's rather brutal attack on it several patches were taken from the membership model and applied to the designator approach so we as a collective could move forward. It was a compromise, a grand bargain if you will, that kept hope for this transition alive. Now the Board has come back to express "concern" over those areas of the compromise they never agreed with in the first place. Let me be clear if that if there is further retrenchment from our second reference model, an elimination of the patches which allowed people like myself to give support, however tepid, to the process going forward, an eroding of the comprise that was developed, this transition should and will die an unfortunate death. I would suggest that this Board needs to look forward rather than backwards, stop fighting battles of the past and instead work with the community to reach solutions on new issues heretofore not resolved or subject to a compromise agreement. It comes as no surprise that the Board, and ICANN corporate generally, has "concern" over the Inspection right. Those conversant in ICANN history will recall that ICANN corporate n the early days of this charitable corporation attempted to deny Board members themselves this right. Litigation ensued. Now those with the right, the Board, wishes to deny it to others who will post transition be jointly assuming some of the authority today possessed by the Board alone. I guess that s a sad commentary on human nature as much as anything else. The Inspection right is nor principally an instrument of transparency, although it certainly does contribute to same, rather it is an instrument of fraud prevention. It is the principle means by which this community post transition will have to investigate and ensure itself and the global community of internet users that this corporation's finances and governing Board is acting ethically and with due propriety. It is a guarantee that ICANN will not morph into the mode another private organisation with public responsibilities has recently assumed, it is a guarantee that ICANN will not become another FIFA. There have been reform elements within FIFA for many years warning of the scandalous conduct of leaders of that organisation. Sadly these reformers could not prove what they knew to be true because the organisation itself was shrouded in secrecy at the highest levels. Accounting records were held to be propriety, executive meetings were closed. There were no inspection rights to members of thos organisation under Swiss law. Without access to the records it was impossible to bring malfeasors to account short of government intervention. If we do not grant the community Inspection, the only recourse to guard against corruption at the Board level, to hold the Board accountable to maintaining ethical and proper conduct, would be the intervention of the Attorney General of the State of California pursuant to his of her §5250 examination rights under the California Corporations Code. I thought one of the purposes of the transition was to wean ICANN away from the oversight of territorially baed governments. By taking away the communities principle tool, a tool to be used only after the same threshold other community rights must reach has been met, to investigate suspected malfeasance the Board's preference would have the opposite result. Larry Strickling had an interesting take on this issue during a session on jurisdiction at the Internet Governance Forum. Starting at approximately the 1:15 mark here: http://youtu.be/gHtj4KdmYlc Secretary Strickling extols the virtue of the American and California legal systems. He mentions the deference courts in these jurisdictions give to shareholders and members in corporate disputes. He specifically contrasts this with the Swiss system, noting that the FIFA scandal happened in Switzerland are not in the United States of America. Yet by attempting to pare back those antifraud aspects of the membership model that we have ported to the new model the Board seems intent on making ICANN's governing structure more like Switzerland's than like California's. What Secretary Strickling saw as advantages of American jurisprudence the Board seems to view as a disadvantage. I applaud the stated commitment of the Board to increased transparency. Reform of the DIDP and other transparency mechanisms are overdue and should be a principle element of work stream 2 reforms. Yet they are not a substitute for the Inspection right contained, amongst other places, in §6333 of the California Corporations Code. Publishing items on a website is no substitute for access to raw data in times of dispute, crisis or when fraud or malfeasance is suspected. With regards to financial data I draw an analogy to our current position regarding legal counsel: the community has been greatly empowered by it's ability to retain it's own counsel. If we had to rely upon Jones Day I suspect our position would not at all be independent from that of the Board's. Professional opinions and competence may differ. Similarly if financial impropriety is suspected this communities ability to have it's own independent auditors inspect the corporate books is essential. As would be in such situations unfettered access to the records and documents presented at Board meetings. Inspection is an exceptional right granted the community to ensure the base integrity of the corporation. It should not be confused with transparency reforms that pertain more to operational concerns and integrity and are made available to third parties on a request basis. To confuse the two or to offer one as a substitute for another is an attempt to create FUD of the highest order. I certainly hope the Board reconsiders it's position on Inspection. Equally I hope the community does not. Without the few plugs ported from membership the new reference model is certainly not acceptable to me nor, I presume, to many others inside and outside this community. It's time to move forward, not time to constantly re-litigate the settled issues of the past. Regards, Ed Morris ________________________________ From: "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Sent: Tuesday, November 24, 2015 9:53 AM To: "Accountability Cross Community" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Hello Milton,
it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights.
Understood. The Board agrees that additional transparency and reporting is necessary. What the Board is noting is that the details of what this means needs to be developed for practical use. ICANN already makes many more documents public than is typical for non-profits. This includes minutes of Board meetings and committee meetings, quarterly financial reporting, detailed annual operating plans, reporting on projects etc. Where additional information is required by the community - our standard response should be to make it public - rather than rely on having to come into an office an inspect some records. It is only where a document can't be made public (such as staff salaries) - then it is necessary to have some sort of process for an independent party to inspect and confirm that it is consistent with published policies (e.g the compensation policy). Regards, Bruce Tonkin _______________________________________________ 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
I would also add that it is rather late in the game for the Board to seek to revisit not only the right of inspection but also human rights, designator powers, dismissal without cause.... All in addition to reigniting the mission debate late last week. Even for those areas where I agree with the Board (e.g. on human rights) the Boards continued disruption of the process is unfortunate . Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Steve DelBianco [mailto:sdelbianco@netchoice.org] Sent: Tuesday, November 24, 2015 8:57 AM To: Bruce Tonkin <bruce.tonkin@melbourneit.com.au>; egmorris1@toast.net; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Well said, Ed. _____________________________ From: Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net> > Sent: Tuesday, November 24, 2015 8:33 AM Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update To: Bruce Tonkin <bruce.tonkin@melbourneit.com.au <mailto:bruce.tonkin@melbourneit.com.au> >, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Bruce, I find it sad, although expected, that the Board continues to show intransigence and in some areas an unwillingness to compromise by continuing to revisit issues many of us in the community have already settled on. As Milton accurately pointed out, in response to the community backing away from our second reference model in response to the Board's rather brutal attack on it several patches were taken from the membership model and applied to the designator approach so we as a collective could move forward. It was a compromise, a grand bargain if you will, that kept hope for this transition alive. Now the Board has come back to express "concern" over those areas of the compromise they never agreed with in the first place. Let me be clear if that if there is further retrenchment from our second reference model, an elimination of the patches which allowed people like myself to give support, however tepid, to the process going forward, an eroding of the comprise that was developed, this transition should and will die an unfortunate death. I would suggest that this Board needs to look forward rather than backwards, stop fighting battles of the past and instead work with the community to reach solutions on new issues heretofore not resolved or subject to a compromise agreement. It comes as no surprise that the Board, and ICANN corporate generally, has "concern" over the Inspection right. Those conversant in ICANN history will recall that ICANN corporate n the early days of this charitable corporation attempted to deny Board members themselves this right. Litigation ensued. Now those with the right, the Board, wishes to deny it to others who will post transition be jointly assuming some of the authority today possessed by the Board alone. I guess that s a sad commentary on human nature as much as anything else. The Inspection right is nor principally an instrument of transparency, although it certainly does contribute to same, rather it is an instrument of fraud prevention. It is the principle means by which this community post transition will have to investigate and ensure itself and the global community of internet users that this corporation's finances and governing Board is acting ethically and with due propriety. It is a guarantee that ICANN will not morph into the mode another private organisation with public responsibilities has recently assumed, it is a guarantee that ICANN will not become another FIFA. There have been reform elements within FIFA for many years warning of the scandalous conduct of leaders of that organisation. Sadly these reformers could not prove what they knew to be true because the organisation itself was shrouded in secrecy at the highest levels. Accounting records were held to be propriety, executive meetings were closed. There were no inspection rights to members of thos organisation under Swiss law. Without access to the records it was impossible to bring malfeasors to account short of government intervention. If we do not grant the community Inspection, the only recourse to guard against corruption at the Board level, to hold the Board accountable to maintaining ethical and proper conduct, would be the intervention of the Attorney General of the State of California pursuant to his of her §5250 examination rights under the California Corporations Code. I thought one of the purposes of the transition was to wean ICANN away from the oversight of territorially baed governments. By taking away the communities principle tool, a tool to be used only after the same threshold other community rights must reach has been met, to investigate suspected malfeasance the Board's preference would have the opposite result. Larry Strickling had an interesting take on this issue during a session on jurisdiction at the Internet Governance Forum. Starting at approximately the 1:15 mark here: <http://youtu.be/gHtj4KdmYlc> http://youtu.be/gHtj4KdmYlc Secretary Strickling extols the virtue of the American and California legal systems. He mentions the deference courts in these jurisdictions give to shareholders and members in corporate disputes. He specifically contrasts this with the Swiss system, noting that the FIFA scandal happened in Switzerland are not in the United States of America. Yet by attempting to pare back those antifraud aspects of the membership model that we have ported to the new model the Board seems intent on making ICANN's governing structure more like Switzerland's than like California's. What Secretary Strickling saw as advantages of American jurisprudence the Board seems to view as a disadvantage. I applaud the stated commitment of the Board to increased transparency. Reform of the DIDP and other transparency mechanisms are overdue and should be a principle element of work stream 2 reforms. Yet they are not a substitute for the Inspection right contained, amongst other places, in §6333 of the California Corporations Code. Publishing items on a website is no substitute for access to raw data in times of dispute, crisis or when fraud or malfeasance is suspected. With regards to financial data I draw an analogy to our current position regarding legal counsel: the community has been greatly empowered by it's ability to retain it's own counsel. If we had to rely upon Jones Day I suspect our position would not at all be independent from that of the Board's. Professional opinions and competence may differ. Similarly if financial impropriety is suspected this communities ability to have it's own independent auditors inspect the corporate books is essential. As would be in such situations unfettered access to the records and documents presented at Board meetings. Inspection is an exceptional right granted the community to ensure the base integrity of the corporation. It should not be confused with transparency reforms that pertain more to operational concerns and integrity and are made available to third parties on a request basis. To confuse the two or to offer one as a substitute for another is an attempt to create FUD of the highest order. I certainly hope the Board reconsiders it's position on Inspection. Equally I hope the community does not. Without the few plugs ported from membership the new reference model is certainly not acceptable to me nor, I presume, to many others inside and outside this community. It's time to move forward, not time to constantly re-litigate the settled issues of the past. Regards, Ed Morris _____ From: "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au> > Sent: Tuesday, November 24, 2015 9:53 AM To: "Accountability Cross Community" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> > Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Hello Milton,
it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights.
Understood. The Board agrees that additional transparency and reporting is necessary. What the Board is noting is that the details of what this means needs to be developed for practical use. ICANN already makes many more documents public than is typical for non-profits. This includes minutes of Board meetings and committee meetings, quarterly financial reporting, detailed annual operating plans, reporting on projects etc. Where additional information is required by the community - our standard response should be to make it public - rather than rely on having to come into an office an inspect some records. It is only where a document can't be made public (such as staff salaries) - then it is necessary to have some sort of process for an independent party to inspect and confirm that it is consistent with published policies (e.g the compensation policy). Regards, Bruce Tonkin _______________________________________________ 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
Indeed, very well said. I can't help but note that at the same time that Fadi and the Co-Chairs are driving us toward what is described as an immoveable Report to Board submission deadline of January 22nd - notwithstanding multiple observations of community leaders that a 21-day comment period on a substantially revised proposal is of questionable adequacy, and that the overall timeline is very "aggressive" to the point of risking gaps and mistakes - that the Board is again signaling quarter-to-midnight concerns and caveats on key elements of the deal worked out in Dublin that made the pivot from member to designator model tolerable. While suspending judgment until reviewing the Board's formal comments, if indeed it seeks to vitiate key elements of the final proposal it will have to bear responsibility for the probable result of such input, --which could encompass rejection by one or more Chartering organizations and/or the necessity of further negotiations and the resulting delay in the delivery of a final Proposal that could require an additional extension of the IANA contract. Best to all Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Tuesday, November 24, 2015 8:57 AM To: Bruce Tonkin; egmorris1@toast.net; Accountability Cross Community Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Well said, Ed. _____________________________ From: Edward Morris <egmorris1@toast.net<mailto:egmorris1@toast.net>> Sent: Tuesday, November 24, 2015 8:33 AM Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update To: Bruce Tonkin <bruce.tonkin@melbourneit.com.au<mailto:bruce.tonkin@melbourneit.com.au>>, Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Bruce, I find it sad, although expected, that the Board continues to show intransigence and in some areas an unwillingness to compromise by continuing to revisit issues many of us in the community have already settled on. As Milton accurately pointed out, in response to the community backing away from our second reference model in response to the Board's rather brutal attack on it several patches were taken from the membership model and applied to the designator approach so we as a collective could move forward. It was a compromise, a grand bargain if you will, that kept hope for this transition alive. Now the Board has come back to express "concern" over those areas of the compromise they never agreed with in the first place. Let me be clear if that if there is further retrenchment from our second reference model, an elimination of the patches which allowed people like myself to give support, however tepid, to the process going forward, an eroding of the comprise that was developed, this transition should and will die an unfortunate death. I would suggest that this Board needs to look forward rather than backwards, stop fighting battles of the past and instead work with the community to reach solutions on new issues heretofore not resolved or subject to a compromise agreement. It comes as no surprise that the Board, and ICANN corporate generally, has "concern" over the Inspection right. Those conversant in ICANN history will recall that ICANN corporate n the early days of this charitable corporation attempted to deny Board members themselves this right. Litigation ensued. Now those with the right, the Board, wishes to deny it to others who will post transition be jointly assuming some of the authority today possessed by the Board alone. I guess that s a sad commentary on human nature as much as anything else. The Inspection right is nor principally an instrument of transparency, although it certainly does contribute to same, rather it is an instrument of fraud prevention. It is the principle means by which this community post transition will have to investigate and ensure itself and the global community of internet users that this corporation's finances and governing Board is acting ethically and with due propriety. It is a guarantee that ICANN will not morph into the mode another private organisation with public responsibilities has recently assumed, it is a guarantee that ICANN will not become another FIFA. There have been reform elements within FIFA for many years warning of the scandalous conduct of leaders of that organisation. Sadly these reformers could not prove what they knew to be true because the organisation itself was shrouded in secrecy at the highest levels. Accounting records were held to be propriety, executive meetings were closed. There were no inspection rights to members of thos organisation under Swiss law. Without access to the records it was impossible to bring malfeasors to account short of government intervention. If we do not grant the community Inspection, the only recourse to guard against corruption at the Board level, to hold the Board accountable to maintaining ethical and proper conduct, would be the intervention of the Attorney General of the State of California pursuant to his of her §5250 examination rights under the California Corporations Code. I thought one of the purposes of the transition was to wean ICANN away from the oversight of territorially baed governments. By taking away the communities principle tool, a tool to be used only after the same threshold other community rights must reach has been met, to investigate suspected malfeasance the Board's preference would have the opposite result. Larry Strickling had an interesting take on this issue during a session on jurisdiction at the Internet Governance Forum. Starting at approximately the 1:15 mark here: http://youtu.be/gHtj4KdmYlc Secretary Strickling extols the virtue of the American and California legal systems. He mentions the deference courts in these jurisdictions give to shareholders and members in corporate disputes. He specifically contrasts this with the Swiss system, noting that the FIFA scandal happened in Switzerland are not in the United States of America. Yet by attempting to pare back those antifraud aspects of the membership model that we have ported to the new model the Board seems intent on making ICANN's governing structure more like Switzerland's than like California's. What Secretary Strickling saw as advantages of American jurisprudence the Board seems to view as a disadvantage. I applaud the stated commitment of the Board to increased transparency. Reform of the DIDP and other transparency mechanisms are overdue and should be a principle element of work stream 2 reforms. Yet they are not a substitute for the Inspection right contained, amongst other places, in §6333 of the California Corporations Code. Publishing items on a website is no substitute for access to raw data in times of dispute, crisis or when fraud or malfeasance is suspected. With regards to financial data I draw an analogy to our current position regarding legal counsel: the community has been greatly empowered by it's ability to retain it's own counsel. If we had to rely upon Jones Day I suspect our position would not at all be independent from that of the Board's. Professional opinions and competence may differ. Similarly if financial impropriety is suspected this communities ability to have it's own independent auditors inspect the corporate books is essential. As would be in such situations unfettered access to the records and documents presented at Board meetings. Inspection is an exceptional right granted the community to ensure the base integrity of the corporation. It should not be confused with transparency reforms that pertain more to operational concerns and integrity and are made available to third parties on a request basis. To confuse the two or to offer one as a substitute for another is an attempt to create FUD of the highest order. I certainly hope the Board reconsiders it's position on Inspection. Equally I hope the community does not. Without the few plugs ported from membership the new reference model is certainly not acceptable to me nor, I presume, to many others inside and outside this community. It's time to move forward, not time to constantly re-litigate the settled issues of the past. Regards, Ed Morris ________________________________ From: "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Sent: Tuesday, November 24, 2015 9:53 AM To: "Accountability Cross Community" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Hello Milton,
it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights.
Understood. The Board agrees that additional transparency and reporting is necessary. What the Board is noting is that the details of what this means needs to be developed for practical use. ICANN already makes many more documents public than is typical for non-profits. This includes minutes of Board meetings and committee meetings, quarterly financial reporting, detailed annual operating plans, reporting on projects etc. Where additional information is required by the community - our standard response should be to make it public - rather than rely on having to come into an office an inspect some records. It is only where a document can't be made public (such as staff salaries) - then it is necessary to have some sort of process for an independent party to inspect and confirm that it is consistent with published policies (e.g the compensation policy). Regards, Bruce Tonkin _______________________________________________ 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
*Very* well put. Just becuase certain chartering organisations aren't debating this as loudly internally as others doesn't mean that it won't be given the appropriate level of scrutiny . . . I know what the Board is doing. "Ask for more". But vitiating the community empowered model of removing board members for any reason or none is likely to not help gain acceptance.
While suspending judgment until reviewing the Board’s formal comments, if indeed it seeks to vitiate key elements of the final proposal it will have to bear responsibility for the probable result of such input, --which could encompass rejection by one or more Chartering organizations and/or the necessity of further negotiations and the resulting delay in the delivery of a final Proposal that could require an additional extension of the IANA contract.
Best to all
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/cell***
**
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Steve DelBianco *Sent:* Tuesday, November 24, 2015 8:57 AM *To:* Bruce Tonkin; egmorris1@toast.net; Accountability Cross Community *Subject:* Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update
Well said, Ed.
_____________________________ From: Edward Morris <egmorris1@toast.net <mailto:egmorris1@toast.net>> Sent: Tuesday, November 24, 2015 8:33 AM Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update To: Bruce Tonkin <bruce.tonkin@melbourneit.com.au <mailto:bruce.tonkin@melbourneit.com.au>>, Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>>
Bruce,
I find it sad, although expected, that the Board continues to show intransigence and in some areas an unwillingness to compromise by continuing to revisit issues many of us in the community have already settled on. As Milton accurately pointed out, in response to the community backing away from our second reference model in response to the Board's rather brutal attack on it several patches were taken from the membership model and applied to the designator approach so we as a collective could move forward. It was a compromise, a grand bargain if you will, that kept hope for this transition alive. Now the Board has come back to express "concern" over those areas of the compromise they never agreed with in the first place. Let me be clear if that if there is further retrenchment from our second reference model, an elimination of the patches which allowed people like myself to give support, however tepid, to the process going forward, an eroding of the comprise that was developed, this transition should and will die an unfortunate death. I would suggest that this Board needs to look forward rather than backwards, stop fighting battles of the past and instead work with the community to reach solutions on new issues heretofore not resolved or subject to a compromise agreement.
It comes as no surprise that the Board, and ICANN corporate generally, has "concern" over the Inspection right. Those conversant in ICANN history will recall that ICANN corporate n the early days of this charitable corporation attempted to deny Board members themselves this right. Litigation ensued. Now those with the right, the Board, wishes to deny it to others who will post transition be jointly assuming some of the authority today possessed by the Board alone. I guess that s a sad commentary on human nature as much as anything else.
The Inspection right is nor principally an instrument of transparency, although it certainly does contribute to same, rather it is an instrument of fraud prevention. It is the principle means by which this community post transition will have to investigate and ensure itself and the global community of internet users that this corporation's finances and governing Board is acting ethically and with due propriety. It is a guarantee that ICANN will not morph into the mode another private organisation with public responsibilities has recently assumed, it is a guarantee that ICANN will not become another FIFA.
There have been reform elements within FIFA for many years warning of the scandalous conduct of leaders of that organisation. Sadly these reformers could not prove what they knew to be true because the organisation itself was shrouded in secrecy at the highest levels. Accounting records were held to be propriety, executive meetings were closed. There were no inspection rights to members of thos organisation under Swiss law. Without access to the records it was impossible to bring malfeasors to account short of government intervention. If we do not grant the community Inspection, the only recourse to guard against corruption at the Board level, to hold the Board accountable to maintaining ethical and proper conduct, would be the intervention of the Attorney General of the State of California pursuant to his of her §5250 examination rights under the California Corporations Code. I thought one of the purposes of the transition was to wean ICANN away from the oversight of territorially baed governments. By taking away the communities principle tool, a tool to be used only after the same threshold other community rights must reach has been met, to investigate suspected malfeasance the Board's preference would have the opposite result.
Larry Strickling had an interesting take on this issue during a session on jurisdiction at the Internet Governance Forum. Starting at approximately the 1:15 mark here: http://youtu.be/gHtj4KdmYlc Secretary Strickling extols the virtue of the American and California legal systems. He mentions the deference courts in these jurisdictions give to shareholders and members in corporate disputes. He specifically contrasts this with the Swiss system, noting that the FIFA scandal happened in Switzerland are not in the United States of America. Yet by attempting to pare back those antifraud aspects of the membership model that we have ported to the new model the Board seems intent on making ICANN's governing structure more like Switzerland's than like California's. What Secretary Strickling saw as advantages of American jurisprudence the Board seems to view as a disadvantage.
I applaud the stated commitment of the Board to increased transparency. Reform of the DIDP and other transparency mechanisms are overdue and should be a principle element of work stream 2 reforms. Yet they are not a substitute for the Inspection right contained, amongst other places, in §6333 of the California Corporations Code. Publishing items on a website is no substitute for access to raw data in times of dispute, crisis or when fraud or malfeasance is suspected. With regards to financial data I draw an analogy to our current position regarding legal counsel: the community has been greatly empowered by it's ability to retain it's own counsel. If we had to rely upon Jones Day I suspect our position would not at all be independent from that of the Board's. Professional opinions and competence may differ. Similarly if financial impropriety is suspected this communities ability to have it's own independent auditors inspect the corporate books is essential. As would be in such situations unfettered access to the records and documents presented at Board meetings. Inspection is an exceptional right granted the community to ensure the base integrity of the corporation. It should not be confused with transparency reforms that pertain more to operational concerns and integrity and are made available to third parties on a request basis. To confuse the two or to offer one as a substitute for another is an attempt to create FUD of the highest order.
I certainly hope the Board reconsiders it's position on Inspection. Equally I hope the community does not. Without the few plugs ported from membership the new reference model is certainly not acceptable to me nor, I presume, to many others inside and outside this community. It's time to move forward, not time to constantly re-litigate the settled issues of the past.
Regards,
Ed Morris
------------------------------------------------------------------------
*From*: "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> *Sent*: Tuesday, November 24, 2015 9:53 AM *To*: "Accountability Cross Community" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> *Subject*: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update
Hello Milton,
it would be impossible to have the information needed to utilize that enforcement power without enhanced transparency and inspection rights.
Understood. The Board agrees that additional transparency and reporting is necessary. What the Board is noting is that the details of what this means needs to be developed for practical use.
ICANN already makes many more documents public than is typical for non-profits. This includes minutes of Board meetings and committee meetings, quarterly financial reporting, detailed annual operating plans, reporting on projects etc.
Where additional information is required by the community - our standard response should be to make it public - rather than rely on having to come into an office an inspect some records.
It is only where a document can't be made public (such as staff salaries) - then it is necessary to have some sort of process for an independent party to inspect and confirm that it is consistent with published policies (e.g the compensation policy).
Regards, Bruce Tonkin
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Hello Nigel,
But vitiating the community empowered model of removing board members for any reason or none is likely to not help gain acceptance.
Just to be clear - the Board has no objection to the community power regarding removing Board members. We have suggested though that the rationales be clear, and suggested that they could reference the roles and responsibilities of a Board member. That is not intended to limit the reasons for removal, but at least to establish some shared expectations. I don't see any inconsistency between the Board's position and the CCWG in that regard. Regards, Bruce Tonkin
I don't think we are far apart, but I do see a thin red line. To be clear, I would NOT expect a community initiated Board removal (whether an individual or the whole Board) to go forward unless those proposing it made a case for it. But that's not what I'm hearing. I'm hearing that the Board want to limit the remove of Board members to "for cause". Which is a WHOLE different ball of wax. On 24/11/15 21:38, Bruce Tonkin wrote:
Hello Nigel,
But vitiating the community empowered model of removing board members for any reason or none is likely to not help gain acceptance.
Just to be clear - the Board has no objection to the community power regarding removing Board members.
We have suggested though that the rationales be clear, and suggested that they could reference the roles and responsibilities of a Board member. That is not intended to limit the reasons for removal, but at least to establish some shared expectations. I don't see any inconsistency between the Board's position and the CCWG in that regard.
Regards, Bruce Tonkin
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Nigel, all, I think we can comprehensively rule that out - the CCWG isn't going to agree for it and I am sure Bruce will make sure the Board's final comments don't suggest that that is what it is seeking. Jordan On 25 November 2015 at 10:50, Nigel Roberts <nigel@channelisles.net> wrote:
I don't think we are far apart, but I do see a thin red line.
To be clear, I would NOT expect a community initiated Board removal (whether an individual or the whole Board) to go forward unless those proposing it made a case for it.
But that's not what I'm hearing.
I'm hearing that the Board want to limit the remove of Board members to "for cause".
Which is a WHOLE different ball of wax.
On 24/11/15 21:38, Bruce Tonkin wrote:
Hello Nigel,
But vitiating the community empowered model of removing board members
for any reason or none is likely to not help gain acceptance.
Just to be clear - the Board has no objection to the community power regarding removing Board members.
We have suggested though that the rationales be clear, and suggested that they could reference the roles and responsibilities of a Board member. That is not intended to limit the reasons for removal, but at least to establish some shared expectations. I don't see any inconsistency between the Board's position and the CCWG in that regard.
Regards, Bruce Tonkin
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Hello Nigel,
To be clear, I would NOT expect a community initiated Board removal (whether an individual or the whole Board) to go forward unless those proposing it made a case for it.
Good - we have agreement there. In addition we would like to have some clearly agreed expectations of behaviour of Board members as that helps in the recruitment process and also the personal development of Board members once they join the Board. For example if Board members are expected to spend x number of days with parts of the community outside of Board meetings - lets know that in advance.
I'm hearing that the Board want to limit the remove of Board members to "for cause".
We accept that the community wants the ability to be able to remove a director based on its decision making process, rather than for a predefined set of reasons. Ie a vote to remove is sufficient. That is actually a legal right of a designator as I understand it. Regards, Bruce Tonkin
Bruce
-----Original Message-----
In addition we would like to have some clearly agreed expectations of behaviour of Board members as that helps in the recruitment process and also the personal development of Board members once they join the Board. For example if Board members are expected to spend x number of days with parts of the community outside of Board meetings - lets know that in advance.
It's fine to have some agreed expectations of board members, but that has very little to do with the enhanced accountability reforms we are working on. Accountability means the board is required to be responsive to the community, and if they are not, they can be removed. That removal might be because they voted for a policy that a broad swath of the community doesn't support and thinks would be bad; because they have allowed the CEO and staff to run amok; because they are misusing ICANN funds, or whatever. Here, then, is the expectation relevant to the accountability process that you can convey to board members you are recruiting: you are subject to removal by designators through a process that involves x, y and z.... keep your community happy, or you might be on the receiving end of a recall. --MM
Hello Milton,
you are subject to removal by designators through a process that involves x, y and z.... keep your community happy, or you might be on the receiving end of a recall.
That reminds me of two things. The old school of keep your boss happy, and other than that you can do what you want. That leads to situations like the recent emissions scandal at a car company. Keep the immediate community that elects you happy - with bread and circuses (an old roman approach). That leads to situations like some sporting organizations where as long as you keep the relevant officials that appoint/elect you happy with copious entertainment - you can do what you want. At the board level we have been working on training and other initiatives to raise the standard for Board directors to act on behalf of the public as a whole (not just those that can attend an ICANN meeting and are directly involved in voting for or appointing directors) and also train Board directors in best practice of corporate governance. So while I accept your proposal that we must "keep the community happy", I believe that is necessary but not sufficient. We must also continue to raise the standard of Board directors. I believe that was part of the recommendations from ATRT1 and ATRT2. Regards, Bruce Tonkin
I don't see any big disagreement here. We had vigorous discussions on the common tension between bringing the unique perspective of a community to the board, while keeping it from becoming very parochial. So, we probably don't need to cover any new ground here. I'm reasonably optimistic, if we receive specific suggestions in the comment period, we'll be able to reconcile. -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Tuesday, November 24, 2015 6:26 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Hello Milton,
you are subject to removal by designators through a process that involves x, y and z.... keep your community happy, or you might be on the receiving end of a recall.
That reminds me of two things. The old school of keep your boss happy, and other than that you can do what you want. That leads to situations like the recent emissions scandal at a car company. Keep the immediate community that elects you happy - with bread and circuses (an old roman approach). That leads to situations like some sporting organizations where as long as you keep the relevant officials that appoint/elect you happy with copious entertainment - you can do what you want. At the board level we have been working on training and other initiatives to raise the standard for Board directors to act on behalf of the public as a whole (not just those that can attend an ICANN meeting and are directly involved in voting for or appointing directors) and also train Board directors in best practice of corporate governance. So while I accept your proposal that we must "keep the community happy", I believe that is necessary but not sufficient. We must also continue to raise the standard of Board directors. I believe that was part of the recommendations from ATRT1 and ATRT2. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Bruce I completely appreciate what you are trying to say here. And I completely disagree. The Board is running a corporation, to be sure -- but one that has at its core a responsibility for the management of a resource that is at the heart of economic growth, political freedom, etc. today. I respect the Board and want them to be engaged. But no group of individuals, however wise or thoughtful they may be, should have an independent power to define how this resource should be used. In the end, Milton is right (did I just say that???) the "community" is a much better proxy for the "public as a whole" than is the Board ... and the Board has to understand that. In fact, if I were to characterize this entire accountability process it would be that we are institutionalizing that insight .... Regards 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: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au] Sent: Tuesday, November 24, 2015 6:26 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Hello Milton,
you are subject to removal by designators through a process that involves x, y and z.... keep your community happy, or you might be on the receiving end of a recall.
That reminds me of two things. The old school of keep your boss happy, and other than that you can do what you want. That leads to situations like the recent emissions scandal at a car company. Keep the immediate community that elects you happy - with bread and circuses (an old roman approach). That leads to situations like some sporting organizations where as long as you keep the relevant officials that appoint/elect you happy with copious entertainment - you can do what you want. At the board level we have been working on training and other initiatives to raise the standard for Board directors to act on behalf of the public as a whole (not just those that can attend an ICANN meeting and are directly involved in voting for or appointing directors) and also train Board directors in best practice of corporate governance. So while I accept your proposal that we must "keep the community happy", I believe that is necessary but not sufficient. We must also continue to raise the standard of Board directors. I believe that was part of the recommendations from ATRT1 and ATRT2. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hello Paul, We may be closer to agreement than may be apparent.
But no group of individuals, however wise or thoughtful they may be, should have an independent power to define how this resource should be used.
Yes - actually I think I am in strong agreement with you there. I didn't express myself well.
In the end, Milton is right (did I just say that???) the "community" is a much better proxy for the "public as a whole" than is the Board ... and the Board has to understand that.
Agreed. Actually I see the Board's role with respect to reviewing policy development work is primarily to confirm that the full community process has been followed and all affected members have been consulted. I agree with you that it is not the board's role to insert its own view or solutions. So far as I know the Board has never rejected a policy recommendation from an SO nor changed it. The grey area has been in accepting some advice from ACs and then trying to incorporate some of that advice in agreements. The grey area sometimes is described as a debate between what is policy (clearly the responsibility of an SO) and what is implementation (normally the role of staff). In any case the Board hasn't inserted its own view, but tried to follow the advice from at least part of the community. This is an area where we can certainly further improve. What I was trying to communicate was that a Board member should be working in the best interest of the "community" (as you define it) as a whole, rather than a board member acting just on behalf of one segment of the community that may have elected appointed that Board director. Regards, Bruce Tonkin
Hello Paul, Hello all, for the record, I don't agree that the community is a much better proxy for the "public as a whole" than a Board that's selected entirely by the community or community representatives. This is akin to say that a self appointed community group is better suited to running a country than a democratically elected government. I've said it in the past and say it again: if you don't like the Board director that your community has selected, vote for someone else next time. But I'd like to also call on everyone here to stop the threats, the accusations, the hate - yes, there is actual hate in some of the comments - the complete FUD and full verbal assault of ICANN's structures and Board in the name of making ICANN more accountable. The more I read the allegations on the CCWG mailing list, the more I have doubts that this community is actually able to behave in a rational and measured fashion. So here's my question to everyone here: did you ever ask yourself why you have so little trust in people your community has voted for? This has been asked before and I have never heard a response that made sense. Kindest regards, Olivier On 25/11/2015 02:16, Paul Rosenzweig wrote:
Dear Bruce
I completely appreciate what you are trying to say here. And I completely disagree. The Board is running a corporation, to be sure -- but one that has at its core a responsibility for the management of a resource that is at the heart of economic growth, political freedom, etc. today. I respect the Board and want them to be engaged. But no group of individuals, however wise or thoughtful they may be, should have an independent power to define how this resource should be used. In the end, Milton is right (did I just say that???) the "community" is a much better proxy for the "public as a whole" than is the Board ... and the Board has to understand that. In fact, if I were to characterize this entire accountability process it would be that we are institutionalizing that insight ....
Regards 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: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au] Sent: Tuesday, November 24, 2015 6:26 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update
Hello Milton,
you are subject to removal by designators through a process that involves x, y and z.... keep your community happy, or you might be on the receiving end of a recall.
That reminds me of two things.
The old school of keep your boss happy, and other than that you can do what you want. That leads to situations like the recent emissions scandal at a car company.
Keep the immediate community that elects you happy - with bread and circuses (an old roman approach). That leads to situations like some sporting organizations where as long as you keep the relevant officials that appoint/elect you happy with copious entertainment - you can do what you want.
At the board level we have been working on training and other initiatives to raise the standard for Board directors to act on behalf of the public as a whole (not just those that can attend an ICANN meeting and are directly involved in voting for or appointing directors) and also train Board directors in best practice of corporate governance.
So while I accept your proposal that we must "keep the community happy", I believe that is necessary but not sufficient. We must also continue to raise the standard of Board directors. I believe that was part of the recommendations from ATRT1 and ATRT2.
Regards, Bruce Tonkin
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On 25/11/15 13:44, Olivier MJ Crepin-Leblond wrote:
So here's my question to everyone here: did you ever ask yourself why you have so little trust in people your community has voted for? This has been asked before and I have never heard a response that made sense.
A constitutional convention (for that is what this is) has to consider not whether we trust 'this current lot' (by and large we do so trust, except in the area of trying to influence the outcome of this process in their collective favour). Rather we must consider whether we trust every possible board that could appear in the future. Enough of us on this list have seen, in years gone by, ICANN stoop to what quite literally was, in some people's view, extortion. On balance, I trust the current lot not to do that. (I certainly trust the directors from my SO own in that regard). But we don't trust an ICANN, free of US Government restraint, in principle, to refrain from similar or worse behaviour in the future. That's the whole reason that ICANN *must* be accountable to those whom it serves, not the other way around One should never ask the question "don't you trust us?". 1. It's usually asked by mountebanks. (I do not suggest you are one such). 2. If you insist on asking that silly question, the literal answer invariably has to be 'No, we don't'".
Olivier, Take heart Olivier. While there are some extreme views which are expressed in frustration, they aren’t coming for the folks who are actually doing the the work. I think it is safe to say that the board/organization hasn’t handled this whole process very well from the start so there is some unnecessary friction but this exercise is really NOT about the current board. Instead, it is about an organization with very limited accountability, about to be “set free” by the USG. While there are a number of efforts with “accountability” in their name, the only actual mechanism is, as you say, to elect a different board which takes a few years and is itself subject to change by a future board. So the solitary accountability mechanism which exists is not very practical to use. Add to that the notion that the board, once appointed, is legally responsible for the organization, not the community, and there exists the potential for some conflict in the future and it’s worth discussion how those conflicts should be resolved. I agree with Bruce that the board should strive to consider the interests of the whole internet community but it’s dangerous to assume that they will always do so. Instead, building a framework of checks and balances where the community as whole can object creates an environment of mutual responsibility that is healthier or the longer term. We need to stop having this discussion about trust as there are just as many examples of the board expressing mistrust for the community as the other way around (secret board resolutions, concerns over the membership model, etc.). Instead it is about conflict resolution in the future and how things should ultimately resolve and finding the right balance of power. The conclusion of the community is that in certain areas an impasse should lean toward the community. That’s not about mistrust, proxies for the community, much less hatred. It’s just about some rare scenarios that might occur in the future and how to handle them. J On 11/25/15, 8:44 AM, "accountability-cross-community-bounces@icann.org on behalf of Olivier MJ Crepin-Leblond" <accountability-cross-community-bounces@icann.org on behalf of ocl@gih.com> wrote:
Hello Paul, Hello all,
for the record, I don't agree that the community is a much better proxy for the "public as a whole" than a Board that's selected entirely by the community or community representatives. This is akin to say that a self appointed community group is better suited to running a country than a democratically elected government.
I've said it in the past and say it again: if you don't like the Board director that your community has selected, vote for someone else next time.
But I'd like to also call on everyone here to stop the threats, the accusations, the hate - yes, there is actual hate in some of the comments - the complete FUD and full verbal assault of ICANN's structures and Board in the name of making ICANN more accountable. The more I read the allegations on the CCWG mailing list, the more I have doubts that this community is actually able to behave in a rational and measured fashion.
So here's my question to everyone here: did you ever ask yourself why you have so little trust in people your community has voted for? This has been asked before and I have never heard a response that made sense.
Kindest regards,
Olivier
On 25/11/2015 02:16, Paul Rosenzweig wrote:
Dear Bruce
I completely appreciate what you are trying to say here. And I completely disagree. The Board is running a corporation, to be sure -- but one that has at its core a responsibility for the management of a resource that is at the heart of economic growth, political freedom, etc. today. I respect the Board and want them to be engaged. But no group of individuals, however wise or thoughtful they may be, should have an independent power to define how this resource should be used. In the end, Milton is right (did I just say that???) the "community" is a much better proxy for the "public as a whole" than is the Board ... and the Board has to understand that. In fact, if I were to characterize this entire accountability process it would be that we are institutionalizing that insight ....
Regards 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: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au] Sent: Tuesday, November 24, 2015 6:26 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update
Hello Milton,
you are subject to removal by designators through a process that involves x, y and z.... keep your community happy, or you might be on the receiving end of a recall.
That reminds me of two things.
The old school of keep your boss happy, and other than that you can do what you want. That leads to situations like the recent emissions scandal at a car company.
Keep the immediate community that elects you happy - with bread and circuses (an old roman approach). That leads to situations like some sporting organizations where as long as you keep the relevant officials that appoint/elect you happy with copious entertainment - you can do what you want.
At the board level we have been working on training and other initiatives to raise the standard for Board directors to act on behalf of the public as a whole (not just those that can attend an ICANN meeting and are directly involved in voting for or appointing directors) and also train Board directors in best practice of corporate governance.
So while I accept your proposal that we must "keep the community happy", I believe that is necessary but not sufficient. We must also continue to raise the standard of Board directors. I believe that was part of the recommendations from ATRT1 and ATRT2.
Regards, Bruce Tonkin
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Oliver I don't have trust in the Board, not because of the people on it, but because as an institution, it is a threat .... in the absence of accountability to the US government, it must be replaced with accountability to the community. And that is precisely the lesson we should learn from democratic governance. There is no country in the world where the ONLY limitation on executive overreach is to replace through election. Every institution of which I'm aware, constrains power through express limitations and restrictions in founding documents. Not because they hate anyone but because they fear unchecked power. 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: Jonathan Zuck [mailto:JZuck@actonline.org] Sent: Wednesday, November 25, 2015 10:00 AM To: Olivier MJ Crepin-Leblond <ocl@gih.com>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update Olivier, Take heart Olivier. While there are some extreme views which are expressed in frustration, they aren’t coming for the folks who are actually doing the the work. I think it is safe to say that the board/organization hasn’t handled this whole process very well from the start so there is some unnecessary friction but this exercise is really NOT about the current board. Instead, it is about an organization with very limited accountability, about to be “set free” by the USG. While there are a number of efforts with “accountability” in their name, the only actual mechanism is, as you say, to elect a different board which takes a few years and is itself subject to change by a future board. So the solitary accountability mechanism which exists is not very practical to use. Add to that the notion that the board, once appointed, is legally responsible for the organization, not the community, and there exists the potential for some conflict in the future and it’s worth discussion how those conflicts should be resolved. I agree with Bruce that the board should strive to consider the interests of the whole internet community but it’s dangerous to assume that they will always do so. Instead, building a framework of checks and balances where the community as whole can object creates an environment of mutual responsibility that is healthier or the longer term. We need to stop having this discussion about trust as there are just as many examples of the board expressing mistrust for the community as the other way around (secret board resolutions, concerns over the membership model, etc.). Instead it is about conflict resolution in the future and how things should ultimately resolve and finding the right balance of power. The conclusion of the community is that in certain areas an impasse should lean toward the community. That’s not about mistrust, proxies for the community, much less hatred. It’s just about some rare scenarios that might occur in the future and how to handle them. J On 11/25/15, 8:44 AM, "accountability-cross-community-bounces@icann.org on behalf of Olivier MJ Crepin-Leblond" <accountability-cross-community-bounces@icann.org on behalf of ocl@gih.com> wrote:
Hello Paul, Hello all,
for the record, I don't agree that the community is a much better proxy for the "public as a whole" than a Board that's selected entirely by the community or community representatives. This is akin to say that a self appointed community group is better suited to running a country than a democratically elected government.
I've said it in the past and say it again: if you don't like the Board director that your community has selected, vote for someone else next time.
But I'd like to also call on everyone here to stop the threats, the accusations, the hate - yes, there is actual hate in some of the comments - the complete FUD and full verbal assault of ICANN's structures and Board in the name of making ICANN more accountable. The more I read the allegations on the CCWG mailing list, the more I have doubts that this community is actually able to behave in a rational and measured fashion.
So here's my question to everyone here: did you ever ask yourself why you have so little trust in people your community has voted for? This has been asked before and I have never heard a response that made sense.
Kindest regards,
Olivier
On 25/11/2015 02:16, Paul Rosenzweig wrote:
Dear Bruce
I completely appreciate what you are trying to say here. And I completely disagree. The Board is running a corporation, to be sure -- but one that has at its core a responsibility for the management of a resource that is at the heart of economic growth, political freedom, etc. today. I respect the Board and want them to be engaged. But no group of individuals, however wise or thoughtful they may be, should have an independent power to define how this resource should be used. In the end, Milton is right (did I just say that???) the "community" is a much better proxy for the "public as a whole" than is the Board ... and the Board has to understand that. In fact, if I were to characterize this entire accountability process it would be that we are institutionalizing that insight ....
Regards 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: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au] Sent: Tuesday, November 24, 2015 6:26 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Update on Board discussions on the CCWG Update
Hello Milton,
you are subject to removal by designators through a process that involves x, y and z.... keep your community happy, or you might be on the receiving end of a recall.
That reminds me of two things.
The old school of keep your boss happy, and other than that you can do what you want. That leads to situations like the recent emissions scandal at a car company.
Keep the immediate community that elects you happy - with bread and circuses (an old roman approach). That leads to situations like some sporting organizations where as long as you keep the relevant officials that appoint/elect you happy with copious entertainment - you can do what you want.
At the board level we have been working on training and other initiatives to raise the standard for Board directors to act on behalf of the public as a whole (not just those that can attend an ICANN meeting and are directly involved in voting for or appointing directors) and also train Board directors in best practice of corporate governance.
So while I accept your proposal that we must "keep the community happy", I believe that is necessary but not sufficient. We must also continue to raise the standard of Board directors. I believe that was part of the recommendations from ATRT1 and ATRT2.
Regards, Bruce Tonkin
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Dear Co-Chairs, I was in transit so I appreciate having been pre-empted by several others from responding to this nonsense. But then this is ALAC and subject to change without notice. The next thing will be accusing someone of being intelligent. el On 2015-11-25 14:44 , Olivier MJ Crepin-Leblond wrote:
Hello Paul, Hello all,
for the record, I don't agree that the community is a much better proxy for the "public as a whole" than a Board that's selected entirely by the community or community representatives. This is akin to say that a self appointed community group is better suited to running a country than a democratically elected government.
I've said it in the past and say it again: if you don't like the Board director that your community has selected, vote for someone else next time.
But I'd like to also call on everyone here to stop the threats, the accusations, the hate - yes, there is actual hate in some of the comments - the complete FUD and full verbal assault of ICANN's structures and Board in the name of making ICANN more accountable. The more I read the allegations on the CCWG mailing list, the more I have doubts that this community is actually able to behave in a rational and measured fashion.
So here's my question to everyone here: did you ever ask yourself why you have so little trust in people your community has voted for? This has been asked before and I have never heard a response that made sense.
Kindest regards,
Olivier [...]
Eberhard I suspect some of us really need to see Mr Barnard in Room 12 . . . https://www.youtube.com/watch?v=kQFKtI6gn9Y
But then this is ALAC and subject to change without notice.
Bruce, With all due respect, you have departed from your norm of rational discussion and made some really silly, off-target comments. Let's try to elevate the discussion to a higher level, it might help you with your efforts to "raise the standard of board directors."
The old school of keep your boss happy, and other than that you can do what you want. That leads to situations like the recent emissions scandal at a car company.
The "keep your boss happy" comment is obviously off target because a boss, a single person, can make a unilateral snap decision, whereas removing a board member would require a major effort involving consensus support across a wide variety of SOs and ACs. Many people, lots of time, lots of process. It's obviously wrong to equate the two and I hope you retract your distorted comment in order to salvage some semblance of rationality in this discussion. (it's revealing, however, how much resistance there is among ICANN board member to seeing the broader community as their 'boss').
Keep the immediate community that elects you happy - with bread and circuses (an old roman approach). That leads to situations like some sporting organizations where as long as you keep the relevant officials that appoint/elect you happy with copious entertainment - you can do what you want.
Regarding "bread and circuses," ICANN is not anything approximating a democracy with plebiscites. I assume you are familiar with the actual way board members are appointed by SOs and Nomcom? Or would you like me to remind you, perhaps you have forgotten how you got on the board. Board members' tenure in office is not dependent on winning or losing majority support at any moment in time. A removal process, to repeat, involves major expenses; once a board member is appointed he or she enjoys tremendous inertia and removing them has very high bars. So no one is going to remove them on a whim and require "bread and circuses" to be seduced into keeping them in office. The point of this exchange, if you recall, is whether there should be a pre-defined list of reasons for a board member's removal. I was explaining that there should not be. I was also explaining that this was a settled issue in the reform plan. --MM
+ 1 Jonathan, Paul and Milton. For goodness sake grow up, Bruce and Olivier, accountability is a complex matter and the CCWG-A is handling it with a considerable level of care, responsibility and maturity. Willie On Wednesday, November 25, 2015, Mueller, Milton L <milton@gatech.edu> wrote:
Bruce, With all due respect, you have departed from your norm of rational discussion and made some really silly, off-target comments. Let's try to elevate the discussion to a higher level, it might help you with your efforts to "raise the standard of board directors."
The old school of keep your boss happy, and other than that you can do what you want. That leads to situations like the recent emissions scandal at a car company.
The "keep your boss happy" comment is obviously off target because a boss, a single person, can make a unilateral snap decision, whereas removing a board member would require a major effort involving consensus support across a wide variety of SOs and ACs. Many people, lots of time, lots of process. It's obviously wrong to equate the two and I hope you retract your distorted comment in order to salvage some semblance of rationality in this discussion. (it's revealing, however, how much resistance there is among ICANN board member to seeing the broader community as their 'boss').
Keep the immediate community that elects you happy - with bread and circuses (an old roman approach). That leads to situations like some sporting organizations where as long as you keep the relevant officials that appoint/elect you happy with copious entertainment - you can do what you want.
Regarding "bread and circuses," ICANN is not anything approximating a democracy with plebiscites. I assume you are familiar with the actual way board members are appointed by SOs and Nomcom? Or would you like me to remind you, perhaps you have forgotten how you got on the board. Board members' tenure in office is not dependent on winning or losing majority support at any moment in time. A removal process, to repeat, involves major expenses; once a board member is appointed he or she enjoys tremendous inertia and removing them has very high bars. So no one is going to remove them on a whim and require "bread and circuses" to be seduced into keeping them in office.
The point of this exchange, if you recall, is whether there should be a pre-defined list of reasons for a board member's removal. I was explaining that there should not be. I was also explaining that this was a settled issue in the reform plan.
--MM _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <javascript:;> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Willie, I find this an offensive statement from you as an adviser to the process, and inconsistent with our previous interactions. George
On Nov 25, 2015, at 12:47 PM, william currie <willie.currie@gmail.com> wrote:
+ 1 Jonathan, Paul and Milton.
For goodness sake grow up, Bruce and Olivier, accountability is a complex matter and the CCWG-A is handling it with a considerable level of care, responsibility and maturity.
Willie
On Wednesday, November 25, 2015, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote: Bruce, With all due respect, you have departed from your norm of rational discussion and made some really silly, off-target comments. Let's try to elevate the discussion to a higher level, it might help you with your efforts to "raise the standard of board directors."
The old school of keep your boss happy, and other than that you can do what you want. That leads to situations like the recent emissions scandal at a car company.
The "keep your boss happy" comment is obviously off target because a boss, a single person, can make a unilateral snap decision, whereas removing a board member would require a major effort involving consensus support across a wide variety of SOs and ACs. Many people, lots of time, lots of process. It's obviously wrong to equate the two and I hope you retract your distorted comment in order to salvage some semblance of rationality in this discussion. (it's revealing, however, how much resistance there is among ICANN board member to seeing the broader community as their 'boss').
Keep the immediate community that elects you happy - with bread and circuses (an old roman approach). That leads to situations like some sporting organizations where as long as you keep the relevant officials that appoint/elect you happy with copious entertainment - you can do what you want.
Regarding "bread and circuses," ICANN is not anything approximating a democracy with plebiscites. I assume you are familiar with the actual way board members are appointed by SOs and Nomcom? Or would you like me to remind you, perhaps you have forgotten how you got on the board. Board members' tenure in office is not dependent on winning or losing majority support at any moment in time. A removal process, to repeat, involves major expenses; once a board member is appointed he or she enjoys tremendous inertia and removing them has very high bars. So no one is going to remove them on a whim and require "bread and circuses" to be seduced into keeping them in office.
The point of this exchange, if you recall, is whether there should be a pre-defined list of reasons for a board member's removal. I was explaining that there should not be. I was also explaining that this was a settled issue in the reform plan.
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I would observe that several of us appear to be becoming testy. This makes me feel disappointed, in that, while I did not, from the beginnning of my interactions, have high expectations of the outcome of the CCWG, I had (and still retain) high expectations of colleagues. Because of this, I need you all, please to take a step back, or alternatively, allow yourselves just a few seconds pause, and overlook exhortations to 'grow up' or 'stop being silly' or whatever, and return to the regularly scheduled programme of trying to square the circle, or whatever other ten impossible things we are supposed to achieve before breakfast. Thanks in advance! On 25/11/15 18:48, George Sadowsky wrote:
Willie,
I find this an offensive statement from you as an adviser to the process, and inconsistent with our previous interactions.
George
On Nov 25, 2015, at 12:47 PM, william currie <willie.currie@gmail.com <mailto:willie.currie@gmail.com>> wrote:
+ 1 Jonathan, Paul and Milton.
For goodness sake grow up,
Hello Milton,
The point of this exchange, if you recall, is whether there should be a pre-defined list of reasons for a board member's removal. I was explaining that there should not be. I was also explaining that this was a settled issue in the reform plan.
OK returning to rational discussion. The Board has also agreed that the sole designator has the legal power to remove Board directors without cause, and accepts the process for the community to make a decision on doing so. The point of the Board's comment was to help establish expected behaviour in advance, and then be able to take advantage of that clear expectation when establishing a rationale for the community to consider. It was not meant to be a limitation on the rationale that could be written, or the ability of the community to remove a director. Regards, Bruce Tonkin
On 25 Nov 2015, at 22:01, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
The point of the Board's comment was to help establish expected behaviour in advance, and then be able to take advantage of that clear expectation when establishing a rationale for the community to consider. It was not meant to be a limitation on the rationale that could be written, or the ability of the community to remove a director.
Thank you Bruce, that is very helpful. The Board's rationale is not always at all clear and it is too often difficult to understand reasoning other than sheer opposition even when the existence of such reasoning is asserted. This gives, in this case at least, a clear basis that might not have been obvious. Much appreciated. Malcolm.
Ok it is good, it sounds like we don't disagree. Milton L Mueller Professor, School of Public Policy Georgia Institute of Technology
On Nov 25, 2015, at 22:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Milton,
The point of this exchange, if you recall, is whether there should be a pre-defined list of reasons for a board member's removal. I was explaining that there should not be. I was also explaining that this was a settled issue in the reform plan.
OK returning to rational discussion.
The Board has also agreed that the sole designator has the legal power to remove Board directors without cause, and accepts the process for the community to make a decision on doing so.
The point of the Board's comment was to help establish expected behaviour in advance, and then be able to take advantage of that clear expectation when establishing a rationale for the community to consider. It was not meant to be a limitation on the rationale that could be written, or the ability of the community to remove a director.
Regards, Bruce Tonkin
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Hello Edward,
if financial impropriety is suspected this communities ability to have it's own independent auditors inspect the corporate books is essential.
Yes - I think we noted that we support that concept and want a suggest how that could be implemented. If the community votes to investigate an issue of suspect fraud etc - it would be appropriate that the community could appoint a professional audit firm to investigate and report back to the community. This is the so
As would be in such situations unfettered access to the records and documents presented at Board meetings. Inspection is an exceptional right granted the community to ensure the base integrity of the corporation.
Sure - although our policy is already to post such records and documents. From: https://www.icann.org/resources/board-material/briefing-materials-guidelines... " Guiding Principles for Review of Materials In reviewing the Board Briefing Materials for publication, the following assumptions are to be applied: 1. Start with the presumption that all material will be posted. 2. If redaction is required, redact the smallest amount of material necessary; do not redact an entire document if redaction of a single paragraph will suffice. 3. Provide clear justification for each redaction. 4. Do not redact information that is already publicly available when the Board Briefing Materials are posted." I can understand we may need a requirement for a independent auditor to see the redacted versions if the community passes a resolution to investigate an issue. For the Board meeting of 28 Sept - the core board papers are available here: https://www.icann.org/en/system/files/bm/briefing-materials-1-redacted-28sep... There is another 142 page briefing document available here: https://www.icann.org/en/system/files/bm/briefing-materials-4-28sep15-en.pdf Again I don't think there is as big a gap here between the Board and the CCWG thinking. I suspect some may not be aware of how to find materials of interest. The Board is looking at the implementation phase and how to ensure we understand what material should already be getting published (i.e. where there are the gaps that the community is concerned about), and have specific "inspection" processes for the exceptions when something is not made public. Regards, Bruce Tonkin
On 25 Nov 2015, at 04:21, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
" Guiding Principles for Review of Materials
In reviewing the Board Briefing Materials for publication, the following assumptions are to be applied:
2. If redaction is required, redact the smallest amount of material necessary; [...] 4. Do not redact information that is already publicly available
#4: An interesting example of the Board already having found it useful to make explicit an important case of the particular, even when it is already covered by a more general statement...
I disagree. 2. Redact the smallest amount necessary. 4. If you have redacted something that was necessary to redact, but it's otherwise publicly available, don't be sententious about it, and unredact itm already, On 25/11/15 13:29, Malcolm Hutty wrote:
On 25 Nov 2015, at 04:21, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
" Guiding Principles for Review of Materials
In reviewing the Board Briefing Materials for publication, the following assumptions are to be applied:
2. If redaction is required, redact the smallest amount of material necessary; [...] 4. Do not redact information that is already publicly available
#4: An interesting example of the Board already having found it useful to make explicit an important case of the particular, even when it is already covered by a more general statement... _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
hi Bruce, all, a few further thoughts: On 24 November 2015 at 14:21, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
As noted last week, the Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015.
The Board is preparing for the Public Comment period on the Third Draft Proposal, and intends to submit its comments on the Third Draft Proposal by mid-December.
The Board thought it may be useful to share some initial comments based on the information in the CCWG Update.
For ease of reference, the page number in the Update Document has been included for each item below.
. Human Rights (pages 25-26)
The Board is committed to upholding human rights as appropriate within its limited Mission and scope of responsibilities. We appreciate the community's interest in reflecting human rights in the ICANN Bylaws, but we remain concerned that the placement of such language into the Bylaws requires full consideration of the impact of that language across all of ICANN's activities. We note that a potential approach is for a group to develop a Framework of Interpretation as part of Work Steam 2. It is important that this topic has comprehensive community discussion, including impact on policy development and identification of how those developing policy recommendations should consider human rights within their work, as well as any implications such as on ccTLD re-delegations. Any final formulation of human rights must not extend ICANN's limited mission and scope of responsibilities.
I think the work of the HRWP has been designed to achieve what you suggest, but this isn't an area of expertise for me.
. Inspection Rights and Transparency (page 12)
The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency, including a review of the DIDP and assessment of what additional information (such as financial information) should be made publicly available, is an item for further work. In the Board's view, prior to the development of an inspection right, consideration should be given to what sort of information is expected to be requested, for what purpose and by whom. Further, to address the concerns over increased financial transparency, the Board will be proposing a methodology during the upcoming public comment period through which an independent audit can be initiated, and has instructed staff to start considering how additional financial transparency can be achieved.
Incorporating the right, and developing the approach to using it, is not in conflict with the admirable transparency vision that you have suggested. The CCWG's deliberations in Dublin were very clear - as one of the people who reluctantly moved to a Designator model on the basis it could meet the group's requirements, this was one of the components of meeting those requirements. It is not beyond ICANN's ability to make this workable, and putting the framework in the bylaws is essential to that. I'd regard it as very hard to recommend the ccNSO approve the proposal without this being incorporated.
. Removal of the Board (individual/entire) (pages 21-23)
The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter.
As long as this example is an example, as stated elsewhere, that's fine.
Additionally, the Board strongly believes the threshold for the removal of the entire board should not go below a total of four SOs and ACs in support of removal.
Noted, and noting this faces a tweak as agreed at the last call.
. Board Consideration of GAC advice (page 34)
The Board will continue to monitor the discussions. We note that any solution should include a provision that, in the event of the rejection of GAC advice, the Board is only required to enter into a formal consultation process where the GAC advice is consensus advice based on the current definition within the GAC's Operating Procedures (which relies on the UN definition of consensus). The Board values receipt of consensus advice as reflected in the current GAC Operating Procedures. Since the first ATRT, there has been a lot of effort made to clarify what "GAC Advice" means and does not mean within GAC Communiqués. Care should be taken not to introduce language into the Bylaws that reduces that clarity and returns the Board to a position of having to negotiate among various positions in its consultation processes.
Based on the discussion last night, it would have been helpful for this Board perspective to be incorporated in the ST18 working group meetings of which there were four leading up to the most recent CCWG call. This would be a step away from the compromise language incorporated in the Second Draft Proposal, though less of a step away from the compromise language discussed yesterday....
. Sole Designator Model (page 11)
The Board supports the Sole Designator model with the understanding that limited powers of appointment, removal and enforcement are maintained as the guiding principles for this model.
This may cause problems. As noted above, the transparency and inspection rights aren't negotiable. The bylaws change powers are also clearly a part of this model in the sense of legal enforceability of the Empowered Community's decision rights. It's the Budget power which isn't. Can you confirm by the above observation the Board isn't seeking changes to the community powers per se? It would be helpful if you could advise in more depth what it is that drives the Board to make this comment - that is, what are you worried about as a group "appearing" here?
. AoC Reviews and Implementation Factors (page 31)
The Board appreciates the work to incorporate the AOC reviews into the Bylaws and reiterates as a principle that operational/administrative details not be inserted into the Bylaws, in favor of defined standards for such reviews that can be changed (with community participation) through processes that do not require Bylaws changes.
If this is a "no" to the carefully considered changes to the AOC specified reviews, then it is a problem.
. Community Decision-Making Power (page 12)
The Board believes it is important that the Community Decision Making Power has appropriate thresholds that are defined in ways that reflect a community decision, and are flexible enough to allow entrance (or exit) of existing or new SOs or ACs.
I'm at a loss to understand precisely what this means..... best Jordan -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *
A couple of comments to Jordan's comments.... On Tue, Nov 24, 2015 at 5:40 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
hi Bruce, all, a few further thoughts:
On 24 November 2015 at 14:21, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello All,
As noted last week, the Board has been considering the CCWG Update on Progress Made In and After ICANN54 in Dublin published on 15 Nov 2015.
The Board is preparing for the Public Comment period on the Third Draft Proposal, and intends to submit its comments on the Third Draft Proposal by mid-December.
The Board thought it may be useful to share some initial comments based on the information in the CCWG Update.
For ease of reference, the page number in the Update Document has been included for each item below.
. Human Rights (pages 25-26)
The Board is committed to upholding human rights as appropriate within its limited Mission and scope of responsibilities. We appreciate the community's interest in reflecting human rights in the ICANN Bylaws, but we remain concerned that the placement of such language into the Bylaws requires full consideration of the impact of that language across all of ICANN's activities. We note that a potential approach is for a group to develop a Framework of Interpretation as part of Work Steam 2. It is important that this topic has comprehensive community discussion, including impact on policy development and identification of how those developing policy recommendations should consider human rights within their work, as well as any implications such as on ccTLD re-delegations. Any final formulation of human rights must not extend ICANN's limited mission and scope of responsibilities.
I think the work of the HRWP has been designed to achieve what you suggest, but this isn't an area of expertise for me.
GS: I was involved in WP-4 (the Human Rights group) and I also believe this is consistent with our work. We'll need to look at what's actually in the Third Draft Proposal though, since we can't count on things moving along the pipeline and always retaining their exact phrasings.
. Inspection Rights and Transparency (page 12)
The Board remains concerned about the insertion of inspection rights premised on the fact that they would have been available under a member structure. The Board has already agreed that the issues of transparency, including a review of the DIDP and assessment of what additional information (such as financial information) should be made publicly available, is an item for further work. In the Board's view, prior to the development of an inspection right, consideration should be given to what sort of information is expected to be requested, for what purpose and by whom. Further, to address the concerns over increased financial transparency, the Board will be proposing a methodology during the upcoming public comment period through which an independent audit can be initiated, and has instructed staff to start considering how additional financial transparency can be achieved.
Incorporating the right, and developing the approach to using it, is not in conflict with the admirable transparency vision that you have suggested. The CCWG's deliberations in Dublin were very clear - as one of the people who reluctantly moved to a Designator model on the basis it could meet the group's requirements, this was one of the components of meeting those requirements. It is not beyond ICANN's ability to make this workable, and putting the framework in the bylaws is essential to that. I'd regard it as very hard to recommend the ccNSO approve the proposal without this being incorporated.
. Removal of the Board (individual/entire) (pages 21-23)
The Board believes that the rationale for the removal of the entire board or an individual Board member must be clearly set out, for example, through reference to a cause for removal that could be set out in a pre-service letter.
As long as this example is an example, as stated elsewhere, that's fine.
Additionally, the Board strongly believes the threshold for the removal of the entire board should not go below a total of four SOs and ACs in support of removal.
Noted, and noting this faces a tweak as agreed at the last call.
. Board Consideration of GAC advice (page 34)
The Board will continue to monitor the discussions. We note that any solution should include a provision that, in the event of the rejection of GAC advice, the Board is only required to enter into a formal consultation process where the GAC advice is consensus advice based on the current definition within the GAC's Operating Procedures (which relies on the UN definition of consensus). The Board values receipt of consensus advice as reflected in the current GAC Operating Procedures. Since the first ATRT, there has been a lot of effort made to clarify what "GAC Advice" means and does not mean within GAC Communiqués. Care should be taken not to introduce language into the Bylaws that reduces that clarity and returns the Board to a position of having to negotiate among various positions in its consultation processes.
Based on the discussion last night, it would have been helpful for this Board perspective to be incorporated in the ST18 working group meetings of which there were four leading up to the most recent CCWG call. This would be a step away from the compromise language incorporated in the Second Draft Proposal, though less of a step away from the compromise language discussed yesterday....
. Sole Designator Model (page 11)
The Board supports the Sole Designator model with the understanding that limited powers of appointment, removal and enforcement are maintained as the guiding principles for this model.
This may cause problems. As noted above, the transparency and inspection rights aren't negotiable. The bylaws change powers are also clearly a part of this model in the sense of legal enforceability of the Empowered Community's decision rights. It's the Budget power which isn't.
Can you confirm by the above observation the Board isn't seeking changes to the community powers per se?
It would be helpful if you could advise in more depth what it is that drives the Board to make this comment - that is, what are you worried about as a group "appearing" here?
. AoC Reviews and Implementation Factors (page 31)
The Board appreciates the work to incorporate the AOC reviews into the Bylaws and reiterates as a principle that operational/administrative details not be inserted into the Bylaws, in favor of defined standards for such reviews that can be changed (with community participation) through processes that do not require Bylaws changes.
If this is a "no" to the carefully considered changes to the AOC specified reviews, then it is a problem.
GS: I'm thinking that this is a tangential reaction to the extremely robust (which is to say, overinclusive) first draft Bylaws that we saw from Sidley in the CWG.
. Community Decision-Making Power (page 12)
The Board believes it is important that the Community Decision Making Power has appropriate thresholds that are defined in ways that reflect a community decision, and are flexible enough to allow entrance (or exit) of existing or new SOs or ACs.
I'm at a loss to understand precisely what this means.....
best Jordan
-- Jordan Carter
Chief Executive *InternetNZ*
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Hello Jordan,
Incorporating the right, and developing the approach to using it, is not in conflict with the admirable transparency vision that you have suggested. The CCWG's deliberations in Dublin were very clear - as one of the people who reluctantly moved to a Designator model on the basis it could meet the group's requirements, this was one of the components of meeting those requirements. It is not beyond ICANN's ability to make this workable, and putting the framework in the bylaws is essential to that.
I agree that it is certainly possible to make it workable and put it in the bylaws.
. Sole Designator Model (page 11) The Board supports the Sole Designator model with the understanding that limited powers of appointment, removal and enforcement are maintained as the guiding principles for this model.
This may cause problems. As noted above, the transparency and inspection rights aren't negotiable. The bylaws change powers are also clearly a part of this model in the sense of legal enforceability of the Empowered Community's decision rights. It's the Budget power which isn't.
Can you confirm by the above observation the Board isn't seeking changes to the community powers per se?
Confirmed. The community powers should be encapsulated in the bylaws. The “sole designator” in addition to the powers in the bylaws, separately will have powers under California law with respect to the appointment and removal of Board directors. These are not limited to needing to show cause as has already been noted.
It would be helpful if you could advise in more depth what it is that drives the Board to make this comment - that is, what are you worried about as a group "appearing" here?
General fear and uncertainty on how it all fits together, and in particular a fear that the designator could act outside of the rules in the bylaws if the language is not clear.
. AoC Reviews and Implementation Factors (page 31)
The Board appreciates the work to incorporate the AOC reviews into the Bylaws and reiterates as a principle that operational/administrative details not be inserted into the Bylaws, in favor of defined standards for such reviews that can be changed (with community participation) through processes that do not require Bylaws changes.
If this is a "no" to the carefully considered changes to the AOC specified reviews, then it is a problem.
It means that we should give consideration to what needs to be in the bylaws, and what can sit in operational procedures documents. It was a general principle. For example the GNSO, GAC and the nominating committee all have separate operational procedures documents that don’t sit within the bylaws, and these can be altered without board approval. E.g. see https://gacweb.icann.org/display/gacweb/GAC+Operating+Principles. Some of the text developed by the CCWG may be better placed in such a document.
. Community Decision-Making Power (page 12)
The Board believes it is important that the Community Decision Making Power has appropriate thresholds that are defined in ways that reflect a community decision, and are flexible enough to allow entrance (or exit) of existing or new SOs or ACs.
I'm at a loss to understand precisely what this means.....
It would be useful to state thresholds as both a number and also as a percentage if the number of SOs or ACs changes in future. Regards, Bruce Tonkin
participants (18)
-
Barrack Otieno -
Bruce Tonkin -
Chartier, Mike S -
Dr Eberhard W Lisse -
Edward Morris -
George Sadowsky -
Greg Shatan -
Jonathan Zuck -
Jordan Carter -
Malcolm Hutty -
Mueller, Milton L -
Nigel Roberts -
Olivier MJ Crepin-Leblond -
Paul Rosenzweig -
Phil Corwin -
Seun Ojedeji -
Steve DelBianco -
william currie