[CCWG-Accountability] Work Area 2: inventory of accountability mechanisms, draft 4
To: members of CCWG and Work Area 2, After our last call on 16-Dec, the chairs tasked the entire CCWG with this action: 3. ACTION review the inventory list compiled by WA2 and suggest either additions to or deletions from the list. With regard to work area 2, everyone is encouraged to review the latest version of the inventory that was developed by the WA 2 sub-group. The inventory is intended to capture all ideas / suggestions made to date through previous public comment periods and/or (new) suggestions from CCWG colleagues. As agreed during the last call we suggest that you now check whether the list is complete, and if not suggest to include other items or delete some on the list. We ask you to share any additions to the inventory prior to our next meeting on Tuesday 23 December. The chairs also recommended next steps for our Work Area 2, after our inventory is complete. (see bottom of this email) As rapporteur for Work Area 2, I reviewed emails since 16-Dec (see email archives<http://mm.icann.org/pipermail/ccwg-accountability2/2014-December/date.html> for Work Area 2 and for entire CCWG<http://mm.icann.org/pipermail/accountability-cross-community/2014-December/d...>). Most of the correspondence was about Public Interest and International Law, but I found notes relevant to Work Area 2 from Kavouss Arasteh, Alain Bidron, Google, Paul Rosenzweig, and Carlos Raúl Gutiérrez. For your review, I attach an updated drafted with these changes: - added a footnote to page 1 citing how Member oversight is enabled by California Law and by ICANN Articles of incorporation, and noted that ICANN’s present bylaws would have to be changed to recognize Members. - I did not delete any items at this point, but for items where opposition has been noted, you will see under the Support column, [opposition noted] - Per requests from the chairs and from Alain Bidron, I expanded the rationale for work stream designations. These appear in the headers of the table and are shown below: Proposed rationale for designating Work Streams: Work Stream 1 is designated for accountability enhancement mechanisms that must be in place [or firmly committed] before IANA transition occurs. All other consensus items could be in Work Stream 2, provided there are mechanisms in WS1 adequate to force implementation of WS2 items despite resistance from ICANN management and board. 1. Mechanisms giving the ICANN community ultimate authority over the ICANN corporation. Most of these are initially designated as WS1, since community Members need the leverage of IANA transition to obtain these Bylaws changes. 2. Mechanisms to restrict actions of the board and management of the ICANN corporation. Most of these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above). 3. Mechanisms to prescribe actions of the ICANN corporation. Most of these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above). For example, a bottom-up consensus process to change ICANN bylaws might be rejected by ICANN board, but the Members could then reverse that decision and force the change. [I folded the Transparency items into this category] Look forward to discussion on tomorrow’s call. — Steve DelBianco Executive Director NetChoice http://www.NetChoice.org<http://www.netchoice.org/> and http://blog.netchoice.org<http://blog.netchoice.org/> +1.202.420.7482 On 12/18/14, 3:10 PM, "Thomas Rickert" <rickert@anwaelte.de<mailto:rickert@anwaelte.de>> wrote: B. WA 2 With regard to work area 2, everyone is encouraged to review the latest version of the inventory that was developed by the WA 2 sub-group. The inventory is intended to capture all ideas / suggestions made to date through previous public comment periods and/or (new) suggestions from CCWG colleagues. As agreed during the last call we suggest that you now check whether the list is complete, and if not suggest to include other items or delete some on the list. We ask you to share any additions to the inventory prior to our next meeting on Tuesday 23 December. It is our intention that after completing this inventory, the CCWG will, as next steps, consider the following: * Assess and determine which items of the inventory belong in stream 1 (mechanisms that must be in place or committed to within the time frame of the IANA Stewardship Transition in light of the changing historical contractual relationship with the US Government) or stream 2 (accountability topics for which a timeline for developing solutions and full implementation may extend beyond the IANA Stewardship Transition). Note that the charter of the CCWG includes a definitions and guiding questions questions, which are expected to serve as the basis for this assessment and determination (see below). In order to make this assessment the CCWG should also consider the meaning of ‘must be in place’ and ‘committed to’ as included in the definition of work stream 1. (Note: Steve already included a proposed categorisation in the latest draft version of the inventory). * Provide a rationale for categorising an item as part of work stream 1 or 2, taking into account the definitions and guiding questions in the CCWG charter. Only after agreement has been reached on the categorisation of items and rationale, we can proceed to focus on the items in work stream 1 to a) develop further details for each of the proposed accountability mechanisms and b) review each accountability mechanism proposed in work stream 1 and c) assess whether there is CCWG support for including it as part of the CCWG recommendations. As a reminder, the following list of non-exhaustive questions were included in the CCWG charter to aid the CCWG in its deliberations: Suggested questions to be considered as part of Work Stream 1 include, but are not limited to: * What would be the impact of NTIA’s transition of the IANA Functions Contract in ensuring ICANN’s accountability and what potential accountability concerns could this cause? * What enhancements or reforms are required to be implemented or committed to before the NTIA Stewardship Transition? * How will these enhancements or reforms be stress-tested? * What enhancements or reforms must be committed to before the NTIA Stewardship Transition, but could be implemented after. * If the implementation of enhancements or reforms are to be deferred, how can the community be assured they will be implemented? * How will these enhancements or reforms be stress-tested? Suggested questions to be considered as part of Work Stream 2 include, but are not limited to: * What enhancements or reforms can be addressed after the NTIA Stewardship Transition? * If there are enhancements or reforms that can be addressed after NTIA disengages, what new or existing processes ensure they will be addressed and implemented? * How will these enhancement or reforms be stress-tested? Suggested questions to be considered as part of both Work Stream 1 and 2 include, but are not limited to: * What mechanisms are needed to ensure ICANN’s accountability to the multi-stakeholder community once NTIA has disengaged from its stewardship role? * What enhancements or reforms are needed to ICANN’s existing accountability mechanisms? * What new accountability reforms or mechanisms are needed? * If accountability enhancements and reforms are made through changes to ICANN’s Articles of Incorporation or By-Laws, how can the community be assured that those changes will be permanent, or not subject to unilateral amendment by the ICANN Board at a later date? *
Dear Steve, Dear Colleagues, Many thanks for this proposal to categorize WS1 / WS2 issues. I want to highlight that this is one of the fundamental blocks that we need to reach consensus on to proceed. I have also noted Paul Rosenzweig idea of definition of a WS0 :
As a result, I think that part of what we should be doing in the long run is focusing on the core/critical 3-5 items that are absolutely essential to ensuring accountability. In short, I think there is actually a sub-category of WS1 (call it *WS0* for want of a better term) that would be fundamental red-lines for the community. To comply with our Charter as well as anticipate reactions from some stakeholders, I think we would need to elaborate on how this related to the NTIA transition. The two key questions in our Charter are :
·What would be the impact of NTIA’s transition of the IANA Functions Contract in ensuring ICANN’s accountability and what potential accountability concerns could this cause?
·What enhancements or reforms are required to be implemented or committed to before the NTIA Stewardship Transition?
I do recommend every colleague to consider this with attention. best Mathieu Le 21/12/2014 22:10, Steve DelBianco a écrit :
- Per requests from the chairs and from Alain Bidron, I expanded the rationale for work stream designations. These appear in the headers of the table and are shown below:
Proposed rationale for designating Work Streams: Work Stream 1 is designated for accountability enhancement mechanisms that must be in place [or firmly committed] before IANA transition occurs. All other consensus items could be in Work Stream 2, provided there are mechanisms in WS1 adequate to force implementation of WS2 items despite resistance from ICANN management and board.
1. Mechanisms giving the ICANN community ultimate authority over the ICANN corporation. Most of these are initially designated as WS1, since community Members need the leverage of IANA transition to obtain these Bylaws changes.
2. Mechanisms to restrict actions of the board and management of the ICANN corporation. Most of these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above).
3. Mechanisms to prescribe actions of the ICANN corporation. Most of these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above). For example, a bottom-up consensus process to change ICANN bylaws might be rejected by ICANN board, but the Members could then reverse that decision and force the change. [I folded the Transparency items into this category]
-- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr Twitter : @mathieuweill *****************************
Dear Mathieu (and others) Thanks very much for asking about the concept of Work Stream Zero (or “WS0”). I should say at the outset that the concept is very much dependent on the scope of ICANN Board authority. If we take seriously Dave Johnson’s suggestion, for example, that the Board might limit itself contractually to a narrow domain of authority then the requirement for accountability mechanisms scales back accordingly. If, however, we are obliged to proceed as we are now (with the possibility that some future Board might vote to expand ICANN authority quite a bit beyond the IANA function) then the need for external accountability measures is much greater. As I said in my first note to the Area 2 Working Group, the concept behind WS0 is derived from two instincts. The first is the highly practical one that the CCWG will need to prioritize its proposals to ICANN. If we ask for 50 changes in an undifferentiated mass, we are unlikely to achieve the goals we have of ensuring effective accountability. In some ways WS1 and WS2 are intended to identify that sort of priority – but there the variable is “time to implement” the change. The idea behind WS0 is that some changes (even ones that might take some time to effectuate) are absolutely vital to assure accountability going forward. So my answer to your question is simple. WS0 requirements are ones that are “red lines” for the community. They are ones that, in the end, we think we cannot live without and that would lead the community to recommend against the IANA Functions transition until they were adopted by the Board. So the “impact on the NTIA’s transition” is that these are sufficiently vital to community interests that failure to adopt them would prevent the transition from occurring altogether. Thus, my argument is that WS0 forms the very core of reforms that are “required to be implemented” before the transition. They are ones, without which NTIA’s transition should not proceed. Some may think this is a null set. I do not and have separately offered my own take on what is a WS0 requirement. But whether one agrees on the content, I think the concept is a fairly explicit portion of our Charter. Cheers Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Monday, December 22, 2014 2:56 AM To: Steve DelBianco; accountability-cross-community@icann.org; Thomas Rickert Cc: ccwg-accountability2@icann.org Subject: Re: [CCWG-Accountability] Work Area 2: inventory of accountability mechanisms, draft 4 Dear Steve, Dear Colleagues, Many thanks for this proposal to categorize WS1 / WS2 issues. I want to highlight that this is one of the fundamental blocks that we need to reach consensus on to proceed. I have also noted Paul Rosenzweig idea of definition of a WS0 : As a result, I think that part of what we should be doing in the long run is focusing on the core/critical 3-5 items that are absolutely essential to ensuring accountability. In short, I think there is actually a sub-category of WS1 (call it WS0 for want of a better term) that would be fundamental red-lines for the community. To comply with our Charter as well as anticipate reactions from some stakeholders, I think we would need to elaborate on how this related to the NTIA transition. The two key questions in our Charter are : * What would be the impact of NTIA’s transition of the IANA Functions Contract in ensuring ICANN’s accountability and what potential accountability concerns could this cause? * What enhancements or reforms are required to be implemented or committed to before the NTIA Stewardship Transition? I do recommend every colleague to consider this with attention. best Mathieu Le 21/12/2014 22:10, Steve DelBianco a écrit : - Per requests from the chairs and from Alain Bidron, I expanded the rationale for work stream designations. These appear in the headers of the table and are shown below: Proposed rationale for designating Work Streams: Work Stream 1 is designated for accountability enhancement mechanisms that must be in place [or firmly committed] before IANA transition occurs. All other consensus items could be in Work Stream 2, provided there are mechanisms in WS1 adequate to force implementation of WS2 items despite resistance from ICANN management and board. 1. Mechanisms giving the ICANN community ultimate authority over the ICANN corporation. Most of these are initially designated as WS1, since community Members need the leverage of IANA transition to obtain these Bylaws changes. 2. Mechanisms to restrict actions of the board and management of the ICANN corporation. Most of these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above). 3. Mechanisms to prescribe actions of the ICANN corporation. Most of these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above). For example, a bottom-up consensus process to change ICANN bylaws might be rejected by ICANN board, but the Members could then reverse that decision and force the change. [I folded the Transparency items into this category] -- ***************************** Mathieu WEILL AFNIC - directeur général Tél: +33 1 39 30 83 06 mathieu.weill@afnic.fr <mailto:mathieu.weill@afnic.fr> Twitter : @mathieuweill *****************************
Dear all, Many thanks to Steve for doing such a nice work. Izumi Okutani and I agree in principle with the proposed categorization. The few comments we have are listed below. Looking forward to our call tomorrow. Kind regards, Athina Fragkouli ----- 1. Suggestions allocated to WS1 in section 1. The idea of restructuring ICANN makes sense. Our only concern refers to the time needed to: - agree on the details of the body of members (who will become member, for how long, how is the membership terminated etc) - amend ICANN’s bylaws As WS1 is “focused on mechanisms enhancing ICANN accountability that must be in place or committed to within the time frame of the IANA Stewardship Transition” (according to the Charter), such time restrictions would be useful to be considered. Perhaps the ICANN staff could provide us with more details on the process and the time needed to amend the Bylaws. ----- 2. "Require supermajority for Board to approve action despite advice to the contrary from ACs or significant subsets of SOs" and "Require a defined notion of consensus for any GAC advice that would need to be given deference by the ICANN board" Both suggestions are allocated to WS1. We understand that both suggestions are aimed to enhance ICANN board’s accountability, which is a very important issue. However we believe that: - The discussion of whether GAC’s advice should be “binding” is a matter that concerns the broader community and would require some time to reach an agreement. It would be questionable whether this can be completed within the time frame of the IANA Stewardship Transition. - The mechanism and structure suggested in section 1 (creating cross-community members) includes the review of ICANN board’s decisions. This mechanism tackles already the urgent matter of ICANN board’s accountability before the IANA stewardship transition. Therefore we would recommend to allocate these suggestions to WS2. ----- 3. Require supermajority of board to [increase] change registry or registrar fees [Members could reverse] While anything related to board decisions could be considered as a possible concern in the course of IANA stewardship transition, this doesn't appear to an issue which has direct relevance. If the membership based structure representing the communities are to be addressed as WS1, this may give a certain level of safeguard to board decision, requiring the board to justify and have community support of any changes in fees. Considering this factor, we would be able to have more time to consider appropriate decision making process by the board, comprehensively with other issues related to board decision, to categorize this as WS2. ----- 4. Change bylaws to require that ICANN remain subject to US law We understand that this suggestion addresses the concern that ICANN may unilaterally decide to change jurisdiction and become subject to a legislation the majority of the community is not familiar with (please correct us if we are wrong). However requiring ICANN to remain subject to US law may create a lot of discussion, as a part of the community is not comfortable with US legislation and US courts. Consequently we may not reach an agreement within the time frame of WS1. Alternatively we would like to recommend rephrasing the suggestion as follows: “Amend bylaws to require that ICANN changes its jurisdiction only after an approval by the community/members.” This way the above mentioned concern is tackled by removing the controversial topic of US law. -------------------- On 21/12/14 22:10, Steve DelBianco wrote:
To: members of CCWG and Work Area 2,
After our last call on 16-Dec, the chairs tasked the entire CCWG with this action:
3. ACTION review the inventory list compiled by WA2 and suggest either additions to or deletions from the list.
With regard to work area 2, everyone is encouraged to review the latest version of the inventory that was developed by the WA 2 sub-group. The inventory is intended to capture all ideas / suggestions made to date through previous public comment periods and/or (new) suggestions from CCWG colleagues. As agreed during the last call we suggest that you now check whether the list is complete, and if not suggest to include other items or delete some on the list. We ask you to share any additions to the inventory prior to our next meeting on Tuesday 23 December.
The chairs also recommended next steps for our Work Area 2, after our inventory is complete. (see bottom of this email)
As rapporteur for Work Area 2, I reviewed emails since 16-Dec (see email archives <http://mm.icann.org/pipermail/ccwg-accountability2/2014-December/date.html> for Work Area 2 and for entire CCWG <http://mm.icann.org/pipermail/accountability-cross-community/2014-December/d...>). Most of the correspondence was about Public Interest and International Law, but I found notes relevant to Work Area 2 from Kavouss Arasteh, Alain Bidron, Google, Paul Rosenzweig, and Carlos Raúl Gutiérrez.
For your review, I attach an updated drafted with these changes:
- added a footnote to page 1 citing how Member oversight is enabled by California Law and by ICANN Articles of incorporation, and noted that ICANN’s present bylaws would have to be changed to recognize Members.
- I did not delete any items at this point, but for items where opposition has been noted, you will see under the Support column, [opposition noted]
- Per requests from the chairs and from Alain Bidron, I expanded the rationale for work stream designations. These appear in the headers of the table and are shown below:
Proposed rationale for designating Work Streams: Work Stream 1 is designated for accountability enhancement mechanisms that must be in place [or firmly committed] before IANA transition occurs. All other consensus items could be in Work Stream 2, provided there are mechanisms in WS1 adequate to force implementation of WS2 items despite resistance from ICANN management and board.
1. Mechanisms giving the ICANN community ultimate authority over the ICANN corporation. Most of these are initially designated as WS1, since community Members need the leverage of IANA transition to obtain these Bylaws changes.
2. Mechanisms to restrict actions of the board and management of the ICANN corporation. Most of these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above).
3. Mechanisms to prescribe actions of the ICANN corporation. Most of these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above). For example, a bottom-up consensus process to change ICANN bylaws might be rejected by ICANN board, but the Members could then reverse that decision and force the change. [I folded the Transparency items into this category]
Look forward to discussion on tomorrow’s call. — Steve DelBianco Executive Director NetChoice http://www.NetChoice.org <http://www.netchoice.org/> and http://blog.netchoice.org <http://blog.netchoice.org/> +1.202.420.7482
On 12/18/14, 3:10 PM, "Thomas Rickert" <rickert@anwaelte.de <mailto:rickert@anwaelte.de>> wrote:
*B. WA 2*
With regard to work area 2, everyone is encouraged to review the latest version of the inventory that was developed by the WA 2 sub-group. The inventory is intended to capture all ideas / suggestions made to date through previous public comment periods and/or (new) suggestions from CCWG colleagues. As agreed during the last call we suggest that you now check whether the list is complete, and if not suggest to include other items or delete some on the list. We ask you to share any additions to the inventory prior to our next meeting on Tuesday 23 December.
It is our intention that after completing this inventory, the CCWG will, as next steps, consider the following:
* Assess and determine which items of the inventory belong in stream 1 (mechanisms that must be in place or committed to within the time frame of the IANA Stewardship Transition in light of the changing historical contractual relationship with the US Government) or stream 2 (accountability topics for which a timeline for developing solutions and full implementation may extend beyond the IANA Stewardship Transition). Note that the charter of the CCWG includes a definitions and guiding questions questions, which are expected to serve as the basis for this assessment and determination (see below). In order to make this assessment the CCWG should also consider the meaning of ‘must be in place’ and ‘committed to’ as included in the definition of work stream 1. (Note: Steve already included a proposed categorisation in the latest draft version of the inventory). * Provide a rationale for categorising an item as part of work stream 1 or 2, taking into account the definitions and guiding questions in the CCWG charter.
Only after agreement has been reached on the categorisation of items and rationale, we can proceed to focus on the items in work stream 1 to a) develop further details for each of the proposed accountability mechanisms and b) review each accountability mechanism proposed in work stream 1 and c) assess whether there is CCWG support for including it as part of the CCWG recommendations.
As a reminder, the following list of non-exhaustive questions were included in the CCWG charter to aid the CCWG in its deliberations:
Suggested questions to be considered as part of Work Stream 1 include, but are not limited to:
* What would be the impact of NTIA’s transition of the IANA Functions Contract in ensuring ICANN’s accountability and what potential accountability concerns could this cause? * What enhancements or reforms are required to be implemented or committed to before the NTIA Stewardship Transition? o How will these enhancements or reforms be stress-tested? * What enhancements or reforms must be committed to before the NTIA Stewardship Transition, but could be implemented after. o If the implementation of enhancements or reforms are to be deferred, how can the community be assured they will be implemented? * How will these enhancements or reforms be stress-tested?
Suggested questions to be considered as part of Work Stream 2 include, but are not limited to:
* What enhancements or reforms can be addressed after the NTIA Stewardship Transition? * If there are enhancements or reforms that can be addressed after NTIA disengages, what new or existing processes ensure they will be addressed and implemented? o How will these enhancement or reforms be stress-tested?
Suggested questions to be considered as part of both Work Stream 1 and 2 include, but are not limited to:
* What mechanisms are needed to ensure ICANN’s accountability to the multi-stakeholder community once NTIA has disengaged from its stewardship role? * What enhancements or reforms are needed to ICANN’s existing accountability mechanisms? * What new accountability reforms or mechanisms are needed? * If accountability enhancements and reforms are made through changes to ICANN’s Articles of Incorporation or By-Laws, how can the community be assured that those changes will be permanent, or not subject to unilateral amendment by the ICANN Board at a later date? *
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On 21/12/2014 21:10, Steve DelBianco wrote:
To: members of CCWG and Work Area 2,
After our last call on 16-Dec, the chairs tasked the entire CCWG with this action:
3. ACTION review the inventory list compiled by WA2 and suggest either additions to or deletions from the list.
With regard to work area 2, everyone is encouraged to review the latest version of the inventory that was developed by the WA 2 sub-group.
Steve, 1. I would like to propose that the item "Ensure that the ICANN Board can be held to its own Bylaws, and effective remedy granted if breach found by independent adjudicator." be reclassified to WS1. I have three reasons for this. Firstly, I would suggest that this is a fundamental element of accountability. Although the is not limited to such extreme scenarios, it includes the case where the Board willfully defies the bylaws. If you cannot ensure that the Board honours the bylaws, any accountability mechanisms that that depend upon the bylaws are critically weakened. This makes this foundational, and I think that reason alone is sufficient to justify placing it in WS1. In short, the statement "these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above)" does not apply unless this is WS1. Secondly, my own view is that the only way this accountability objective can be achieved robustly is to create an independent/external body that is able to review the Board's actions for compliance with the bylaws (presumably on an appellate basis) and, if it finds a breach, to vacate the Board action. To be effective, in my view, in the face of a theoretically defiant Board, this entity could not be answerable to the Board. While it is possible that others may not support such a mechanism, this type of approach clearly ought to be considered. Any such a mechanism would have to be created by NTIA, not ICANN; the ICANN Board is self-evidently incapable of setting up something in authority over itself and its own bylaws. For that reason I believe that this also qualifies this scenario for WS1 according to your own criterion of "things that cannot be done if left until after transition has occurred" Thirdly, this overlaps with another proposal you have classifed as WS1 "Establish a permanent cross-community working group with power to refer any board decision to an independent review panel." If the only grounds for making such a referral is an alleged breach of the bylaws then the one is a perfect superset of this other proposal: referral from a cross-community one of a range of possible means of having such an allegation considered by an independent review panel, but not the only one. If it was intended that the cross-community group be able to refer decisions on other grounds too, then there is overlap but not duplication. 2. I would like to propose that the items "Ensure ICANN Board does not act "ultra vires", and stays within assigned mission and scope. e.g., prevent scope creep in policies imposed via RAA." and "Prevent ICANN Board redefining mission/scope in Bylaws without community consensus" be reclassified to WS1. My reasons are similar to the previous item. A Board that is capable ignoring its mission or of redefining its mission at will cannot be accountable to anyone: if anyone says it has done wrong it can simply redefine the goals so as to justify its preferred actions. This item is therefore foundational for any other mechanisms, which is in my view sufficient to justify WS1 classification. Moreover, the ability to set the goals and thereby determine the criteria according to which any accountability mechanisms will operate is so fundamental that it largely defines "who is in charge". It is almost inconceivable that any Board would yield up ultimate decision-making authority on this issue to anyone else, unless faced with extraordinary leverage. NTIA transition is therefore the only opportunity for the community to seize this authority directly, and so it also qualifies for WS1 according your "now or never" criterion. Finally this overlaps with another proposal you have assigned to WS1: "Establish a permanent cross-community working group with power to approve changes to ICANN bylaws or Articles, with 2/3 majority". A permanent cross-community working group is one means by which community consensus might be established, but not the only possible means (for example, changes to the bylaws and articles could be ratified directly by ACs and components of SOs directly). 3. Lastly, I am a little concerned that the proposals relating to Affirmation Review Teams might be a bit too narrow and 'solution-oriented' for WS1 track. There is an underlying idea, I think, that continuing community oversight is required and that the community needs a permanent ability to initiate major perform, but I suspect the details of this may need to be left to WS2; the minimum requirement in these proposals it to be confident such reforms could be initiated later. However I've just tried three times to come up with an alternative way of framing this that would allow these proposals to be reclassified as WS2 and found myself unsatisfied with my own idea each time. I will therefore await the discussion -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
Hi Malcolm, While I agree that it may be moved to WS1, I will like to suggest a rewording as below: "Ensure that the ICANN Board can be held to its own Bylaws, and effective remedy granted if breach found by it's community." I don't think an independent external entity will understand the bylaw than the community because they are the ones directly affected. They may engage the external entity if required but the trigger should happen from the community and the decision made by them. However as you have observed, the WS1 item seem to be the start-up and what is in WS2 is the continuation. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 23 Dec 2014 17:17, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 21/12/2014 21:10, Steve DelBianco wrote:
To: members of CCWG and Work Area 2,
After our last call on 16-Dec, the chairs tasked the entire CCWG with this action:
3. ACTION review the inventory list compiled by WA2 and suggest either additions to or deletions from the list.
With regard to work area 2, everyone is encouraged to review the latest version of the inventory that was developed by the WA 2 sub-group.
Steve,
1. I would like to propose that the item "Ensure that the ICANN Board can be held to its own Bylaws, and effective remedy granted if breach found by independent adjudicator."
be reclassified to WS1.
I have three reasons for this.
Firstly, I would suggest that this is a fundamental element of accountability. Although the is not limited to such extreme scenarios, it includes the case where the Board willfully defies the bylaws. If you cannot ensure that the Board honours the bylaws, any accountability mechanisms that that depend upon the bylaws are critically weakened. This makes this foundational, and I think that reason alone is sufficient to justify placing it in WS1.
In short, the statement "these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above)" does not apply unless this is WS1.
Secondly, my own view is that the only way this accountability objective can be achieved robustly is to create an independent/external body that is able to review the Board's actions for compliance with the bylaws (presumably on an appellate basis) and, if it finds a breach, to vacate the Board action. To be effective, in my view, in the face of a theoretically defiant Board, this entity could not be answerable to the Board. While it is possible that others may not support such a mechanism, this type of approach clearly ought to be considered. Any such a mechanism would have to be created by NTIA, not ICANN; the ICANN Board is self-evidently incapable of setting up something in authority over itself and its own bylaws. For that reason I believe that this also qualifies this scenario for WS1 according to your own criterion of "things that cannot be done if left until after transition has occurred"
Thirdly, this overlaps with another proposal you have classifed as WS1 "Establish a permanent cross-community working group with power to refer any board decision to an independent review panel." If the only grounds for making such a referral is an alleged breach of the bylaws then the one is a perfect superset of this other proposal: referral from a cross-community one of a range of possible means of having such an allegation considered by an independent review panel, but not the only one. If it was intended that the cross-community group be able to refer decisions on other grounds too, then there is overlap but not duplication.
2. I would like to propose that the items
"Ensure ICANN Board does not act "ultra vires", and stays within assigned mission and scope. e.g., prevent scope creep in policies imposed via RAA."
and
"Prevent ICANN Board redefining mission/scope in Bylaws without community consensus"
be reclassified to WS1.
My reasons are similar to the previous item. A Board that is capable ignoring its mission or of redefining its mission at will cannot be accountable to anyone: if anyone says it has done wrong it can simply redefine the goals so as to justify its preferred actions.
This item is therefore foundational for any other mechanisms, which is in my view sufficient to justify WS1 classification.
Moreover, the ability to set the goals and thereby determine the criteria according to which any accountability mechanisms will operate is so fundamental that it largely defines "who is in charge". It is almost inconceivable that any Board would yield up ultimate decision-making authority on this issue to anyone else, unless faced with extraordinary leverage. NTIA transition is therefore the only opportunity for the community to seize this authority directly, and so it also qualifies for WS1 according your "now or never" criterion.
Finally this overlaps with another proposal you have assigned to WS1: "Establish a permanent cross-community working group with power to approve changes to ICANN bylaws or Articles, with 2/3 majority". A permanent cross-community working group is one means by which community consensus might be established, but not the only possible means (for example, changes to the bylaws and articles could be ratified directly by ACs and components of SOs directly).
3. Lastly, I am a little concerned that the proposals relating to Affirmation Review Teams might be a bit too narrow and 'solution-oriented' for WS1 track. There is an underlying idea, I think, that continuing community oversight is required and that the community needs a permanent ability to initiate major perform, but I suspect the details of this may need to be left to WS2; the minimum requirement in these proposals it to be confident such reforms could be initiated later.
However I've just tried three times to come up with an alternative way of framing this that would allow these proposals to be reclassified as WS2 and found myself unsatisfied with my own idea each time. I will therefore await the discussion
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Mr. Ojedeji Respectful disagreement (and agreement with Mr. Hutty) on two counts: First, the principle as stated is at too high a level of generality. We need to be specific and if you are going to call for community oversight you need propose a mechanism. Second, in disputes between the community and the Board, the community will often be an interested party. As you know, I favor the community generally over the Board, but it is reasonable for the Board to insist on an independent adjudicator. Saying that some issues may be “too complex to understand” is not persuasive. The Bylaws are “law” and interpreting law is a very common practice. Warm regards Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Tuesday, December 23, 2014 11:48 AM To: Malcolm Hutty Cc: ccwg-accountability2@icann.org; accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] [Area 2] Work Area 2: inventory of accountability mechanisms, draft 4 Hi Malcolm, While I agree that it may be moved to WS1, I will like to suggest a rewording as below: "Ensure that the ICANN Board can be held to its own Bylaws, and effective remedy granted if breach found by it's community." I don't think an independent external entity will understand the bylaw than the community because they are the ones directly affected. They may engage the external entity if required but the trigger should happen from the community and the decision made by them. However as you have observed, the WS1 item seem to be the start-up and what is in WS2 is the continuation. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 23 Dec 2014 17:17, "Malcolm Hutty" <malcolm@linx.net <mailto:malcolm@linx.net> > wrote: On 21/12/2014 21:10, Steve DelBianco wrote:
To: members of CCWG and Work Area 2,
After our last call on 16-Dec, the chairs tasked the entire CCWG with this action:
3. ACTION review the inventory list compiled by WA2 and suggest either additions to or deletions from the list.
With regard to work area 2, everyone is encouraged to review the latest version of the inventory that was developed by the WA 2 sub-group.
Steve, 1. I would like to propose that the item "Ensure that the ICANN Board can be held to its own Bylaws, and effective remedy granted if breach found by independent adjudicator." be reclassified to WS1. I have three reasons for this. Firstly, I would suggest that this is a fundamental element of accountability. Although the is not limited to such extreme scenarios, it includes the case where the Board willfully defies the bylaws. If you cannot ensure that the Board honours the bylaws, any accountability mechanisms that that depend upon the bylaws are critically weakened. This makes this foundational, and I think that reason alone is sufficient to justify placing it in WS1. In short, the statement "these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above)" does not apply unless this is WS1. Secondly, my own view is that the only way this accountability objective can be achieved robustly is to create an independent/external body that is able to review the Board's actions for compliance with the bylaws (presumably on an appellate basis) and, if it finds a breach, to vacate the Board action. To be effective, in my view, in the face of a theoretically defiant Board, this entity could not be answerable to the Board. While it is possible that others may not support such a mechanism, this type of approach clearly ought to be considered. Any such a mechanism would have to be created by NTIA, not ICANN; the ICANN Board is self-evidently incapable of setting up something in authority over itself and its own bylaws. For that reason I believe that this also qualifies this scenario for WS1 according to your own criterion of "things that cannot be done if left until after transition has occurred" Thirdly, this overlaps with another proposal you have classifed as WS1 "Establish a permanent cross-community working group with power to refer any board decision to an independent review panel." If the only grounds for making such a referral is an alleged breach of the bylaws then the one is a perfect superset of this other proposal: referral from a cross-community one of a range of possible means of having such an allegation considered by an independent review panel, but not the only one. If it was intended that the cross-community group be able to refer decisions on other grounds too, then there is overlap but not duplication. 2. I would like to propose that the items "Ensure ICANN Board does not act "ultra vires", and stays within assigned mission and scope. e.g., prevent scope creep in policies imposed via RAA." and "Prevent ICANN Board redefining mission/scope in Bylaws without community consensus" be reclassified to WS1. My reasons are similar to the previous item. A Board that is capable ignoring its mission or of redefining its mission at will cannot be accountable to anyone: if anyone says it has done wrong it can simply redefine the goals so as to justify its preferred actions. This item is therefore foundational for any other mechanisms, which is in my view sufficient to justify WS1 classification. Moreover, the ability to set the goals and thereby determine the criteria according to which any accountability mechanisms will operate is so fundamental that it largely defines "who is in charge". It is almost inconceivable that any Board would yield up ultimate decision-making authority on this issue to anyone else, unless faced with extraordinary leverage. NTIA transition is therefore the only opportunity for the community to seize this authority directly, and so it also qualifies for WS1 according your "now or never" criterion. Finally this overlaps with another proposal you have assigned to WS1: "Establish a permanent cross-community working group with power to approve changes to ICANN bylaws or Articles, with 2/3 majority". A permanent cross-community working group is one means by which community consensus might be established, but not the only possible means (for example, changes to the bylaws and articles could be ratified directly by ACs and components of SOs directly). 3. Lastly, I am a little concerned that the proposals relating to Affirmation Review Teams might be a bit too narrow and 'solution-oriented' for WS1 track. There is an underlying idea, I think, that continuing community oversight is required and that the community needs a permanent ability to initiate major perform, but I suspect the details of this may need to be left to WS2; the minimum requirement in these proposals it to be confident such reforms could be initiated later. However I've just tried three times to come up with an alternative way of framing this that would allow these proposals to be reclassified as WS2 and found myself unsatisfied with my own idea each time. I will therefore await the discussion -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Tue, Dec 23, 2014 at 6:26 PM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
Mr. Ojedeji
Respectful disagreement (and agreement with Mr. Hutty) on two counts:
First, the principle as stated is at too high a level of generality. We need to be specific and if you are going to call for community oversight you need propose a mechanism.
I am seeing it as the mechanism is what we are to determined in this process.
Second, in disputes between the community and the Board, the community will often be an interested party.
If you refer to dispute that that remained unresolved among both parties then i agree. My main point is that the existing community processes needs to be exhausted before seeking any external options. As you know, I favor the community generally over the Board, but it is
reasonable for the Board to insist on an independent adjudicator. Saying that some issues may be “too complex to understand” is not persuasive. The Bylaws are “law” and interpreting law is a very common practice.
I agree but again based on the understanding i have mentioned above. Thanks
Warm regards
Paul
***NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 ****
509 C St. NE
Washington, DC 20002
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com <paul.rosenzweigesq@redbranchconsulting.com>
O: +1 (202) 547-0660
M: +1 (202) 329-9650
Skype: +1 (202) 738-1739 or paul.rosenzweig1066
Link to my PGP Key <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>
*From:* Seun Ojedeji [mailto:seun.ojedeji@gmail.com] *Sent:* Tuesday, December 23, 2014 11:48 AM *To:* Malcolm Hutty *Cc:* ccwg-accountability2@icann.org; accountability-cross-community@icann.org *Subject:* Re: [CCWG-Accountability] [Area 2] Work Area 2: inventory of accountability mechanisms, draft 4
Hi Malcolm,
While I agree that it may be moved to WS1, I will like to suggest a rewording as below:
"Ensure that the ICANN Board can be held to its own Bylaws, and effective remedy granted if breach found by it's community."
I don't think an independent external entity will understand the bylaw than the community because they are the ones directly affected. They may engage the external entity if required but the trigger should happen from the community and the decision made by them.
However as you have observed, the WS1 item seem to be the start-up and what is in WS2 is the continuation.
Cheers! sent from Google nexus 4 kindly excuse brevity and typos.
On 23 Dec 2014 17:17, "Malcolm Hutty" <malcolm@linx.net> wrote:
On 21/12/2014 21:10, Steve DelBianco wrote:
To: members of CCWG and Work Area 2,
After our last call on 16-Dec, the chairs tasked the entire CCWG with this action:
3. ACTION review the inventory list compiled by WA2 and suggest either additions to or deletions from the list.
With regard to work area 2, everyone is encouraged to review the latest version of the inventory that was developed by the WA 2 sub-group.
Steve,
1. I would like to propose that the item "Ensure that the ICANN Board can be held to its own Bylaws, and effective remedy granted if breach found by independent adjudicator."
be reclassified to WS1.
I have three reasons for this.
Firstly, I would suggest that this is a fundamental element of accountability. Although the is not limited to such extreme scenarios, it includes the case where the Board willfully defies the bylaws. If you cannot ensure that the Board honours the bylaws, any accountability mechanisms that that depend upon the bylaws are critically weakened. This makes this foundational, and I think that reason alone is sufficient to justify placing it in WS1.
In short, the statement "these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above)" does not apply unless this is WS1.
Secondly, my own view is that the only way this accountability objective can be achieved robustly is to create an independent/external body that is able to review the Board's actions for compliance with the bylaws (presumably on an appellate basis) and, if it finds a breach, to vacate the Board action. To be effective, in my view, in the face of a theoretically defiant Board, this entity could not be answerable to the Board. While it is possible that others may not support such a mechanism, this type of approach clearly ought to be considered. Any such a mechanism would have to be created by NTIA, not ICANN; the ICANN Board is self-evidently incapable of setting up something in authority over itself and its own bylaws. For that reason I believe that this also qualifies this scenario for WS1 according to your own criterion of "things that cannot be done if left until after transition has occurred"
Thirdly, this overlaps with another proposal you have classifed as WS1 "Establish a permanent cross-community working group with power to refer any board decision to an independent review panel." If the only grounds for making such a referral is an alleged breach of the bylaws then the one is a perfect superset of this other proposal: referral from a cross-community one of a range of possible means of having such an allegation considered by an independent review panel, but not the only one. If it was intended that the cross-community group be able to refer decisions on other grounds too, then there is overlap but not duplication.
2. I would like to propose that the items
"Ensure ICANN Board does not act "ultra vires", and stays within assigned mission and scope. e.g., prevent scope creep in policies imposed via RAA."
and
"Prevent ICANN Board redefining mission/scope in Bylaws without community consensus"
be reclassified to WS1.
My reasons are similar to the previous item. A Board that is capable ignoring its mission or of redefining its mission at will cannot be accountable to anyone: if anyone says it has done wrong it can simply redefine the goals so as to justify its preferred actions.
This item is therefore foundational for any other mechanisms, which is in my view sufficient to justify WS1 classification.
Moreover, the ability to set the goals and thereby determine the criteria according to which any accountability mechanisms will operate is so fundamental that it largely defines "who is in charge". It is almost inconceivable that any Board would yield up ultimate decision-making authority on this issue to anyone else, unless faced with extraordinary leverage. NTIA transition is therefore the only opportunity for the community to seize this authority directly, and so it also qualifies for WS1 according your "now or never" criterion.
Finally this overlaps with another proposal you have assigned to WS1: "Establish a permanent cross-community working group with power to approve changes to ICANN bylaws or Articles, with 2/3 majority". A permanent cross-community working group is one means by which community consensus might be established, but not the only possible means (for example, changes to the bylaws and articles could be ratified directly by ACs and components of SOs directly).
3. Lastly, I am a little concerned that the proposals relating to Affirmation Review Teams might be a bit too narrow and 'solution-oriented' for WS1 track. There is an underlying idea, I think, that continuing community oversight is required and that the community needs a permanent ability to initiate major perform, but I suspect the details of this may need to be left to WS2; the minimum requirement in these proposals it to be confident such reforms could be initiated later.
However I've just tried three times to come up with an alternative way of framing this that would allow these proposals to be reclassified as WS2 and found myself unsatisfied with my own idea each time. I will therefore await the discussion
-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/
London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY
Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- ------------------------------------------------------------------------ *Seun Ojedeji,Federal University Oye-Ekitiweb: http://www.fuoye.edu.ng <http://www.fuoye.edu.ng> Mobile: +2348035233535**alt email: <http://goog_1872880453>seun.ojedeji@fuoye.edu.ng <seun.ojedeji@fuoye.edu.ng>* The key to understanding is humility - my view !
I would be completely comfortable with an “exhaustion” requirement that invokes outside adjudication only after efforts at internal mediation have been unsuccessful. Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 Skype: +1 (202) 738-1739 or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com] Sent: Tuesday, December 23, 2014 12:42 PM To: Paul Rosenzweig Cc: Malcolm Hutty; ccwg-accountability2@icann.org; accountability-cross-community@icann.org Subject: Re: [CCWG-Accountability] [Area 2] Work Area 2: inventory of accountability mechanisms, draft 4 On Tue, Dec 23, 2014 at 6:26 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com <mailto:paul.rosenzweig@redbranchconsulting.com> > wrote: Mr. Ojedeji Respectful disagreement (and agreement with Mr. Hutty) on two counts: First, the principle as stated is at too high a level of generality. We need to be specific and if you are going to call for community oversight you need propose a mechanism. I am seeing it as the mechanism is what we are to determined in this process. Second, in disputes between the community and the Board, the community will often be an interested party. If you refer to dispute that that remained unresolved among both parties then i agree. My main point is that the existing community processes needs to be exhausted before seeking any external options. As you know, I favor the community generally over the Board, but it is reasonable for the Board to insist on an independent adjudicator. Saying that some issues may be “too complex to understand” is not persuasive. The Bylaws are “law” and interpreting law is a very common practice. I agree but again based on the understanding i have mentioned above. Thanks Warm regards Paul **NOTE: OUR NEW ADDRESS -- EFFECTIVE 12/15/14 *** 509 C St. NE Washington, DC 20002 Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 <tel:%2B1%20%28202%29%20547-0660> M: +1 (202) 329-9650 <tel:%2B1%20%28202%29%20329-9650> Skype: +1 (202) 738-1739 <tel:%2B1%20%28202%29%20738-1739> or paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> Link to my PGP Key From: Seun Ojedeji [mailto:seun.ojedeji@gmail.com <mailto:seun.ojedeji@gmail.com> ] Sent: Tuesday, December 23, 2014 11:48 AM To: Malcolm Hutty Cc: ccwg-accountability2@icann.org <mailto:ccwg-accountability2@icann.org> ; accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-Accountability] [Area 2] Work Area 2: inventory of accountability mechanisms, draft 4 Hi Malcolm, While I agree that it may be moved to WS1, I will like to suggest a rewording as below: "Ensure that the ICANN Board can be held to its own Bylaws, and effective remedy granted if breach found by it's community." I don't think an independent external entity will understand the bylaw than the community because they are the ones directly affected. They may engage the external entity if required but the trigger should happen from the community and the decision made by them. However as you have observed, the WS1 item seem to be the start-up and what is in WS2 is the continuation. Cheers! sent from Google nexus 4 kindly excuse brevity and typos. On 23 Dec 2014 17:17, "Malcolm Hutty" <malcolm@linx.net <mailto:malcolm@linx.net> > wrote: On 21/12/2014 21:10, Steve DelBianco wrote:
To: members of CCWG and Work Area 2,
After our last call on 16-Dec, the chairs tasked the entire CCWG with this action:
3. ACTION review the inventory list compiled by WA2 and suggest either additions to or deletions from the list.
With regard to work area 2, everyone is encouraged to review the latest version of the inventory that was developed by the WA 2 sub-group.
Steve, 1. I would like to propose that the item "Ensure that the ICANN Board can be held to its own Bylaws, and effective remedy granted if breach found by independent adjudicator." be reclassified to WS1. I have three reasons for this. Firstly, I would suggest that this is a fundamental element of accountability. Although the is not limited to such extreme scenarios, it includes the case where the Board willfully defies the bylaws. If you cannot ensure that the Board honours the bylaws, any accountability mechanisms that that depend upon the bylaws are critically weakened. This makes this foundational, and I think that reason alone is sufficient to justify placing it in WS1. In short, the statement "these are initially designated as WS2, since the Members could reverse board or management decisions if Members are empowered in WS1 (above)" does not apply unless this is WS1. Secondly, my own view is that the only way this accountability objective can be achieved robustly is to create an independent/external body that is able to review the Board's actions for compliance with the bylaws (presumably on an appellate basis) and, if it finds a breach, to vacate the Board action. To be effective, in my view, in the face of a theoretically defiant Board, this entity could not be answerable to the Board. While it is possible that others may not support such a mechanism, this type of approach clearly ought to be considered. Any such a mechanism would have to be created by NTIA, not ICANN; the ICANN Board is self-evidently incapable of setting up something in authority over itself and its own bylaws. For that reason I believe that this also qualifies this scenario for WS1 according to your own criterion of "things that cannot be done if left until after transition has occurred" Thirdly, this overlaps with another proposal you have classifed as WS1 "Establish a permanent cross-community working group with power to refer any board decision to an independent review panel." If the only grounds for making such a referral is an alleged breach of the bylaws then the one is a perfect superset of this other proposal: referral from a cross-community one of a range of possible means of having such an allegation considered by an independent review panel, but not the only one. If it was intended that the cross-community group be able to refer decisions on other grounds too, then there is overlap but not duplication. 2. I would like to propose that the items "Ensure ICANN Board does not act "ultra vires", and stays within assigned mission and scope. e.g., prevent scope creep in policies imposed via RAA." and "Prevent ICANN Board redefining mission/scope in Bylaws without community consensus" be reclassified to WS1. My reasons are similar to the previous item. A Board that is capable ignoring its mission or of redefining its mission at will cannot be accountable to anyone: if anyone says it has done wrong it can simply redefine the goals so as to justify its preferred actions. This item is therefore foundational for any other mechanisms, which is in my view sufficient to justify WS1 classification. Moreover, the ability to set the goals and thereby determine the criteria according to which any accountability mechanisms will operate is so fundamental that it largely defines "who is in charge". It is almost inconceivable that any Board would yield up ultimate decision-making authority on this issue to anyone else, unless faced with extraordinary leverage. NTIA transition is therefore the only opportunity for the community to seize this authority directly, and so it also qualifies for WS1 according your "now or never" criterion. Finally this overlaps with another proposal you have assigned to WS1: "Establish a permanent cross-community working group with power to approve changes to ICANN bylaws or Articles, with 2/3 majority". A permanent cross-community working group is one means by which community consensus might be established, but not the only possible means (for example, changes to the bylaws and articles could be ratified directly by ACs and components of SOs directly). 3. Lastly, I am a little concerned that the proposals relating to Affirmation Review Teams might be a bit too narrow and 'solution-oriented' for WS1 track. There is an underlying idea, I think, that continuing community oversight is required and that the community needs a permanent ability to initiate major perform, but I suspect the details of this may need to be left to WS2; the minimum requirement in these proposals it to be confident such reforms could be initiated later. However I've just tried three times to come up with an alternative way of framing this that would allow these proposals to be reclassified as WS2 and found myself unsatisfied with my own idea each time. I will therefore await the discussion -- Malcolm Hutty | tel: +44 20 7645 3523 <tel:%2B44%2020%207645%203523> Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd 21-27 St Thomas Street, London SE1 9RY Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- ------------------------------------------------------------------------ Seun Ojedeji, Federal University Oye-Ekiti web: http://www.fuoye.edu.ng Mobile: +2348035233535 alt email: <http://goog_1872880453> seun.ojedeji@fuoye.edu.ng <mailto:seun.ojedeji@fuoye.edu.ng> The key to understanding is humility - my view !
participants (6)
-
Athina Fragkouli -
Malcolm Hutty -
Mathieu Weill -
Paul Rosenzweig -
Seun Ojedeji -
Steve DelBianco