Dear All, This type of exchanged of views and conversation was suitable for Jan 2015 Period after our first f2f meeting in FFM It is too late to go back and start from square1 . W Regards Kavouss 2015-07-12 5:40 GMT+02:00 Jordan Carter <jordan@internetnz.net.nz>:

Thank you George, interesting post - a couple of thoughts in line below:

On 11 July 2015 at 05:13, George Sadowsky <george.sadowsky@gmail.com> wrote:

<snip>

...

Here's the question: Does the CCWG believe that the global public interest is _always_ defined by "community" consensus or "community" dictates? Yes or no? I believe that the great majority of the time the two are consistent, but I believe that there are cases in which they diverge. Is there any disagreement among us that this could happen? In that case, what should a Board member do? Which is the higher authority according to the CCWG's thinking?

I think there will always be occasions when there is a divergence between interpretations of the global public interest on the part of different stakeholders. The ICANN Board will remain charged, I think, with bringing that global perspective to bear. But this decision is made easier by ICANN's very limited role, and by the identify of interests in its performance of that role between what the Internet and its users need, and what core operational ICANN stakeholders want: completely reliable operation of the IANA functions, and an open and accountable, bottom up, consensus driven policy process - with the Board generally validating the outcomes of consensus policy processes.

To put it another way, the global public interest is always served by ICANN focusing on doing its core operational jobs well. Beyond that, it becomes very subjective, as you note.

<snip>

...

This implies to me that the test for removal of a Director must rest upon a process that is broadly distributed in the community and must recognize the different organizations to which such a member is accountable as an important factor in the process.

What are the opinions of members of the CCWG on this point?

I am personally quite comfortable with the logic of the appointing body being the removing body for individual directors (recognising there is work to be done in respect of NomCom appointees).

One of the concerns that comes up in thinking about this is probably well represented by this hypothetical & fictional scenario:

*The GNSO demands that the proceeds of the new gTLD programme be returned to the registries pro rata depending on the number of registrations. The Board does not agree, including the GNSO appointed directors on the Board. The GNSO removes its directors and appoints different ones who say they will support this proposal.*

I think this scenario would never play out in practice.

Why not?

- two out of sixteen directors would never be credibly enough to completely change the Board's position on a matter involving significant resources and impact on the public. - the new directors would face the same obligations the old directors faced to act in the public interest

The removal of individual directors is possible in very many organisations and it is only when they are dysfunctional that these sorts of games start being played.

I think in any situation where an SO/AC or the NomCom was contemplating removing a director, they'd be carefully considering what they could really achieve. And they'd be unlikely to do it for reasons of rent-seeking or other self-interested things.

The whole rationale behind the power, in my view, is that it simply tightens the link between directors and their appointing bodies. It isn't and should not be a backdoor way to change directors from directors into mere avatars for the specific interests of their appointing groups.

George, I hope this is constructive.

A last question...

Do you have a concrete suggestion as to how you would see the exercise of such a power being done by "a process that is broadly distributed in the community" as an alternative for us to consider, and seek legal advice on?

The advice we've had so far suggests that it's simple to have the appointment and removal function with the same group, but more complicated (though not, if memory serves, impossible) for removers to be different to appointers.

cheers Jordan

-- Jordan Carter

Chief Executive *InternetNZ*

04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter

*A better world through a better Internet *

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Hi Jordan, I am personally quite comfortable with the logic of the appointing body being the removing body for individual directors (recognising there is work to be done in respect of NomCom appointees). One of the concerns that comes up in thinking about this is probably well represented by this hypothetical & fictional scenario: The GNSO demands that the proceeds of the new gTLD programme be returned to the registries pro rata depending on the number of registrations. The Board does not agree, including the GNSO appointed directors on the Board. The GNSO removes its directors and appoints different ones who say they will support this proposal. I think this scenario would never play out in practice. Why not? · two out of sixteen directors would never be credibly enough to completely change the Board's position on a matter involving significant resources and impact on the public. The GNSO can recall their dissident director even if they know the Board decision will not change, just to punish him · the new directors would face the same obligations the old directors faced to act in the public interest I don’t see how this obligation will prevent the scenario to happen since the evaluation of the public Interest may be different from a party (or a person) to another The removal of individual directors is possible in very many organisations and it is only when they are dysfunctional that these sorts of games start being played. To ensure that this will only happen when there is dysfunction, we need to put the necessary and right rules, not permit to the appointing bodies to recall there directors without convincing reason I think in any situation where an SO/AC or the NomCom was contemplating removing a director, they'd be carefully considering what they could really achieve. And they'd be unlikely to do it for reasons of rent-seeking or other self-interested things. you are lucky to believe so even if nothing prevent it The whole rationale behind the power, in my view, is that it simply tightens the link between directors and their appointing bodies. It isn't and should not be a backdoor way to change directors from directors into mere avatars for the specific interests of their appointing groups. George, I hope this is constructive. A last question... Do you have a concrete suggestion as to how you would see the exercise of such a power being done by "a process that is broadly distributed in the community" as an alternative for us to consider, and seek legal advice on? This is a proposals for exercising the power of recalling Board directors by a process that is well distributed in the community consisting in recalling the board directors (from 1 to 15) by the community and not a single SO or AC: · The decision is taken by at least 4 SOs and/or ACs including at list 1 SO and 1 AC. · All the directors have the same treatment (selected by their constituencies or by the nomcom) · The SOs and ACs and the NomCom select the board directors and their interim simultaneously (the GNSO selects 2 acting directors and 2 interim ones and the ALAC selects 1 acting director and 1 interim one, etc.). · All acting directors sign before taking their position as Board Director a commitment to step down in case a community decision to recall them is taken · Those interim directors will fully replace the removed directors if the number of recalled directors is less than 8. In case the number reaches 8 or more, the resulting board (non recalled directors plus the interim of the recalled ones) will act as a caretaker till the selection of new directors to replace the recalled ones. · This is to replace the 2 powers: stilling the whole board and recalling individual board directors. This has the merit to; · Fulfill the requirement of having the power to remove the whole Board and to remove individual board members · make the change smaller and simpler by having a single mechanism to recall the board directors instead of 2 · not having to find a way for the nomcom to remove their appointed directors · avoid a period where ICANN run without board in place · avoid the risk of having an SO or AC recalling their selected director because of the SO or AC interest and not the global public interest -------------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Associations (FMAI) Phone: + 216 41 649 605 Mobile: + 216 98 330 114 Fax: + 216 70 853 376 -------------------------------------------------------------------------------- De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Jordan Carter Envoyé : dimanche 12 juillet 2015 04:40 Cc : Accountability Cross Community Objet : Re: [CCWG-ACCT] An mplication of accountability models being discussed Thank you George, interesting post - a couple of thoughts in line below: On 11 July 2015 at 05:13, George Sadowsky <george.sadowsky@gmail.com> wrote: <snip> Here's the question: Does the CCWG believe that the global public interest is _always_ defined by "community" consensus or "community" dictates? Yes or no? I believe that the great majority of the time the two are consistent, but I believe that there are cases in which they diverge. Is there any disagreement among us that this could happen? In that case, what should a Board member do? Which is the higher authority according to the CCWG's thinking? I think there will always be occasions when there is a divergence between interpretations of the global public interest on the part of different stakeholders. The ICANN Board will remain charged, I think, with bringing that global perspective to bear. But this decision is made easier by ICANN's very limited role, and by the identify of interests in its performance of that role between what the Internet and its users need, and what core operational ICANN stakeholders want: completely reliable operation of the IANA functions, and an open and accountable, bottom up, consensus driven policy process - with the Board generally validating the outcomes of consensus policy processes. To put it another way, the global public interest is always served by ICANN focusing on doing its core operational jobs well. Beyond that, it becomes very subjective, as you note. <snip> This implies to me that the test for removal of a Director must rest upon a process that is broadly distributed in the community and must recognize the different organizations to which such a member is accountable as an important factor in the process. What are the opinions of members of the CCWG on this point? I am personally quite comfortable with the logic of the appointing body being the removing body for individual directors (recognising there is work to be done in respect of NomCom appointees). )One of the concerns that comes up in thinking about this is probably well represented by this hypothetical & fictional scenario: The GNSO demands that the proceeds of the new gTLD programme be returned to the registries pro rata depending on the number of registrations. The Board does not agree, including the GNSO appointed directors on the Board. The GNSO removes its directors and appoints different ones who say they will support this proposal. I think this scenario would never play out in practice. Why not? * two out of sixteen directors would never be credibly enough to completely change the Board's position on a matter involving significant resources and impact on the public. * the new directors would face the same obligations the old directors faced to act in the public interest The removal of individual directors is possible in very many organisations and it is only when they are dysfunctional that these sorts of games start being played. I think in any situation where an SO/AC or the NomCom was contemplating removing a director, they'd be carefully considering what they could really achieve. And they'd be unlikely to do it for reasons of rent-seeking or other self-interested things. The whole rationale behind the power, in my view, is that it simply tightens the link between directors and their appointing bodies. It isn't and should not be a backdoor way to change directors from directors into mere avatars for the specific interests of their appointing groups. George, I hope this is constructive. A last question... Do you have a concrete suggestion as to how you would see the exercise of such a power being done by "a process that is broadly distributed in the community" as an alternative for us to consider, and seek legal advice on? The advice we've had so far suggests that it's simple to have the appointment and removal function with the same group, but more complicated (though not, if memory serves, impossible) for removers to be different to appointers. cheers Jordan -- Jordan Carter Chief Executive InternetNZ 04 495 2118 (office) | +64 21 442 649 (mob) jordan@internetnz.net.nz Skype: jordancarter A better world through a better Internet --- L'absence de virus dans ce courrier électronique a été vérifiée par le logiciel antivirus Avast. http://www.avast.com

George, Jonathan's list is quite an excellent start, much better then mine dealing with examples (by detail). Sometimes I think the Board develops a bunker mentality, ie we 15/17/19 (or however many) Board Members are right, so everybody else must be wrong. I have used much choicer words for this transformation that Board Members seem to go through, by the way. But, why on earth do you people not ask yourselves why there is no trust in you (the Board)? el -- Sent from Dr Lisse's iPad mini

On Jul 12, 2015, at 12:49, Jonathan Zuck <JZuck@actonline.org> wrote: [...]

1. Failed thus far to develop binding accountability mechanisms.

2. Failed to adhere to policies around publication of documents prior to meetings.

3. Failed to prevent decision making prior to termination of comment periods.

4. Developed no standard for review during the previous attempt at accountability reform (2006?)

5. Failed to develop public metrics to hold ICANN institutions to account (such as contract compliance)

6. Failed to listen to community consensus on singular/plural and controlled the outcome of the redress mechanisms through overly narrow mandate.

7. Pushed ahead with new gTLD program despite a lack of operational readiness, again without consequences.

8. Launched a staff lead review of the new gTLD program prior to any input from the community.

9. Scheduled new round of applications (at least initially) prior to scheduled reviews.

10. Failed to reign in the Net Mundial initiative despite community objection or specify any consequences for secret board resolutions, etc.

11. Accepted the GC advice to protect the corporation instead of the public interest.

12. Weakened rather than strengthened the IRP.

13. Allowed staff to unilaterally change community agreement on registry agreements and imposed the unilateral right to amend registry agreements.

14. Failed to implement half of the ATRT1 recommendations, again without consequences.

15. Supported the practice of passing off all responsibility to third parties so ICANN has no risk. (.SUCKS is the latest example)

16. First attempted to prevent an accountability component to the IANA transition and then tried to control it, insert experts, etc. rather than trusting the community to organize itself.

[...]

Nigel, et al., The episode with Karl Auerbach was in 2002, when ICANN was just a few years old and was still building its processes, sorting out a stable source of revenue, and generally finding its way. I am strongly in favor, as I think both the board and the staff are, that directors must have inspection rights. A similar problem isn’t going to occur. The court action you’ve cited is just one part of the commotion Karl caused. He was also quite disruptive in other ways, and his “popular” election made it clear that we don’t yet have viable mechanisms to support the popular elections. No method of enfranchising voters, and no way to prevent the type of massive fraud that led to his election. Live and learn. ICANN is far from perfect but it is also far from totally broken. It’s always hard to deal with situations that are neither black nor white, so the challenge is to be accurate and balanced. Steve On Jul 12, 2015, at 10:51 AM, Nigel Roberts <nigel@channelisles.net> wrote:

How about adding

'unreasonably restricting directors access to corporate records and depriving directors of rights afforded them by law'

'imposing unreasonable requirements . . .'

'promulgating rules not adopted by the board by ad hoc groups of functionaries'

'depriving directors of inspection rights afforded them by law'

'requiring burdensome review' before permitting a director to enforce his (legal) inspection rights

These are not my words but are taken from the words of the Hon. Dzintra Janavs, in granting the peremptory writ of mandate against ICANN in Auerbach -v- ICANN to force ICANN to comply with the applicable California law.

ICANN is, without doubt, better than it was in 2002. But I personally will not be satisfied with sticking-plaster accountability mechanisms. Otherwise, why should there need to be any form accountability mechanisms in the United States' constitituion, if you trust the current incumbents to do the right thing.

On 12/07/15 14:41, Dr Eberhard W Lisse wrote:

...

George,

Jonathan's list is quite an excellent start, much better then mine dealing with examples (by detail).

Sometimes I think the Board develops a bunker mentality, ie we 15/17/19 (or however many) Board Members are right, so everybody else must be wrong. I have used much choicer words for this transformation that Board Members seem to go through, by the way.

But, why on earth do you people not ask yourselves why there is no trust in you (the Board)?

el

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Steve: Its getting late, and I'm tired so I'll try and make this brief. I explicitly acknowledged much of what you detail in your apparent rebuttal. My point was not to beat ICANN up about its previous misdeeds but the fact you seek to paint a rosy picture shows the sensitivities are still there. ICANN *is* somewhat better now than it was, although the .AFRICA review decision would seem not to assist in the task of convincing skeptics of this. But extrapolating from the fact that ICANN has stopped beating its wife, to taking a view that robust constituional checks, separation of powers, and an effective system of accountability and (in particular) independent review, is NOT necessary, would be a step too far in my book. It's like saying South Africa and/or Namibia (and I choose those democracies specifically) do NOT need the robust constitutions and judiciary that they have adopted, becuase post 1994 they are better places and there are none of those nasty people that used to run the show around any more. Whilst sailing into Godwin's law territory, it's like saying Germany does not need the Grundgesetz (I scored 90% on the German citizenship test by the way), again because modern Germany doesn't have the bad people around in power. It's clear to me that it's precisely because Germany has a strong separation of powers, and a rights based Basic Law where even the government has to follow the rules, means that those bad days are less likely to return. The elephants in the room have long memories. (Or should that be dinosaurs.) It seems to me that ICANN needs an equivalent of the Basic Law - a Covenant, or Charter, for the DNS, which should inform everything that staff and volunteers do. On 12/07/15 16:37, Steve Crocker wrote:

Nigel, et al.,

The episode with Karl Auerbach was in 2002, when ICANN was just a few years old and was still building its processes, sorting out a stable source of revenue, and generally finding its way. I am strongly in favor, as I think both the board and the staff are, that directors must have inspection rights. A similar problem isn’t going to occur.

The court action you’ve cited is just one part of the commotion Karl caused. He was also quite disruptive in other ways, and his “popular” election made it clear that we don’t yet have viable mechanisms to support the popular elections. No method of enfranchising voters, and no way to prevent the type of massive fraud that led to his election. Live and learn.

ICANN is far from perfect but it is also far from totally broken. It’s always hard to deal with situations that are neither black nor white, so the challenge is to be accurate and balanced.

Steve

On Jul 12, 2015, at 10:51 AM, Nigel Roberts <nigel@channelisles.net> wrote:

...

How about adding

'unreasonably restricting directors access to corporate records and depriving directors of rights afforded them by law'

'imposing unreasonable requirements . . .'

'promulgating rules not adopted by the board by ad hoc groups of functionaries'

'depriving directors of inspection rights afforded them by law'

'requiring burdensome review' before permitting a director to enforce his (legal) inspection rights

These are not my words but are taken from the words of the Hon. Dzintra Janavs, in granting the peremptory writ of mandate against ICANN in Auerbach -v- ICANN to force ICANN to comply with the applicable California law.

ICANN is, without doubt, better than it was in 2002. But I personally will not be satisfied with sticking-plaster accountability mechanisms. Otherwise, why should there need to be any form accountability mechanisms in the United States' constitituion, if you trust the current incumbents to do the right thing.

On 12/07/15 14:41, Dr Eberhard W Lisse wrote:

...

George,

Jonathan's list is quite an excellent start, much better then mine dealing with examples (by detail).

Sometimes I think the Board develops a bunker mentality, ie we 15/17/19 (or however many) Board Members are right, so everybody else must be wrong. I have used much choicer words for this transformation that Board Members seem to go through, by the way.

But, why on earth do you people not ask yourselves why there is no trust in you (the Board)?

el

---

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Avri, I've been reading the .AFRICA decision. I think that the outcome isn't the only notable thing about it: the assertions ICANN made (many of which the IRP rejected) during this process are also notable. For example, * the claim that the IRP is advisory only. * That the IRP has no right to recommend a response to an IRP finding against ICANN, only to delcare bylaws-incompatibility and leave it entirely up to the Board to imagine what to do next; * That it was up to ICANN, rather than the IRP, to decide that DCA's case was "very weak" and so that an interim pause pending the outcome of the IRP was not warranted. * That the IRP cannot test the Bylaws-compatibility of staff actions (only Board actions). * That neither SOs nor ACs (or at least, not GAC) are expected to abide by the Core Values. I'm finding this very interesting reading as input to our deliberations. Malcolm On 12/07/2015 19:42, Avri Doria wrote:

On 12-Jul-15 13:58, Nigel Roberts wrote:

...

ICANN *is* somewhat better now than it was, although the .AFRICA review decision would seem not to assist in the task of convincing skeptics of this.

Actually it remains to be seen.

A redress mechanism was used and came back with a response. Can the Board just remedy the error, accept the ruling put the application back on track and let the process play out?

If they can take the ruling an do the right thing, it will be an important indicator.

The ruling also shows that the GAC does not have the absolute power some of us sometimes claim. That is a good thing we have to be careful to protect. It shows that even if they manage to scare the Board into non-bylaw sanctioned action, there is redress. How cool is that?

avri

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Dear George With respect, we've been over this ground before. In general, past practice, while interesting is not relevant to our discussion. We are designing an accountability mechanism to bind the Board and community going forward under changed circumstances. In doing so we have been positing (through the stress test process) some modes of failure that we might anticipate. The bounds of that consideration are the bounds of reasonableness and expectation. We cannot defend against all risks and some risks are more likely than others. For that reason we've not considered a response to the zombie apocalypse :-). But we have (and in my view must) consider many situations that have not occurred in the past as risks that may eventuate in the future. For me, past disagreements with the Board serve only one purpose -- to be a plausible predictor for likely future disputes. At a minimum, the accountability mechanisms must address perceived past accountability failures -- i.e. these lists -- but we don't need to spend too much time dredging up old disputes and resolving them factually. All of them (even the ones with contended facts) are plausible future scenarios that would need to be addressed even had they not previously been perceived to have occurred. As I said, we've had the "how bad is the Board" discussion before. I confess I have played the game a bit myself. But in the end it isn't the question. Even assuming the current Board is filled with saints who never have erred, they will not be the future Board, who may be saints as well, but who may be sinners. 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: George Sadowsky [mailto:george.sadowsky@gmail.com] Sent: Sunday, July 12, 2015 12:24 PM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] An mplication of accountability models being discussed Jonathan, Thank you _very much_ for taking the time to respond to my request. I really appreciate it, because I think that your list, with additions by Eberhardt, Jordan, Christopher and others give me a sense of why the CCWG is progressing as it is, and why the discussions are going the way they are. Thank you for being forthcoming. I know that I entered this discussion late, and I regret that I felt so constrained at its beginning. I suspect that I'm raising old issues, but I'm not sure. I do subscribe to Chris' intervention that it's important to know whether the points raised are true and if so are widely held community concerns. At the moment I'm agnostic because I haven't heard your point of view yet, and I hope that I have a sufficient reputation for fairness and independent thinking that you accept that as true. I have no wish to defend established positions just because they exist. OTOH, it's important to be able to proceed in an informed way based upon commonly agreed upon facts. (You may recall that on your point 7 below, I was the only vote against proceeding with the gTLD program at that time.) My family, with granddaughter, arrived yesterday afternoon and are here with us in Vermont, so my time is more limited than I would like. Nevertheless I think this is an important dialogue, and I am glad that it has started, if only for my own education -- although I'm not sure that it has occurred before. (If not, it would be important to understand why -- let's put that on the "to do" list.) I would like to get back to you and to the list later today. Perhaps you might have time for a Skype conversation sometime tomorrow? George On Jul 12, 2015, at 7:49 AM, Jonathan Zuck <jzuck@actonline.org> wrote:

George, I appreciate your questions about past actions of the board that might be motivating this accountability exercise, and I did spin off a short list for Chris not too long ago (see below) but I continue to believe this isn't the most productive line of reasoning. This exercise really isn't about the current board, which operated under he watchful eye of the NTIA. This exercise is about the next incarnation of ICANN, independent from any last tether to the USG and, as such, we owe it to ourselves to finally build real accountability mechanisms into the ICANN framework. There are certainly examples of international organizations which has lost there way. It's our duty to attempt to prevent that fate for ICANN. So I think it's a mistake to think of this exercise as "motivated" by the current board or any previous board. We're starting over and trying to get it right.

That said, here's an incomplete list of things I came up with during a coffee break in BA that I believe at least raise some questions as to how they might have been handled under a reformed accountability framework. I'm sure Eberhard would add to this list some questionable decisions to allow corrupt governments to expropriate ccTLDs. I hope this is more helpful than hurtful. We really just have one chance to get this fundamental balance of power right. JZ

1. Failed thus far to develop binding accountability mechanisms.

2. Failed to adhere to policies around publication of documents prior to meetings.

3. Failed to prevent decision making prior to termination of comment periods.

4. Developed no standard for review during the previous attempt at accountability reform (2006?)

5. Failed to develop public metrics to hold ICANN institutions to account (such as contract compliance)

6. Failed to listen to community consensus on singular/plural and controlled the outcome of the redress mechanisms through overly narrow mandate.

7. Pushed ahead with new gTLD program despite a lack of operational readiness, again without consequences.

8. Launched a staff lead review of the new gTLD program prior to any input from the community.

9. Scheduled new round of applications (at least initially) prior to scheduled reviews.

10. Failed to reign in the Net Mundial initiative despite community objection or specify any consequences for secret board resolutions, etc.

11. Accepted the GC advice to protect the corporation instead of the public interest.

12. Weakened rather than strengthened the IRP.

13. Allowed staff to unilaterally change community agreement on registry agreements and imposed the unilateral right to amend registry agreements.

14. Failed to implement half of the ATRT1 recommendations, again without consequences.

15. Supported the practice of passing off all responsibility to third parties so ICANN has no risk. (.SUCKS is the latest example)

16. First attempted to prevent an accountability component to the IANA transition and then tried to control it, insert experts, etc. rather than trusting the community to organize itself.

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And we'll go over it again. I agree we do not need to resolve these past issues here, but we must learn from them. el -- Sent from Dr Lisse's iPad mini

On Jul 12, 2015, at 19:05, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

Dear George

With respect, we've been over this ground before. In general, past practice, while interesting is not relevant to our discussion. We are designing an accountability mechanism to bind the Board and community going forward under changed circumstances. In doing so we have been positing (through the stress test process) some modes of failure that we might anticipate. The bounds of that consideration are the bounds of reasonableness and expectation. We cannot defend against all risks and some risks are more likely than others. For that reason we've not considered a response to the zombie apocalypse :-). But we have (and in my view must) consider many situations that have not occurred in the past as risks that may eventuate in the future. For me, past disagreements with the Board serve only one purpose -- to be a plausible predictor for likely future disputes. At a minimum, the accountability mechanisms must address perceived past accountability failures -- i.e. these lists -- but we don't need to spend too much time dredging up old disputes and resolving them factually. All of them (even the ones with contended facts) are plausible future scenarios that would need to be addressed even had they not previously been perceived to have occurred.

As I said, we've had the "how bad is the Board" discussion before. I confess I have played the game a bit myself. But in the end it isn't the question. Even assuming the current Board is filled with saints who never have erred, they will not be the future Board, who may be saints as well, but who may be sinners.

Paul

Paul Rosenzweig [...]

One thing I feel the need to share. The list I sent was simply something I came up with at Chis Dispain's request during a break in BA. I have no specific axe to grind on this list, it's NOT a consensus list that in some way guided our stress tests or something and it is by no means exhaustive. It's just a list of candidates off the top of my head in 10 minutes. I worry that it somehow retroactively forms the basis of our work and nothing could be further from the truth. Nothing in the past was discussed during the CCWG deliberations. Perhaps that was clear but I wanted to make sure. Again, I hesitated to produce a list because I think accountability is about the future, not the past. -----Original Message----- From: George Sadowsky [mailto:george.sadowsky@gmail.com] Sent: Sunday, July 12, 2015 11:49 PM To: Paul Rosenzweig Cc: Jonathan Zuck; Accountability Cross Community Subject: Re: [CCWG-ACCT] An mplication of accountability models being discussed H, Paul, I don't think that we've met, but I do want to assure you that I understand your point of view. It is important to develop a well-defined and understood structure that provides proper accountability for all components of the ICANN universe, along with providing sufficient degrees of freedom for those components to exercise their authority and assume responsibility for their actions. But I would like to push back on your belief that past practice, while interesting, is not relevant to our discussion. I believe that it is relevant, if only to agree with George Santayana's statement that people who do not understand history are doomed to repeat it. I've asked for, and thankfully received from Jonathan Zuck and others, examples of what some consider "out of bounds" past activities on the part of the Board. I've asked for several reasons: - It helps me to understand the direction and the mood of CCWG activities - It helps me to subject those past and present "grievances" - if I can call them that -- to the test that Chris Disspain mentioned on this list, i.e. are they factually correct and are of common community concern or the concern of a part of ICANN only. - It therefore helps me to separate out those "grievances" that I have some sympathy for, and understand how those grievances are affecting the direction of the CCWG. But it should also help the CCWG, in that where there is factually verified and agreed upon evidence of out of bounds behavior by the Board (or for that matter any other organization in the ICANN orbit), one of your "stress tests"should be to discuss what kind of reaction that behavior would produce if one or more of your accountability models had been in place at the time. I would think that this is a necessary test of any new accountability proposal. Wouldn't not doing this be a failure of due diligence? Finally, based upon my initial reading of Jonathan Zuck's list, I find things that I need to understand better. I also find points with which I have sympathy, and points where I think there is a genuine misunderstanding. Whatever the result of the CCWG deliberations will be, I would like that result to be based on a shared perception of accurate information, both about structural implications and about past incidents. As a Board member, my term is over in October. I have applied for renewal, but I cannot tell whether I will be renewed or not. I want this accountability result to work for me whether I stay on the Board, or whether I become again a member of the ICANN community. And above all, I want ICANN to contribute to the health, security and stability of the Internet within its mandate. I have no axe to grind either way, but I do want the result to be based upon reality, and not upon models that may be insufficiently tested or understood and are not based upon factual misunderstanding. Perhaps we'll have some time to talk about this in Paris later this week. Regards, George On Jul 12, 2015, at 2:05 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

Dear George

With respect, we've been over this ground before. In general, past practice, while interesting is not relevant to our discussion. We are designing an accountability mechanism to bind the Board and community going forward under changed circumstances. In doing so we have been positing (through the stress test process) some modes of failure that we might anticipate. The bounds of that consideration are the bounds of reasonableness and expectation. We cannot defend against all risks and some risks are more likely than others. For that reason we've not considered a response to the zombie apocalypse :-). But we have (and in my view must) consider many situations that have not occurred in the past as risks that may eventuate in the future. For me, past disagreements with the Board serve only one purpose -- to be a plausible predictor for likely future disputes. At a minimum, the accountability mechanisms must address perceived past accountability failures -- i.e. these lists -- but we don't need to spend too much time dredging up old disputes and resolving them factually. All of them (even the ones with contended facts) are plausible future scenarios that would need to be addressed even had they not previously been perceived to have occurred.

As I said, we've had the "how bad is the Board" discussion before. I confess I have played the game a bit myself. But in the end it isn't the question. Even assuming the current Board is filled with saints who never have erred, they will not be the future Board, who may be saints as well, but who may be sinners.

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: George Sadowsky [mailto:george.sadowsky@gmail.com] Sent: Sunday, July 12, 2015 12:24 PM To: Jonathan Zuck Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] An mplication of accountability models being discussed

Jonathan,

Thank you _very much_ for taking the time to respond to my request. I really appreciate it, because I think that your list, with additions by Eberhardt, Jordan, Christopher and others give me a sense of why the CCWG is progressing as it is, and why the discussions are going the way they are. Thank you for being forthcoming.

I know that I entered this discussion late, and I regret that I felt so constrained at its beginning. I suspect that I'm raising old issues, but I'm not sure. I do subscribe to Chris' intervention that it's important to know whether the points raised are true and if so are widely held community concerns. At the moment I'm agnostic because I haven't heard your point of view yet, and I hope that I have a sufficient reputation for fairness and independent thinking that you accept that as true. I have no wish to defend established positions just because they exist. OTOH, it's important to be able to proceed in an informed way based upon commonly agreed upon facts. (You may recall that on your point 7 below, I was the only vote against proceeding with the gTLD program at that time.)

My family, with granddaughter, arrived yesterday afternoon and are here with us in Vermont, so my time is more limited than I would like. Nevertheless I think this is an important dialogue, and I am glad that it has started, if only for my own education -- although I'm not sure that it has occurred before. (If not, it would be important to understand why -- let's put that on the "to do" list.)

I would like to get back to you and to the list later today. Perhaps you might have time for a Skype conversation sometime tomorrow?

George

On Jul 12, 2015, at 7:49 AM, Jonathan Zuck <jzuck@actonline.org> wrote:

...

George, I appreciate your questions about past actions of the board that might be motivating this accountability exercise, and I did spin off a short list for Chris not too long ago (see below) but I continue to believe this isn't the most productive line of reasoning. This exercise really isn't about the current board, which operated under he watchful eye of the NTIA. This exercise is about the next incarnation of ICANN, independent from any last tether to the USG and, as such, we owe it to ourselves to finally build real accountability mechanisms into the ICANN framework. There are certainly examples of international organizations which has lost there way. It's our duty to attempt to prevent that fate for ICANN. So I think it's a mistake to think of this exercise as "motivated" by the current board or any previous board. We're starting over and trying to get it right.

That said, here's an incomplete list of things I came up with during a coffee break in BA that I believe at least raise some questions as to how they might have been handled under a reformed accountability framework. I'm sure Eberhard would add to this list some questionable decisions to allow corrupt governments to expropriate ccTLDs. I hope this is more helpful than hurtful. We really just have one chance to get this fundamental balance of power right. JZ

1. Failed thus far to develop binding accountability mechanisms.

2. Failed to adhere to policies around publication of documents prior to meetings.

3. Failed to prevent decision making prior to termination of comment periods.

4. Developed no standard for review during the previous attempt at accountability reform (2006?)

5. Failed to develop public metrics to hold ICANN institutions to account (such as contract compliance)

6. Failed to listen to community consensus on singular/plural and controlled the outcome of the redress mechanisms through overly narrow mandate.

7. Pushed ahead with new gTLD program despite a lack of operational readiness, again without consequences.

8. Launched a staff lead review of the new gTLD program prior to any input from the community.

9. Scheduled new round of applications (at least initially) prior to scheduled reviews.

10. Failed to reign in the Net Mundial initiative despite community objection or specify any consequences for secret board resolutions, etc.

11. Accepted the GC advice to protect the corporation instead of the public interest.

12. Weakened rather than strengthened the IRP.

13. Allowed staff to unilaterally change community agreement on registry agreements and imposed the unilateral right to amend registry agreements.

14. Failed to implement half of the ATRT1 recommendations, again without consequences.

15. Supported the practice of passing off all responsibility to third parties so ICANN has no risk. (.SUCKS is the latest example)

16. First attempted to prevent an accountability component to the IANA transition and then tried to control it, insert experts, etc. rather than trusting the community to organize itself.

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On 2015-07-13 04:48, George Sadowsky wrote:

But I would like to push back on your belief that past practice, while interesting, is not relevant to our discussion. I believe that it is relevant, if only to agree with George Santayana's statement that people who do not understand history are doomed to repeat it. [..]

But it should also help the CCWG, in that where there is factually verified and agreed upon evidence of out of bounds behavior by the Board (or for that matter any other organization in the ICANN orbit), one of your "stress tests"should be to discuss what kind of reaction that behavior would produce if one or more of your accountability models had been in place at the time. I would think that this is a necessary test of any new accountability proposal. Wouldn't not doing this be a failure of due diligence?

Generally I agree with Jonathan when he says that accountability is desirable per se, and improvements should be put in place because they are desirable in their own right, and should not have to be justified by reference to some past misdemeanour they are intended to correct. On the other hand, the advice I quote above from George is also compelling: if we fail to address identifiable problems that have arisen before, then that would be delinquency on our part. So it seems to me that the question of past issues is not symmetrical: evidence of past problems is relevant input to justify a proposed accountability improvement, but a lack of evidence of past misbehaviour is not relevant input as to why a proposed accountability improvement is not necessary. Malcolm -- 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

George, I think that the points that you're making are well taken by the group. And I understand your desire to delve deeper into the thinking and motivations for the current community powers that we have enumerated. However I have to ask that we temper any requests to go back to the conceptual phase of our work, which I think is the logical conclusion of your questions. The community has deliberated over the mechanisms by which the community can be empowered for many months, with both supporters and detractors coming to compromise to get to the set of community powers that we are now attempting to translate into a future vision of accountability at ICANN. Those deliberations took place in the atmosphere of ensuring that what we are doing is in the best interests of not just ICANN but in the interests of the greater internet as a whole. They were decisions that were not taken lightly, they were the subject of much internal debate for many members of the CCWG, both due to the impact of the implementation of the powers and also because of the importance of the work we were tasked with. They are not abstract wants but rather concrete needs to take ICANN into a new era post-NTIA. In my own simple terms I would see our work on what we need being in essence complete with the work before us now being how do we translate those requirements into a solution while maintaining the security and stability of ICANN during a period of change. I believe for us to go back to deliberating over the community powers would be a step back in the progress that we have made, and would be ill-advised as we need the time, effort and concentration of the CCWG to be solely on the work that is before us right now, rather than the work that we have done to date. I would suggest that there are many in the CCWG who would be more than happy to bring you through the process we went through to get to where we are with the community powers, and many of those will indeed be in Paris, but as I said above, I would be reticent to suggest that the CCWG as a whole, or even as a subgroup, goes back and restarts the evaluation process of the community powers. We have limited time, effort and concentration left to bring us through these last few weeks of deliberation before our second public comment period at the end of this month. -James -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of George Sadowsky Sent: Monday, July 13, 2015 5:49 PM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] An implication of accountability models being discussed Malcolm, [These are my personal opinions, and in no way are they meant to represent the opinions of anyone else or of any organization.] Thank you for this note. I believe that it provides a balanced perspective from which to discuss issues of accountability. I'd like to suggest a next step in the direction of due diligence. For each of the alleged misbehaviors, in Jonathan Zuck's or any others' lists, I suggest that the ideal way to proceed would be to: 1. Reach a common understanding of what the facts are and what really happened. 2. Characterize why the alleged misbehavior violated community norms or bylaws, or was inappropriate in any other way. 3. Discuss and decide what would/could have happened if any one of the several accountability models currently being discussed had been in force. 4. Discuss whether the proposed changes would be overkill, with respect to this specific incident only, i.e. judging whether the response is proportional to the alleged misbehavior. I know that this is not possible in the large, but I think that it would be instructive, certainly for me, to choose some examples and work them through. This suggestion is not meant to sidetrack the issue of developing an appropriate accountability structure for its own sake. As Malcolm notes, "accountability is desirable per se, and improvements should be put in place because they are desirable in their own right." That's an important part of the equation also. I seek serious conversations on this subject in Paris. Anyone else? George On Jul 13, 2015, at 6:48 AM, Malcolm Hutty <malcolm@linx.net> wrote:

On 2015-07-13 04:48, George Sadowsky wrote:

...

But I would like to push back on your belief that past practice, while interesting, is not relevant to our discussion. I believe that it is relevant, if only to agree with George Santayana's statement that people who do not understand history are doomed to repeat it. [..] But it should also help the CCWG, in that where there is factually verified and agreed upon evidence of out of bounds behavior by the Board (or for that matter any other organization in the ICANN orbit), one of your "stress tests"should be to discuss what kind of reaction that behavior would produce if one or more of your accountability models had been in place at the time. I would think that this is a necessary test of any new accountability proposal. Wouldn't not doing this be a failure of due diligence?

Generally I agree with Jonathan when he says that accountability is desirable per se, and improvements should be put in place because they are desirable in their own right, and should not have to be justified by reference to some past misdemeanour they are intended to correct.

On the other hand, the advice I quote above from George is also compelling: if we fail to address identifiable problems that have arisen before, then that would be delinquency on our part.

So it seems to me that the question of past issues is not symmetrical: evidence of past problems is relevant input to justify a proposed accountability improvement, but a lack of evidence of past misbehaviour is not relevant input as to why a proposed accountability improvement is not necessary.

Malcolm -- Malcolm Hutty | tel: +44 20 7645 3523

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ George Sadowsky Residence tel: +1.802.457.3370 119 Birch Way GSM mobile: +1.202.415.1933 Woodstock, VT 05091-7986 USA SMS: 2024151933@txt.att.net george.sadowsky@gmail.com http://www.georgesadowsky.org/ Skype: sadowsky twitter: @georgesadowsky _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

George and Steve may want to delve into past accountability problems, but I agree with Jonathan Zuck’s forward-looking perspective. When we designed Stress Tests for this transition, we deliberately avoided re-visiting incidents from the past. That’s because any recitation of a particular accountability incident will inevitably generate objections about how we describe what happened. You can just hear people commenting, “That’s not exactly what happened.” or “there were other factors at work.” etc. Instead of reliving history, the Stress Test team designed plausible scenarios that would test whether our proposal(s) would let the AC/SO community challenge the corporation for its decisions, actions or inactions, and hold the corporation accountable. That said, it’s easy to see that some of the stress test scenarios are modeled on incidents that have occurred in the recent past. But by generalizing with future scenarios, we get the benefit of stress testing — without the baggage of arguing over what actually happened in the past. —Steve From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Steve Crocker Date: Monday, July 13, 2015 at 2:32 PM To: George Sadowsky Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] An implication of accountability models being discussed [George’s note and this note were not coordinated in advance nor have he and I had this discussion.] George. I very much like your proposed approach. I suspect the first step is actually quite hard and contentious. For each of the incidents of concern, I suspect different people have strongly different views on what happened. It may require getting some neutral people to listen carefully to the competing views, gather the facts and present them in a balanced form. I am not happy having to say this, but I think that’s the environment we’re working in. Many of the people have strong ideas as to whether the right thing or the wrong thing was done, and their presentations frequently support their conclusions. Steve On Jul 13, 2015, at 12:49 PM, George Sadowsky <george.sadowsky@gmail.com<mailto:george.sadowsky@gmail.com>> wrote: Malcolm, [These are my personal opinions, and in no way are they meant to represent the opinions of anyone else or of any organization.] Thank you for this note. I believe that it provides a balanced perspective from which to discuss issues of accountability. I'd like to suggest a next step in the direction of due diligence. For each of the alleged misbehaviors, in Jonathan Zuck's or any others' lists, I suggest that the ideal way to proceed would be to: 1. Reach a common understanding of what the facts are and what really happened. 2. Characterize why the alleged misbehavior violated community norms or bylaws, or was inappropriate in any other way. 3. Discuss and decide what would/could have happened if any one of the several accountability models currently being discussed had been in force. 4. Discuss whether the proposed changes would be overkill, with respect to this specific incident only, i.e. judging whether the response is proportional to the alleged misbehavior. I know that this is not possible in the large, but I think that it would be instructive, certainly for me, to choose some examples and work them through. This suggestion is not meant to sidetrack the issue of developing an appropriate accountability structure for its own sake. As Malcolm notes, "accountability is desirable per se, and improvements should be put in place because they are desirable in their own right." That's an important part of the equation also. I seek serious conversations on this subject in Paris. Anyone else? George On Jul 13, 2015, at 6:48 AM, Malcolm Hutty <malcolm@linx.net<mailto:malcolm@linx.net>> wrote: On 2015-07-13 04:48, George Sadowsky wrote: But I would like to push back on your belief that past practice, while interesting, is not relevant to our discussion. I believe that it is relevant, if only to agree with George Santayana's statement that people who do not understand history are doomed to repeat it. [..] But it should also help the CCWG, in that where there is factually verified and agreed upon evidence of out of bounds behavior by the Board (or for that matter any other organization in the ICANN orbit), one of your "stress tests"should be to discuss what kind of reaction that behavior would produce if one or more of your accountability models had been in place at the time. I would think that this is a necessary test of any new accountability proposal. Wouldn't not doing this be a failure of due diligence? Generally I agree with Jonathan when he says that accountability is desirable per se, and improvements should be put in place because they are desirable in their own right, and should not have to be justified by reference to some past misdemeanour they are intended to correct. On the other hand, the advice I quote above from George is also compelling: if we fail to address identifiable problems that have arisen before, then that would be delinquency on our part. So it seems to me that the question of past issues is not symmetrical: evidence of past problems is relevant input to justify a proposed accountability improvement, but a lack of evidence of past misbehaviour is not relevant input as to why a proposed accountability improvement is not necessary. Malcolm -- Malcolm Hutty | tel: +44 20 7645 3523 ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ George Sadowsky Residence tel: +1.802.457.3370 119 Birch Way GSM mobile: +1.202.415.1933 Woodstock, VT 05091-7986 USA SMS: 2024151933@txt.att.net<mailto:2024151933@txt.att.net> george.sadowsky@gmail.com<mailto:george.sadowsky@gmail.com> http://www.georgesadowsky.org/ Skype: sadowsky twitter: @georgesadowsky _______________________________________________ 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, I ask again, it this really the time to go down these rat holes? Are we trying to set up an argument by counterexample were we object to the major thesis about what is needed for ICANN accountability by quibbling about past events we could never come to agreement on? This sort of exercise often falls into the fallacy of compostion by assuming that a complex whole can be negated by denying one of its parts. avri On 13-Jul-15 14:32, Steve Crocker wrote:

[George’s note and this note were not coordinated in advance nor have he and I had this discussion.]

George.

I very much like your proposed approach. I suspect the first step is actually quite hard and contentious. For each of the incidents of concern, I suspect different people have strongly different views on what happened. It may require getting some neutral people to listen carefully to the competing views, gather the facts and present them in a balanced form. I am not happy having to say this, but I think that’s the environment we’re working in. Many of the people have strong ideas as to whether the right thing or the wrong thing was done, and their presentations frequently support their conclusions.

Steve

On Jul 13, 2015, at 12:49 PM, George Sadowsky <george.sadowsky@gmail.com <mailto:george.sadowsky@gmail.com>> wrote:

...

Malcolm,

[These are my personal opinions, and in no way are they meant to represent the opinions of anyone else or of any organization.]

Thank you for this note. I believe that it provides a balanced perspective from which to discuss issues of accountability.

I'd like to suggest a next step in the direction of due diligence. For each of the alleged misbehaviors, in Jonathan Zuck's or any others' lists, I suggest that the ideal way to proceed would be to:

1. Reach a common understanding of what the facts are and what really happened.

2. Characterize why the alleged misbehavior violated community norms or bylaws, or was inappropriate in any other way.

3. Discuss and decide what would/could have happened if any one of the several accountability models currently being discussed had been in force.

4. Discuss whether the proposed changes would be overkill, with respect to this specific incident only, i.e. judging whether the response is proportional to the alleged misbehavior.

I know that this is not possible in the large, but I think that it would be instructive, certainly for me, to choose some examples and work them through.

This suggestion is not meant to sidetrack the issue of developing an appropriate accountability structure for its own sake. As Malcolm notes, "accountability is desirable per se, and improvements should be put in place because they are desirable in their own right." That's an important part of the equation also.

I seek serious conversations on this subject in Paris. Anyone else?

George

On Jul 13, 2015, at 6:48 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

...

On 2015-07-13 04:48, George Sadowsky wrote:

...

But I would like to push back on your belief that past practice, while interesting, is not relevant to our discussion. I believe that it is relevant, if only to agree with George Santayana's statement that people who do not understand history are doomed to repeat it. [..] But it should also help the CCWG, in that where there is factually verified and agreed upon evidence of out of bounds behavior by the Board (or for that matter any other organization in the ICANN orbit), one of your "stress tests"should be to discuss what kind of reaction that behavior would produce if one or more of your accountability models had been in place at the time. I would think that this is a necessary test of any new accountability proposal. Wouldn't not doing this be a failure of due diligence?

Generally I agree with Jonathan when he says that accountability is desirable per se, and improvements should be put in place because they are desirable in their own right, and should not have to be justified by reference to some past misdemeanour they are intended to correct.

On the other hand, the advice I quote above from George is also compelling: if we fail to address identifiable problems that have arisen before, then that would be delinquency on our part.

So it seems to me that the question of past issues is not symmetrical: evidence of past problems is relevant input to justify a proposed accountability improvement, but a lack of evidence of past misbehaviour is not relevant input as to why a proposed accountability improvement is not necessary.

Malcolm -- Malcolm Hutty | tel: +44 20 7645 3523

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ George Sadowsky Residence tel: +1.802.457.3370 119 Birch Way GSM mobile: +1.202.415.1933 Woodstock, VT 05091-7986 USA SMS: 2024151933@txt.att.net <mailto:2024151933@txt.att.net> george.sadowsky@gmail.com <mailto:george.sadowsky@gmail.com> http://www.georgesadowsky.org/ Skype: sadowsky twitter: @georgesadowsky

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+1 With the limited time we have available, we are going to need to focus on outcomes we need to deliver to the CWG - and then other tasking for follow-up work, either by the ccwg or other working groups/processes. On 7/14/15 5:19 AM, Jonathan Zuck wrote:

Exactly Avri!

Sent from my Windows Phone ------------------------------------------------------------------------ From: Avri Doria <mailto:avri@acm.org> Sent: ‎7/‎13/‎2015 2:52 PM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] An implication of accountability models being discussed

Hi,

I ask again, it this really the time to go down these rat holes?

Are we trying to set up an argument by counterexample were we object to the major thesis about what is needed for ICANN accountability by quibbling about past events we could never come to agreement on? This sort of exercise often falls into the fallacy of compostion by assuming that a complex whole can be negated by denying one of its parts.

avri

On 13-Jul-15 14:32, Steve Crocker wrote:

...

[George’s note and this note were not coordinated in advance nor have he and I had this discussion.]

George.

I very much like your proposed approach. I suspect the first step is actually quite hard and contentious. For each of the incidents of concern, I suspect different people have strongly different views on what happened. It may require getting some neutral people to listen carefully to the competing views, gather the facts and present them in a balanced form. I am not happy having to say this, but I think that’s the environment we’re working in. Many of the people have strong ideas as to whether the right thing or the wrong thing was done, and their presentations frequently support their conclusions.

Steve

On Jul 13, 2015, at 12:49 PM, George Sadowsky <george.sadowsky@gmail.com <mailto:george.sadowsky@gmail.com>> wrote:

...

Malcolm,

[These are my personal opinions, and in no way are they meant to represent the opinions of anyone else or of any organization.]

Thank you for this note. I believe that it provides a balanced perspective from which to discuss issues of accountability.

I'd like to suggest a next step in the direction of due diligence. For each of the alleged misbehaviors, in Jonathan Zuck's or any others' lists, I suggest that the ideal way to proceed would be to:

1. Reach a common understanding of what the facts are and what really happened.

2. Characterize why the alleged misbehavior violated community norms or bylaws, or was inappropriate in any other way.

3. Discuss and decide what would/could have happened if any one of the several accountability models currently being discussed had been in force.

4. Discuss whether the proposed changes would be overkill, with respect to this specific incident only, i.e. judging whether the response is proportional to the alleged misbehavior.

I know that this is not possible in the large, but I think that it would be instructive, certainly for me, to choose some examples and work them through.

This suggestion is not meant to sidetrack the issue of developing an appropriate accountability structure for its own sake. As Malcolm notes, "accountability is desirable per se, and improvements should be put in place because they are desirable in their own right." That's an important part of the equation also.

I seek serious conversations on this subject in Paris. Anyone else?

George

On Jul 13, 2015, at 6:48 AM, Malcolm Hutty <malcolm@linx.net <mailto:malcolm@linx.net>> wrote:

...

On 2015-07-13 04:48, George Sadowsky wrote:

...

But I would like to push back on your belief that past practice, while interesting, is not relevant to our discussion. I believe that it is relevant, if only to agree with George Santayana's statement that people who do not understand history are doomed to repeat it. [..] But it should also help the CCWG, in that where there is factually verified and agreed upon evidence of out of bounds behavior by the Board (or for that matter any other organization in the ICANN orbit), one of your "stress tests"should be to discuss what kind of reaction that behavior would produce if one or more of your accountability models had been in place at the time. I would think that this is a necessary test of any new accountability proposal. Wouldn't not doing this be a failure of due diligence?

Generally I agree with Jonathan when he says that accountability is desirable per se, and improvements should be put in place because they are desirable in their own right, and should not have to be justified by reference to some past misdemeanour they are intended to correct.

On the other hand, the advice I quote above from George is also compelling: if we fail to address identifiable problems that have arisen before, then that would be delinquency on our part.

So it seems to me that the question of past issues is not symmetrical: evidence of past problems is relevant input to justify a proposed accountability improvement, but a lack of evidence of past misbehaviour is not relevant input as to why a proposed accountability improvement is not necessary.

Malcolm -- Malcolm Hutty | tel: +44 20 7645 3523

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ George Sadowsky Residence tel: +1.802.457.3370 119 Birch Way GSM mobile: +1.202.415.1933 Woodstock, VT 05091-7986 USA SMS: 2024151933@txt.att.net <mailto:2024151933@txt.att.net> george.sadowsky@gmail.com <mailto:george.sadowsky@gmail.com> http://www.georgesadowsky.org/ Skype: sadowsky twitter: @georgesadowsky

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We have two strongly competing perspectives in play. One is that it’s late in the game and history doesn’t or shouldn’t really matter. We’re dealing with principles and a concern for the future, not specific incidents in the past. The other perspective is that much of this work is, in fact, being driven by reactions to past incidents and it would be helpful to have these on the table so we can understand whether we need new layers of structure or just better administration of existing layers. Given the shortness of time, I think it’s evident we’re not going to agree to do the latter analysis, at least not as part of finalizing a proposal. Many of us are pragmatic enough to accept this decision within limits. Nonetheless George’s proposal and the subsequent comments about the difficulty of agreeing on the facts in each incident are compelling. If we don’t do it now — and I accept that we’re not going to do it now — I think there will be two effects. George’s analysis should be done later, perhaps as part of WS2 or perhaps in some other setting. In any case, I believe until this is analysis is carried out, it is hereby inappropriate for anyone to refer to a past incident as if it were a fact. Each person makes a decision about the proposed mechanisms will have to evaluate the forthcoming proposal based on her or his sense of whether the additional mechanisms are appropriate or excessive and to what extent the proposed mechanisms create unnecessary risk, cost or other burden. Speaking for myself, I am predisposed toward taking a very accepting view of the elements of the proposal coming from the CCWG, and I sincerely hope I do not find myself wrestling too hard over the second point above. Steve

Hi, I do think you are twisting words and concepts. I might be wrong. About all sorts of things. In any case you speak again of facts. I think there are several types of things that can be called facts beyond the simple noticing of events in the word, i.e the light changed to green, the leaves fell, the baby was born. Or facts like a process was established, a process was discontinued or an appeal was decided. - Engineering Facts: someone takes a theory, builds a highway bridge to withstand a hurricane and the bridge withstands. It is a fact that the bridge stood. So far, anyway. - Juridical Facts: someone takes a case to and appeals panel or to court, every one argues and after legal magic a final ruling is made. That ruling is a fact and remains a fact unitl some other ruling overrules it. - Scientific facts: someone takes a theory and comes up with an experiment to falsify the theory and fails to do so. Until it is falsified the theory is assumed to be a fact. Reviewing cases like TMCH+50 or unilateral changes to a base contract would need to adjudicated by someone external those argueing the side of the case to determine whether the apparent transgression is just an accusation or a juridical fact. So had we been able to take charges on inappropriate handling of an issue to the IRP we might have been able to determine whether it was a fact or a baseless accusation. The IRP seems to be able to make such determinations with a fair degree of wisdom. But we did not have the power to do so - no access to an appeals mechanism. At this point, we really have no way to adjudicate such an issue. that is why I call it a rat hole. Can "I say, you say, we all say" establish a fact without proper jurisdiction? So we can not declare that the TMCH+50 or unilateral change of base contracts were contrary to the bylaws as a matter of fact. The only fact we can state is that we had no way to resolve these accountability issues in the current environment. The more we talk about facts and the need to prove a case juridically, the more I begin to understand why there are those who insist on a membership model that allows for court processes to deal with adjudicating such issues. As I said at the top, I might be wrong. avri On 13-Jul-15 15:44, Steve Crocker wrote:

We have two strongly competing perspectives in play. One is that it’s late in the game and history doesn’t or shouldn’t really matter. We’re dealing with principles and a concern for the future, not specific incidents in the past.

The other perspective is that much of this work is, in fact, being driven by reactions to past incidents and it would be helpful to have these on the table so we can understand whether we need new layers of structure or just better administration of existing layers.

Given the shortness of time, I think it’s evident we’re not going to agree to do the latter analysis, at least not as part of finalizing a proposal. Many of us are pragmatic enough to accept this decision within limits. Nonetheless George’s proposal and the subsequent comments about the difficulty of agreeing on the facts in each incident are compelling. If we don’t do it now — and I accept that we’re not going to do it now — I think there will be two effects.

1. George’s analysis should be done later, perhaps as part of WS2 or perhaps in some other setting. In any case, I believe until this is analysis is carried out, it is hereby inappropriate for anyone to refer to a past incident as if it were a fact.

2. Each person makes a decision about the proposed mechanisms will have to evaluate the forthcoming proposal based on her or his sense of whether the additional mechanisms are appropriate or excessive and to what extent the proposed mechanisms create unnecessary risk, cost or other burden.

Speaking for myself, I am predisposed toward taking a very accepting view of the elements of the proposal coming from the CCWG, and I sincerely hope I do not find myself wrestling too hard over the second point above.

Steve

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George, I think that the points that you're making are well taken by the group. And I understand your desire to delve deeper into the thinking and motivations for the current community powers that we have enumerated. However I have to ask that we temper any requests to go back to the conceptual phase of our work, which I think is the logical conclusion of your questions. The community has deliberated over the mechanisms by which the community can be empowered for many months, with both supporters and detractors coming to compromise to get to the set of community powers that we are now attempting to translate into a future vision of accountability at ICANN. Those deliberations took place in the atmosphere of ensuring that what we are doing is in the best interests of not just ICANN but in the interests of the greater internet as a whole. They were decisions that were not taken lightly, they were the subject of much internal debate for many members of the CCWG, both due to the impact of the implementation of the powers and also because of the importance of the work we were tasked with. They are not abstract wants but rather concrete needs to take ICANN into a new era post-NTIA. In my own simple terms I would see our work on what we need being in essence complete with the work before us now being how do we translate those requirements into a solution while maintaining the security and stability of ICANN during a period of change. I believe for us to go back to deliberating over the community powers would be a step back in the progress that we have made, and would be ill-advised as we need the time, effort and concentration of the CCWG to be solely on the work that is before us right now, rather than the work that we have done to date. I would suggest that there are many in the CCWG who would be more than happy to bring you through the process we went through to get to where we are with the community powers, and many of those will indeed be in Paris, but as I said above, I would be reticent to suggest that the CCWG as a whole, or even as a subgroup, goes back and restarts the evaluation process of the community powers. We have limited time, effort and concentration left to bring us through these last few weeks of deliberation before our second public comment period at the end of this month. -James -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of George Sadowsky Sent: Monday, July 13, 2015 5:49 PM To: Malcolm Hutty Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] An implication of accountability models being discussed Malcolm, [These are my personal opinions, and in no way are they meant to represent the opinions of anyone else or of any organization.] Thank you for this note. I believe that it provides a balanced perspective from which to discuss issues of accountability. I'd like to suggest a next step in the direction of due diligence. For each of the alleged misbehaviors, in Jonathan Zuck's or any others' lists, I suggest that the ideal way to proceed would be to: 1. Reach a common understanding of what the facts are and what really happened. 2. Characterize why the alleged misbehavior violated community norms or bylaws, or was inappropriate in any other way. 3. Discuss and decide what would/could have happened if any one of the several accountability models currently being discussed had been in force. 4. Discuss whether the proposed changes would be overkill, with respect to this specific incident only, i.e. judging whether the response is proportional to the alleged misbehavior. I know that this is not possible in the large, but I think that it would be instructive, certainly for me, to choose some examples and work them through. This suggestion is not meant to sidetrack the issue of developing an appropriate accountability structure for its own sake. As Malcolm notes, "accountability is desirable per se, and improvements should be put in place because they are desirable in their own right." That's an important part of the equation also. I seek serious conversations on this subject in Paris. Anyone else? George On Jul 13, 2015, at 6:48 AM, Malcolm Hutty <malcolm@linx.net> wrote:

On 2015-07-13 04:48, George Sadowsky wrote:

...

But I would like to push back on your belief that past practice, while interesting, is not relevant to our discussion. I believe that it is relevant, if only to agree with George Santayana's statement that people who do not understand history are doomed to repeat it. [..] But it should also help the CCWG, in that where there is factually verified and agreed upon evidence of out of bounds behavior by the Board (or for that matter any other organization in the ICANN orbit), one of your "stress tests"should be to discuss what kind of reaction that behavior would produce if one or more of your accountability models had been in place at the time. I would think that this is a necessary test of any new accountability proposal. Wouldn't not doing this be a failure of due diligence?

Generally I agree with Jonathan when he says that accountability is desirable per se, and improvements should be put in place because they are desirable in their own right, and should not have to be justified by reference to some past misdemeanour they are intended to correct.

On the other hand, the advice I quote above from George is also compelling: if we fail to address identifiable problems that have arisen before, then that would be delinquency on our part.

So it seems to me that the question of past issues is not symmetrical: evidence of past problems is relevant input to justify a proposed accountability improvement, but a lack of evidence of past misbehaviour is not relevant input as to why a proposed accountability improvement is not necessary.

Malcolm -- Malcolm Hutty | tel: +44 20 7645 3523

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ George Sadowsky Residence tel: +1.802.457.3370 119 Birch Way GSM mobile: +1.202.415.1933 Woodstock, VT 05091-7986 USA SMS: 2024151933@txt.att.net george.sadowsky@gmail.com http://www.georgesadowsky.org/ Skype: sadowsky twitter: @georgesadowsky _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community