Good posts. Two points, one substance, one process: WRT substance, ironically I think the only way you can “ensure those powers are enough to force a future change to ICANN” is by membership; because the other models don’t allow for the initiation and adoption of bylaws by anyone other than the Board. Doubly ironic, if you could create a model that would allow the community to make a fundamental change to the bylaws, then you wouldn’t need membership- you would already have ultimate power. However, such power is exactly what the board does not want; recall the first negative bullet of Fadi’s foil was “New structure with legal authority to change any and all bylaws”. I think the only way a change like this would happen would be due to external influence- the IANA transition. If you ever needed to spend that leverage, this would be the issue. As to process, it might be the case that the final proposal will be something other than membership, and eventually gain consensus at a meeting. However that wouldn’t be defendable based on the existing public record. And a robust public record is important, not only for broad consensus, but in this case, is it a critical element of the domestic process. The notice of the CCWG consultations were posted in the Federal Register, which stated in relevant part: “Comments provided will be used by NTIA to determine whether the proposals satisfy NTIA’s criteria and have received broad community support. Comments will also be considered in any NTIA certification before the U.S. Congress that may be required prior to terminating the existing IANA functions contract currently in place between NTIA and ICANN. To ensure that all views are taken into consideration, NTIA encourages interested parties— including U.S.-based stakeholders—to file written comments by the deadline.” Based on the two rounds of consultations, it might be the case that “refined” membership model would be supported by the public record; but a designator model wouldn’t be because of the record of the earlier rejection, and the MEM couldn’t be because it was only one submission. So it may be possible to get consensus in Dublin on a refined membership model for transmission to NTIA. And it may also be the case that we could get consensus in Dublin on some other model for a third proposal; but I think this would have to be for another round of consultation to build the requisite public record, not only to pass scrutiny domestically, but for broad international legitimacy and credibility. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Saturday, October 3, 2015 6:20 PM To: Chris Disspain; Steve DelBianco Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] A path to Dublin and beyond Subject to the following comments, I would support this, and I suspect it would have general acceptance within At-Large. The caveats: - There are a number of ALAC comments to the current proposal that will still apply and will be critical. Pending the details analysis and resolution of the comments, I remain optimistic. - Steve's message does not talk about "the model", so I presume it will be some variation of the board proposal (often referred to as MEM, even though the MEM is only a component of it). That proposal calls for the AC/SOs to take formal action through their Chairs. That idea was rejected by the CCWG quite a while ago for a number of reasons (reluctance of the people filling the Chair position to get involved at a personal level, the difficulty associated with an ongoing action at the time the Chair changes are the prime ones that I recall). The CCWG moved to UA and then the Empowered AC/SO as a result, and then to the Community Mechanism. The proved to be a stumbling block, but perhaps the Empowered AC/SO or Community Mechanism could be adapted to work here. Alan At 03/10/2015 05:00 PM, Chris Disspain wrote: Steve, Thank you for this. It chimes In essence with what I, and some others, have been saying for a while. If we can coalesce around the powers you have listed (there may still be issues for some around the budget power and some differences around detail but nothing insurmountable IMO) and agree a pathway for ICANN 3.0 and beyond then I believe we can walk together as a community through the transition. Happy to do whatever it takes to bring this to fruition in Dublin or shortly thereafter. Cheers, Chris On 4 Oct 2015, at 07:34, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> > wrote: Here are my own thoughts on a path to Dublin and beyond. I was thinking about Jonathan Zuck’s suggestion ( link<http://mm.icann.org/pipermail/accountability-cross-community/2015-September/...>) that a change to Membership model could be done in Work Stream 2 —” if we create lasting leverage for community to enact a change despite board resistance. Then I read Bruce Tonkin's recent post ( link<http://mm.icann.org/pipermail/accountability-cross-community/2015-October/00...>) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time. Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition. Consider this: Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability. Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like. That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs: 1. Power to block a proposed Operating Plan/Strat Plan/Budget 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation 3. Power to block changes to regular bylaws. 4. Power to appoint and remove individual board directors 5. Power to recall the entire board of directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICCANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model) I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what we’ve heard recently, the board will support the powers described above. But there’s one more we have to add before losing the leverage of this IANA transition: Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture. This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration. Again, these are my personal thoughts about a way forward that is based on what others have said recently. —Steve DelBianco _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

I think Steve has advanced some good thoughts here, though it is fairly clear from both Steve's email and particularly from Mike Chartier's response, that this is "second best" from the point of view of empowering the community. If we adopt the "Trust/Enforce" spectrum used by Sidley/Adler, this moves us down the scale in the direction of relying on trust, simply because we are no longer relying on the Membership/Board power dynamic unique to the structure of a membership-based non-profit corporation or on the clearly delineated rights of a member in that structure. This makes it less certain that the community can truly hold the corporation accountable. We have to weigh how much we are giving up, in the ability to truly enforce each power and in how each power works, in order to adequately weigh our decision as a community. Greg On Sun, Oct 4, 2015 at 12:28 AM, Arun Mohan Sukumar < arun.sukumar@orfonline.org> wrote:

Thanks, Steve. This is food for thought. To be clear, would the IANA functions review still be a part of the fundamental bylaws, in the scheme that you are suggesting? How can we better enforce separability b/w ICANN and the IFO?

On membership in WS2: could we refer to the need to create a membership-model in ICANN's mission statement/core values to ensure this goal is not neglected?

Just some preliminary thoughts.

-- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272

On Sun, Oct 4, 2015 at 9:20 AM, Chartier, Mike S < mike.s.chartier@intel.com> wrote:

...

Good posts. Two points, one substance, one process:

WRT substance, ironically I think the only way you can “ensure those powers are enough to force a future change to ICANN” is by membership; because the other models don’t allow for the initiation and adoption of bylaws by anyone other than the Board.

Doubly ironic, if you could create a model that would allow the community to make a fundamental change to the bylaws, then you wouldn’t need membership- you would already have ultimate power.

However, such power is exactly what the board does not want; recall the first negative bullet of Fadi’s foil was “New structure with legal authority to change any and all bylaws”.

I think the only way a change like this would happen would be due to external influence- the IANA transition. If you ever needed to spend that leverage, this would be the issue.

As to process, it might be the case that the final proposal will be something other than membership, and eventually gain consensus at a meeting.

However that wouldn’t be defendable based on the existing public record. And a robust public record is important, not only for broad consensus, but in this case, is it a critical element of the domestic process. The notice of the CCWG consultations were posted in the Federal Register, which stated in relevant part:

*“Comments provided will be used by NTIA to determine whether the proposals satisfy NTIA’s criteria and have received broad community support. Comments will also be considered in any NTIA certification before the U.S. Congress that may be required prior to terminating the existing IANA functions contract currently in place between NTIA and ICANN. To ensure that all views are taken into consideration, NTIA encourages interested parties— including U.S.-based stakeholders—to file written comments by the deadline.*”

Based on the two rounds of consultations, it might be the case that “refined” membership model would be supported by the public record; but a designator model wouldn’t be because of the record of the earlier rejection, and the MEM couldn’t be because it was only one submission.

So it may be possible to get consensus in Dublin on a refined membership model for transmission to NTIA.

And it may also be the case that we could get consensus in Dublin on some other model for a third proposal; but I think this would have to be for another round of consultation to build the requisite public record, not only to pass scrutiny domestically, but for broad international legitimacy and credibility.

*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Alan Greenberg *Sent:* Saturday, October 3, 2015 6:20 PM *To:* Chris Disspain; Steve DelBianco *Cc:* Accountability Cross Community *Subject:* Re: [CCWG-ACCT] A path to Dublin and beyond

Subject to the following comments, I would support this, and I suspect it would have general acceptance within At-Large.

The caveats:

- There are a number of ALAC comments to the current proposal that will still apply and will be critical. Pending the details analysis and resolution of the comments, I remain optimistic.

- Steve's message does not talk about "the model", so I presume it will be some variation of the board proposal (often referred to as MEM, even though the MEM is only a component of it). That proposal calls for the AC/SOs to take formal action through their Chairs. That idea was rejected by the CCWG quite a while ago for a number of reasons (reluctance of the people filling the Chair position to get involved at a personal level, the difficulty associated with an ongoing action at the time the Chair changes are the prime ones that I recall). The CCWG moved to UA and then the Empowered AC/SO as a result, and then to the Community Mechanism. The proved to be a stumbling block, but perhaps the Empowered AC/SO or Community Mechanism could be adapted to work here.

Alan

At 03/10/2015 05:00 PM, Chris Disspain wrote:

Steve,

Thank you for this. It chimes In essence with what I, and some others, have been saying for a while.

If we can coalesce around the powers you have listed (there may still be issues for some around the budget power and some differences around detail but nothing insurmountable IMO) and agree a pathway for ICANN 3.0 and beyond then I believe we can walk together as a community through the transition.

Happy to do whatever it takes to bring this to fruition in Dublin or shortly thereafter.

Cheers,

Chris

On 4 Oct 2015, at 07:34, Steve DelBianco <sdelbianco@netchoice.org > wrote:

Here are my own thoughts on a path to Dublin and beyond.

I was thinking about Jonathan Zuck’s suggestion ( link <http://mm.icann.org/pipermail/accountability-cross-community/2015-September/...>) that a change to Membership model could be done in Work Stream 2 —” if we create lasting leverage for community to enact a change despite board resistance.

Then I read Bruce Tonkin's recent post ( link <http://mm.icann.org/pipermail/accountability-cross-community/2015-October/00...>) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time.

Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition.

Consider this:

Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability. Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like.

That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs:

1. Power to block a proposed Operating Plan/Strat Plan/Budget 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation 3. Power to block changes to regular bylaws. 4. Power to appoint and remove individual board directors 5. Power to recall the entire board of directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICCANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model)

I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what we’ve heard recently, the board will support the powers described above.

But there’s one more we have to add before losing the leverage of this IANA transition:

Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture.

This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration.

Again, these are my personal thoughts about a way forward that is based on what others have said recently.

—Steve DelBianco

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Fair enough, agree with the points. I think the issue as I see it is there's been several months of generally consistent support for a membership model. And There will only be a couple of weeks to agree to something in Dublin. It's a little unclear what the method for demonstrating consensus will be. I think the way it was laid out it could just be agreement of the chartering orgs. And they would certainly be free to agree to an alternate model. But there would not be any demonstration of consistent support. And the USG has stated the particular need for a strong public record. On Oct 4, 2015, at 2:04 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: As for the process point, I am less concerned than Mike. I believe the community is allowed to refine its thinking, and that an earlier show of support for one model will essentially wash away earlier support for a different model. This is an iterative process and we need to be able to advance our thinking without being haunted by the ghosts of comment periods past. That said, if the support for a later model is weaker and less consistent than for an earlier model, that could be an issue. The community needs to select the final model, taking into account all factors, including the need to be pragmatic and make concessions; however, if we in the CCWG settle for too little, our decision will not pass muster. It's not an easy place to be. Greg On Sun, Oct 4, 2015 at 2:53 PM, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>> wrote: I think Steve has advanced some good thoughts here, though it is fairly clear from both Steve's email and particularly from Mike Chartier's response, that this is "second best" from the point of view of empowering the community. If we adopt the "Trust/Enforce" spectrum used by Sidley/Adler, this moves us down the scale in the direction of relying on trust, simply because we are no longer relying on the Membership/Board power dynamic unique to the structure of a membership-based non-profit corporation or on the clearly delineated rights of a member in that structure. This makes it less certain that the community can truly hold the corporation accountable. We have to weigh how much we are giving up, in the ability to truly enforce each power and in how each power works, in order to adequately weigh our decision as a community. Greg On Sun, Oct 4, 2015 at 12:28 AM, Arun Mohan Sukumar <arun.sukumar@orfonline.org<mailto:arun.sukumar@orfonline.org>> wrote: Thanks, Steve. This is food for thought. To be clear, would the IANA functions review still be a part of the fundamental bylaws, in the scheme that you are suggesting? How can we better enforce separability b/w ICANN and the IFO? On membership in WS2: could we refer to the need to create a membership-model in ICANN's mission statement/core values to ensure this goal is not neglected? Just some preliminary thoughts. -- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com<http://amsukumar.tumblr.com/> +91-9871943272<tel:%2B91-9871943272> On Sun, Oct 4, 2015 at 9:20 AM, Chartier, Mike S <mike.s.chartier@intel.com<mailto:mike.s.chartier@intel.com>> wrote: Good posts. Two points, one substance, one process: WRT substance, ironically I think the only way you can “ensure those powers are enough to force a future change to ICANN” is by membership; because the other models don’t allow for the initiation and adoption of bylaws by anyone other than the Board. Doubly ironic, if you could create a model that would allow the community to make a fundamental change to the bylaws, then you wouldn’t need membership- you would already have ultimate power. However, such power is exactly what the board does not want; recall the first negative bullet of Fadi’s foil was “New structure with legal authority to change any and all bylaws”. I think the only way a change like this would happen would be due to external influence- the IANA transition. If you ever needed to spend that leverage, this would be the issue. As to process, it might be the case that the final proposal will be something other than membership, and eventually gain consensus at a meeting. However that wouldn’t be defendable based on the existing public record. And a robust public record is important, not only for broad consensus, but in this case, is it a critical element of the domestic process. The notice of the CCWG consultations were posted in the Federal Register, which stated in relevant part: “Comments provided will be used by NTIA to determine whether the proposals satisfy NTIA’s criteria and have received broad community support. Comments will also be considered in any NTIA certification before the U.S. Congress that may be required prior to terminating the existing IANA functions contract currently in place between NTIA and ICANN. To ensure that all views are taken into consideration, NTIA encourages interested parties— including U.S.-based stakeholders—to file written comments by the deadline.” Based on the two rounds of consultations, it might be the case that “refined” membership model would be supported by the public record; but a designator model wouldn’t be because of the record of the earlier rejection, and the MEM couldn’t be because it was only one submission. So it may be possible to get consensus in Dublin on a refined membership model for transmission to NTIA. And it may also be the case that we could get consensus in Dublin on some other model for a third proposal; but I think this would have to be for another round of consultation to build the requisite public record, not only to pass scrutiny domestically, but for broad international legitimacy and credibility. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Alan Greenberg Sent: Saturday, October 3, 2015 6:20 PM To: Chris Disspain; Steve DelBianco Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] A path to Dublin and beyond Subject to the following comments, I would support this, and I suspect it would have general acceptance within At-Large. The caveats: - There are a number of ALAC comments to the current proposal that will still apply and will be critical. Pending the details analysis and resolution of the comments, I remain optimistic. - Steve's message does not talk about "the model", so I presume it will be some variation of the board proposal (often referred to as MEM, even though the MEM is only a component of it). That proposal calls for the AC/SOs to take formal action through their Chairs. That idea was rejected by the CCWG quite a while ago for a number of reasons (reluctance of the people filling the Chair position to get involved at a personal level, the difficulty associated with an ongoing action at the time the Chair changes are the prime ones that I recall). The CCWG moved to UA and then the Empowered AC/SO as a result, and then to the Community Mechanism. The proved to be a stumbling block, but perhaps the Empowered AC/SO or Community Mechanism could be adapted to work here. Alan At 03/10/2015 05:00 PM, Chris Disspain wrote: Steve, Thank you for this. It chimes In essence with what I, and some others, have been saying for a while. If we can coalesce around the powers you have listed (there may still be issues for some around the budget power and some differences around detail but nothing insurmountable IMO) and agree a pathway for ICANN 3.0 and beyond then I believe we can walk together as a community through the transition. Happy to do whatever it takes to bring this to fruition in Dublin or shortly thereafter. Cheers, Chris On 4 Oct 2015, at 07:34, Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org> > wrote: Here are my own thoughts on a path to Dublin and beyond. I was thinking about Jonathan Zuck’s suggestion ( link<http://mm.icann.org/pipermail/accountability-cross-community/2015-September/...>) that a change to Membership model could be done in Work Stream 2 —” if we create lasting leverage for community to enact a change despite board resistance. Then I read Bruce Tonkin's recent post ( link<http://mm.icann.org/pipermail/accountability-cross-community/2015-October/00...>) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time. Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition. Consider this: Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability. Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like. That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs: 1. Power to block a proposed Operating Plan/Strat Plan/Budget 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation 3. Power to block changes to regular bylaws. 4. Power to appoint and remove individual board directors 5. Power to recall the entire board of directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICCANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model) I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what we’ve heard recently, the board will support the powers described above. But there’s one more we have to add before losing the leverage of this IANA transition: Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture. This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration. Again, these are my personal thoughts about a way forward that is based on what others have said recently. —Steve DelBianco _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Greg It is not about giving up . It is to find a workable solution Kavouss Sent from my iPhone

On 4 Oct 2015, at 20:53, Greg Shatan <gregshatanipc@gmail.com> wrote:

I think Steve has advanced some good thoughts here, though it is fairly clear from both Steve's email and particularly from Mike Chartier's response, that this is "second best" from the point of view of empowering the community. If we adopt the "Trust/Enforce" spectrum used by Sidley/Adler, this moves us down the scale in the direction of relying on trust, simply because we are no longer relying on the Membership/Board power dynamic unique to the structure of a membership-based non-profit corporation or on the clearly delineated rights of a member in that structure. This makes it less certain that the community can truly hold the corporation accountable.

We have to weigh how much we are giving up, in the ability to truly enforce each power and in how each power works, in order to adequately weigh our decision as a community.

Greg

...

On Sun, Oct 4, 2015 at 12:28 AM, Arun Mohan Sukumar <arun.sukumar@orfonline.org> wrote: Thanks, Steve. This is food for thought. To be clear, would the IANA functions review still be a part of the fundamental bylaws, in the scheme that you are suggesting? How can we better enforce separability b/w ICANN and the IFO?

On membership in WS2: could we refer to the need to create a membership-model in ICANN's mission statement/core values to ensure this goal is not neglected?

Just some preliminary thoughts.

-- Head, Cyber Initiative Observer Research Foundation, New Delhi http://amsukumar.tumblr.com +91-9871943272

...

On Sun, Oct 4, 2015 at 9:20 AM, Chartier, Mike S <mike.s.chartier@intel.com> wrote: Good posts. Two points, one substance, one process:

WRT substance, ironically I think the only way you can “ensure those powers are enough to force a future change to ICANN” is by membership; because the other models don’t allow for the initiation and adoption of bylaws by anyone other than the Board. Doubly ironic, if you could create a model that would allow the community to make a fundamental change to the bylaws, then you wouldn’t need membership- you would already have ultimate power. However, such power is exactly what the board does not want; recall the first negative bullet of Fadi’s foil was “New structure with legal authority to change any and all bylaws”. I think the only way a change like this would happen would be due to external influence- the IANA transition. If you ever needed to spend that leverage, this would be the issue.

As to process, it might be the case that the final proposal will be something other than membership, and eventually gain consensus at a meeting. However that wouldn’t be defendable based on the existing public record. And a robust public record is important, not only for broad consensus, but in this case, is it a critical element of the domestic process. The notice of the CCWG consultations were posted in the Federal Register, which stated in relevant part: “Comments provided will be used by NTIA to determine whether the proposals satisfy NTIA’s criteria and have received broad community support. Comments will also be considered in any NTIA certification before the U.S. Congress that may be required prior to terminating the existing IANA functions contract currently in place between NTIA and ICANN. To ensure that all views are taken into consideration, NTIA encourages interested parties— including U.S.-based stakeholders—to file written comments by the deadline.” Based on the two rounds of consultations, it might be the case that “refined” membership model would be supported by the public record; but a designator model wouldn’t be because of the record of the earlier rejection, and the MEM couldn’t be because it was only one submission. So it may be possible to get consensus in Dublin on a refined membership model for transmission to NTIA. And it may also be the case that we could get consensus in Dublin on some other model for a third proposal; but I think this would have to be for another round of consultation to build the requisite public record, not only to pass scrutiny domestically, but for broad international legitimacy and credibility.

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Alan Greenberg Sent: Saturday, October 3, 2015 6:20 PM To: Chris Disspain; Steve DelBianco Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] A path to Dublin and beyond

Subject to the following comments, I would support this, and I suspect it would have general acceptance within At-Large.

The caveats:

- There are a number of ALAC comments to the current proposal that will still apply and will be critical. Pending the details analysis and resolution of the comments, I remain optimistic.

- Steve's message does not talk about "the model", so I presume it will be some variation of the board proposal (often referred to as MEM, even though the MEM is only a component of it). That proposal calls for the AC/SOs to take formal action through their Chairs. That idea was rejected by the CCWG quite a while ago for a number of reasons (reluctance of the people filling the Chair position to get involved at a personal level, the difficulty associated with an ongoing action at the time the Chair changes are the prime ones that I recall). The CCWG moved to UA and then the Empowered AC/SO as a result, and then to the Community Mechanism. The proved to be a stumbling block, but perhaps the Empowered AC/SO or Community Mechanism could be adapted to work here.

Alan

At 03/10/2015 05:00 PM, Chris Disspain wrote:

Steve,

Thank you for this. It chimes In essence with what I, and some others, have been saying for a while.

If we can coalesce around the powers you have listed (there may still be issues for some around the budget power and some differences around detail but nothing insurmountable IMO) and agree a pathway for ICANN 3.0 and beyond then I believe we can walk together as a community through the transition.

Happy to do whatever it takes to bring this to fruition in Dublin or shortly thereafter.

Cheers,

Chris

On 4 Oct 2015, at 07:34, Steve DelBianco <sdelbianco@netchoice.org > wrote:

Here are my own thoughts on a path to Dublin and beyond.

I was thinking about Jonathan Zuck’s suggestion ( link) that a change to Membership model could be done in Work Stream 2 —” if we create lasting leverage for community to enact a change despite board resistance.

Then I read Bruce Tonkin's recent post ( link) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time.

Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition.

Consider this:

Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability. Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like.

That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs:

1. Power to block a proposed Operating Plan/Strat Plan/Budget 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation 3. Power to block changes to regular bylaws. 4. Power to appoint and remove individual board directors 5. Power to recall the entire board of directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICCANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model)

I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what we’ve heard recently, the board will support the powers described above.

But there’s one more we have to add before losing the leverage of this IANA transition:

Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture.

This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration.

Again, these are my personal thoughts about a way forward that is based on what others have said recently.

—Steve DelBianco

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Hi, While people are deciding the SD model sufficient to meet our requirements, I question whether the inability of that model with regard to direct shared decisions on implementation of a separation process is not a serious enough flaw to make the model unacceptable. In the CM model, the community shares the power to decide on approval of a separation recommendation, in the SD model, the community needs to rely on indirect methods like Board approval, appeals, court proceedings and replacing the Board. avri On 04-Oct-15 18:21, Jonathan Zuck wrote:

Great note Jordan and expansion of the Zuck proposal Steve. ;) Seriously though, we need to get people past being concerned about future reforms, be they structural or not. We don't need to represent Sole Designator as less than effective, merely sufficient to empower the community to make further reform in a dynamic and geographically expanding environment. That has always been our objective for WS1, pre-transition. Jonathan ------------------------------------------------------------------------ From: Jordan Carter <mailto:jordan@internetnz.net.nz> Sent: ‎10/‎4/‎2015 6:02 PM Cc: Accountability Cross Community <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] A path to Dublin and beyond

Thanks Steve, this is quite a good prospectus and is similar to where my own thinking has been going.

I have one concern and a suggestion to mitigate it.

If I was a decision-maker on this proposal - either the ICANN Board, NTIA or indeed the Congress itself, or even an ICANN SO or AC - I would be very uncomfortable at anything which suggested "we will reevaluate the model after the transition, because we aren't sure this is a durable accountability settlement".

The signal of uncertainty and of future work that this sends is problematic.

If membership is the straw that breaks the camel's back, my preference would instead be the bones of a settlement like this:

- the community powers are put into the bylaws (Steve's list below 1-5) - and for me, I am happy with modifying the Budget powers in a range of ways to be agreed to further reduce the already minimal disruption the CCWG's approach would create (the Board's proposal is helpful in doing this). - the IRP approach largely as the CCWG has set out (Steve's list below 6) - a Designator foundation that renders the board removal powers completely enforceable - probably the Sole Designator model, operating by SO/AC consensus for NomCom director removal and the rest of the powers, and appointing SOs and ACs for their appointed Directors

Taking this approach mitigates the "future governance change" concern which I think is a real one, and ensures that a key instrument of redress is enforceable.

It is clearly not as powerful a set of tools as the membership model, which on an objective basis remains my preference.

That said: I take the concerns about "changing the engine in flight" seriously. I think that the comments about the scale of the change created by membership are wrong and misleading, but some of the participants in this process hold them sincerely and seem unlikely to accept analysis that contradicts their entrenched views.

So in terms of our *requirements*, which are meant to be guiding our work, I personally am prepared to step back to indirect enforceability of some of the powers by means of membership, back to designator. The additional enforceability of membership on the budget power, if it is going to prevent consensus, should not be something to die in a ditch over.

We can get almost all the way there. CMSM and MEM would both be redundant and off the table. Multistakeholder consensus building at work....?

A last thought: I have never placed much importance on the "other statutory powers" a membership would allow. I know others have. Certainly on transparency and disclosure, it's clear to me just by watching and participating in our CCWG process that there are hidden depths that need badly to be exposed to sunlight - and that's a piece of work that needs to be pushed along promptly next year. I know others have a different view though, eloquently expressed by Ed among others. So this needs more discussion.

I don't present my thinking above as a definitive compromise, but I hope that it helps to demonstrate that like others, I have been listening to discussion, and recognise a need for me and all of us to get out of the competitive "my way or the highway" tone that has emerged in the past few weeks.

So long as others show the same willingness to move, we should be able to get into a more collaborative work method, which is what the community deserves from all of us.

all best, Jordan

On 4 October 2015 at 09:33, Steve DelBianco <sdelbianco@netchoice.org <mailto:sdelbianco@netchoice.org>> wrote:

Here are my own thoughts on a path to Dublin and beyond.

I was thinking about Jonathan Zuck’s suggestion (link <http://mm.icann.org/pipermail/accountability-cross-community/2015-September/...>) that a change to Membership model could be done in Work Stream 2 — if we create lasting leverage for community to enact a change despite board resistance.

Then I read Bruce Tonkin's recent post (link <http://mm.icann.org/pipermail/accountability-cross-community/2015-October/00...>) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time.

Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition.

Consider this:

Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability. Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like.

That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs:

1. Power to block a proposed Operating Plan/Strat Plan/Budget 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation 3. Power to block changes to regular bylaws. 4. Power to appoint and remove individual board directors 5. Power to recall the entire board of directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model)

I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what we’ve heard recently, the board will support the powers described above.

But there’s one more we have to add before losing the leverage of this IANA transition:

Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture.

This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration.

Again, these are my personal thoughts about a way forward that is based on what others have said recently.

—Steve DelBianco

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Chief Executive *InternetNZ*

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/A better world through a better Internet /

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Hi, Indeed you describe the indirect process. I am not sure, however, how you determined the risk and likelyhood numbers. Can you explain that? thanks avri On 05-Oct-15 00:01, Bruce Tonkin wrote:

Hello Avri,

...

...

While people are deciding the SD model sufficient to meet our requirements, I question whether the inability of that model with regard to direct shared decisions on implementation of a separation process is not a serious enough flaw to make the model unacceptable. In the CM model, the community shares the power to decide on approval of a separation recommendation, in the SD model, the community needs to rely on indirect methods like Board approval, appeals, court proceedings and replacing the Board. I would assume the following path:

(1) There is a process in the bylaws that involves the community on deciding to separate IANA from ICANN

- assuming this process in the bylaws is clear the outcome of the process resolves the situation

- lets assume there a 90% probability that this works

(2) If there is a dispute about whether the bylaws have been followed - we use a dispute process with binding arbitration

- now I assume we have reached a 99.9% probability that this will resolve the issue.

(3) if the board decides not to following the outcome of the binding arbitration

- use an enforcement mechanism to remove the board

- this is the last 0.1% of the problem and should be kept as simple as possible and with well understood legal processes

In this I am assuming that the various groups that elect Board members do enough due diligence to ensure that all Board members are committed to follow the bylaws in step (1). So we are dealing with first some ambiguity in (1) that results in (2) being used - and then a really extreme situation when (3) needs to be used.

Regards, Bruce Tonkin

-

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I like the process description (yes, it can work that way) and love this response Cheers, Roelof On 05-10-15 06:33, "accountability-cross-community-bounces@icann.org on behalf of Bruce Tonkin" <accountability-cross-community-bounces@icann.org on behalf of Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Avri,

...

...

Indeed you describe the indirect process. I am not sure, however, how you determined the risk and likelyhood numbers. Can you explain that?

Just illustrative based on by understanding of at least the Board members I have served with over time, and my faith that the community will continue to select appropriate Board members.

Likewise I have similar faith in the members of the SO and AC councils to follow the bylaws as well.

Regards, Bruce Tonkin

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Avri What is SD model pls Kavouss Sent from my iPhone

On 5 Oct 2015, at 06:19, Avri Doria <avri@acm.org> wrote:

Hi,

Indeed you describe the indirect process. I am not sure, however, how you determined the risk and likelyhood numbers. Can you explain that?

thanks

avri

...

On 05-Oct-15 00:01, Bruce Tonkin wrote: Hello Avri,

...

...

While people are deciding the SD model sufficient to meet our requirements, I question whether the inability of that model with regard to direct shared decisions on implementation of a separation process is not a serious enough flaw to make the model unacceptable. In the CM model, the community shares the power to decide on approval of a separation recommendation, in the SD model, the community needs to rely on indirect methods like Board approval, appeals, court proceedings and replacing the Board. I would assume the following path:

(1) There is a process in the bylaws that involves the community on deciding to separate IANA from ICANN

- assuming this process in the bylaws is clear the outcome of the process resolves the situation

- lets assume there a 90% probability that this works

(2) If there is a dispute about whether the bylaws have been followed - we use a dispute process with binding arbitration

- now I assume we have reached a 99.9% probability that this will resolve the issue.

(3) if the board decides not to following the outcome of the binding arbitration

- use an enforcement mechanism to remove the board

- this is the last 0.1% of the problem and should be kept as simple as possible and with well understood legal processes

In this I am assuming that the various groups that elect Board members do enough due diligence to ensure that all Board members are committed to follow the bylaws in step (1). So we are dealing with first some ambiguity in (1) that results in (2) being used - and then a really extreme situation when (3) needs to be used.

Regards, Bruce Tonkin

-

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Hi Avri, all I agree this is a significant limiting constraint on our choices. To me it remains to be seen what our lawyers think and what the ccwg thinks and if it's ok with those two checks, then what the cwg things as well. To my mind it is at least a plausible option, given where we are, but there are hurdles to get over.... Cheers Jordan On Monday, 5 October 2015, Avri Doria <avri@acm.org> wrote:

Hi,

While people are deciding the SD model sufficient to meet our requirements, I question whether the inability of that model with regard to direct shared decisions on implementation of a separation process is not a serious enough flaw to make the model unacceptable. In the CM model, the community shares the power to decide on approval of a separation recommendation, in the SD model, the community needs to rely on indirect methods like Board approval, appeals, court proceedings and replacing the Board.

avri

On 04-Oct-15 18:21, Jonathan Zuck wrote:

...

Great note Jordan and expansion of the Zuck proposal Steve. ;) Seriously though, we need to get people past being concerned about future reforms, be they structural or not. We don't need to represent Sole Designator as less than effective, merely sufficient to empower the community to make further reform in a dynamic and geographically expanding environment. That has always been our objective for WS1, pre-transition. Jonathan ------------------------------------------------------------------------ From: Jordan Carter <mailto:jordan@internetnz.net.nz <javascript:;>> Sent: ‎10/‎4/‎2015 6:02 PM Cc: Accountability Cross Community <mailto:accountability-cross-community@icann.org <javascript:;>> Subject: Re: [CCWG-ACCT] A path to Dublin and beyond

Thanks Steve, this is quite a good prospectus and is similar to where my own thinking has been going.

I have one concern and a suggestion to mitigate it.

If I was a decision-maker on this proposal - either the ICANN Board, NTIA or indeed the Congress itself, or even an ICANN SO or AC - I would be very uncomfortable at anything which suggested "we will reevaluate the model after the transition, because we aren't sure this is a durable accountability settlement".

The signal of uncertainty and of future work that this sends is problematic.

If membership is the straw that breaks the camel's back, my preference would instead be the bones of a settlement like this:

- the community powers are put into the bylaws (Steve's list below 1-5) - and for me, I am happy with modifying the Budget powers in a range of ways to be agreed to further reduce the already minimal disruption the CCWG's approach would create (the Board's proposal is helpful in doing this). - the IRP approach largely as the CCWG has set out (Steve's list below 6) - a Designator foundation that renders the board removal powers completely enforceable - probably the Sole Designator model, operating by SO/AC consensus for NomCom director removal and the rest of the powers, and appointing SOs and ACs for their appointed Directors

Taking this approach mitigates the "future governance change" concern which I think is a real one, and ensures that a key instrument of redress is enforceable.

It is clearly not as powerful a set of tools as the membership model, which on an objective basis remains my preference.

That said: I take the concerns about "changing the engine in flight" seriously. I think that the comments about the scale of the change created by membership are wrong and misleading, but some of the participants in this process hold them sincerely and seem unlikely to accept analysis that contradicts their entrenched views.

So in terms of our *requirements*, which are meant to be guiding our work, I personally am prepared to step back to indirect enforceability of some of the powers by means of membership, back to designator. The additional enforceability of membership on the budget power, if it is going to prevent consensus, should not be something to die in a ditch over.

We can get almost all the way there. CMSM and MEM would both be redundant and off the table. Multistakeholder consensus building at work....?

A last thought: I have never placed much importance on the "other statutory powers" a membership would allow. I know others have. Certainly on transparency and disclosure, it's clear to me just by watching and participating in our CCWG process that there are hidden depths that need badly to be exposed to sunlight - and that's a piece of work that needs to be pushed along promptly next year. I know others have a different view though, eloquently expressed by Ed among others. So this needs more discussion.

I don't present my thinking above as a definitive compromise, but I hope that it helps to demonstrate that like others, I have been listening to discussion, and recognise a need for me and all of us to get out of the competitive "my way or the highway" tone that has emerged in the past few weeks.

So long as others show the same willingness to move, we should be able to get into a more collaborative work method, which is what the community deserves from all of us.

all best, Jordan

On 4 October 2015 at 09:33, Steve DelBianco <sdelbianco@netchoice.org <javascript:;> <mailto:sdelbianco@netchoice.org <javascript:;>>> wrote:

Here are my own thoughts on a path to Dublin and beyond.

I was thinking about Jonathan Zuck’s suggestion (link < http://mm.icann.org/pipermail/accountability-cross-community/2015-September/... ) that a change to Membership model could be done in Work Stream 2 — if we create lasting leverage for community to enact a change despite board resistance.

Then I read Bruce Tonkin's recent post (link < http://mm.icann.org/pipermail/accountability-cross-community/2015-October/00... ) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time.

Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition.

Consider this:

Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability. Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like.

That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs:

1. Power to block a proposed Operating Plan/Strat Plan/Budget 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation 3. Power to block changes to regular bylaws. 4. Power to appoint and remove individual board directors 5. Power to recall the entire board of directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model)

I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what we’ve heard recently, the board will support the powers described above.

But there’s one more we have to add before losing the leverage of this IANA transition:

Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture.

This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration.

Again, these are my personal thoughts about a way forward that is based on what others have said recently.

—Steve DelBianco

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Chief Executive *InternetNZ*

+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <javascript:;> <mailto: jordan@internetnz.net.nz <javascript:;>> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz>

/A better world through a better Internet /

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I'll answer the question "why do we re-elect board​ members when there is apparently skepticism and mistrust of the Board's behavior and conduct by some colleagues?" It's useful to look at this very question in the context of the power to remove a board member. I think it's safe to assume that a Board member is re-elected (or re-appointed)​ because the body that appoints that director believes that the director is doing a good job. (After all, "we" don't collectively select board members, other than (arguably) through the NomCom process.) It's entirely possible other parts of the community could disagree (and even possible that *all* the other parts of the community could disagree). Now assume that the rest of the community (other than the appointing body) strongly wants to remove that director. If we give the community the power to remove individual board members, any part of the community can initiate the director removal process, and two possible scenarios emerge. If unanimity is required, the appointing group will be able to block the removal, and the board member stays on. If we do not require unanimity, then it is highly likely that the community will be able to remove that director over the objections of the appointing body (leaving that body to find another appointee more acceptable to the other SO/ACs). On the other hand, if we only give the appointing body the power to remove individual board members, then the answer is quite easy: the board member stays on. Just for fun, let's try the opposite hypothetical: the appointing body really wants to remove the director, but the rest of the community thinks the director is doing a decent job (or even a great job). If we give the community the power to remove the board member, the board member will stay on (until the end of their term, at which point the appointing body finally gets to take action and the director leaves the board). On the other hand, if the appointing body can remove that director, then that director is highly likely to be removed now, rather than at the end of their term. Thoughts? Greg On Thu, Oct 8, 2015 at 12:19 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:

Dear All, There seems to be a high degree of skeptism to and mistrust by some colleagues in the Board,s behaviour and conduct . However this Is a judgement that may not be shared by others. If we all are of the same view then we do not modify the election procedure and why we re-,elect those who are eligible to re- election Regards Kavousd

Sent from my iPhone

On 8 Oct 2015, at 18:08, Kieren McCarthy <kieren@kierenmccarthy.com> wrote:

Serious question: why would you imagine that the Board would do anything but block future governance changes given what it has done this time and in numerous previous accountability reviews?

And related to that: if the Board blocked it, what mechanism would exist to force the changes? Why would we not end up in the exact same possible as now but five years down the road?

Kieren

On Sat, Oct 3, 2015 at 1:33 PM Steve DelBianco <sdelbianco@netchoice.org> wrote:

...

Here are my own thoughts on a path to Dublin and beyond.

I was thinking about Jonathan Zuck’s suggestion (link <http://mm.icann.org/pipermail/accountability-cross-community/2015-September/...>) that a change to Membership model could be done in Work Stream 2 — if we create lasting leverage for community to enact a change despite board resistance.

Then I read Bruce Tonkin's recent post (link <http://mm.icann.org/pipermail/accountability-cross-community/2015-October/00...>) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time.

Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition.

Consider this:

Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability. Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like.

That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs:

1. Power to block a proposed Operating Plan/Strat Plan/Budget 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation 3. Power to block changes to regular bylaws. 4. Power to appoint and remove individual board directors 5. Power to recall the entire board of directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model)

I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what we’ve heard recently, the board will support the powers described above.

But there’s one more we have to add before losing the leverage of this IANA transition:

Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture.

This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration.

Again, these are my personal thoughts about a way forward that is based on what others have said recently.

—Steve DelBianco

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Kieren — as to your first question, I do assume the board would likely resist an attempt to activate the enforcemnet powers of Membership. As to your second question, see the Plan B text I proposed last weekend (below) If it’s not strong enuogh please suggest ways to improve it! But there’s one more we have to add before losing the leverage of this IANA transition: Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture. This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration. From: Kieren McCarthy Date: Thursday, October 8, 2015 at 12:08 PM To: Accountability Cross Community, Steve DelBianco Subject: Re: [CCWG-ACCT] A path to Dublin and beyond Serious question: why would you imagine that the Board would do anything but block future governance changes given what it has done this time and in numerous previous accountability reviews? And related to that: if the Board blocked it, what mechanism would exist to force the changes? Why would we not end up in the exact same possible as now but five years down the road? Kieren On Sat, Oct 3, 2015 at 1:33 PM Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: Here are my own thoughts on a path to Dublin and beyond. I was thinking about Jonathan Zuck’s suggestion (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-September/...>) that a change to Membership model could be done in Work Stream 2 — if we create lasting leverage for community to enact a change despite board resistance. Then I read Bruce Tonkin's recent post (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-October/00...>) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time. Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition. Consider this: Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability. Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like. That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs: 1. Power to block a proposed Operating Plan/Strat Plan/Budget 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation 3. Power to block changes to regular bylaws. 4. Power to appoint and remove individual board directors 5. Power to recall the entire board of directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model) I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what we’ve heard recently, the board will support the powers described above. But there’s one more we have to add before losing the leverage of this IANA transition: Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture. This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration. Again, these are my personal thoughts about a way forward that is based on what others have said recently. —Steve DelBianco _______________________________________________ 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

Steve, You are doing yeoman’s work trying to advance the work! However, I think the current situation (the significant “evolution” of the ICANN Board’s role in the development of this proposal) is a strong indicator of why relying on an internal process to ensure a change to a membership model may not be viable. The current environment we find ourselves in was certainly foresaw. In their Joint Comments from SO-AC-SG-C Leaders towards the development of the process, the Joint Commenter’s stated: “We believe that in the context of the Accountability Process this fiduciary duty creates the possibility of tension between the interests of the ICANN Board and those of the ICANN community. New or strengthened accountability mechanisms may impose new requirements upon ICANN as an organization. These requirements may be deemed cumbersome, restrictive, or otherwise undesirable by representatives of the organization. In these circumstances, the ICANN Board could find the organization’s interests at odds with those of the community and be led to reject such recommendations.” Accordingly the final charter articulated a process (and limit) for Board interaction: “CCWG-Accountability will include a liaison from the ICANN Board, who would be an active member of the CCWG-Accountability, bringing the voice of the Board and Board experience to activities and deliberations. The CCWG-Accountability will also include an ICANN Staff representative to provide input into the deliberations and who is able to participate in this effort in the same way as other members of the CCWG-Accountability. Should there be a need for any consensus call(s), neither the Board liaison nor the Staff representative would participate in such a consensus call.”(my highlighting) Moreover, the Board’s own resolution on their “interaction” contained the threshold you’ve copied in your proposal. “If the Board believes it is not in the global public interest to implement a recommendation from the Cross Community Working Group on Enhancing ICANN Accountability and Governance (CCWG Recommendation), it must initiate a dialogue with the CCWG. A determination that it is not in the global public interest to implement a CCWG Recommendation requires a 2/3 majority of the Board.” However we now have apparently reached a point, as stated by Steve Crocker in the Sept 2 meeting where: “NTIA has made it very clear that they do not want a proposal from the community in which the board has not reached consensus on as well” We have moved from a documented position (identical to what you’re proposing) requiring a 2/3rds rejection of a proposal on a strict finding of “not in the global public interest”, to where apparently now the proposal has to be developed in consensus with the board, ex anti, even before its submission to the SO/ACs. And this “evolution” has happened in the presence of the strongest external pressure that is likely to exist for quite a while. So it is hard to imagine how, in the absence of the IANA Transition stick, the old “2/3rds majority- it’s not in the global interest” requirement will actually be complied with. Mike From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Steve DelBianco Sent: Thursday, October 8, 2015 12:26 PM To: Kieren McCarthy; Accountability Cross Community Subject: Re: [CCWG-ACCT] A path to Dublin and beyond Kieren — as to your first question, I do assume the board would likely resist an attempt to activate the enforcemnet powers of Membership. As to your second question, see the Plan B text I proposed last weekend (below) If it’s not strong enuogh please suggest ways to improve it! But there’s one more we have to add before losing the leverage of this IANA transition: Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture. This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration. From: Kieren McCarthy Date: Thursday, October 8, 2015 at 12:08 PM To: Accountability Cross Community, Steve DelBianco Subject: Re: [CCWG-ACCT] A path to Dublin and beyond Serious question: why would you imagine that the Board would do anything but block future governance changes given what it has done this time and in numerous previous accountability reviews? And related to that: if the Board blocked it, what mechanism would exist to force the changes? Why would we not end up in the exact same possible as now but five years down the road? Kieren On Sat, Oct 3, 2015 at 1:33 PM Steve DelBianco <sdelbianco@netchoice.org<mailto:sdelbianco@netchoice.org>> wrote: Here are my own thoughts on a path to Dublin and beyond. I was thinking about Jonathan Zuck’s suggestion (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-September/...>) that a change to Membership model could be done in Work Stream 2 — if we create lasting leverage for community to enact a change despite board resistance. Then I read Bruce Tonkin's recent post (link<http://mm.icann.org/pipermail/accountability-cross-community/2015-October/00...>) describing why our present AC/SO participation falls short of representing the global M-S community, and suggesting this is why the board might not approve a move to Membership at this time. Their posts, along with responses on list, suggest a way we can deliver by Dublin on enforceable accountability enhancements, thereby giving us powers to impose reforms to the AC/SO model after the IANA transition. Consider this: Let’s use the leverage of the IANA transition to get bylaws changes give the current AC/SO community the powers we require, with adequate enforceability. Plus, we ensure those powers are enough to force a future change to ICANN governance structure and/or Membership, if the community comes to consensus around what that new ICANN governance structure look like. That would mean we focus CCWG on finishing details and bylaws language for these enforceable powers exercised by supermajority of ACs and SOs: 1. Power to block a proposed Operating Plan/Strat Plan/Budget 2. Power to approve changes to Fundamental Bylaws and Articles of Incorporation 3. Power to block changes to regular bylaws. 4. Power to appoint and remove individual board directors 5. Power to recall the entire board of directors 6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model) I think we are close enough to get consensus around the above powers before we leave Dublin. And based on what we’ve heard recently, the board will support the powers described above. But there’s one more we have to add before losing the leverage of this IANA transition: Let’s put into ICANN bylaws a method where the community can show consensus to undertake a review of ICANN's governance structure, either because the powers above aren’t working, or just because the community overwhelmingly wants to review governance. The goal of the Governance Review is to recommend a new governance model that might even include moving to Membership. To Bruce’s point, any proposal emerging from this Governance Review would include assurances that ACs and SOs are representative of global internet users and protected from capture. This same bylaw could describe a process for board acceptance of a consensus proposal emerging from the Governance Review: it would take 2/3 board majority to object to the proposal on the grounds that it is not in the global public interest, triggering a board-community consultation. After consultation, a new community proposal would take 3/4 board majority to object. If the board objected a second time, we would have the power to recall that entire board, or to pursue binding arbitration. Again, these are my personal thoughts about a way forward that is based on what others have said recently. —Steve DelBianco _______________________________________________ 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 09/10/2015 22:51, Seun Ojedeji wrote:

...

6. Mechanism for binding IRP where a panel decision is enforceable in any court recognizing international arbitration results — even if ICANN’s board refused to participate in the binding arbitration. (assuming CCWG lawyers verify this works without activating a Membership model)

SO: Will be good to know if this is now confirmed to be Yes or No.

Seun, I am also eagerly awaiting Counsel's response. Not only was it a significant assertion in Jones Day's memo of 1st October (second sub-bullet on page 2) and repeated in Jones Day's memo of Oct 7th ("Fourth,..."), confirmation has been certified as Question 68. See https://community.icann.org/pages/viewpage.action?pageId=52896826 So it won't be forgotten. I do hope this will be ready before we leave for Dublin, as it really is a crucial question. Holly or Rosemary: sorry to press, but any hints on when to expect Q68? Malcolml -- 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