Re: [CWG-Stewardship] Accountability measures required by CWG Proposal(s)
RESEND WITHOUT TYPOS! The typical meaning of a poison pill is a provision to prevent or forestall a hostile corporate takeover, but it is also used in reference to a proposed bill (as in an act of a legislature) where an amendment is made which causes it to be distasteful to someone who otherwise would have supported it. I presume that this latter meaning is implied, in that a provision of the CWG proposal would invalidate it in its entirely if specific accountability measures were not taken. Alan At 15/01/2015 02:44 PM, Gomes, Chuck wrote:
Jonathan,
I do not understand the 'poison pill' point.
Chuck
From: cwg-stewardship-bounces@icann.org [mailto:cwg-stewardship-bounces@icann.org] On Behalf Of Jonathan Robinson Sent: Thursday, January 15, 2015 8:16 AM To: jrobinson@afilias.info; 'Alan Greenberg'; 'CWG IANA' Subject: Re: [CWG-Stewardship] Accountability measures required by CWG Proposal(s)
All,
Note the reference that Fadi has very recently made to the possible use of an over-arching conditionality (in the CWG proposal) in the form of a "poison pill" i.e. our (CWG) proposal being invalid unless certain key accountability conditions are met.
Jonathan
From: Jonathan Robinson [mailto:jrobinson@afilias.info] Sent: 15 January 2015 12:46 To: 'Alan Greenberg'; 'CWG IANA' Subject: RE: [CWG-Stewardship] Accountability measures required by CWG Proposal(s)
Alan (and the CWG),
One question that strikes me which we will almost certainly be asked to clarify is; What is the problem/issue that you (we) are trying to solve for in each case?
The purpose for establishing the motivation is that it may be that there is more than one remedy and that one remedy is more desirable than another (for whatever reason including but not limited to legal advice).
Perhaps a table in the form of issue / proposed resolution 1 / proposed resolution 2?
Jonathan
From: Alan Greenberg [<mailto:alan.greenberg@mcgill.ca>mailto:alan.greenberg@mcgill.ca] Sent: 15 January 2015 06:12 To: CWG IANA Subject: [CWG-Stewardship] Accountability measures required by CWG Proposal(s)
I believe that this is the minimalist list of accountability measures or accountability-related processes that would be required based on the two proposals currently under consideration.
I have explicitly not included the wider list of measures that the CCWG is considering for possible inclusion in its WS1, specifically those which the community would like to see and for which the IANA transition might provide additional impetus for the Board to approve, but are not absolutely required to ensure that the IANA transition can occur. I recognize that this is a judgement call that not all might agree with.
During the last of the four weekend meetings, Chuck mentioned one additional issue, and referred to a chat exchange between him and Donna during the third meeting that listed several other potential accountability issues. Unfortunately, that chat transcript was not preserved due to an error in saving it.
The list of measures for the Contract Co. model is based on the list that the Co-Chairs created in December, augmented by Chucks suggestion. I do not believe that the December list has been negated by any work done in the interim, but perhaps I have missed something. I could not find a rationale for the inclusion of the first of the three items, but include it here so that the CWG could decide if it is based on a real need associated with the proposal or not. If included, I would suggest the CWG be more specific as to under what conditions it would apply. Chuck's suggestion seems to conflict with the 2nd measure in that the 2nd measure is specified as being binding. I am also not sure if it could possibly be replaced by the more generalized IAP (once the request goes to IANA).
The requirements for the internal-to-ICANN model are based on my discussions with a number of people over the last weeks.
Contract Co. Model Requirements
1. Independent Review of Board Actions
Change the ICANN Bylaws to specify that under certain circumstances (to be defined) the determinations of an Independent Review of Board Actions Panel would be binding and not implemented at the Board's discretions.
2. Independent certification for delegation and re-delegation requests
This would be a replacement for the authorization function for all changes to the Root Zone or its WHOIS Database currently performed by the NTIA. The replacement mechanism would have gTLD requests for delegations and re-delegations authorized by an independent third party and its decision on these matters would be binding on ICANN/IANA.
3. Independent Appeals Panel
An independent review panel must be set up to deal with contested changes to the Root Zone or its WHOIS Database. Although discussions are still ongoing as to the specifics of such a proposal, it is generally agreed that the decisions of such a panel would be binding. There may also be a need for an injunction-like mechanism to defer the change in question during the appeal process.
4. gTLD Delegation or Redelegation Appeal within ICANN prior to the change request going to IANA
A Registry could appeal an ICANN decision to delegate or redelegate and gTLD, based on policy not being followed (or presumably contractual terms not being followed).
Internal-To-ICANN Model Requirements
This model will require all of the above measures plus the following:
5. Control over ICANN Board decisions.
The ability for ICANN Stakeholders, potentially augmented by other non-ICANN entities, to mandate or overrule, a particular Board decision, or to require that the implementation of such a decision be subject to consideration of an independent, binding review. These measures might need to be augmented by advance notice of such decisions and allow the MS community to react. In the most restricted form, this ability might be restricted to decisions related to IANA, but in reality, it may not be practical to define this scope limitation (ie how to recognize an IANA-related decision).
6. Ability to Remove Directors
The ability of the overall multi-stakeholder community to remove some or all of the Board Directors. In the case of a full Board removal, a mechanism would be required for appointing an Interim Board and then a replacement regular Board. In addition, ACs and SOs could be given the right to recall their appointed Director(s).
All, Alan's second definition / interpretation is correct. Apologies for sending something in shorthand which I should probably have expressed more fully. Think of it as Tweet. In the call today that is periodically held between ICANN staff and the SO / AC / SG chairs, Fadi made reference to the importance of this CWG's work and additionally its link with that of the CCWG. In making that reference he made it clear that he understood the CWG's work may need to be so dependent on the outcome of the CCWGs work that a proposal from the CWG could contain a form of conditionality sufficiently strong that it could be referred to as a "poison pill". In other words, our proposal becomes invalid ("poisoned") if the CCWG's work doesn't adequately deal with certain specified dependencies. I hope that clarifies. Please note the meetings are recorded and transcribed so it may be better to refer to what was actually said (as opposed to my memory of it) if anything needs to be taken further. Thanks, Jonathan From: Alan Greenberg [mailto:alan.greenberg@mcgill.ca] Sent: 15 January 2015 21:57 To: Gomes, Chuck; jrobinson@afilias.info; 'CWG IANA' Subject: RE: [CWG-Stewardship] Accountability measures required by CWG Proposal(s) RESEND WITHOUT TYPOS! The typical meaning of a poison pill is a provision to prevent or forestall a hostile corporate takeover, but it is also used in reference to a proposed bill (as in an act of a legislature) where an amendment is made which causes it to be distasteful to someone who otherwise would have supported it. I presume that this latter meaning is implied, in that a provision of the CWG proposal would invalidate it in its entirely if specific accountability measures were not taken. Alan At 15/01/2015 02:44 PM, Gomes, Chuck wrote: Jonathan, I do not understand the 'poison pill' point. Chuck From: cwg-stewardship-bounces@icann.org [ mailto:cwg-stewardship-bounces@icann.org <mailto:cwg-stewardship-bounces@icann.org> ] On Behalf Of Jonathan Robinson Sent: Thursday, January 15, 2015 8:16 AM To: jrobinson@afilias.info; 'Alan Greenberg'; 'CWG IANA' Subject: Re: [CWG-Stewardship] Accountability measures required by CWG Proposal(s) All, Note the reference that Fadi has very recently made to the possible use of an over-arching conditionality (in the CWG proposal) in the form of a "poison pill" i.e. our (CWG) proposal being invalid unless certain key accountability conditions are met. Jonathan From: Jonathan Robinson [ mailto:jrobinson@afilias.info <mailto:jrobinson@afilias.info> ] Sent: 15 January 2015 12:46 To: 'Alan Greenberg'; 'CWG IANA' Subject: RE: [CWG-Stewardship] Accountability measures required by CWG Proposal(s) Alan (and the CWG), One question that strikes me which we will almost certainly be asked to clarify is; What is the problem/issue that you (we) are trying to solve for in each case? The purpose for establishing the motivation is that it may be that there is more than one remedy and that one remedy is more desirable than another (for whatever reason including but not limited to legal advice). Perhaps a table in the form of issue / proposed resolution 1 / proposed resolution 2? Jonathan From: Alan Greenberg [ mailto:alan.greenberg@mcgill.ca <mailto:alan.greenberg@mcgill.ca> ] Sent: 15 January 2015 06:12 To: CWG IANA Subject: [CWG-Stewardship] Accountability measures required by CWG Proposal(s) I believe that this is the minimalist list of accountability measures or accountability-related processes that would be required based on the two proposals currently under consideration. I have explicitly not included the wider list of measures that the CCWG is considering for possible inclusion in its WS1, specifically those which the community would like to see and for which the IANA transition might provide additional impetus for the Board to approve, but are not absolutely required to ensure that the IANA transition can occur. I recognize that this is a judgement call that not all might agree with. During the last of the four weekend meetings, Chuck mentioned one additional issue, and referred to a chat exchange between him and Donna during the third meeting that listed several other potential accountability issues. Unfortunately, that chat transcript was not preserved due to an error in saving it. The list of measures for the Contract Co. model is based on the list that the Co-Chairs created in December, augmented by Chucks suggestion. I do not believe that the December list has been negated by any work done in the interim, but perhaps I have missed something. I could not find a rationale for the inclusion of the first of the three items, but include it here so that the CWG could decide if it is based on a real need associated with the proposal or not. If included, I would suggest the CWG be more specific as to under what conditions it would apply. Chuck's suggestion seems to conflict with the 2nd measure in that the 2nd measure is specified as being binding. I am also not sure if it could possibly be replaced by the more generalized IAP (once the request goes to IANA). The requirements for the internal-to-ICANN model are based on my discussions with a number of people over the last weeks. Contract Co. Model Requirements 1. Independent Review of Board Actions Change the ICANN Bylaws to specify that under certain circumstances (to be defined) the determinations of an Independent Review of Board Actions Panel would be binding and not implemented at the Board's discretions. 2. Independent certification for delegation and re-delegation requests This would be a replacement for the authorization function for all changes to the Root Zone or its WHOIS Database currently performed by the NTIA. The replacement mechanism would have gTLD requests for delegations and re-delegations authorized by an independent third party and its decision on these matters would be binding on ICANN/IANA. 3. Independent Appeals Panel An independent review panel must be set up to deal with contested changes to the Root Zone or its WHOIS Database. Although discussions are still ongoing as to the specifics of such a proposal, it is generally agreed that the decisions of such a panel would be binding. There may also be a need for an injunction-like mechanism to defer the change in question during the appeal process. 4. gTLD Delegation or Redelegation Appeal within ICANN prior to the change request going to IANA A Registry could appeal an ICANN decision to delegate or redelegate and gTLD, based on policy not being followed (or presumably contractual terms not being followed). Internal-To-ICANN Model Requirements This model will require all of the above measures plus the following: 5. Control over ICANN Board decisions. The ability for ICANN Stakeholders, potentially augmented by other non-ICANN entities, to mandate or overrule, a particular Board decision, or to require that the implementation of such a decision be subject to consideration of an independent, binding review. These measures might need to be augmented by advance notice of such decisions and allow the MS community to react. In the most restricted form, this ability might be restricted to decisions related to IANA, but in reality, it may not be practical to define this scope limitation (ie how to recognize an IANA-related decision). 6. Ability to Remove Directors The ability of the overall multi-stakeholder community to remove some or all of the Board Directors. In the case of a full Board removal, a mechanism would be required for appointing an Interim Board and then a replacement regular Board. In addition, ACs and SOs could be given the right to recall their appointed Director(s).
participants (2)
-
Alan Greenberg -
Jonathan Robinson