|Vote Open||Vote Close||Date of Submission||Staff Contact and Email||Statement Number|
|Cross Community Working Group on Enhancing ICANN Accountability 2nd Draft Report (Work Stream 1)||ADOPTED 15Y, 0N, 0A||Alan Greenberg||23:59 UTC|
CCWG-Accountability Support Staff
FINAL VERSION TO BE SUBMITTED IF RATIFIED
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FINAL DRAFT VERSION TO BE VOTED UPON BY THE ALAC
Final Draft: Word
Final Draft: PDF
FIRST (and subsequent) DRAFTS
DRAFT v07-rev2 Dated 08 September 2015 - Redline
DRAFT v07-rev2 Dated 08 September 2015 - Clean
DRAFT v07 Dated 04 September 2015 - Redline
DRAFT v07 Dated 04 September 2015 - Clean
DRAFT v06 Dated 03 September 2015 - Redline
DRAFT v06 Dated 03 September 2015 - Clean
DRAFT v05 Dated 01 September 2015 - Redline
DRAFT v05 Dated 01 September 2015 - Clean
DRAFT v04 Dated 26 August 2015 - Redline
DRAFT v04 Dated 26 August 2015 - Clean
DRAFT v03-rev2 Dated 26 August 2015 - Redline
DRAFT v03-rev2 Dated 26 August 2015 - Clean
DRAFT v03 Dated 24 August 2015 - Redline
DRAFT v03 Dated 24 August 2015 - Clean
DRAFT v02 Dated 21 August 2015 - Redline
DRAFT v02 Dated 21 August 2015 - Clean
DRAFT v01 Dated 17 August 2015
Part 1 of my comments.
While I am generally supportive of the draft proposal, I do have a number of concerns.
Paragraph 154, bullet 1:
I support the alternate definition that explicitly includes End-Users as opposed to being lumped together within Civil Society.
Section 5.1 Independent Review Panel (IRP)
I still have concerns related to the binding nature of the IRP and why we should feel more comfortable with a 3-person panel than with a Board selected by the community. I do accept that our board HAS made bad decisions at times, but the feeling of unease is still there. The fact that a decision may act as a precedent only increases that unease.
Paragraph 319 – SO/AC Weighting.
I am prepared to accept the ( 5 x 5) + (2 x 2) weighting. Should the SSAC at some point in the future no longer be Board appointed, I believe that they should have the full 5-weight commensurate with the importance of security and stability in ICANN’s mission.
I would support the 7 x 5 model if there were a general community desire to implement it, and categorically reject the model of 4 votes per SO and 2 per AC.
Paragraph 346 – Voting thresholds
The definition says that if a threshold is 66%, then MORE than 66% must be obtained for the threshold to be met. This might be problematic for thresholds of 75%. More than 75% being required implies that if there are only 4 SO/ACs participating, that gives a single SO/AC a veto. On the other hand, given my reservations about “ganging up” (See part 2 of my comments on budget veto and Bylaw rejection), this might be a feature and not a bug.
More to come…
I agree with all the Part 1 Alan Greenberg comments.
Paragraph 319 – SO/AC Weighting.
My preference would be 7X5 for the long term.
Until the time of SSAC and RSSAC are populated by other processes than by the Board I would support 5X5 + 2X2.
ASO = gNSO = ccNSO = GAC = ALAC is a must. If it is not achieved, it is one of the reason for ALAC not to endorse the report.
Paragraph 346 – Voting thresholds
Any threshold must be very clearly defined is it 66% (75%) or 66%+1 (75%+1)?
Regarding Paragraph 346 – Voting thresholds
"No votes, abstentions or non-participation would all be treated the same way."
I don't think that No vote = Abstention = Non-participation
If that was the case why 3 words?
At least we must have a participation threshold and a voting threshold.
I agree with Alan on Paragraph 154, bullet 1. A recent example of the difference is over the privacy/proxy issue, where 'civil society' strongly supported no revealing of Whois detailes without some kind of legal sanction. There were comments from ALAC members that Whois information should be more readily available to track down cases of fraud/misuse of domain names. We took a middle ground on that.
I also share unease with the binding nature of the IRP for the same reasons.
Part 2 of my comments.
Section 7.1. Budget rejection/veto
The terms “rejection” and “veto” seem to be used interchangeably and with the same meaning. This should be clarified and preferably only one term used.
Paragraphs 389 and 390 seem to be at odds with each other. 289 says that if there is a second community veto, the previous year’s budget will be used. 390 talks about the community’s judgement of the Board’s response to a 2nd veto, but under the proposed 389, there is no opportunity for a Board obeying the Bylaws to do anything other than comply. More clarity is needed.
I have a concern about rejection of a budget solely due to budget items related to a single SO/AC. There is the opportunity for ganging up on that SO/AC.
Section 7.2. Bylaw rejection
I fear the “ganging up” phenomena here as well.
7.3 Removal of an Individual Director
There must be an explicit statement (and perhaps waiver from each director) that there is no right to appeal, no right to claim unfairness to the Ombudsman, and no legal right related to libel, slander or defamation.
Sections 407 and 409 need to explicitly allow for parallel removal of multiple directors without having to convene the ICANN Community Forum multiple times.
7.4 Removal of the Entire board
Paragraph 415, bullet 2, sub-bullet 2. This section requires notification of just the participating SO/ACs, but then talks about discussions between all SO/ACs (some of whom have not been notified).
[not for the formal ALAC comment, but there is a run-on sentence fragment: calling for all SOs and ACs that have the right to appoint Directors to select one (or two, depending on their allocation) directors to notify by the close of the Discussion Period of the person[s] it has selected to serve on an Interim Board (for only so long as necessary until a replacement election could be held) should a vote in favor of recall of the entire Board occur, such notice to include a signed statement from the candidate(s) of their willingness to serve and any other information that the Bylaws require Board candidates to provide prior to election.]
Paragraphs 429-430, Minority View:
I categorically reject the ability of a single SO to remove the entire Board.
Note to AG: Need to review voting thresholds to ensure that they are being used consistently, ie EQUAL or EQUAL TO OR GREATER THAN.
Still more to come...
Section 7.1. Budget rejection/veto
I am concern by #380 and #381
#380 it is stated that WS2 develop improvements...
#381 it must be after Board approval and before coming to effect
I don't know and see how it will be feasible if we need also to include more time for consultation. The curent calendar is already very tight.
7.3 Removal of an Individual Director
7.4 Recalling of the Entire board
I confirm my disagreement for both proposal as it will put the organization at hight risk.
I have in the comment of the 1st draft and in a minority report provided an alternative (AFRALO also provided another alternative).
In any case I am concern in the current proposal with:
#409 2.a) The Chair of the Forum must not be associated with the petitioning SO or AC or with the Director involved;
Must add "and with the NomCom".
#411 several "reserve" candidates in place...
Will be very difficult to handle.
#415 second bullet point: "responsable person"???
And if we have to choose between "unlimited period" and a clear calendar,
I vote for the second.
#422 not clear
#423 A minimum diversity requirement must apply.
Like if selecting 2 persons and SO need to have them coming from 2 different regions...
#425 "The Directors selected for the Interim Board, and later those selected for the Replacement Board, will step into the terms that were vacated by the recalled directors. Each SO and AC and the NomCom shall determine which of the terms the interim and replacement Directors shall fill. In this way there will be no disruption to the staggered terms of the ICANN Board."
I don't see why (and how).
Paragraphs 429-430, Minority View
Agree with Alan
The lawyer in me would not be comfortable with a Board member waiver from any action in defamation (defamation includes libel - written statements, and slander - verbal statements), Qualify the waiver so that it only relates to that event with processes being followed. If the processes go awry, and people are unnecessarily damaged, there should be a right of recourse
And support the rejection of a single SO being able to remove the entire Board
And the individual in me would not feel comfortable exercising ANY action where I might be slammed with a defamation charge....
As I have published a minority statement, please find the link to all the minority statements (I am the second over 3) and you will have the doc download.
It is also the last document on this page
Second Draft Report (published on 3 August)
Part 3 of my comments.
Paragraph 438, Diversity: I strongly support the position that hat diversity requirements should not prevail over skills or experience requirements.
Paragraph 441, Diversity: The sample list of diversities to be considered includes Skill set, Region, Origin, Culture, Language, Gender, Age, Disability, Stakeholder group. Rules that one must address “diversity” in a given group (whether it is in an IRP Panel, and AoC RT, an AC or SO) must be more specific. It is clear that any relatively finite group (and in one of the examples, the size is only 3) cannot address all forms of diversity.
Paragraph 442: The suggestion to expand the ATRT to include “The review team would be tasked to assess and make recommendations regarding diversity across all ICANN bodies.” Is ill-conceived. The task may well be required, but the ATRT is not the place for it, given the other expectations of ATRT outcomes and skill-set required.
“Establish threshold regarding composition of each body (will depend of the body and of the overall composition) to avoid possible blocking on certain votes.” I have no idea what this means.
Paragraphs 580-587, WHOIS Review: I believe that this section must be adjusted to allow the “WHOIS” RT to address the appropriate issues for the then current Directory Services and should not be limited to the wording written into the 2009 AoC. Moreover, if the terms of reference of this review need to be further adjusted in the future, it makes no sense to assign this task to the AoC RT, which will have little expertise in this areas. It should be assigned to the Whois RT.
Minority Statement from Eberhard Lisse: I do not support this statement.
Minority Statement by Sebastien Bacholet: I support some of the comments, specifically those related to budget veto and the extraction of non-mission-critical AC/SO Bylaws into what is referred to as an “Operational Document”.
Minority Statement by Edward Morris: I reject most of what is being proposed. The only part that may have merit is ensuring that individuals or organizations do not exercise voting rights in multiple AC/SOs or subdivisions thereof. However, this would need to be carefully examined to ensure that such restriction foxes an accountability problem and does not merely restrict individual rights.
As I wrote in my comments of the first draft
Diversity is an absolute need.
It was supported by the Francophone community
Organisation Internationale de la Francophonie input on Diversity (14 July 2015)
And I support the recommendations #466 and #467 regarding diversity.
Version 1 of the Draft Statement has been posted and will be discussed during today's IANA-Issues teleconference.
Community approval of changes to the Articles of Incorporation
Is there concern that while there are community approval requirements for fundamental bylaws changes, the Board alone is able to make Articles of Incorporation changes without community consultation, approval or redress? Seems like this may leave a loophole for the Board to change the Articles in the event they cannot achieve their goals in the bylaws.
I do not believe this was ever discussed in the CCWG. It only occurred to me because of the work on the Human Rights bylaw, where some who are not in favor of the bylaws change, mention that the Articles contains a sufficient commitment. I disagree with their argument, but it caused me to take a closer look at the Articles.
Regarding #218 and #219
We need to keep the current wording:
"Where feasible and appropriate, depending on market mechanisms to promote and sustain a healthy competitive environment in the DNS market that enhances consumer trust and choice."
An healthy (competitive) environment not depend only on market mechanisms.
The current bylaws text is:
5. Where feasible and appropriate, depending on market mechanisms to promote and sustain a competitive environment.
6. Introducing and promoting competition in the registration of domain names where practicable and beneficial in the public interest.
v03 of the Draft ALAC Statement has been uploaded.
During the webinar, At-Large Briefing on the Draft ALAC Statement on the Second Draft CCWG Accountability Proposal, August 27, I asked the question – where does the proposal define community? My thanks to Alan Greenberg and Avri Doria for pointing me in the right direction. My personal resources to examine that document thoroughly are very limited.
After more than two decades of involvement with the uses of ICTs for community development, I am quite sensitive to the way in which the word community gets used. On looking into the proposal, I found the idea of community qualified by the words multi-stakeholder, empowered, mechanism and ICANN, for example as in, “developing a mechanism to empower the ICANN multi-stakeholder community.” Although the “broader community” is referenced, what the proposal focuses on is a community assumed to be internal to ICANN. However my brief dip into the proposal left me with the impression that the word community applied to ICANN remains an unexamined assumption.
Real community self organizes. Community, like the Internet and the Internet Governance ecosystem, is a distributed system. In a distributed system, the rules governing its organization are inherent inside every part of the system. The principles of the organization do not represent an absolute scale of measurement that is imposed from outside. Just as nobody owns TCP/IP, nobody owns the rules that form and sustain a group of people into a community. And anyone in the system can learn through practice something that, through self-organizing criticality, can alter the relational behaviour of everyone else. In that sense, the open structures of policy formulation and advisory committee processes that characterize ICANN now resemble self-organizing communities of practice. I believe that capacity represents strength.
On the other hand, the search for legal mechanisms to express corporate structure represents the antithesis of community. The ‘Community mechanism as sole member model” merely introduces a means of balancing power in a classic bureaucratic hierarchy of central control. Yes, things like the desire for diversity, the suspicion that formality is going too far, the concern to address the public interest, and the realization that ICANN should mirror the Internet it supports indicate a real will to achieve community, or to believe that community exists. But wishing doesn’t make it so. I am unable to tell if the concept of empowering the community is actually a symptom of its disappearance.
Recording here some of the main points I have made on calls at various points in time when this Statement was discussed:
In my opinion Board Directors could be removed only if there were a very special set of conditions that needed their removal, such as directors becoming "rogue" - and this is where we should spend a lot of time about defining what "going rogue" is.
....and of course you are well aware that if we allow a budget veto, we can absolutely say goodbye to ever having an ATLAS III, having a meaningful ICANN Academy for educating end users and enabling them to take part in ICANN policy development. We can say goodbye to an increase in budget for Stakeholder Involvement through the GSE department. We can say goodbye to any significant increase in funding for the ICANN Compliance Department in case it needs to expand its activities... in fact we can put a cross on anything that will not be related to ICANN's core business in the Global Domains Division.
v05 of the statement is posted.
Sebastien has sent in some comments, questions and suggestions. See http://mm.icann.org/pipermail/iana-issues/2015-September/001576.html.
Comment from Carlton Samuels sent on 5 Sep 17:17 UTC.
Language really does matter.
So, I agree with most of the edits. But I so too would have liked to see more forceful language use in the ALAC's responses, especially in regard to the Section 3: Principles. And then, I also have philosophical differences with elements that the ALAC seems to be endorsing.
Regarding Para 154 et. al., we should be bold and write the language we would have liked to see. I have learned from experience that you must always take care to write your own self explicitly in organisational principles. For Luddites and fellow travelers are forever with us and they tend to dumb down on principles.
Regarding Para 199, again, let's rubbish this exercise in sophistry. Sweet bleeding Christ, what chutzpah! The writer here actually says that decisions about the DNS have ALWAYS and must remain 'neutral and judgment free'!. In what universe? Call it what it is, a squalid lie.
Para 218 again is a deviant operation lurking in plain sight, party to a neo-liberal political economy that enables a standing bit of ICANN tom foolery; ICANN is not a regulator. Its like the cuckoo; lay your eggs in some other poor bird's nest and let 'em feed and groom your big ass chick, they dumb enough not to recognize a bastard. ICANN really wants to remain care-free from what happens in the market it created, that it imposes obligations for to all of us, sustains in many ways yet wishes to remove itself from the duty of care from the aftermath. This position must be rejected for cause.
As it relates to Section 7, this is where I differ philosophically from the trending ALAC position. However, you might wish to revisit this business of having directors lockboxing certain rights in lieu of appointment.
We still have the law - and the case law - of the State of California to contend with. Now, for a corporate entity domiciled in California and subject to California and U.S laws, libel, slander and defamation are not the same in law as say the UK or even Jamaica. But certainly the question of how much of 'coercive' you can get done before you impinge on a constitutional right is now live. The thing is one cannot sign away a constitutional right, even if you're ignorant. Plus we are still a long way away from figuring out what is the makeup of 'statutory and fiduciary responsibilities' imposed by California law on directors. The law there does not suppose they be lapdogs.
Finally, while I generally support Sebastien's Minority Statement, his alternative proposal to removal of only 7 members of the Board during a given year is also not much more desirable.
Quite apart from the prospect of reducing directors to lapdogs, I do not think you can edit out the tenets of natural justice to which each director is born much less to coerce one to give up one's constitutional rights in lieu of a Board seat. There is something malodorous about that concept so I would reject that on principle.
It is far better to have a framework with a third of the Board is subject to natural renewal at a frequency less than the natural appointment duration of each board member - say every 2 years - than invoke a process that might actually take more years to complete.
Comment from Christopher Wilkinson sent on 5 Sep 19:01 UTC.
1. Regarding the removal of Directors, (a) SOs and ACs _appointed_ their Directors in the first place. So, who is responsible for the Directors that they have got?
(b) NomCom appoints _independent_ Directors. My comments on this have already been posted. The whole point of having independent Directors is to create a check and balance in the Board.
If any SO can initiate (even threaten to initiate) removal, what hope for the internal checks and balances?
2. Regarding Competition and other Regulatory matters, I read somewhere in section 3 that competition would rely on market mechanisms. That is ludicrous in this market.
The whole point of regulatory responsibilities for competition is to address issues which are NOT resolved by market mechanisms, and there ARE some.
Of course there are other regulatory issues that ICANN has failed to address recently. e.g. .XYZ, .SUCKS, .VIN etc.)
PS: I find it increasingly difficult to handle the volume of all this stuff. How to cross reference the CWG report, the CCWG report the At Large report, the Board and Jones Day. Impossible.
PPS: I read the Sidley proposals for Fundamental Bylaws. Those would make it impossible for the Board to demur from the SOs in the event of GAC contrary advice. I believe that to be deliberate.
I note that several GAC members have already perceived that game being played behind their backs.
Reply from Carlton Samuel on 7 Sep 01:03 UTC.
To your #1, here's what we're working with. Current corporate governance doctrine - and the presumption in what is termed 'statutory and fiduciary responsibilities' is that once chosen and seated, a director discards any obligation to his tribe or group and retains no fealty to the sending/selecting organisation.
His/her obligations and fealty now are solely to ICANN, the corporation.
You and I would think that it is the sending/selecting organisation that should be accountable for the bad seed and be the lead in any clean up. But if you follow the logic of the current doctrine you will see how you could arrive at the position that any of the stakeholder classes now have standing to petition removal.
As to the matter of 'independent' directors, it depends on what you think independent means in this context. Maybe a closer look as the requirement and suggested profiles of the NomCom chosen directors you might have another take on it.
I take your #2 as given.
Edits from Remmy Nweke [DigitalSENSE Africa] sent on 5 September 19:00 UTC.
Edits from Seun Ojedeji sent on 6 Sep 20:52 UTC.
Edits from Loris Taylor sent on 7 Sep 03:54 UTC.
Comment from Roberto Gaetano on 9 Sep 20:16 UTC.
I have a question.
In case a Director is removed by some mechanism, can the appointing body re-appoint him/her?
- If no, does this not looks as a prevarication of the rights of one appointing body (SO or AC or NomCom) by the majority of other appointing bodies? i.e. does this not imply that each and every appointing body have to appoint people that are not disliked by the majority of other bodies? Does not this sound *really* bad?
- If yes, does this not look *really* useless, because at the end of the day the appointing body is the only one who has the power of removing, regardless what the other appointing bodies think about?
In either case, the removal clause “as is” does not look really useful.
To me personally – but I acknowledge the fact that being out of tune I am not fit for singing in a choir – it looks seriously silly.
Comment from Seun Ojedeji on 09 Sep 21:03 UTC.
As per individual board removal, the appointing body(SO/AC) initiates and completes the removal process. Although it's expected that the community would be part of the decision process through the community forum. That is not yet strongly indicated in the proposal. The appointing body is indeed the one to replace the removed board member and CANNOT replace with the one removed.
There is also a clause indicating minimum number of years that a removed board must achieve before reappointment to ICANN leadership positions.
Sent from my Asus Zenfone2
Kindly excuse brevity and typos.