2015-09-24

China (CAICT) Objects to ICANN CCWG Accountability 2nd Draft Proposal

Fiduciary Duty"Definition: A fiduciary duty is a legal duty to act solely in another party's interests. Parties owing this duty are called fiduciaries. The individuals to whom they owe a duty are called principals. Fiduciaries may not profit from their relationship with their principals unless they have the principals' express informed consent. They also have a duty to avoid any conflicts of interest between themselves and their principals or between their principals and the fiduciaries' other clients. A fiduciary duty is the strictest duty of care recognized by the US legal system. Examples of fiduciary relationships include those between a lawyer and her client, a guardian and her ward, and a director and her shareholders." -- Legal Information Institute (link above) (emphasis added)
UPDATE September 24, 2015: CCWG-Accountability "On the Way to LA" to hijack the Global DNS from the Global Multistakeholder Community through their deceptively named CMSM or "Community Mechanism as Sole Member" Model which allows select groups of ICANN "stakeholders" to override ICANN Board decisions and disregard the ICANN Board's fiduciary duties to the global multistakeholder community including the Board's fiduciary duty to act in the global public interest at all times.

"... At least the USG (US government) offers some accountability. ICANN's primary active stakeholders are businesses making money off the DNS; most users are too busy elsewhere to pay much attention..."--comment of Esther Dyson, ICANN's founding Chairman, in The Guardian, Sept 22, 2015

"Sole Member given reserved power under Bylaws to override Board decision directly, regardless of Board fiduciary duties." - Legal counsel for CCWG-Accountability (pdf) opinion on CCWG 2nd draft

China's CAICT has joined others in objecting to the power grab by the "ICANN community stakeholders" a/k/a ICANN insiders to the exclusion of the "global Internet community" in the most recent CCWG-Accountability 2nd Draft Report (pdf) which proposed a Single or "Sole Member" Model (comprised by only select ICANN stakeholder groups) to be "on top" over the ICANN Board of Directors and control ICANN, said Sole Member having no accountability to the global Internet community nor fiduciary duty to act in the global public interest--in fact one leading member of the CCWG has responded to an ICANN Board Member on the CCWG mail list and noted that with the "Sole Member Model" the ICANN Board will no longer have to worry about breaching "fiduciary duties" (to the global multistakeholder community a/k/a global internet communitye.g., or to act in the global public interest)--
"Members don't owe fiduciary duties generally speaking, just as the organisations that would comprise the member (the SOs and ACs) don't today. The [ICANN] Board's members do. The existence of a membership system modifies those duties for Board members - they do not breach fiduciary duties in implementing a decision a member has made. This could be a rabbit hole but the point is that the member option has more flexibility in determining matters and does not create impossibilities for the Board where it does so. That's a design feature of the choice of membership." -- Jordan Carter, CCWG-Accountability member (emphasis added)
Rabbit hole? "Down the rabbit hole" - a metaphor for an entry into the unknown, the disorientating or the mentally deranging, from its use in Alice's Adventures in Wonderland. source: Rabbit hole - Wikipedia

Meanwhile, China's CAICT has joined with others and objects to the CCWG's 2nd Draft Report--
"... We believe, in designing a voting system, the most important element that need to be considered is the representation of the global Internet community, instead of the representation of the ICANN community. Therefore, geographical balance should be an important element in terms of allocating the votes in the community; users' representation and the interests of developing countries should be properly considered too. For instance, Internet users in Asia exceed 1.4 billion, accounting for 45% of the world users. If there's no votes or extremely limited votes for Asian representatives, then this voting system is not appropriate..." -- Comment (pdf) submitted by China Academy of Information and Communication Technology (CAICT), September, 2015, Beijing, China, in response to CCWG-Accountability's 2nd Draft Report (emphasis added)

The above echoes other comments made, including the following submitted to the ICG mail list by Richard Hill on September 20, 2015:
Dear ICG,
A portion of the work of CCWG-Accountability is directly related to the transition proposal that you are coordinating. CWG-Accountability does not have, as far as I know, a public comments forum
such as the this one, and it does not accept comments from the general public, so I'm posting this message here and requesting that it be forwarded to CWG-Accountability. I refer to the draft summary of comments on the CWG-Accountability proposal published at: http://mm.icann.org/pipermail/accountability-cross-community/attachments/20150915/8167a9d5/2nd-draft-CCWGtrends-v4-0001.pdf
I detail below my concerns.
1. Who are the stakeholders? [in other words, the Global Multistakeholder Community or just certain "ICANN stakeholders"?]
Slide 2 of the PDR referenced above presents a "Stakeholder Distribution of Comments Received". The identified categories of stakeholders are:
* Governments
* ccTLDs
* Advisors to the CCWG-Accountability
* Chartering Organizations
* CWG-Stewardship
* Technical Community
Does this imply that individuals and civil society organizations are not stakeholders? Does this imply that comments from individuals and civil society organizations were not considered?
2. Misleading statistics
Slides 8 ff. of the PDF present breakdowns of responses. For example, it is stated that 27 responses agreed that the CCWG-Accountability proposal enhances ICANN's accountability while 61 did not provide an answer. It may be correct that 61comments did not explicitly answer that question, but at least six responses did answer it negatively, albeit implicitly ... The statistics presented are misleading because they imply that "did not provide answer" implies support for the proposal, which is not necessarily the case ..."

Domain Mondo has previously noted the CCWG-Accountability publishing misleading representations of the public comments received to the 2nd Draft Report. The CCWG-Accountability is scheduled to meet with members of the ICANN Board this Friday and Saturday. Maybe the ICANN Board of Directors can at least do something about the CCWG leadership publishing "misleading statistics." The CCWG-Accountability is looking more and more like an "insider deal" favoring the vested self-interested special interests ("ICANN stakeholders" or "lobbyists") who have always wanted to totally control and financially benefit from ICANN policy-making, to the exclusion of "outsiders" (a/k/a global multistakeholder community or "global Internet community") and to the detriment of the "global public interest." With US (NTIA) stewardship in place, the lobbyists could never totally control ICANN--now is their chance.

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