CCWG Steamroller! ICANN 'Chattering' Organizations In Parallel Universe!

CCWG-Accountability Triumvirate (L-R): Mathieu Weill, Thomas Rickert, Leon Sanchez (ICANN.org photo)

You have to hand it to those CCWG guys--Mathieu, Thomas and Leon--they re-started the Steamroller that Thomas Rickert had test driven in LA, and look at what was accomplished in just a few hours at ICANN 54 today--after realizing the proposed 'Single Member Model' was DOA Dublin--the CCWG is now well on its way to:

1. Sole Designator Model replacing Single Member Model as the "reference model" for the final phase of CCWG-Accountability's work;
2. A New Timeline that delivers "Final Report" to the ICANN Board mid-January, 2016:

In order to accelerate the process, the timeline provides for "parallel" feedback from the ICANN Chartering Organizations (a/k/a Chattering Organizations) at the same time as the Report goes out for 3rd Public Comment. As commented by two people active in CCWG-accountability's work near the end of today's session:
We have a habit of fantasy timelines in this group...
We have a habit of wasting time and turning those fantasy timeline predictions into self fulfilling predictions.

Video, audio, and transcript of today's CCWG-Accountability's session will be posted here.

UPDATE: At the ICANN 54 Public Forum on October 22, 2015, Leon Sanchez, Co-chair reported a summary of key decisions and agreed-upon next steps:

• on the sole designator as referenced model for enforcement, the group reached broad agreement to move forward with the sole designator as the new reference for the model for the next draft proposal. 
• the group will next attempt to finalize patching the model to alleviate any outstanding concerns on the next draft proposal. 
• decision-making model. the group begun defining a consensus-based decision, make and model, which includes a community consultation period. discussions on the topic were informed on the second draft report about unintended concentration of power. 
• on the independent review process, the group confirmed support for the proposed IRP enhancements and is now moving into the implementation phase. to spearhead this phase, a drafting subgroup with expert support will be constructed to develop and draft bylaws and detailed operating procedures. 
• on the community power that refers to review and reject of the budget and operating plan, the group has identified a balanced process and approach for the one-year operating plan and budget which was an outstanding item coming into Dublin. 
• on the community power of recalling individual board directors, the group confirmed a decision method for removal of a director appointed by the nominating committee and a separate decision method for removal of a director appointed by an advisory committee or supporting organization. 
• in the mission and core values, the group confirmed its support for clarification of the mission statement and articulation of the commitments and core values. an example of our clarification includes icann's ability to enforce agreements with contracted parties subject to reasonable checks and balances. 
• on human rights, the group reached consensus to include a general human rights commitment into the bylaws. however, further work is needed on language and has been tasked to the human rights working party. 
• on the incorporation of affirmation of commitments into the bylaws, the group finalized outstanding details of the incorporation of the aoc review into the bylaws. there is high confidence that these bylaws are nearly ready for consideration in terms of implementation. 
• as regard to version 2, the group adopted a focused list of work stream 2 items, with an emphasis on transparency retirements. there was also broad agreement to bring some of these transparency requirements into work stream 1, in consideration of the discussions around the sole designator enforcement model. 
• .... the current time line proposes posting a high-level overview of recommendations and a summary of changes from the second draft proposal for a 35-day public comment period. on 15 november 2015. Alongside the 35-day public comment, the ccwg accountability will submit these resources to the chartering organizations for initial feedback. 

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ALAC Withdraws Support for CCWG's Proposed ICANN Membership Model

Today at ICANN 54, meeting in Dublin, Ireland, ALAC, ICANN's At-Large Advisory Committee, which represents individual Internet users throughout the world, withdrew its support for the Membership model for ICANN, proposed by CCWG-Accountability in its 2nd draft Report (pdf). Alan Greenberg, Chair of the At-Large Advisory Committee posted the following on the public mail list of CCWG-Accountability on Sunday (emphasis added):

Sent: Sunday, October 18, 2015
To: CCWG Accountability
Subject: [CCWG-ACCT] ALAC Statement on proposed accountability models

In its formal response to the CCWG-Accountability proposal issued in August 2015, the ALAC said that it could support the model being proposed, but preferred something far less complex and lighter-weight, and that we saw no need for the level of enforceability that the proposal provided.

Moreover, the ALAC had specific concerns with the budget veto and the apparent lack of participation of perhaps a majority of AC/SOs.

In light of the reconsideration of a designator model by the CCWG, along with the recommendations of the Saturday morning break-out sessions, the ALAC felt that a revised statement was in order.

Accordingly we decided, by a unanimous vote of the 14 ALAC members present (with 1 not present), to withdraw support for the Membership model.

I want to make it clear that this is not a "red line" decision. Should a Membership model become one that is generally advocated by the CCWG, and supported by a supermajority of Board directors (who ultimately MUST support any changes that they will be called upon to approve, else they would be in violation of their fiduciary duty), then the ALAC reserves its right to support such a model.

Alan Greenberg
Chair, At-Large Advisory Committee

Domain Mondo Editor's Note: It is doubtful that any membership model would be supported by the ICANN Board--see: ICANN Board Does NOT Support CCWG Proposed Membership Model Sep 27, 2015.

See also: ALAC Comments on CCWG-Accountability 2nd Draft Report (September 11, 2015)

ALAC has 5 members on the CCWG. The CCWG has a total of 26 members, plus a Board liaison and Staff representative, plus another 164 "participants."

ALAC's 5 members on CCWG-Accountability:
Sebastien Bachollet (Europe)
Tijani Ben Jemaa (Africa)
Alan Greenberg (North America)
Cheryl Langdon-Orr (Asia/Asia Pacific)
León Sanchez (Latin America) – CCWG Co-Chair

ALAC website: atlarge.icann.org

Background: At-Large is the name for the community of individual Internet users who participate in the policy development work of ICANN. More than 140 At-Large Structures representing the views of individual Internet users are active throughout the world. Learn more about the community and its activities on the website www.atlarge.icann.org, as well as how to join and participate in building the future of the worldwide Domain Name System (DNS) and other unique identifiers which every single user of the Internet relies on with every online visit. (source: ALAC website, supra)

About the ALAC, At-Large Advisory Committee:

On 31 October 2002, the ICANN Board adopted new Bylaws that established the ALAC and authorized its supporting At-Large organizations. See: Article XI, Section 2(4). The new Bylaws, which were the result of ICANN's 2002 reform process, went into effect on 15 December 2002. They called for the ALAC to eventually consist of ten members selected by Regional At-Large Organizations, supplemented by five members selected by ICANN's Nominating Committee. Underpinning the ALAC is a network of self-organizing, self- supporting At-Large Structures throughout the world involving individual Internet users at the local or issue level. The At-Large Structures have self-organised into five Regional At-Large Organizations (one in each ICANN region – Africa, Asia-Pacific, Europe, Latin America/Caribbean, and North America). The Regional At-Large Organizations are managing outreach and public involvement and are the main forum and coordination point in each region for public input to ICANN. (source: ICANN)

The CCWG-Accountability (Cross Community Working Group on Enhancing ICANN Accountability) is having further meetings/sessions this week in conjuction with ICANN 54 in Dublin, Ireland. According to the ICANN 54 schedule, CCWG-Accountability sessions scheduled for the rest of this week (all times are Irish Standard Time, and anyone can observe/attend by following the links on each session page link below):

Monday, Oct 19: 10:15 to 11:45 IST Enhancing ICANN Accountability Engagement Session I Auditorium
Monday, Oct 19: 14:00 to 18:30 IST CCWG-Accountability Working Session I Liffey B
Wednesday, Oct 21: 17:00 to 20:00 IST CCWG-Accountability Engagement Session II Auditorium
Thursday, Oct 22: 08:00 to 10:30 IST CCWG-Accountability Working Session II Liffey Hall 2

See recent posts related to CCWG-Accountability on Domain Mondo:

• GAC Oct 17: ICANN CEO, CCWG Co-Chair, Ships Passing in the Night? Oct 17, 2015
• Why Did ICANN Become a Member of Trademark Lobbyist Group INTA? Oct 15 2015
• CCWG-Accountability Attorneys: ICANN Already Uses 'Designator Model' Oct 13, 2015
• A Lust for Power: Is PIMCO Like Some CCWG-Accountability Members? Oct 9, 2015
• IANA Transition, ICANN Accountability, "Has Always Been About POWER" Oct 1, 2015
• ICANN Board Does NOT Support CCWG Proposed Membership Model Sep 27, 2015
• China (CAICT) Objects to ICANN CCWG Accountability 2nd Draft Proposal Sep 24, 2015
• Only 19 of 90 Comments Support ICANN Accountability [CCWG 2nd draft] Proposal Overall Sep 22, 2015
• ICANN CCWG-Accountability Co-Chair Comments on the Public Comments Sep 15, 2015

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ICANN54 Dublin info/links | Oct 16-23 Schedule

CCWG-Accountability Attorneys: ICANN Already Uses 'Designator Model'

"At ICANN 53 in Buenos Aires U.S. Commerce Dept. Assistant Secretary Larry Strickling stressed two points. He emphasized that the proposal should add only the minimal amount of extra structure and not introduce undetermined risks."--source: Steve Crocker, 15 Jul 2015, ICANN Board Chairman, in blog post entitled The CCWG: From Buenos Aires to Paris to Dublin

In a bombshell dropped Monday, October 12th, Legal Counsel for the Cross-Community Working Group on Enhancing ICANN Accountability have concluded (contrary to the ICANN Board and its counsel) that ICANN already uses the 'Designator Model' under California law.

No 'new structure' needed, just 'fix' the current model? The little-noticed submittal on the public mail list of the Cross-Community Working Group on Enhancing ICANN Accountability (CCWG), states that ICANN, as presently constituted, already utilizes the "Designator Model" under California law, albeit with "gaps"--

Excerpt from CCWG-Accountability Legal Counsel Memorandum (yellow highlights to text added)

The six-page memorundum, posted on the CCWG public mail list Monday, October 12, 2015, may be read in its entirety here (pdf). The memorandum concludes:

"We believe that the best interpretation of the ICANN Bylaws is that ICANN functions under a designator model, for which the Code prescribes certain statutory rights and powers to designators that cannot be taken away as long as the ICANN Bylaws give director selection powers to identified stakeholder groups, acting separately or collectively. We believe that the designator structure currently set forth in the ICANN Bylaws has several serious gaps that expose ICANN to potential legal challenge and associated instability. These arise because although the Bylaws provide designator rights, the Bylaws do not specifically expressly acknowledge the legal position of the SOs, ALAC, and the NomCom as designators under California corporate law. While we believe that is the best interpretation of these Bylaws and the state statutes and the most likely outcome of a court test, a dispute on that issue could be very protracted, taking months or years to resolve, including the possibility of trial and appellate proceedings, before a final decision is rendered. Such a suit could arise, for example, if the Board tried to remove a director selected by an SO or ALAC as the Bylaws contemplate but without that appointing body’s consent as required by statute, or if an SO or ALAC tried to remove a director it appointed as the statute contemplates even though that right is not mentioned in the Bylaws. Whether ICANN moves to a member model or keeps and improves its designator model, these gaps should be addressed. For the benefit of both ICANN and the multi-stakeholder community, the Bylaws should be clear on how the separate and collective rights and powers related to selection, removal, and replacement of directors given to the ten groups are to be exercised and protected, consistent with California corporate law. ICANN may have a corporate structure that is innovative, expansive, and adaptive, but the Bylaws must be firmly grounded in the existing California nonprofit statutory framework to minimize the disruptive effect of conflicting interpretations." (emphasis added) 

All of this may come as "news" to the ICANN Board of Directors (and its legal counsel Jones Day) which has gone "on record" as neither supporting the "Single or Sole Member Model" (SMM/ CMSM) nor the "Designator model"--

Message from ICANN Board re Designator Model October 6, 2015:

CCWG,

We appreciate the continued work that the CCWG is doing to consider the public comments received on its second draft report.  Following the Los Angeles F2F we have heard suggestions that a Designator model relying on California statutes may be a replacement for the Sole Member model that was in the second draft report.

To be clear, the concerns that the Board raised on the Sole Member model still apply to a Designator model.  The Designator model still introduces a new legal structure with powers that are intrinsically beyond the structure we have been using.  We understand that many believe it is possible to constrain these powers in order to provide established protections, accountability and thresholds: This is unproven territory and will require more detail and time to understand and test the impact on our bedrock multistakeholder balance. 

Further, it is unclear that this would represent the full multistakeholder community because we do not know yet which SO/ACs will join now or later.  Moreover, the same community accountability issues present in the Sole Member are present in the Designator model.

Steve del Bianco’s constructive suggestion over the weekend that the Board could commit to a future governance structure review triggered by key factors seems like a good path forward.  This can be enshrined in a new fundamental bylaw that would require the holding of a future governance structure review if SOs and ACs agree to kick off that review.

We are all in complete agreement on the objective of enforcement of the five community powers, with new/stronger mechanisms for board removal if/when necessary.  Let’s focus on finalizing the details on these consensus elements to enable implementation and a successful transition. 

--Steve Crocker for the ICANN Board of Directors

The CCWG has its final meeting prior to ICANN 54 in Dublin, on Tuesday--CCWG ACCT Meeting #59--Tuesday, 13 October 12:00 - 14:00 UTC time converter which is 8-10am ET (US). Online access is available via the Adobe Connect Room to any and all "silent observers": https://icann.adobeconnect.com/accountability/

Agenda:
1. Welcome, roll-call, SoI
2. WP status updates

• WP1
• WP2
• WP3
• WP4
• ST-WP

3. Update on legal requests
4. Update on plan B discussions
5. Timelines
6. Update on community leaders call
7. A.O.B

Note: recent Domain Mondo posts related to the Cross-Community Working Group on Enhancing ICANN Accountability may be found here.


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