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

GAC Oct 17: ICANN CEO, CCWG Co-Chair, Ships Passing in the Night?

ICANN CEO, CCWG Co-Chair--Ships Passing in the Night?--the following is a portion of the transcript of the GAC meeting, October 17, 2015, (part of the ICANN 54 meeting which officially runs from October 18-22, 2015):

ICANN CEO FADI CHEHADE: "... AS THE PROTECTOR OF THE MISSION AND THE PUBLIC INTEREST IN ICANN. THAT IS OUR ULTIMATE ROLE. IN FACT, THE BOARD OF DIRECTORS OF ICANN IS THE ONLY PLACE ULTIMATELY WHERE AFTER THINGS GO THROUGH YOU -- AND CLEARLY, GOVERNMENTS HAVE A BIG ROLE IN ENSURING THE PUBLIC INTEREST IS PROTECTED, BUT ONCE IT GETS TO A DECISION POINT, THE BOARD, WHICH INCLUDES PEOPLE FROM THE BUSINESS AND FROM DIFFERENT PARTS OF ICANN, MUST UPHOLD THE PUBLIC INTEREST. IF THEY DON'T, WE LOST THAT OPPORTUNITY. NOW, IF I'M SITTING AT THE BOARD SEAT AND I KNOW THAT IF I DON'T DO WHAT MY COMMUNITY TELLS ME, MY NECK WILL BE CUT TOMORROW MORNING, HOW WILL I REALLY PAY ATTENTION TO THE PUBLIC INTEREST? THEREFORE, IF WE WANT TO REMOVE BOARD MEMBERS, WE SHOULD REMOVE THEM BECAUSE THEY DID NOT ADHERE TO THE BYLAWS, THE MISSION OF ICANN. AN SO OR AC CAN REMOVE THEIR BOARD MEMBER BUT THERE HAS TO BE A PROCESS. IT CANNOT BE THAT WE JUST REMOVE THEM BECAUSE THEY DIDN'T VOTE OUR WAY. THEN SUDDENLY, WE HAVE A BEHOLDEN, CAPTIVE BOARD. THAT'S NOT HOW WE WILL PRESERVE THE PUBLIC INTEREST IN ICANN. SO YES, LET'S HAVE BOARD REMOVAL. HERE WE PROPOSED SEVERAL IDEAS. EVERY BOARD MEMBER COULD SIGN A CONTRACT BEFORE THEY BECOME A BOARD MEMBER. AND THE CONTRACT INCLUDES CONDITIONS THAT THE COMMUNITY COULD SET. FOR EXAMPLE, REMEMBER THE BINDING ARBITRATION I JUST DISCUSSED? IF A BINDING ARBITRATION AWARD SAYS ICANN SHOULD DO X AND THE BOARD MEMBER VOTES AGAINST IT, YOU COULD PUT IN THEIR CONTRACT THAT IF THEY DO THAT, THEY MUST RESIGN. INSTANTLY. THEY'RE OFF THE BOARD. SO WE COULD PUT CONDITIONS TO HOLD BOARD MEMBERS TO THE THINGS WE CARE ABOUT. WE COULD ALSO MAKE SURE THAT THE BINDING ARBITRATION CAN REMOVE A BOARD MEMBER. WE CAN MAKE SURE THAT THAT BINDING ARBITRATION, AS I JUST DESCRIBED BEFORE, OF COURSE, IS ENFORCEABLE. SO THEN YOU GIVE THE ULTIMATE CONTROL OF THAT BOARD MEMBER. I THINK THE CCWG IS MOVING RIGHT NOW AS WE SPEAK IN THE RIGHT DIRECTION OF BRINGING OUR COMMUNITY TOGETHER AROUND COMMON SOLUTIONS. I AM CONFIDENT THAT WITHIN A FEW DAYS WE WILL ALL BE CLEAR ON WHAT THE COMMUNITY WANTS. I THINK WE ARE IN SYNC. IN CLOSING, I JUST WOULD LIKE TO SAY THIS: AS I LEAVE ICANN AND PREPARE TO GO, WHAT AM I MOST WORRIED ABOUT IN THIS PROCESS? WHAT IS THE THING THAT KEEPS ME UP AT NIGHT? WHEN I MEET MANY OF YOUR GOVERNMENTS AND I WAS JUST AT THE ITU MEETING IN BUDAPEST AND MET MANY, MANY MINISTERS AND GOVERNMENTAL OFFICIALS, WHAT THEY ASKED ME, WHAT ARE YOU WORRIED ABOUT NOW THAT YOU'RE LEAVING? WHAT IS TOP OF YOUR MIND? I'LL BE CANDID WITH YOU. I AM VERY WORRIED THAT WE, AT THE END OF THIS ACCOUNTABILITY REFORM, END UP DAMAGING THE MULTISTAKEHOLDER MODEL. IF WE DAMAGE THE MULTISTAKEHOLDER MODEL, WHICH HAD STOOD -- HAS STOOD THE TEST OF TIME, AND CREATE ANY STRUCTURES THAT ACTUALLY MAKE US CAPTURABLE -- AND BY THE WAY, WE ALL THINK OF CAPTURE WRONGLY AS SOMETHING GOVERNMENTS COULD DO. FRANKLY, GOVERNMENTS AT ICANN HAVE BEEN PROBABLY THE MOST COOPERATIVE TO MAKE THIS PROCESS CONCLUDE PROPERLY. I AM MOST WORRIED ALSO OF SHIFTING CAPTURE TO SPECIAL INTERESTS. WE MUST MAKE SURE -- AND YOU GOVERNMENTS, MUST HELP US MAKE SURE THAT ICANN'S STRENGTH IS ITS INDEPENDENCE. ITS INDEPENDENCE. IF WE LOSE THAT INDEPENDENCE, WE LOSE THE MULTISTAKEHOLDER MODEL, WE LOSE EVERYTHING WE HAVE. WE MUST REMAIN INDEPENDENT. INDEPENDENT OF CAPTURE, INDEPENDENT OF SPECIAL INTERESTS, AND INSTEAD SERVING THE PUBLIC INTEREST. THAT IS MY BIGGEST WORRY. AND MY CHANCE, AND YOUR CHANCE, LADIES AND GENTLEMEN, THIS WEEK, IS TO HELP US MAKE SURE WE STICK TO THESE PRINCIPLES AND WE KEEP ICANN DIVERSE, INCLUSIVE, OPEN, AND MULTISTAKEHOLDER. THANK YOU. 

[GAC] CHAIR THOMAS SCHNEIDER: THANK YOU VERY MUCH, FADI. I NOTE THAT KAVOUSS, OUR COLLEAGUE FROM IRAN HAD TO LEAVE THE MEETING BUT WILL COME BACK. SO HE ANNOUNCED THAT HE WILL WANT TO TAKE THE FLOOR. SO IN CASE I FORGET IT, PLEASE REMIND ME. AND I NOTE ALSO THAT MATHIEU WANTED TO SAY SOMETHING AND THEN I GIVE THE FLOOR TO ALL OF YOU, THANK YOU. 

MATHIEU WEILL [CCWG CO-CHAIR]: THANK YOU VERY MUCH, CHAIR. NO, I'LL SPEAK IN ENGLISH FOR THIS ONE. AS YOU WILL HAVE ALL NOTED, THERE WAS A LITTLE BIT OF DUPLICATION BETWEEN FADI'S SPEECH AND THE PREVIOUS PRESENTATIONS. I WOULD LIKE TO CORRECT A FEW POINTS ABOUT THE WAY FADI HAS CHARACTERIZED THE WORK OF OUR GROUP WHICH I THINK IS IMPORTANT FOR THIS ROOM TO BE AWARE OF. POINT NUMBER ONE, THE SLIDE DECK THAT FADI HAS INTRODUCED, GIVEN THAT WE'VE HAD MORE THAN 14 HOURS OF MEETING ALREADY IS OUTDATED. I STRONGLY ENCOURAGE THAT YOU REFER TO OLGA'S PRESENTATION AS WELL AS THE ONE WE'VE JUST PROVIDED. BECAUSE YES, THINGS ARE MOVING FAST. SO FOCUSING ON THE MOST RECENT MATERIAL CAN BE VERY IMPORTANT TO ENSURE YOU HAVE EFFICIENT DEBATES AND DISCUSSIONS.
SECONDLY, FADI REFERRED TO OUR GROUP AS INVESTIGATING A DESIGNATOR MODEL. THAT IS NOT ADEQUATELY CAPTURING WHERE WE ARE NOW. WHERE WE ARE NOW IS THAT OUR SECOND REPORT IS FOCUSED ON A SOLE MEMBERSHIP MODEL AND THERE HAS BEEN WORK. AND THE WAY TO INVESTIGATE HOW A SOLE DESIGNATOR MODEL WOULD LOOK LIKE BUT IN NO WAY IS OUR GROUP AT A POINT WHERE IT HAS BEEN SHIFTING ITS FOCUS ON SOMETHING ELSE. THERE IS -- IT'S ALSO USEFUL TO REPORT THAT THE ARBITRATION MODEL THAT HAS BEEN PART OF THE BOARD COMMENT IN THE PUBLIC COMMENT HAS BEEN ASSESSED. THERE IS -- THERE HAS BEEN LEGAL REVIEWS WORK IN THE WORK PARTIES ON THIS. AND I THINK A SUMMARY COULD BE THERE ARE SERIOUS LEGAL UNCERTAINTIES ABOUT ITS EFFICIENCY. THERE'S EVEN DEBATE AMONG LAWYERS. THAT'S WHY I'M MENTIONING UNCERTAINTIES ABOUT LEGAL EFFICIENCY. AND FINALLY, I THINK THE DISCUSSION ON THE BOARD MEMBER REMOVAL WAS INTERESTING AND WE GOT FADI'S PERSONAL VIEW ON THIS. BUT IT'S WORTH NOTEING THAT THIS VERY MOMENT WE'VE MADE TREMENDOUS PROGRESS WITH A LOT OF BOARD MEMBERS BEING PERSONALLY INVOLVED IN EXPRESSING THEIR SUPPORT FOR THE WAY FORWARD THAT WE HAVE FOUND, SO I THINK THIS IS A GOOD EXAMPLE OF THE PROGRESS WE'RE MAKING. SO I WILL JOIN FADI IN SAYING THAT WE HAVE LITTLE TIME. THIS IS REALLY THE MOMENT TO ENGAGE, DISCUSS, AND DISCUSS ON THE BASIS OF FACTS THAT ARE ACCURATE AND AVOID SPREADING ANY UNCERTAINTIES THAT MIGHT MAKE THE DECISION HARDER TO MAKE. AND THIS IS OUR COLLECTIVE RESPONSIBILITY. THANK YOU VERY MUCH." 
(Domain Mondo Editor's note: edited from the raw transcript, emphasis added)

The GAC will continue its meeting tomorrow morning, October 18, 2015, 8:30 AM IST (Irish Standard Time time zone converter) which is 3:30 AM ET (US). The GAC meeting will continue on the CCWG-Accountability (Enhancing ICANN Accountability) issues.

ICANN54 | Dublin info/links | Oct 16-23 Schedule

Dublin Date/Time: 

See also on Domain Mondo:

• Why Did ICANN Become a Member of Trademark Lobbyist Group INTA? Oct 15, 2015
• ICANN 54, GAC Saturday Sessions Online, ICANN Accountability Oct 17, 2015

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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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