[cooperation-wg] CCWG Third Draft Report - Numbers Related Analysis

Thank you for this.

Please see embedded comments below.

Best,
Richard

> -----Original Message-----
> From: cooperation-wg [mailto:cooperation-wg-bounces at ripe.net] On Behalf
> Of Athina Fragkouli
> Sent: Wednesday, December 16, 2015 16:46
> To: cooperation-wg at ripe.net
> Subject: [cooperation-wg] CCWG Third Draft Report - Numbers Related
> Analysis
> 
> Dear colleagues,
> 
> I would like to remind you that the Cross Community Working Group on
> Enhancing ICANN Accountability (CCWG) has published a third Draft
> Report, available here:
> https://www.icann.org/en/system/files/files/draft-ccwg-accountability-
> proposal-work-stream-1-recs-30nov15-en.pdf
> 
> Comments can be sent via this webpage:
> https://www.icann.org/public-comments/draft-ccwg-accountability-
> proposal-2015-11-30-en
> 
> The comment period closes on 21 December 2015 at 23:59 UTC.

SNIP
 
> 
> 2. Sole Designator Model
> 
> The second Draft Report suggested that these powers would be exercised
> by changing ICANN’s structure, and introduced a structure called the
> Sole Membership Model.
> 
> During and following the public consultation, objections to this model
> were expressed. As a result of further discussions and consultations,
> the third Draft Report introduces a new structure called the Sole
> Designator Model.
> 
> The details of the Sole Designator Model can be found in ANNEX 01
> (https://www.icann.org/en/system/files/files/draft-ccwg-accountability-
> proposal-annex-1-30nov15-en.pdf).
> 
> The following aspects of the model are important to highlight:
> 
> - To implement the “Sole Designator” model, ICANN’s Supporting
> Organizations and Advisory Committees would create a unified entity to
> enforce their Community Powers. This unified entity will be referred to
> as the “Empowered Community”. SO/ACs are not required to have a legal
> personhood.
> - Under California law, the Sole Designator has the right to appoint
> and remove ICANN Board directors, whether individually or the entire
> Board.
> Please note that Directors appointed by an SO may only be removed by a
> decision of that specific SO. The Sole Designator would merely
> implement their decisions.
> - If the ICANN Board refused to comply with a decision by the Empowered
> Community to use the statutory rights, the refusal could be petitioned
> in a court that has jurisdiction to force the ICANN Board to comply
> with that decision.
> - Details of the Community Process defined (including thresholds to
> start the process and to exercise community power) are described in
> ANNEX 04
> (https://www.icann.org/en/system/files/files/draft-ccwg-accountability-
> proposal-annex-4-30nov15-en.pdf)
> 
> Do you have any comments with regard to this model?

Paragraph 58 of that proposal shows that the "empowered community" would consist of 5 organizations: ALAC, ASO, GNSO, ccNSO, and GAC. Each of these organizations is an organic component of ICANN, and the majority of them represent the domain name and addressing industries.

Thus, the proposal does not provide for any external accountability or supervision of ICANN: ICANN would be accountable only to entities that are part of ICANN.

In March 2014, NTIA announced that it intended "to transition key Internet domain name functions to the global multistakeholder community", see:

 https://www.ntia.doc.gov/press-release/2014/ntia-announces-intent-transition-key-internet-domain-name-functions 

An entity (the "empowered community") that consists of organizations that are organic components of ICANN is obviously not "the global multistakeholdercommunity", nor can it be construed to be representative of that community when 3 out of 5 of the cited organizations represent the domain name and addressing industries. 

Consequently, the proposal manifestly fails to meet the main objective enunciated by NTIA, namely that ICANNshould be accountable to a the broad global multistakeholder  community. Therefore, I do not agree with recommendations contained in the proposal.

It still seems to me that it would be better to turn ICANN into a proper membership organization, see:

  http://forum.icann.org/lists/icg-forum/pdfXXrCnTxCwW.pdf
 
SNIP


> 
> 4. U.S. Headquarters as part of the Fundamental Bylaws
> 
> In the third Draft Report (as in the first and second Draft Report) the
> CCWG proposes the incorporation of some ICANN accountability-related
> provisions from the Affirmation of Commitments into the Bylaws (in
> particular regarding ICANN’s Mission and Core Values). The CCWG
> suggested defining these provisions as "Fundamental Bylaws". The
> concept of Fundamental Bylaws is described in ANNEX 03
> (https://www.icann.org/en/system/files/files/draft-ccwg-accountability-
> proposal-annex-3-30nov15-en.pdf)
> of the third Draft Report.
> 
> The main difference with the common Bylaws provisions is that while the
> Board could propose a change to this Bylaws provision, Supporting
> Organizations and Advisory Committees (SO/ACs) with voting rights could
> block the proposed change (by a 66% vote). On the other hand any change
> to Fundamental Bylaws would require approval by SO/ACs with voting
> rights (75% vote).
> 
> One of the provisions of the AFfirmation of Commitments requires that
> ICANN “remains headquartered in the United States of America”. The CCWG
> noted that this provision exists already in current ICANN Bylaws, at
> Article XVIII Section 1:
> 
> “OFFICES.
> The principal office for the transaction of the business of ICANN shall
> be in the County of Los Angeles, State of California, United States of
> America. ICANN may also have an additional office or offices within or
> outside the United States of America as it may from time to time
> establish.”
> 
> The CCWG considered whether this provision should also be listed as a
> Fundamental Bylaw, since it has been suggested that the rest of
> Affirmation of Commitments provisions be incorporated in the
> Fundamental Bylaws.
> 
> The ASO representatives communicated to the CCWG the following comment:
> 
> “There is general support the introduction of Fundamental Bylaws.
> Regarding, the list of Bylaws that should become Fundamental Bylaws,
> most of them indeed contain fundamental principles. However, the RIR
> community does not believe that the requirement for ICANN to remain in
> the United States of America is fundamental, but rather is an
> administrative issue.”

I agree. It is not appropriate to case into stone that ICANN must reside in the USA.

SNIP