December 2015 - Accountability-Cross-Community

presentation webinars
by Roelof Meijer Dec. 4, 2015

Dec. 4, 2015

@staff, co-chairs and fellow members: : excellent presentation and additional explanations given during yesterday's webinars. Could you provide us with a link to the presentation doc (in pdf)? Not sure where I can find it in our work space Cheers, Roelof From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Hillary Jett <hillary.jett(a)icann.org<mailto:hillary.jett@icann.org>> Date: maandag 30 november 2015 03:10 To: CCWG-Accountability <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] Public Comment Launch + Posting of Core Proposal/Appendices Dear all, Thank you again for your constructive edits. We are pleased to announce that the Core proposal and Annexes were finalized in light of your input and are now available on your wiki at https://community.icann.org/display/acctcrosscomm/Third+Draft+Report. In line with our timeline determined in Dublin, the Third Proposal will be posted for public comment tomorrow. A survey will be provided to frame input received on our conclusions. We invite you to refer to the feedback tracking spreadsheet<https://docs.google.com/spreadsheets/d/1Qjpbcl6M-W_9FJXahZCPdIIMz0YJI_PMfys…> and Sidley comments for an overview of edits that were integrated. Please note that the documents posted on the wiki are now closed for edits. Any amendments you may have will be considered for the final iteration of our document post the public comment period. As a reminder the Public Comment Period on our Third Proposal all close on December 21 and staff summary of input received is scheduled to be delivered on December 24. Best regards, Mathieu, Thomas, Leon -- Hillary Jett Communications Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 (202) 674-3403 Email: hillary.jett(a)icann.org<mailto:hillary.jett@icann.org>

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Board plans for considering the 3rd draft report
by Bruce Tonkin Dec. 4, 2015

Dec. 4, 2015

Hello All, For information, the Board is planning two information calls to discuss the CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations released on 30 Nov. The first of these calls with be on Friday 4 Dec at 21:00 UTC. The second call will be next week on Thursday 10 Dec. We are expecting to get comments to the CCWG before the close of the public comment period. Regards, Bruce Tonkin

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Let's keep the good spirit
by León Felipe Sánchez Ambía Dec. 4, 2015

Dec. 4, 2015

Dear all, As we approach the end of our first working phase it has become evident that frictions are arising from time to time. We are almost there. One of the characteristics in our group’s work has been cordiality and friendliness. We strongly encourage all to keep this good spirit specially in this final mile. We would also like to encourage everyone to abide by the expected standards of behavior https://www.icann.org/resources/pages/expected-standards-2012-05-15-en Let’s keep the good spirit in our group. Best regards, Thomas, Mathieu and Leon

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IRP implementation oversight team
by Brenda Brewer Dec. 3, 2015

Dec. 3, 2015

Hello all, The following people have volunteered to be on the Implementation Oversight Team (IOT); Name Region Becky Burr North America Chris Disspain Asia/Asia Pacific David McAuley North America David Post North America Greg Shatan North America Malcolm Hutty Europe Robin Gross North America Thank you! Kind regards, Brenda From: accountability-cross-community-bounces(a)icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Thomas Rickert Sent: Thursday, November 05, 2015 11:30 AM To: Accountability Cross Community <accountability-cross-community(a)icann.org> Subject: [CCWG-ACCT] IRP drafting process Dear all, in the context of the Independent Review Process, wehereby wish to certify the request for our legal counselto begin drafting the required documents. As you will remember, we had discussed to accompany the drafting of the required paperwork (Bylaws, Rules of Procedure and the Selection Process for Panelists) with implementation oversight to ensure the documents accurately reflect our group’s recommendations. We recommend to have an Implementation Oversight Team (IOT) established by the time we receive the firstwork products from our lawyers. The IOT would review the outcome produced by our legal counsel and report back to the CCWG-Accountability. We recommend looking for 5-7 volunteers who are experts in this field. Given the scope of this group we would also encourage the Ombudsman and a representative of ICANN’s Legal Department to join the volunteers in this effort. In the event that more than 7 expressions of interest are submitted, we will have to discuss objective selection criteria and determine a selection process with the CCWG. Should you be interested in bringing your unique expertise to this group, please send a note to acct-staff by November 25 – 23:59 UTC with a short summary ofyour relevant expertise. Thank you, León, Mathieu and Thomas

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Re: [CCWG-ACCT] Minority statements inclusion in report
by David Post Dec. 2, 2015

Dec. 2, 2015

But in all of this discussion, nobody has answered the question I asked several times and will ask again: if the "grandfathering" of the existing agreements does NOT mean what I think it could mean - a way for ICANN to assert that we are authorizing it to control, through registry-registrar and registrar-registrant contracts, the power to revoke domains based upon conduct or content in a manner inconsistent with the Mission Statement limitations - WHAT DOES IT MEAN? Why has that language been included in the Report, and what is it intended to accomplish?? David At 10:10 PM 11/30/2015, Silver, Bradley wrote: >I disagree completely that the grandfathering of >the provisions of the RAA and RA would >automatically also grandfather any action that >ICANN might take to enforce such agreements. >ICANN's mission is defined first and foremost in >the positive - and the bylaws begin from the >proposition that anything ICANN does must be in >conformity with that. The existing language says >as much. There is a difference between >provisions relating to illegal activity, and the >regulation of content, but given your motivation >to accomplish "a belated overturning of an abuse >of ICANN's power", I don't think I can convince you of that distinction. > >________________________________________ >From: David Post [david.g.post(a)gmail.com] >Sent: Monday, November 30, 2015 7:04 PM >To: Silver, Bradley >Cc: Burr, Becky; Thomas Rickert; Accountability Cross Community >Subject: RE: [CCWG-ACCT] Minority statements inclusion in report > >At 06:03 PM 11/30/2015, Silver, Bradley wrote: >David, > >I am having some trouble understanding your >examples below.Â Is your concern with the >grandfathering of the RAA that it would give >ICANN total freedom in deciding how to respond >to enforcing provisions like 3.18 even such >enforcement was clearly not consistent with its stated mission? > >Yes, that is a very, very serious concern. I >don't know if I'd say it gives ICANN "total >freedom", but close to it. If we're >grandfathering in the agreements, then ICANN's >actions to enforce the terms of the agreements >could be seen as having been "grandfathered in" >as well, and - as Becky's defamation example, >and my fraud example, show - that would >encompass many things that we would all agree (I >think) are OUTSIDE the Mission. > > Or do you believe that to the extent any > enforcement by ICANN of provisions like 3.18 > that touch on illegal activity that implicates > âcontentâ would take such a provision > outside the mission?Â Â If itâs the latter, > then it appears you are attempting to achieve a > retrospective amendment of the RA and RAA by > redeffining âillegal activityâ or > âactivity contrary to applicable lawâ to > specifically exclude any activity which relates > to the content associated with the Registered Name. Â Â > >Yes, I believe this as well. I thought we had >widespread agreement on that. To the extent >enforcement by ICANN of provisions like 3.18 >touch on illegal activity that implicates >content is outside the mission. The Proposal >clearly says: "ICANNs Mission does not include >the regulation of services that use the Domain >Name System or the regulation of the content >these services carry or provide." If >enforcement of the the provision (again, like >the defamation/fraud examples) touches on >"illegal activity that implicates or relates to >content, I do not believe that ICANN can impose >obligations (directly or indirectly) on domain >name holders with respect to that content. The >RAA ad the RA appear to allow them to do that - >which is why we need to clarify that they're not "grandfathered" in. > >It's funny, because a few hours ago you wrote: > >BS: I cannot imagine how anyone could force >ICANN to interpret and enforce 3.18 or any other >provision in a manner that doesnt comport with >ICANNâs mission, particularly since we have >language that says: ICANN shall act strictly in >accordance with, and only as reasonably appropriate to achieve its Mission > >You couldn't imagine doing that - but that's >exactly what you're now, no? You seem to be >saying that ICANN may, through provisions like >3.18, deprive name holders of their registered >names if their illegal activity implicates >content - even though we have language that >says, clearly (I thought), that ICANN may not regulate content. > >This is precisely what I am concerned with, and >what I would hope we're all concerned >with: Using the existence of the >(grandfathered) RA/RAA to allow ICANN to >regulate content. You are convincing me that >this is what you intend with the "grandfather" >language. If I'm wrong about that, I'd be >interested to know how I'm wrong and, as I asked >earlier, what you think the "grandfather" language accomplishes. > >I don't think I'm proposing a "retrospective >amendment" of the RA and the RAA - more like a >belated overturning of an abuse of ICANN's monopoly power. > >I believe we need to insist on a Mission >Statement that would negate any use of ICANN's >monopoly power to impose an obligation on >registrars to revoke domains based on >allegations of illegal content. Far from >persuading me that my reading of the grandfather >in" language is "absurd," you are persuading me >that it is precisely what you (ad perhaps >others) have in mind - which illustrates the need for clarification. > >David > >From: >accountability-cross-community-bounces(a)icann.org >[ >mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of David Post >Sent: Monday, November 30, 2015 5:30 PM >To: Burr, Becky >Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas >Rickert; Accountability Cross Community >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > >At 01:55 PM 11/30/2015, Burr, Becky wrote: > >First, we discussed this on several calls (3 or 4), including the last. >Second, on a more substantive note, it is >completely absurd to suggest that grandfathering >the language of existing contracts permits ICANN >to enforce any contract term in any way it likes >and to claim the protection of the picket fence >forever going forward. Simply put, the drafters >are instructed to ensure that the provisions of >existing contracts are enforceable by their >terms. As I said on this very topic recently: > >Beyond that, the language of 3.18 in question >imposes obligations on registrars maintain ann >abuse point of contact, invesstigate allegations >regarding illegal activities, take appropriate >action, so I donÃ¢t think that amounounts to >regulating registrants. I also agree that there >are situations in which illegal activity could >impact the stability and security of the >InternetÃ¢ââ¢s unique identifiers (e.g., >particularly involving malicious DNS exploits, >etc.), so the provision seems to me to be >appropriate in furtherance of ICANNÃ¢â¢s Mission. > >The problem, of course, is that not all illegal >activity threatens the stability and security of >the DNS; behavior that is illegal in some >jurisdictions is not illegal in all >jurisdictions; and the legality/illegality of a >particular activity is generally a determination >left to sovereigns or courts. So, what >constitutes an Ã¢ approropriate responseÃ¢Â >is going to vary from case to case. >Theoretically, ICANN could choose to enforce the >requirement in a manner that exceeded the scope >of its authority, e.g., it could begin to say >that registrars who do not suspend registrations >in response to allegations that an underlying >site is defamatory are in breach. But I think >3.18 itself is a legitimate contract provision >that ICANN should be able to enforce. > >But that's the problem, right there. You say >that if ICANN "exceeds the scope of its >authority" if it "begins to say that registrars >who do not suspend registrations in response to >allegations that an underlying site is defamatory are in breach." > >But why is it so obvious that this exceeds the >scope of its authority? You will say: because >we have said elsewhere that ICANN shall not >regulate content, and this regulates content. > >But it is not far-fetched for someone to suggest >that the "grandfathering" language modifies >that, and was included precisely to make it >clear that enforcing the provisions of existing >agreements is WITHIN ICANN's authority. Under >existing agreements, Registrars are already >obligated to provide "consequences ... including >suspension of domain name registrations" for >"activities contrary to applicable >law." Defamation is an "activity contrary to >applicable law." Suspending registrations in >response to allegations that an underlying site >is defamatory is thus within the scope of >(existing) agreements. If those agreements are >grandfathered in, it looks to me like we're >saying that when ICANN acts as it is authorized >to do within the existing agreements, it is >acting within the scope of its authority. > >David > > > > > > >J. Beckwith Burr >Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer >1775 Pennsylvania Avenue NW, Washington D.C. 20006 >Office: +1.202.533.2932 Mobile: +1.202.352.6367 >/ neustar.biz<http://www.neustar.biz> > >From: David Post <david.g.post(a)gmail.com<mailto:david.g.post@gmail.com> > >Date: Monday, November 30, 2015 at 1:32 PM >To: Accountability Community < >accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> >Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" < >NCSG-DISCUSS(a)LISTSERV.SYR.EDU<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU>>, >Thomas Rickert ><thomas(a)rickert.net<mailto:thomas@rickert.net>>, >Accountability Community < >accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > > >The current Proposal (Annex 5 para 21) states in >a "Note": "For the avoidance of uncertainty, >the language of existing registry agreements and >registrar accreditation agreements should be grandfathered." > >I don't believe any of the previous circulated >drafts contained this language, and in my >opinion it represents a very serious, and very >substantial, step backwards in this process. > >To begin with, it is not clear what >"grandfathering" these agreements mean. One >possible implication is that everything within >the existing agreements is within ICANN's >Mission - or to put it differently, that the >language of the Mission Statement should be >interpreted in a manner such that all provisions >of the existing agreements are inside the >"picket fence" of ICANN's enumerated powers. The >opposite implication is possible, too - that >there are elements of the existing agreements >that are NOT within the Mission, but which are >nonetheless being "grandfathered" in so that >they will not be invalidated in the future >(notwithstanding their inconsistency with the Mission). > >I believe that the former interpretation may be >the one that is intended - and I strongly >disagree with that, and strongly dissent. The >existing agreements contain a number of >provisions that are outside the scope of ICANN's >powers as we have defined it in the Mission >Statement. One most prominent example: In >Specification 1 of the new gTLD Registry >Agreement, Registry operators agree to a set of >mandatory "public interest commitments" - PICs - >and to adhere to "any remedies ICANN imposes >(which may include any reasonable remedy, >including for the avoidance of doubt, the >termination of the Registry Agreement pursuant >to Section 4.3(e) of the Agreement) following a >determination by any PICDRP panel and to be bound by any such determination." > >Among the mandatory PICs, the Registry operator >must "include a provision in its >Registry-Registrar Agreement that requires >Registrars to include in their Registration >Agreements a provision prohibiting Registered >Name Holders from ... engaging in activity >contrary to applicable law, and providing >(consistent with applicable law and any related >procedures) consequences for such activities >including suspension of the domain name." > >Prohibiting domain name holders from "engaging >in activity contrary to applicable law" is NOT >within ICANN's scope as defined in the Mission >Statement. It is neither a matter "for which >uniform or coordinated resolution is reasonably >necessary to facilitate the openness, >interoperability, resilience, security and/or >stability of the DNS," nor was it "developed >through a bottom-up, consensus-based >multi-stakeholder process and designed to ensure >the stable and secure operation of the InternetÃ¢s uniqueque names systems." > >ICANN should not have the power to revoke, or to >impose on others the requirement that they >revoke, anyone's continued use of a domain name >because they have "engaged in activity contrary >to applicable law." Such a provision would >appear to allow ICANN to do what is, elsewhere, >flatly prohibited: to impose regulations on >content. Activity contrary to applicable law >includes activity that (a) violates consumer >protection law, (b) infringes copyright, (c) >violates anti-fraud laws, (d) infringes >trademarks, (e) violates relevant banking or >securities laws, etc. etc. etc. At best, this >provision is flatly inconsistent with the >prohibition against regulating content. At >worst, it can be interpreted to provide an >"exception" to that prohibition - an exception >that will swallow up the prohibition in its entirety. > >David > >At 10:53 AM 11/30/2015, Mueller, Milton L wrote: > >FWIW, RobinÃÂ¢s dissent nt is fully in line >with th the official comments submitted by the >Noncommercial Stakeholders Group during the last public comment period. >--MM > >From: >accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> >[ >mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Robin Gross >Sent: Sunday, November 29, 2015 6:41 PM >To: Thomas Rickert >Cc: >accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org> >Community >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > >Thanks, Thomas. See below. > >Dissenting Opinion of Member Robin Gross (GNSO-NSCG) > >The CCWG-Accountability make a number of helpful >recommendations to improve organizational >accountability at ICANN, however one aspect of >the plan is deeply flawed: changing the role of >ICANN's Governmental Advisory Committee (GAC) >from purely an ÃÂ¢advisoryÃÂ¢Â role to a >ÃÂ¢ ÃÂ¢¬ ÃÂ¢Ã¢Â¬decision makingÃÂ¢Â >role over fundamentaental matterers at ICANN, >including its governance. Consequently the >proposal marginalizes the role of Supporting >Organizations (SOÃÂ¢s) compared to >todaodayÃÂ¢s ICANN goveNN governance >structure. p; The degree of governmental >empowerment over ICANN resulting from the >proposalÃÂ¢s cs community mechanhanism is >dangerous to the success of the proposalÃÂ¢¬s >political acceptance as well as to its >ultultimatte impact on a free and open Internet. > >The creation of a community mechanism to hold >ICANN accountable on key issues made a critical >error by departing from the existing power >balance between SOÃÂ¢â¢s and nd ACÃÂ¢s as >determined by relative boardard >appointments.ts. Instead, the proposed >community mechanism elevates the ACÃÂ¢s >relative to thethe SOÃÂ¢s compared wpared >with todayÃÂ¢s b¬â¢s balance on ICANN's >board of directors,rs, which does not currently >provide a decision making role to GAC, and which >retains the primacy of the Supporting >Organizations on key decisions, particularly >those within the SOÃÂ¢s mandate. The >devaluing of tf tf the Supporting Organizations >in ICANNÃÂ¢s key dy decisiosions was a common >theme in both previous public comment periods, >however the recommendations not only failed to >address this widespread concern, but went even >further in devaluing SOÃÂ¢s in the >communitnity mechanism in the 3r 3rd >report. The community mechanism failed to take >into account the appropriate roles and >responsibilities of the various SOÃÂ¢â¢s and >ACÃÂ¢s, and the dangers angers inherent it in >changing those roles with a ÃÂ¢one sizeze >fitsts allÃÂ¢Â approach to critical decision makingg. > >Additionally, I object to the proposed departure >from ICANNÃÂ¢s typical 30-day pubpublublic >comment period on the 3rd report for >CCWG-Accountability. The 3rd reportÃÂ¢s >public commomment only allallows for 9 days of >public comment after the language translations >are scheduled to be published, which is far too >short of a public comment period for a report of >this significance and with so many important changes since previous drafts. > >Robin Gross > >On Nov 29, 2015, at 1:29 PM, Thomas Rickert ><thomas(a)rickert.net<mailto:thomas@rickert.net>> wrote: > >Dear Robin, >as discussed during the last CCWG call, minority >statements will be included in the report as >appendices if and when they are received. > >Best, >Thomas > >--- >rickert.net<https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c…> > >Am 29.11.2015 um 21:37 schrieb Robin Gross ><robin(a)ipjustice.org<mailto:robin@ipjustice.org>>: >Dear Co-Chairs, >I have still not received a response to this >request. What is the process for submitting >minority statements? Please advise. >Thanks, >Robin > > >On Nov 11, 2015, at 5:35 PM, Robin Gross ><robin(a)ipjustice.org<mailto:robin@ipjustice.org>> wrote: > >Dear Co-Chairs, > >Could you please advise on the proposed schedule >and process for ensuring that minority >statements will be included in the report [of the executive summary]? > >Thank you, >Robin >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >_______________________________________________ >Accountability-Cross-Community mailing list >Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> >https://mm.icann.org/mailman/listinfo/accountability-cross-community > >******************************* >David G Post - Senior Fellow, Open Technology Institute/New America Foundation >blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post >book (Jefferson's >Moose) http://tinyurl.com/c327w2n <http://tinyurl.com/c327w2n%A0%A0%A0%A0> >music http://tinyurl.com/davidpostmusic >publications >etc. http://www.davidpost.com <http://www.davidpost.com %20/> >******************************* > >******************************* >David G Post - Senior Fellow, Open Technology Institute/New America Foundation >blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post >book (Jefferson's >Moose) http://tinyurl.com/c327w2n ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> >music http://tinyurl.com/davidpostmusic ><http://tinyurl.com/davidpostmusic%A0> >publications >etc. http://www.davidpost.com <http://www.davidpost.com %20/> >******************************* > >================================================================= >Reminder: Any email that requests your login >credentials or that asks you to click on a link >could be a phishing attack. If you have any >questions regarding the authenticity of this >email or its sender, please contact the IT >Service Desk at 212.484.6000 or via email at >ITServices(a)timewarner.com<mailto:ITServices@timewarner.com> > > >================================================================= > >=================================================================This >message is the property of Time Warner Inc. and >is intended only for the use of theaddressee(s) >and may be legally privileged and/or >confidential. If the reader of this messageis >not the intended recipient, or the employee or >agent responsible to deliver it to the >intendedrecipient, he or she is hereby notified >that any dissemination, distribution, printing, >forwarding,or any method of copying of this >information, and/or the taking of any action in >reliance onthe information herein is strictly >prohibited except by the intended recipient or >those to whomhe or she intentionally distributes >this message. If you have received this >communication inerror, please immediately notify >the sender, and delete the original message and >any copiesfrom your computer or storage system. >Thank you.================================================================= > >******************************* >David G Post - Senior Fellow, Open Technology Institute/New America Foundation >blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post >book (Jefferson's >Moose) http://tinyurl.com/c327w2n ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0> >music http://tinyurl.com/davidpostmusic ><http://tinyurl.com/davidpostmusic%A0> >publications >etc. http://www.davidpost.com <http://www.davidpost.com /> >******************************* > >================================================================= >Reminder: Any email that requests your login >credentials or that asks you to click on a link >could be a phishing attack. If you have any >questions regarding the authenticity of this >email or its sender, please contact the IT >Service Desk at 212.484.6000 or via email at >ITServices(a)timewarner.com<mailto:ITServices@timewarner.com> >================================================================= ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

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CCWG-ACCT 21-day Public Comment Is Live
by Hillary Jett Dec. 2, 2015

Dec. 2, 2015

Hello all, The 21-day public comment period of the CCWG-Accountability Draft Work Stream 1 Recommendations has just been posted here: https://www.icann.org/public-comments/draft-ccwg-accountability-proposal-201 5-11-30-en. The comment period will run from November 30 through 23:59 UTC on December 21. We hope to begin receiving translations in the next 12-14 days. Thank you! Hillary -- Hillary Jett Communications Coordinator Internet Corporation for Assigned Names and Numbers (ICANN) Mobile: +1 (202) 674-3403 Email: hillary.jett(a)icann.org

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Re: [CCWG-ACCT] Minority statements inclusion in report
by David Post Dec. 1, 2015

Dec. 1, 2015

At 06:03 PM 11/30/2015, Silver, Bradley wrote: >David, > >I am having some trouble understanding your >examples below.Â Is your concern with the >grandfathering of the RAA that it would give >ICANN total freedom in deciding how to respond >to enforcing provisions like 3.18 even such >enforcement was clearly not consistent with its stated mission? Yes, that is a very, very serious concern. I don't know if I'd say it gives ICANN "total freedom", but close to it. If we're grandfathering in the agreements, then ICANN's actions to enforce the terms of the agreements could be seen as having been "grandfathered in" as well, and - as Becky's defamation example, and my fraud example, show - that would encompass many things that we would all agree (I think) are OUTSIDE the Mission. > Or do you believe that to the extent any > enforcement by ICANN of provisions like 3.18 > that touch on illegal activity that implicates > âcontentâ would take such a provision > outside the mission?Â Â If itâs the latter, > then it appears you are attempting to achieve a > retrospective amendment of the RA and RAA by > redeffining âillegal activityâ or > âactivity contrary to applicable lawâ to > specifically exclude any activity which relates > to the content associated with the Registered Name. Â Â Yes, I believe this as well. I thought we had widespread agreement on that. To the extent enforcement by ICANN of provisions like 3.18 touch on illegal activity that implicates content is outside the mission. The Proposal clearly says: "ICANNs Mission does not include the regulation of services that use the Domain Name System or the regulation of the content these services carry or provide." If enforcement of the the provision (again, like the defamation/fraud examples) touches on "illegal activity that implicates or relates to content, I do not believe that ICANN can impose obligations (directly or indirectly) on domain name holders with respect to that content. The RAA ad the RA appear to allow them to do that - which is why we need to clarify that they're not "grandfathered" in. It's funny, because a few hours ago you wrote: >BS: I cannot imagine how anyone could force >ICANN to interpret and enforce 3.18 or any other >provision in a manner that doesnt comport with >ICANNâs mission, particularly since we have >language that says: ICANN shall act strictly in >accordance with, and only as reasonably appropriate to achieve its Mission You couldn't imagine doing that - but that's exactly what you're now, no? You seem to be saying that ICANN may, through provisions like 3.18, deprive name holders of their registered names if their illegal activity implicates content - even though we have language that says, clearly (I thought), that ICANN may not regulate content. This is precisely what I am concerned with, and what I would hope we're all concerned with: Using the existence of the (grandfathered) RA/RAA to allow ICANN to regulate content. You are convincing me that this is what you intend with the "grandfather" language. If I'm wrong about that, I'd be interested to know how I'm wrong and, as I asked earlier, what you think the "grandfather" language accomplishes. I don't think I'm proposing a "retrospective amendment" of the RA and the RAA - more like a belated overturning of an abuse of ICANN's monopoly power. I believe we need to insist on a Mission Statement that would negate any use of ICANN's monopoly power to impose an obligation on registrars to revoke domains based on allegations of illegal content. Far from persuading me that my reading of the grandfather in" language is "absurd," you are persuading me that it is precisely what you (ad perhaps others) have in mind - which illustrates the need for clarification. David >From: >accountability-cross-community-bounces(a)icann.org >[mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of David Post >Sent: Monday, November 30, 2015 5:30 PM >To: Burr, Becky >Cc: NCSG-DISCUSS-LISTSERV.SYR.EDU; Thomas >Rickert; Accountability Cross Community >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > >At 01:55 PM 11/30/2015, Burr, Becky wrote: > >First, we discussed this on several calls (3 or 4), including the last. >Second, on a more substantive note, it is >completely absurd to suggest that grandfathering >the language of existing contracts permits ICANN >to enforce any contract term in any way it likes >and to claim the protection of the picket fence >forever going forward. Simply put, the drafters >are instructed to ensure that the provisions of >existing contracts are enforceable by their >terms. As I said on this very topic recently: > >Beyond that, the language of 3.18 in question >imposes obligations on registrars maintain ann >abuse point of contact, invesstigate allegations >regarding illegal activities, take appropriate >action, so I donÃ¢t think that amounounts to >regulating registrants. I also agree that there >are situations in which illegal activity could >impact the stability and security of the >InternetÃ¢ââ¢s unique identifiers (e.g., >particularly involving malicious DNS exploits, >etc.), so the provision seems to me to be >appropriate in furtherance of ICANNÃ¢â¢s Mission. > >The problem, of course, is that not all illegal >activity threatens the stability and security of >the DNS; behavior that is illegal in some >jurisdictions is not illegal in all >jurisdictions; and the legality/illegality of a >particular activity is generally a determination >left to sovereigns or courts. So, what >constitutes an Ã¢ approropriate responseÃ¢Â >is going to vary from case to case. >Theoretically, ICANN could choose to enforce the >requirement in a manner that exceeded the scope >of its authority, e.g., it could begin to say >that registrars who do not suspend registrations >in response to allegations that an underlying >site is defamatory are in breach. But I think >3.18 itself is a legitimate contract provision >that ICANN should be able to enforce. > >But that's the problem, right there. You say >that if ICANN "exceeds the scope of its >authority" if it "begins to say that registrars >who do not suspend registrations in response to >allegations that an underlying site is defamatory are in breach." > >But why is it so obvious that this exceeds the >scope of its authority? You will say: because >we have said elsewhere that ICANN shall not >regulate content, and this regulates content. > >But it is not far-fetched for someone to suggest >that the "grandfathering" language modifies >that, and was included precisely to make it >clear that enforcing the provisions of existing >agreements is WITHIN ICANN's authority. Under >existing agreements, Registrars are already >obligated to provide "consequences ... including >suspension of domain name registrations" for >"activities contrary to applicable >law." Defamation is an "activity contrary to >applicable law." Suspending registrations in >response to allegations that an underlying site >is defamatory is thus within the scope of >(existing) agreements. If those agreements are >grandfathered in, it looks to me like we're >saying that when ICANN acts as it is authorized >to do within the existing agreements, it is >acting within the scope of its authority. > >David > > > > > > >J. Beckwith Burr >Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer >1775 Pennsylvania Avenue NW, Washington D.C. 20006 >Office: +1.202.533.2932 Mobile: +1.202.352.6367 >/ <http://www.neustar.biz>neustar.biz > >From: David Post <<mailto:david.g.post@gmail.com>david.g.post(a)gmail.com > >Date: Monday, November 30, 2015 at 1:32 PM >To: Accountability Community ><<mailto:accountability-cross-community@icann.org> >accountability-cross-community(a)icann.org> >Cc: "NCSG-DISCUSS-LISTSERV.SYR.EDU" ><<mailto:NCSG-DISCUSS@LISTSERV.SYR.EDU> >NCSG-DISCUSS(a)LISTSERV.SYR.EDU>, Thomas Rickert ><<mailto:thomas@rickert.net>thomas(a)rickert.net>, >Accountability Community ><<mailto:accountability-cross-community@icann.org> >accountability-cross-community(a)icann.org> >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > > >The current Proposal (Annex 5 para 21) states in >a "Note": "For the avoidance of uncertainty, >the language of existing registry agreements and >registrar accreditation agreements should be grandfathered." > >I don't believe any of the previous circulated >drafts contained this language, and in my >opinion it represents a very serious, and very >substantial, step backwards in this process. > >To begin with, it is not clear what >"grandfathering" these agreements mean. One >possible implication is that everything within >the existing agreements is within ICANN's >Mission - or to put it differently, that the >language of the Mission Statement should be >interpreted in a manner such that all provisions >of the existing agreements are inside the >"picket fence" of ICANN's enumerated powers. The >opposite implication is possible, too - that >there are elements of the existing agreements >that are NOT within the Mission, but which are >nonetheless being "grandfathered" in so that >they will not be invalidated in the future >(notwithstanding their inconsistency with the Mission). > >I believe that the former interpretation may be >the one that is intended - and I strongly >disagree with that, and strongly dissent. The >existing agreements contain a number of >provisions that are outside the scope of ICANN's >powers as we have defined it in the Mission >Statement. One most prominent example: In >Specification 1 of the new gTLD Registry >Agreement, Registry operators agree to a set of >mandatory "public interest commitments" - PICs - >and to adhere to "any remedies ICANN imposes >(which may include any reasonable remedy, >including for the avoidance of doubt, the >termination of the Registry Agreement pursuant >to Section 4.3(e) of the Agreement) following a >determination by any PICDRP panel and to be bound by any such determination." > >Among the mandatory PICs, the Registry operator >must "include a provision in its >Registry-Registrar Agreement that requires >Registrars to include in their Registration >Agreements a provision prohibiting Registered >Name Holders from ... engaging in activity >contrary to applicable law, and providing >(consistent with applicable law and any related >procedures) consequences for such activities >including suspension of the domain name." > >Prohibiting domain name holders from "engaging >in activity contrary to applicable law" is NOT >within ICANN's scope as defined in the Mission >Statement. It is neither a matter "for which >uniform or coordinated resolution is reasonably >necessary to facilitate the openness, >interoperability, resilience, security and/or >stability of the DNS," nor was it "developed >through a bottom-up, consensus-based >multi-stakeholder process and designed to ensure >the stable and secure operation of the InternetÃ¢s uniqueque names systems." > >ICANN should not have the power to revoke, or to >impose on others the requirement that they >revoke, anyone's continued use of a domain name >because they have "engaged in activity contrary >to applicable law." Such a provision would >appear to allow ICANN to do what is, elsewhere, >flatly prohibited: to impose regulations on >content. Activity contrary to applicable law >includes activity that (a) violates consumer >protection law, (b) infringes copyright, (c) >violates anti-fraud laws, (d) infringes >trademarks, (e) violates relevant banking or >securities laws, etc. etc. etc. At best, this >provision is flatly inconsistent with the >prohibition against regulating content. At >worst, it can be interpreted to provide an >"exception" to that prohibition - an exception >that will swallow up the prohibition in its entirety. > >David > >At 10:53 AM 11/30/2015, Mueller, Milton L wrote: > >FWIW, RobinÃÂ¢s dissent nt is fully in line >with th the official comments submitted by the >Noncommercial Stakeholders Group during the last public comment period. >--MM > >From: ><mailto:accountability-cross-community-bounces@icann.org>accountability-cross-community-bounces(a)icann.org >[ >mailto:accountability-cross-community-bounces@icann.org] >On Behalf Of Robin Gross >Sent: Sunday, November 29, 2015 6:41 PM >To: Thomas Rickert >Cc: ><mailto:accountability-cross-community@icann.org>accountability-cross-community(a)icann.org >Community >Subject: Re: [CCWG-ACCT] Minority statements inclusion in report > >Thanks, Thomas. See below. > >Dissenting Opinion of Member Robin Gross (GNSO-NSCG) > >The CCWG-Accountability make a number of helpful >recommendations to improve organizational >accountability at ICANN, however one aspect of >the plan is deeply flawed: changing the role of >ICANN's Governmental Advisory Committee (GAC) >from purely an ÃÂ¢advisoryÃÂ¢Â role to a >ÃÂ¢ ÃÂ¢¬ ÃÂ¢Ã¢Â¬decision makingÃÂ¢Â >role over fundamentaental matterers at ICANN, >including its governance. Consequently the >proposal marginalizes the role of Supporting >Organizations (SOÃÂ¢s) compared to >todaodayÃÂ¢s ICANN goveNN governance >structure. p; The degree of governmental >empowerment over ICANN resulting from the >proposalÃÂ¢s cs community mechanhanism is >dangerous to the success of the proposalÃÂ¢¬s >political acceptance as well as to its >ultultimatte impact on a free and open Internet. > >The creation of a community mechanism to hold >ICANN accountable on key issues made a critical >error by departing from the existing power >balance between SOÃÂ¢â¢s and nd ACÃÂ¢s as >determined by relative boardard >appointments.ts. Instead, the proposed >community mechanism elevates the ACÃÂ¢s >relative to thethe SOÃÂ¢s compared wpared >with todayÃÂ¢s b¬â¢s balance on ICANN's >board of directors,rs, which does not currently >provide a decision making role to GAC, and which >retains the primacy of the Supporting >Organizations on key decisions, particularly >those within the SOÃÂ¢s mandate. The >devaluing of tf tf the Supporting Organizations >in ICANNÃÂ¢s key dy decisiosions was a common >theme in both previous public comment periods, >however the recommendations not only failed to >address this widespread concern, but went even >further in devaluing SOÃÂ¢s in the >communitnity mechanism in the 3r 3rd >report. The community mechanism failed to take >into account the appropriate roles and >responsibilities of the various SOÃÂ¢â¢s and >ACÃÂ¢s, and the dangers angers inherent it in >changing those roles with a ÃÂ¢one sizeze >fitsts allÃÂ¢Â approach to critical decision makingg. > >Additionally, I object to the proposed departure >from ICANNÃÂ¢s typical 30-day pubpublublic >comment period on the 3rd report for >CCWG-Accountability. The 3rd reportÃÂ¢s >public commomment only allallows for 9 days of >public comment after the language translations >are scheduled to be published, which is far too >short of a public comment period for a report of >this significance and with so many important changes since previous drafts. > >Robin Gross > >On Nov 29, 2015, at 1:29 PM, Thomas Rickert ><<mailto:thomas@rickert.net>thomas(a)rickert.net> wrote: > >Dear Robin, >as discussed during the last CCWG call, minority >statements will be included in the report as >appendices if and when they are received. > >Best, >Thomas > >--- ><https://urldefense.proofpoint.com/v2/url?u=http-3A__rickert.net_&d=CwMFAw&c…>rickert.net > > >Am 29.11.2015 um 21:37 schrieb Robin Gross ><<mailto:robin@ipjustice.org>robin(a)ipjustice.org>: >Dear Co-Chairs, >I have still not received a response to this >request. What is the process for submitting >minority statements? Please advise. >Thanks, >Robin > > >On Nov 11, 2015, at 5:35 PM, Robin Gross ><<mailto:robin@ipjustice.org>robin(a)ipjustice.org> wrote: > >Dear Co-Chairs, > >Could you please advise on the proposed schedule >and process for ensuring that minority >statements will be included in the report [of the executive summary]? > >Thank you, >Robin >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > > >_______________________________________________ >Accountability-Cross-Community mailing list ><mailto:Accountability-Cross-Community@icann.org>Accountability-Cross-Community(a)icann.org >https://mm.icann.org/mailman/listinfo/accountability-cross-community > >******************************* >David G Post - Senior Fellow, Open Technology Institute/New America Foundation >blog (Volokh Conspiracy) ><http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post >book (Jefferson's >Moose) <http://tinyurl.com/c327w2n%A0%A0%A0%A0>http://tinyurl.com/c327w2n >music ><http://tinyurl.com/davidpostmusic>http://tinyurl.com/davidpostmusic >publications >etc. <http://www.davidpost.com />http://www.davidpost.com >******************************* > >******************************* >David G Post - Senior Fellow, Open Technology Institute/New America Foundation >blog (Volokh Conspiracy) ><http://www.washingtonpost.com/people/david-post>http://www.washingtonpost.com/people/david-post >book (Jefferson's >Moose) ><http://tinyurl.com/c327w2n%A0%A0%A0%A0%A0%A0%A0>http://tinyurl.com/c327w2n > >music ><http://tinyurl.com/davidpostmusic%A0>http://tinyurl.com/davidpostmusic >publications >etc. <http://www.davidpost.com />http://www.davidpost.com >******************************* > >================================================================= >Reminder: Any email that requests your login >credentials or that asks you to click on a link >could be a phishing attack. If you have any >questions regarding the authenticity of this >email or its sender, please contact the IT >Service Desk at 212.484.6000 or via email at ><mailto:ITServices@timewarner.com>ITServices(a)timewarner.com > > >================================================================= > >=================================================================This >message is the property of Time Warner Inc. and >is intended only for the use of theaddressee(s) >and may be legally privileged and/or >confidential. If the reader of this messageis >not the intended recipient, or the employee or >agent responsible to deliver it to the >intendedrecipient, he or she is hereby notified >that any dissemination, distribution, printing, >forwarding,or any method of copying of this >information, and/or the taking of any action in >reliance onthe information herein is strictly >prohibited except by the intended recipient or >those to whomhe or she intentionally distributes >this message. If you have received this >communication inerror, please immediately notify >the sender, and delete the original message and >any copiesfrom your computer or storage system. >Thank you.================================================================= ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

9 16

FW: EOI 4 IOT
by Brenda Brewer Dec. 1, 2015

Dec. 1, 2015

Dear all, Forwarding this Expression of Interest to the full list for the record. Best, Brenda -----Original Message----- From: Avri Doria [mailto:avri@acm.org] Sent: Tuesday, December 01, 2015 3:26 PM To: Brenda Brewer <brenda.brewer(a)icann.org> Subject: EOI 4 IOT Hi, I would like to bee considered. For skills all I can offer is being a techno-policy hack who thinks she understands this stuff. For diversity I can offer that I may be the only out member of the gay community (LGBTQI) applying. I know that would be too many from GNSO and from NCSG. And too many from NA. Thanks avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

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Re: [CCWG-ACCT] Minority statements inclusion in report
by David Post Dec. 1, 2015

Dec. 1, 2015

At 03:01 PM 12/1/2015, Mueller, Milton L wrote: >Acceptable to me, thanks. David? Malcolm? >--MM I tried to send a message to the list earlier today, but I'm not sure it went through - I'm OK with Becky's proposed guidance to the drafters -- David > > From: Burr, Becky [mailto:Becky.Burr@neustar.biz] > > Sent: Tuesday, December 1, 2015 12:29 PM > > > > I have no problem providing additional guidance to the drafters: > > > > What does it mean that the language of these agreements are > > grandfathered? > > It means that the parties who entered into > existing contracts intended (and > > intend) to be bound by those agreements. It means that neither a > > contracting party or anyone else should be > able to bring a free standing case > > that the language, without context, is ultra vires. It does not, however, > > modify any contracting party¹s right to challenge the other party¹s > > interpretation of that language. It does not modify the right of any party > > materially affected (as defined in the Bylaws) by an action or inaction in > > violation ICANN¹s Bylaws to seek redress > through an IRP. Nor does it modify > > the scope of ICANN¹s Mission. > > > > > > > > J. Beckwith Burr > > Neustar, Inc. / Deputy > > General Counsel & Chief Privacy Officer > > 1775 Pennsylvania Avenue NW, Washington D.C. 20006 > > Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz > > <http://www.neustar.biz> > > > > > > > > > > On 12/1/15, 12:18 PM, "Silver, Bradley" <Bradley.Silver(a)timewarner.com> > > wrote: > > > > >Milton - who is the "other party" in your suggested amendment below? > > > > > >-----Original Message----- > > >From: Mueller, Milton L [mailto:milton@gatech.edu] > > >Sent: Tuesday, December 01, 2015 12:13 PM > > >To: Burr, Becky; David Post; Silver, Bradley > > >Cc: Thomas Rickert; Accountability Cross Community > > >Subject: RE: [CCWG-ACCT] Minority statements inclusion in report > > > > > > > > >> -----Original Message----- > > >> It means that the parties who entered into existing contracts intended > > >> (and > > >> intend) to be bound by those agreements. It means that neither a > > >> contracting party or anyone else should be able to bring a free > > >> standing case that the language, without context, is ultra vires. It > > >> does not, however, modify any contracting party¹s right to challenge > > >> the other party¹s interpretation of that language. Nor does it modify > > >> the scope of ICANN¹s Mission. > > > > > >This is reassuring, Becky, but I want it to be clear. > > > > > >Are you willing to add to the current report the following language: > > > > > >The grandfathering statement, however, cannot be used to modify the > > scope > > >of ICANN's mission nor to modify any contracting party¹s right to > > >challenge the other party¹s interpretation of contractual language if > > >they think enforcement actions are expanding the scope of ICANN's > > >mission. > > > > > > > > >========================================================= > > ======== > > > > > > > > > > > > Reminder: Any email that requests your login credentials or that asks > > >you to click on a link could be a phishing attack. If you have any > > >questions regarding the authenticity of this email or its sender, please > > >contact the IT Service Desk at 212.484.6000 or via email at > > >ITServices(a)timewarner.com > > > > > > > > > > > >========================================================= > > ======== > > > > > > > > >========================================================= > > ======== > > >This message is the property of Time Warner Inc. and is intended only for > > >the use of the > > >addressee(s) and may be legally privileged and/or confidential. If the > > >reader of this message > > >is not the intended recipient, or the employee or agent responsible to > > >deliver it to the intended > > >recipient, he or she is hereby notified that any dissemination, > > >distribution, printing, forwarding, > > >or any method of copying of this information, and/or the taking of any > > >action in reliance on > > >the information herein is strictly prohibited except by the intended > > >recipient or those to whom > > >he or she intentionally distributes this message. If you have received > > >this communication in > > >error, please immediately notify the sender, and delete the original > > >message and any copies > > >from your computer or storage system. Thank you. > > >========================================================= > > ======== > > > ******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

1 0

FW: IRP implementation oversight team
by Brenda Brewer Dec. 1, 2015

Dec. 1, 2015

Dear all, Forwarding this Expression of Interest to the full list for the record on behalf of Arun Mohan Sukumar. Best, Brenda -----Original Message----- From: Arun Mohan Sukumar [mailto:arunmohan.s@gmail.com] Sent: Tuesday, December 01, 2015 12:26 PM To: Brenda Brewer <brenda.brewer(a)icann.org> Subject: EoI for the IRP oversight time Dear Brenda, If expressions of interest are still being solicited for the IRP oversight team, I would like to throw my hat in the ring. I'm a lawyer by training, with some experience in international commercial arbitration. In addition to my law degree, I hold a diploma from the University of Cologne on international arbitration. In law school, I also represented my University in the 15th Willem C. Vis Moot on International Arbitration in Vienna. I do not have experience specific to California law but my training and background would hold me in good stead to evaluate IRP decisions and their functioning from a legal sense. Moreover, the Asia Pacific region is currently not well-represented in the oversight team, despite it having the fastest growing constituency of Internet users in the world. Please consider this my formal EoI. Best Arun Sent from my iPhone

1 0

Re: [CCWG-ACCT] IRP implementation oversight team
by James Gannon Dec. 1, 2015

Dec. 1, 2015

While I don’t think it needs it I’ll second Mathieus comments and his nomination for the record, I have no affiliation to Afnic but Marianne seems like she would be an excellent addition to the team. -James Gannon From: <accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Mathieu Weill <mathieu.weill(a)afnic.fr<mailto:mathieu.weill@afnic.fr>> Date: Tuesday 1 December 2015 at 5:29 p.m. To: Barrack Otieno <otieno.barrack(a)gmail.com<mailto:otieno.barrack@gmail.com>>, Accountability Cross Community <accountability-cross-community(a)icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] IRP implementation oversight team Barrack, All, The IRP recommendation from our group strives for a more accessible and more diverse IRP. I believe that the applications we have received so far are outstanding in quality, and yet convey a message that we cannot ignore. The geographical balance is a key aspect, and I also would point out that so far all applications are from Common Law legal culture. It seems to me that the addition (I would hope it would not be causing prejudice to other applications received so far) of Civil Law specialists would be consistent with our goal to create an IRP that can address this fundamental difference in legal systems across the world. We might consider extending the group by 2 or 3 for that purpose. In that spirit, I want to nominate Marianne Georgelin, in charge of registry policies at Afnic (both on the ccTLD and gTLD side). Marianne is an excellent lawyer, and she has been involved in setting up our .fr dispute resolution process in 2008-2009. She actually ran a number of cases for 3 years, and she is certified by the Centre for Effective Dispute Resolution in London (as well as the Paris center). Her resume is attached. Please note that I have informed my fellow co chairs that, due to this nomination, I will abstain from the decision making in the constitution of this IRP group. And I have no issue whatever the outcome. Best, Mathieu De : accountability-cross-community-bounces(a)icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] De la part de Barrack Otieno Envoyé : mardi 1 décembre 2015 12:42 À : Dr Eberhard W Lisse Cc : directors(a)omadhina.net<mailto:directors@omadhina.net>; Accountability Cross Community Objet : Re: [CCWG-ACCT] IRP implementation oversight team Thank you Thomas, I appreciate the open minded response you have given me, Geographic diversity helps in knowledge transfer and ensuring there is buy in and support from different parts of the world, i would be happy to see a volunteer from Africa. Regards On Dec 1, 2015 12:22 PM, "Dr Eberhard W Lisse" <el(a)lisse.na<mailto:el@lisse.na>> wrote: There will be lots work, and probably no travel. That'll reduce the stampeding hord of applicants. el On 2015-12-01 11:14, Adebunmi AKINBO wrote: > +1 Barrack > > However, if the few numbers make impact, we may dwell less on geographic > representation. > What matters most is output. My 2kobo. > [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el(a)lisse.NA<mailto:el@lisse.NA> / * | Telephone: +264 81 124 6733<tel:%2B264%2081%20124%206733> (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/ _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community(a)icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

3 2

FW: IRP implementation oversight team
by Brenda Brewer Dec. 1, 2015

Dec. 1, 2015

Hello all, Forwarding this Expression of Interest to the full list for the record on behalf of Tijani Ben Jemaa. Best, Brenda -----Original Message----- From: tijani.benjemaa(a)topnet.tn [mailto:tijani.benjemaa@topnet.tn] Sent: Tuesday, December 01, 2015 2:01 AM To: Brenda Brewer <brenda.brewer(a)icann.org> Subject: Re: [CCWG-ACCT] IRP implementation oversight team Brenda, Since there is none volunteered from Africa, Please add my name to the list. ----------------------------------------------------------------------------- Tijani BEN JEMAA Executive Director Mediterranean Federation of Internet Association (FMAI) Phone: +216 98 330 114 Fax: +216 70 853 376 ------------------------------------------------------------------------------

2 1

Re: [CCWG-ACCT] Paper for discussion/decision - Community Decision-Making: Thresholds Consideration
by Jordan Carter Dec. 1, 2015

Dec. 1, 2015

hi Tijani, all Sorry about the slow reply - some thoughts in-line below: On 28 November 2015 at 03:07, Tijani BENJEMAA <tijani.benjemaa(a)fmai.org.tn> wrote: > Jordan and all, > > First of all, I apologize for reacting too late; particular circonstances > are behind it. > > I read carefully the proposal of Jordan to reduce the threshold from 4 > supports to 3 only in case only 4 SOs/ACs participate in the decision > making process, and would like to make the following remarks: > > > - in the scenario he is giving, there are 5 SOs/ACs participating in > the process (ALAC, GNSO, GAC, ASO and ccNSO). Only SSAC and RSSAC don’t > participate as per their declaration. The ASO didn’t ask to be out of the > process; it only said it will not participate in this very case, means it > is abstaining. In fact, not participating means announcing that the > considered SO or AC wouldn’t be part of the decision making process at all > as did the SSAC. Deciding not giving an opinion in a particular case means > simply that it doesn’t have an opinion, or abstains. > > We clarified this on the call, I thought? This is only about the Decisional Participants (the five SOs and ACs that could make decisions in the Third Draft Proposal), and the case is the case where one decides to abstain, leaving only four possible votes. > > - If I follow his reasoning, we may also have a case where 2 or 3 SOs > and/or ACs deciding not taking part in a specific case of decision making; > Shall we reduce more and more the threshold???? > > No. The threshold decided on only deals with the one-abstention situation. The whole case came about because of the difficulties in particular that SOs or ACs might face given the tight timeframes of these processes. > > - In my opinion, the definition of the participation should be clearly > detailed as declaring that they will not participate in the decision making > process to exercise any of the community powers at all. > > Those aren't what this situation is about. It is about an SO or AC that *is* one of the five Decisional Participants listed in the bylaws. best Jordan > > - > > > > ----------------------------------------------------------------------------- > > *Tijani BEN JEMAA* > > Executive Director > > Mediterranean Federation of Internet Association (*FMAI*) > > *Phone: *+216 98 330 114 > > *Fax*: +216 70 853 376 > > > ------------------------------------------------------------------------------ > > > > > > > > Le 24 nov. 2015 à 08:00, Jordan Carter <jordan(a)internetnz.net.nz> a écrit > : > > > ---------- Forwarded message ---------- > From: Jordan Carter <jordan(a)internetnz.net.nz> > Date: 19 November 2015 at 10:04 > Subject: Paper for discussion/decision - Community Decision-Making: > Thresholds Consideration > To: Accountability Cross Community < > accountability-cross-community(a)icann.org> > > > Dear all > As promised on our call, I have prepared a paper on the decision-making > thresholds matter for CCWG consideration. > > The paper itself is pasted below, and the attached versions in .docx and > .pdf also include the decision table with thresholds etc. It is unchanged. > > Look forward to comments and discussion... > > best > Jordan > > > Community Decision-Making: Thresholds Consideration > > 18 November 2015 > Introduction > > During its call #68 on 17 November, the CCWG discussed a scenario related > to decision thresholds in the Community Mechanism that has been raised by > participants on the email list. This discussion has happened a couple of > times since it became clear at / after Dublin that the RSSAC and SSAC would > not be decisional participants in the Community Mechanism. > > > With these two groups excluded, it is likely the Third Draft Proposal will > specify the three SOs, ALAC and GAC as the five “decisional participants” – > groups that can express support for or objection to the use of a community > power & the engagement process, or choose to express no view at all. > The scenario > > A version of this scenario is as follows (this is entirely hypothetical): > > > *A proposed Annual Operating Plan and Budget is approved by the Board even > though substantial community concerns about a particular project (Project > X) related to generic top level domains have not been taken into account.* > > > > *The ALAC and the GNSO follow the escalation path and convene a Conference > call to discuss exercising the Budget veto. Opposition continues to > register.* > > > > *The GAC joins the group in favour of vetoing the Budget to call a > Community Forum. Opposition continues to register.* > > > > *The ASO makes it clear it has no interest in the level of funding for > Project X, which is the core of the dispute between Board and Community, > and will not participate in the decision. This means only four SOs and ACs > are left to make decisions.* > > > > *The ccNSO is split on whether it is appropriate to make a decision on a > gTLD names matter, and proves unable to reach a decision by the end of the > time allowed. This is even though many ccTLD managers are opposed to > Project X, and only a few support it.* > > > > *The use of the community power lapses with only three SOs supporting its > use, none objecting, and one not offering a decision (effectively, > abstaining), so the Annual Operating Plan and Budget go into effect. The > community remains upset and considers other options.* > > The problem > > The concern raised by this scenario is as follows: > > > *By reducing the number of decisional participants from seven groups to > five groups, a threshold of four SOs and ACs expressing support to exercise > a power is too high (if one of them is unable to participate). It is too > high because it requires complete unanimity among the rest, a threshold > that is inconsistent with the CCWG’s desire to avoid unanimity being > required for the use of any of the powers.* > Solving the problem > > The approach I raised for dealing with this issue proposed on the CCWG > call on 17 November was as follows: > > For community powers that require consensus support from four SOs or ACs > to exercise the power (powers on Budget, Fundamental bylaws change, Board > recall and IANA Names functions separation), an exception should be added > as follows: > > *Where only four SOs and ACs are participating in the decision to exercise > the power (through supporting it or objecting to it), the threshold > required is only three (3) SOs/ACs in favour, and no more than one > objection.* > > > In essence, adding this exception is a possible way to deal with the > reduced number of decision-makers (from seven to five), and reduce the > likely number of cases where unanimity might be required to use the > relevant community powers. This would in turn make sure the powers could be > used, and so the incentive effects they are designed to have on Board / > Community cooperation would remain strong. > > This approach develops what was in our Second Draft Proposal, where we > suggested only counting affirmative votes to hit support thresholds. > Non-participation in that system could also have led to unanimity among > participants being a practical requirement. > > > Adopting this solution would be a *change* to our decision-making > approach and would be noted as such (compared with Dublin, as this whole > Dublin-based approach is new compared with the Second Draft Proposal). > The counter-argument & approach > > A counter-argument to this can be expressed as follows: > > *Regardless of the reduced number of participants, the threshold should > stay the same, because only the strongest and broadest possible community > support should allow the exercise of the Community Powers for which a > threshold of four SOs/ACs in favour has been proposed.* > > To give effect to this approach, no changes need to be made to what we > decided a week or two ago. > Discussion > > My view as rapporteur is that this question is finely balanced. There are > two competing principles: > > · Making sure community powers can be used without setting a > threshold that practically requires unanimity > > · Making sure community powers are only used with widespread > community consensus > > > As a CCWG participant, I haven’t come to a firm conclusion. It seems like > the proposed approach steps back a little bit from high degrees of > consensus (though they remain quite high); on the other hand, not modifying > in line with the proposed approach risks leaving some of the powers > practically un-useable, and that is not desirable. > > > Jordan Carter, WP1 Rapporteur, CCWG > > -- > Jordan Carter > > Chief Executive > *InternetNZ* > > +64-4-495-2118 (office) | +64-21-442-649 (mob) > Email: jordan(a)internetnz.net.nz > Skype: jordancarter > Web: www.internetnz.nz > > *A better world through a better Internet * > > > > > -- > Jordan Carter > > Chief Executive > *InternetNZ* > > +64-4-495-2118 (office) | +64-21-442-649 (mob) > Email: jordan(a)internetnz.net.nz > Skype: jordancarter > Web: www.internetnz.nz > > *A better world through a better Internet * > > <2015-11-18-Decision-Making-Thresholds.pdf> > <2015-11-18-Decision-Making-Thresholds.docx> > > > -- Jordan Carter Chief Executive *InternetNZ* +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan(a)internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz *A better world through a better Internet *

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