Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission

Dear Chris and Steve I obviously struck a nerve. Discretion being the better form of valor, and out of respect for those who’ve taken up the mantle of Board leadership, I’ll recede from this discussion, leaving you only with this question: Why is it that you think the community perceives the Board as an adversary? I think it is neither helpful nor accurate to characterize that as merely “political.” There is more to it than that … Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Steve Crocker [mailto:steve@shinkuro.com] Sent: Saturday, May 30, 2015 1:03 PM To: Chris Disspain; Paul Rosenzweig Esq; Accountability Cross Community Cc: Stephen D. Crocker Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Chris, thanks for saying all of this. Paul, et al, Much of the dialog about accountability and about the board’s attitude and role has been far off base. The board does its level best to do what’s right. We actively and conscientiously try to serve the community, and to suggest otherwise is to propagate a falsehood. We are human and therefore not perfect, but our motives and objectives are exactly and entirely consistent with what’s best for the Internet community. As Chris has so aptly described, there are many, many competing views, sometimes reflecting differences in background and perceptions and sometimes representing differences in vested interests. Finding the most positive — or sometimes the least negative — outcome across the variety of interests does not make everyone happy. The board welcomes the current examination of ICANN’s accountability. Indeed, were it not for the particular way this effort had been created, the board might well be leading the effort to make a comparable set of changes. It is, perhaps, politically helpful to position the board as “the problem” or “the adversary” and then try to exert force to win battles with us, but I’m afraid you’ll find us a very soft target because we’re much more likely to agree with the major thrusts of these efforts and differ only in the practical issues and potential failure modes. Steve Crocker On May 29, 2015, at 9:15 PM, Chris Disspain <ceo@auda.org.au <mailto:ceo@auda.org.au> > wrote: Paul, I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question I am always in two minds about whether to respond to comments like these especially as there are those who believe that as I am on the board I am a) incapable of commenting in any other capacity and b) have been subjected to some form of brainwashing by staff/other board members resulting in an inability to accept or understand any criticism or negative comment by community members. However in this case feel I must respond. So, with respect and speaking entirely personally as someone who has been involved in ICANN since 2000 and had my fair share of 'fights' with staff, the board, the CEO and other parts of the community, I am not aware of an instance where board and/or staff has disregarded community input. I am aware of numerous occasions where the board and/or staff have made decisions that go against input from parts of the community. Where, for example, the NCSG and ALAC have expressed one view and the contracted parties another. I am aware of numerous occasions where the board and/or staff have had to balance differing views within the community and find a way forward. I am aware that often times board and/or staff end up making everyone equally unhappy. But I know of no instance where board and/or staff have had input from "the community" and disregarded it. Finally, if you are going to make a comment such as "wonder at the real nature of your question" implying that there might be "something" behind the question may I respectfully ask that you explain what you think that something may be. Cheers, Chris On 30 May 2015, at 08:45, Paul Rosenzweig < <mailto:paul.rosenzweig@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com> wrote: With respect, you are trying to find holes where they don’t realistically exist. If the community proposes an “out of mission” idea and the Board ill advisedly agrees to it, then the IRP will correct it. In a system of checks and balances someone has to have the last word. Frankly, I see that possibility as so insignificant compared to the known instances of Board and/or Staff disregarding community input as to wonder at the real nature of your question … If there is going to be a bias in the system I would much rather see it as a constraint against ICANN action than a bias in favor of permitting questionable conduct. Paul Paul Rosenzweig <mailto:paul.rosenzweigesq@redbranchconsulting.com> paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 <http://www.redbranchconsulting.com/index.php?option=com_content&view=articl e&id=19&Itemid=9> Link to my PGP Key From: Samantha Eisner [ <mailto:Samantha.Eisner@icann.org> mailto:Samantha.Eisner@icann.org] Sent: Friday, May 29, 2015 4:01 PM To: Mathieu Weill Cc: Accountability Cross Community Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Just as there remains the possibility that the board cold take an action that is outside of the mission, there also remains the possibility that a review team takes a recommendation outside of ICANN’s mission. I think that we’re in agreement that at whichever level it happens, it would be unacceptable for that action to stand. What happens, however, if there’s a robust community process such as community involvement in review team composition selection for robust participation at the review team level, as well as substantial community consultations on a recommendation, and it results in a recommendation that all involved agree that it is within ICANN’s mission. Then the Board in considering the recommendation, also agrees. Allowing for a follow-on community process to then challenge the board’s acceptance of that community recommendation seems to create a huge “catch 22” situation for the board and the community. Were there requirements for participation in the vetting of the community recommendations where people were obligated to consider how the recommendation fit with ICANN’s mission? Is there a requirement imposed on the first instance that recommendations should only be those that are within ICANN’s mission? I hope this helps clarify my concern. Best, Sam From: Mathieu Weill < <mailto:mathieu.weill@afnic.fr> mathieu.weill@afnic.fr> Date: Friday, May 29, 2015 at 12:11 PM To: Samantha Eisner < <mailto:samantha.eisner@icann.org> samantha.eisner@icann.org> Cc: "Burr, Becky" < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz>, Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org>, Accountability Cross Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Sam, Apologies for the confusion. Just read your initial message again and am still uncertain. If a review team makes a recommendation outside of icann mission, and if the board accepts it, hopefully it will be challenged to the irp right ? Because it seems to me that if a review team issues a recommendation outside of icann mission the accountable way forward would be either : - reject recommendation on the basis that it is outside of the mission -or initiate a process to change the by laws (which will be subject to community powers) Could you maybe expand on the kind of protection you think of ? Do you mean protect against the initiation of a challenge ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 21:02, Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> a écrit : Agreed Mathieu. My question, however, was addressing the situation where the Board ACCEPTED a recommendation from a community group and that was still being challenged (potentially through a community process). It seems that there could be need for additional protections there. From: Mathieu Weill < <mailto:mathieu.weill@afnic.fr> mathieu.weill@afnic.fr> Date: Friday, May 29, 2015 at 11:55 AM To: "Burr, Becky" < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz> Cc: Samantha Eisner < <mailto:samantha.eisner@icann.org> samantha.eisner@icann.org>, Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org>, Accountability Cross Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission Thanks for your question Sam. My understanding is that the irp would assess whether the board decision not to implement is consistent with the mission. (That's the core of the standard of review we have set) If the board has a convincing rationale that says "out of the mission" I fail to see how the panel could decide to cancel the board decision ? Isn't that the protection we are talking about ? Best Mathieu Weill --------------- Depuis mon mobile, désolé pour le style Le 29 mai 2015 à 20:09, "Burr, Becky" < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz> a écrit : Good point. I think there is an answer, but if not it is very fixable. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz / <http://www.neustar.biz/> www.neustar.biz From: Samantha Eisner < <mailto:Samantha.Eisner@icann.org> Samantha.Eisner@icann.org> Date: Friday, May 29, 2015 at 1:41 PM To: Becky Burr < <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz>, Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org>, Accountability Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission In the stress test v2 that Steve set out below, doesn’t that call out a different issue? The stress test suggests that there is the possibility that the Board should be subject to an IRP/challenge for the acceptance of a recommendation arising out of the ATRT (or other community-based review team). What are the protections that we are building into the process so that the review teams themselves are bounded by ICANN’s mission when developing recommendations, so that the Board is not put into the untenable position of accepting community-based recommendations and then being challenged for doing so? What are the requirements for broader participation in the public comment/development of recommendations to help alleviate this type of situation from ever coming about? From: <Burr>, Becky < <mailto:Becky.Burr@neustar.biz> Becky.Burr@neustar.biz> Date: Friday, May 29, 2015 at 7:19 AM To: Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org>, Accountability Cross Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission I think this is basically right. But I think there are ADDITIONAL safeguards that makes litigation even less likely. For example, in Version 1 and 2 below, the ATRT recommendation to adopt a policy would not be directly accepted or rejected by the Board. Any new substantive policy would need to go through a PDP, which would require ICANN legal to opine whether or not the proposed policy is within the scope of a PDP. If the recommended policy is not a PDP type policy (e.g., a recommended Bylaws change) the community would have direct input and an opportunity to reject/block. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel and Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington, DC 20006 Office: + 1.202.533.2932 Mobile: +1.202.352.6367 / <mailto:becky.burr@neustar.biz> becky.burr@neustar.biz / <http://www.neustar.biz/> www.neustar.biz From: Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org> Date: Friday, May 29, 2015 at 9:50 AM To: Accountability Community < <mailto:accountability-cross-community@icann.org> accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Stress Test on whether the CCWG proposals require courts to interpret ICANN's mission The thoughtful comments by Arun and Parminder were on Chris Disspain’s original note, which I included in mine. But let’s also have a discussion of the two stress tests I proposed (below), suggesting that courts would not be involved in interpreting ICANN bylaws or mission statement. —Steve On Thu, May 28, 2015 at 9:38 PM, Steve DelBianco < <mailto:sdelbianco@netchoice.org> sdelbianco@netchoice.org> wrote: On this week's stress test team call, we looked at Chris Disspain’s hypothetical (at bottom). The team had difficulty identifying a scenario under which a California court would, as Chris suggested, "make binding decisions about interpretation of ICANN’s mission.” This was due in part to a misunderstanding embedded in Chris’ scenario. What we’ve done below is take Chris’ scenario and turn it into two scenarios that could happen under the Member powers described in the CCWG proposal. We don’t think either of these scenarios would result in the outcome Chris worried over. Stress Test version 1: Board refuses to follow community recommendation 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to reject the recommendation, saying it conflicts with ICANN’s limited Mission Statement in the amended bylaws. 3. Community Members vote to challenge the board’s decision with an IRP. An IRP panel of 3 international arbitrators (not a Court) finds that the ATRT recommendation does not conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to reject the ATRT recommendation.(pp. 31-32 of proposal ) Our current proposal does not give Members the power to force ICANN board to accept and implement the ATRT recommendation. (p.32) 4. If the board refused to implementing the ATRT recommendation (see step 1), Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it did not include the ATRT recommendation. Stress Test version 2: Board follows community recommendation, but is reversed by IRP decision 1. An ATRT (Accountability and Transparency Review Team) recommends a new policy for implementation. 2. The ICANN board decides to accept the recommendation, believing that it does not conflict with ICANN’s limited Mission Statement in the amended bylaws. 3. An aggrieved party or Community Members vote to challenge the board’s decision with an IRP. An IRP panel of international arbitrators (not a Court) finds that the ATRT recommendation does conflict with “substantive limitations on the permissible scope of ICANN’s actions” (p.32). The IRP panel therefore cancels the board decision to accept and implement the ATRT recommendation.(pp. 31-32 of proposal ) 4. If the board ignored the IRP ruling and continued to implement its earlier decision, parties to the IRP could ask courts to enforce the IRP decision. Would that court re-litigate the IRP’s substantive decision interpreting the ICANN bylaws? That is not our expectation, since it is only "expected that judgements of the IRP Panel would be enforceable in the court of the US and other countries that accept international arbitration results” (p.34, emphasis added) 5. If the ICANN Board continued to ignore the IRP decision and court orders to enforce it, Members could vote to recall the board. Members could also vote to block the very next budget or strat plan if it included implementation of the ATRT recommendation. 21/05/2015 03:45, Chris Disspain wrote ( <https://urldefense.proofpoint.com/v2/url?u=http-3A__mm.icann.org_pipermail_ accountability-2Dcross-2Dcommunity_2015-2DMay_003035.html&d=AwMGaQ&c=MOptNlV tIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=X56Me2-F6Etg rc4Kcl5pz3c-js1S7kveIwNV-n4DMoc&s=73saSCa_-ze0blCSpk_1N-36nkQUNVnzPAIrbjO7lS Q&e=> link and excerpt below): Second, I would like to use a step-by-step scenario to explain where my concerns lie. Under the CCWG’s currently proposed mechanisms: 1. The community, pursuant to powers defined in a “fundamental bylaw”, and through a vote of that meeting the required threshold for support, directs the Board to do X 2. The Board refuses to do X because it maintains that X is outside of the mission of ICANN 3. The community triggers escalation mechanisms 4. Escalation proceeds to binding arbitration (as defined by another fundamental bylaw) 5. The arbitrator finds in favour of the community and directs ICANN to do X 6. The Board refuses to act, citing, again, that it believes the action is outside of ICANN’s mission 7. After the necessary community votes etc., the community now heads to court. In the State of California. As I understand it, the role of the court in this scenario would be to determine whether the Board is acting in a way that is serving the public interest within ICANN’s mission. It would not be to decide whether, on balance, the community was ‘more right’ than the Board. Right now as a global multi-stakeholder body we decide the nuances of the meaning of ICANN’s mission and the way ICANN acts under that mission by using the multi-stakeholder process and by compromise and nuanced decision making. If we agree to the CCWG recommendations we will not be handing ultimate authority to the members but rather we will be handing ultimate authority to a state based American court and allowing it to make binding and precedent setting decisions about the interpretation of ICANN’s mission. Does the ICANN community really want the specific nuances of ICANN’s mission to be held up to scrutiny and have decisions made, at the highest level, through such a mechanism? Whilst that may give comfort to, for example, US members of the intellectual property community or US listed registries, it gives me no comfort whatsoever. _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list <mailto:Accountability-Cross-Community@icann.org> Accountability-Cross-Community@icann.org <https://mm.icann.org/mailman/listinfo/accountability-cross-community> https://mm.icann.org/mailman/listinfo/accountability-cross-community