Re: [CCWG-ACCT] Updated Memo on Request on Sole Designator

I'm in. Thanks. Robin On Nov 14, 2015, at 6:09 AM, Stephen Deerhake wrote:

Hi Jordan.

Happy to help as well.

Stephen Deerhake

From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Chris Disspain Sent: Saturday, November 14, 2015 2:29 AM To: Jordan Carter <jordan@internetnz.net.nz> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Updated Memo on Request on Sole Designator

Hi Jordan,

Happy to help.

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au

auDA - Australia's Domain Name Administrator

On 14 Nov 2015, at 11:03, Jordan Carter <jordan@internetnz.net.nz> wrote:

Thanks Greg.

I've decided as WP1 rapporteur to start a piece of work to see if we can solve this. More details in around 48h.

Jordan

On Saturday, 14 November 2015, Greg Shatan <gregshatanipc@gmail.com> wrote: A very quick response:

1. I only used the ccNSO in the example because Chris Disspain did. Clearly, that exposed this issue right over a major fault line. I don't know if that was Chris's intent, or if he was just speaking from his cc point of view, but no matter -- the elephant is where it is. As Becky indicates, GNSO would have similar concerns (though without quite the same ability to walk away from ICANN). One could imagine similar concerns from at least some of the other SO/ACs as well (though without the same history, which can't be ignored).

2. The completion deadline isn't *really* 48 hours from now. That's only when the Formal Update (downgraded from an Executive Summary, and perhaps to be further downgraded to a Strong Breeze, or a Foul Wind) is being published. The *real* proposal won't be published until November 30 (known to those in the US as "the Monday after Thanksgiving").

3. This does expose issues, as you say: Should all Bylaw changes coming from any SO/AC be immune from challenge by the Community? Or should this immunity be granted only to the ccNSO, given the Great Schism of 2002 and the subsequent Great Re-Engagement of 2003, which was predicated on specific understandings? How far would this immunity go? If such Bylaws were immune from veto, would a "spill the board" or "IRP" action by the remaining Community members also be prohibited? How far does this "One Big Community" idea go? Does it go so far to say that each part of the Community must be subservient to the Community as a whole? (Which sounds like another word that begins with "Commun-" (not that there's anything wrong with that)) If not, how do you balance autonomy and Community? And to what extent should these be general rules vs. specific rules (or exceptions to the general rules)? Can there be a narrowly tailored solution to this particular issue, so that we are dealing with an animal smaller than an elephant, and a problem smaller than the essential underpinnings of "Community Powers"? Do the various escalation steps (especially the conference call and the Community Forum) provide enough of an opportunity for an embattled SO/AC to try to stop this from happening, rather than changing the rules at all? Greg

On Fri, Nov 13, 2015 at 12:39 PM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote: Chris, all,

I am with Jordan on this.

In the present situation, the board can reject the outcome of such a GNSO or ccNSO process with a 2/3 majority vote, right? Again in the present situation (and if all is well), the board would do so on the basis of comments from the community on the GNSO or ccNSO proposal. So, the community would kind of have the final say. Which is what we want, although it might sometimes be disappointing to a particular constituency.

In the post-transition situation, with the new community powers in place, we want the community to be able to correct the board on important decisions that the large majority of the community does not agree with. Many of these important decisions will either be the outcome of a policy process of an SO or advice from an AC (think about the GAC and stress test 18 in this context). Some of those will require a bylaw change, quite a few not, I suspect. Furthermore, those “important decisions” will in most cases (bylaw change or not) have an impact on a wider group than the SO or AC members that propose it.

So I think it’s completely justified that the community can eventually block an SO policy or AC advice (again, requiring a bylaw change or not) WITHOUT the consent of the “issuing” SO or AC. In fact, I think this this is one of the important pillars of the multi-stakeholder model.

Best,

Roelof Meijer

From: <accountability-cross-community-bounces@icann.org> on behalf of Chris Disspain <ceo@auda.org.au> Date: donderdag 12 november 2015 10:50 To: Greg Shatan <gregshatanipc@gmail.com> Cc: Jon Nevett <jon@donuts.email>, Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] [WP1] Fwd: Updated Memo on Request on Sole Designator

Thanks Greg.

For clarity then, you are saying that where a policy has been created by the GNSO through its legitimate PDP and that policy requires a bylaw change, the community should be able to block that bylaw change. Does that not undermine the whole policy development process and substantially change the role of the SOs within the ICANN structure?

Although I was not in the ccNSO room at the time of the discussion, I believe that this issue was a serious concern for the ccTLDs. Perhaps my ccTLD colleagues on the CCWG would care too confirm the position?

Cheers,

Chris

On 13 Nov 2015, at 00:17 , Greg Shatan <gregshatanipc@gmail.com> wrote:

I think the corollary to Chris's questions is whether the ccNSO (in Chris's example) should be able to push through these changes despite opposition from the rest of the community.

I would say that we have answered this question "no" and Chris's questions "yes." These have been fairly obvious implications of our work for quite some time.

On the other hand, if there is substantial opposition to this lack of autonomy (in favor of more power to the community as a whole), now that it's so explicitly stated, now's the time to say so!

Greg

On Thursday, November 12, 2015, Chris Disspain <ceo@auda.org.au> wrote: All,

Jon’s point is, in effect, the same as has been raised in the ccNSO (by me and a number of others).

Using the ccNSO as an example there are 2 questions:

1. If the ccNSO goes through an internal or external review process and ends up approving changes to its operations that involve a change to the relevant bylaw then should that change be ‘blockable' without the ccNSO supporting such a block?

2. If the ccNSO has run a PDP and makes recommendations to the Board which are accepted and in the event that the recommendations require a bylaw change then should such change be ‘blockable’ without the ccNSO supporting such a block?

This applies to each SO (and for question 1 the ACs) including, importantly, the ASO which delivers global policy instructions on behalf on the NRO.

It is not an answer to these questions to say ‘it is highly unlikely that bylaw changes would be required because of a PDP or SO/AC review’. Unlikely scenario or not, these are fundamental questions that need to be answered.

Cheers,

Chris Disspain | Chief Executive Officer

.au Domain Administration Ltd

T: +61 3 8341 4111 | F: +61 3 8341 4112

E: ceo@auda.org.au | W:www.auda.org.au

auDA – Australia’s Domain Name Administrator

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On 12 Nov 2015, at 20:46 , Steve DelBianco <sdelbianco@netchoice.org> wrote:

"consent of the governed"? I do not think it means what you think it means.

A government serves with the consent of those it governs, measured by majority of all citizens. A government that campaigned on raising taxes on the rich could prevail in an election WITHOUT requiring that the impacted rich give their support.

Even if it meant what Jon intends, “consent of the governed” for a budget veto would require consent of those who pay registration fees, not just the contract parties. That would mean ALAC support would be required, too.

From: <wp1-bounces@icann.org> on behalf of Robin Gross <robin@ipjustice.org> Date: Wednesday, November 11, 2015 at 10:24 PM To: Accountability Cross Community <accountability-cross-community@icann.org> Cc: "James M. Bladel" <jbladel@godaddy.com>, "wp1@icann.org" <wp1@icann.org>, Jon Nevett <jon@donuts.email> Subject: Re: [WP1] [CCWG-ACCT] Updated Memo on Request on Sole Designator

Also agree with Jon on this key point, which has been raised before, but not dealt with due to more "pressing" issues.

Robin

On Nov 11, 2015, at 2:34 PM, James M. Bladel wrote:

Agree with Jon, “consent of the governed” is an necessary component of community decision making.

Thanks—

J.

From: <accountability-cross-community-bounces@icann.org> on behalf of Jon Nevett <jon@donuts.email> Date: Tuesday, November 10, 2015 at 20:51 To: Accountability Cross Community <accountability-cross-community@icann.org> Cc: "<wp1@icann.org>" <wp1@icann.org> Subject: Re: [CCWG-ACCT] [WP1] Updated Memo on Request on Sole Designator

Folks:

I'd like to propose an amendment to the Community Decision-making Process.

In the case where an issue being considered most directly relates to a specific Supporting Organization, we should require support of that SO in order to utilize a community action. For example, if the community is considering blocking a change to a standard Bylaw -- Article IX of the ICANN Bylaws (CCNSO) -- we should ensure that the CCNSO supports using a community action in order to move forward.

In the case of blocking ICANN's budget, which includes the specific amount gTLD registration fees, the GNSO must support using that community process.

In the case of an ASO related IRP issue, the ASO must support before the community makes a decision binding.

We should require the specific SO at issue plus at least 50% of the other SOs and ACs participating in the decision in order for the community decision process is invoked.

To do otherwise, we risk tyranny of the majority being used against the group most impacted by a decision.

Of course, in the case where there is no SO that is predominantly at issue, we should go with a certain requirement of support that we already have been discussing.

We also would need to figure out how to handle a dispute of which SO is predominant. Regardless of how we handle that issue, we should ensure that the SO most impacted by use of community powers are in support.

Thanks.

Jon

On Nov 10, 2015, at 9:44 AM, Alan Greenberg <alan.greenberg@mcgill.ca> wrote:

No misunderstanding. I was replying to Seun who raised the case of some AC/SOs choosing not to participate in a particular issue.

Alan

At 10/11/2015 07:29 AM, Schaefer, Brett wrote:

Alan,

I think there is a bit of misunderstanding. I’m not talking about a participating SO or AC choosing to abstain or make no decision. That is anticipated in the model. Abstention, as far as I understand it, is not considered either opposition or support for the purposes of exercising the community powers – in other words iit does not count for the thresholds either in support or against.

I’m talking about situations like SSAC, where a AC decides not to participate at all. Most seem to believe that RSSAC will likewise decide not to participate.

But the assumption is that GNSO, ccNSO, ASO, ALAC, and GAC will. This is why everyone is assuming that we will have 5 participating entities in the community mechanism.

But if GAC or one of the others decides otherwise or simple cannot reach consensus on participating for some length of time, we would only have 4 or even fewer participating entities. In the first situation, using those four community powers would require community unanimity. In the second, the community would not be able to exercise those powers at all.

That is why I suggested getting confirmation of intent to participate – acknowledging that this would not be an endorsement of the CCWG proposal – from the ACss and SOs so that we can accurately project for the model.

I also think that we need to explore thresholds for various levels of participation for that reason.

Best,

Brett

Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org

From: Alan Greenberg [ mailto:alan.greenberg@mcgill.ca] Sent: Tuesday, November 10, 2015 5:51 AM To: Seun Ojedeji; Schaefer, Brett Cc: <wp1@icann.org>; Accountability Cross Community Subject: Re: [CCWG-ACCT] [WP1] Updated Memo on Request on Sole Designator

There is a huge difference between an AC/SO that has explicitly said it will not participate at all and one that decides to not state a position on exercising a power in a particular instance. The latter IS participating by neither supporting nor opposing the action. Without sufficient ACTIVE support, the action dies.

In the extreme, option 2 will allow one AC/SO to exercise a power on its own, since 1 is greater than 75% of 1.

Alan -- Sent from my mobile. Please excuse brevity and typos. On November 10, 2015 1:54:23 AM GMT-03:00, Seun Ojedeji <seun.ojedeji@gmail.com > wrote:

Hi,

I think lowering the threshold may still bring us to a deadlock since we are not always certain whether all will participate at any point in time. Allowing splitting votes is out of discussion as we have agreed to go by consensus.

Option 2 IMO seem to be a good thing to explore further and in order to ensure that is not abused, an overall minimum total number of participating SO/AC should be set. So if that minimum is not achieved then there is no need to check those in support or against. I think a minimum number of 4 may be in order. That will ensure that percentage is not used on say 3 participating SO/AC or less.

Regards Sent from my Asus Zenfone2 Kindly excuse brevity and typos. On 9 Nov 2015 22:57, "Schaefer, Brett" < Brett.Schaefer@heritage.org> wrote: Jordan,

If the model that we are discussing is unworkable under a fairly realistic eventuality that seems to be a critical problem.

In my opinion, it requires consideration of: (1) lowering the thresholds to three if there are only four participating entities; (2) shifting minimum thresholds from 4 entities in support to, instead, at least 75 percent of the participating entities in support; or (3) allowing the splitting of votes to surmount existing thresholds.

Best,

Brett

From: Jordan Carter [ mailto:jordan@internetnz.net.nz] Sent: Monday, November 09, 2015 4:46 PM To: Schaefer, Brett Cc: Accountability Cross Community; wp1@icann.org Subject: Re: [WP1] Updated Memo on Request on Sole Designator

hi Brett,

Such matrices of decision are not being drafted. If you are able to attend the call in around ~15 hours, I think it would be useful to talk this through. As I've said before, if we are down to four SO/ACs participating, to my mind that's too small an orbit to use the current model.

Jordan

On 10 November 2015 at 08:34, Schaefer, Brett < Brett.Schaefer@heritage.org> wrote: Jordan,

I appreciate the explanation provided in the memo.

However, I note that the decision matrix remains unchanged in that it requires support from 4 SOs/ACs to exercise powers 1, 2, 5, and 7. The operating assumption is that GNSO, ccNSO, ASO, and ALAC will participate. I believe that they will, but it would be good to get confirmation even with the knowledge that such a statement should not be considered an endorsement of the CCWG proposal.

Also, as we discussed in the previous CCWG WP1 call, there is a possible complication if RSSAC, as expected, decides not to participate and GAC either (1) decides not to participate, (2) decides not to participate immediately, but announces its desire to be allowed participate at some future date, or (3) cannot reach a consensus position.

In that case, unanimous support by the 4 SOs/ACs assumed above to participate would be required in order to exercise powers 1,2, 5, and 7. I don’t think that unanimous support was supposed to be required for exercise of the community powers.

Until we have confirmation of which SOs and ACs (other than SSAC which has explicitly stated its intention not to participate) will be participating in the mechanism, we need to plan out possible scenarios. For this reason, I think we need to provide decision matrices based on varying levels of participation. Is this being drafted?

Thanks,

Brett

From: wp1-bounces@icann.org [ mailto:wp1-bounces@icann.org] On Behalf OfJordan Carter Sent: Sunday, November 08, 2015 5:51 PM To: Accountability Cross Community; wp1@icann.org Subject: Re: [WP1] Updated Memo on Request on Sole Designator

... and in PDF J

On 9 November 2015 at 11:50, Jordan Carter <jordan@internetnz.net.nz > wrote: Dear all - for your reading pleasure and for the lists record.

Jordan

Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org

Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org ---------- Forwarded message ---------- From: Gregory, Holly <holly.gregory@sidley.com > Date: 7 November 2015 at 13:48 Subject: Updated Memo on Request on Sole Designator Dear Co-Chairs, Jordan and Staff,

Attached please find a substantially reorganized and revised memo on how the Sole Designator would be made operational, to replace the memo that was sent to you last week. The changes are largely in the nature of clarifications and we have addressed the point requested below as well. We request that this memo be posted to replace the prior memo.

Please let us know if you have any questions.

Kind regards, Holly and Rosemary

-- Jordan Carter

Chief Executive InternetNZ

+64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@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@internetnz.net.nz Skype: jordancarter Web: www.internetnz.nz

A better world through a better Internet

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Sent on the run, apologies for brevity

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