Dear Edward, dear Paul, dear Co-Chairs - Bruce might not be able to respond and we had no chance in the board yet to review Edward's or other comments. Give us few hours to sort this out and we will respond as quickly as possible. Thanks, Erika On Wed, Feb 17, 2016 at 1:27 PM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:
Dear Co-Chairs
Now you have a problem. A significant number of us do NOT agree with the Board’s proposed modification of the spill power post-Board acceptance of GAC advice. A number of others apparently do agree with this further change from the closed text of Rec 1. It appears as though the supplementary proposal is not complete. I, personally, would take what was in the compromise proposal – the same “all but one objecting SO/AC” standard – that is in the current draft (which, I note, has not been released).
If you are going to think about changing the draft (as you are free to do), I would respectfully request a full proposal fromteh Board (text and justirifcation); two readings; and the development of consensus one-way or the other. We should not adopt the Board’s proposal at all – but if we do, it should not be in this higgledy piggledy haphazard way of having the Board liason communicate an idea that is only clarified in email converations.
Where is the redline text? And when is the consideration?
Paul
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*From:* Edward Morris [mailto:egmorris1@toast.net] *Sent:* Wednesday, February 17, 2016 3:53 AM *To:* Schaefer, Brett <Brett.Schaefer@heritage.org> *Cc:* Accountability Cross Community < accountability-cross-community@icann.org>
*Subject:* Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice
Brett, it appears to me that you are correct. The switch from the membership model left us dependent upon spilling the Board, or parts of it, as the ultimate community power. Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP.
I note Becky Burr's comments on this issue:
'If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).'
Many members of the CCWG, including myself, have indicated agreement with Becky's view.
Can somebody point to me where this limitation on community power has been proposed, discussed and agreed by the community? Can someone show me where the two readings have been held on this issue?
If not then this is a process violation and I will be forced to ask the NCSG policy committee to file a complaint with the Office of the Ombudsman. I don't believe the community has or will agree to this limitation of the GAC carve out if given a chance to examine it and weigh in on the matter. It sorrows me that the Board is pushing this last minute change that threatens the ongoing status of our fine Proposal. Of course, given the timing this proposal could and should placed in the Supplemental as a Minority Statement, nothing more,
Best,
Ed
Sent from my iPhone
On 17 Feb 2016, at 02:49, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:
Well, this is clear and it is what I was concerned about.
Essentially, the Board is insisting in a 4 SOAC threshold for spilling the Board in all circumstances except when it is defying an IRP ruling against a decision based on consensus GAC advice. It is a significant change making it more difficult for the EC to exercise its ultimate enforcement power.
Moreover, it seems likely that, if the GAC decides not to participate in the EC as a full decisions like participant, and the thresholds are adjusted, the Board would insist on a unanimous 4 SOAC threshold to spill the Board.
Am I wrong?
________________________________
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<http://heritage.org/>
Begin forwarded message:
From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au< mailto:Bruce.Tonkin@melbourneit.com.au <Bruce.Tonkin@melbourneit.com.au>>>
Date: February 16, 2016 at 8:28:04 PM EST
To: Accountability Cross Community < accountability-cross-community@icann.org< mailto:accountability-cross-community@icann.org <accountability-cross-community@icann.org>>>
Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice
Hello All,
To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.
For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.
For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.
Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.
Regards,
Bruce Tonkin
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Sent from my iPhone
On 17 Feb 2016, at 03:43, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:
Jordan,
The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice.
In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how.
This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise.
I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change.
If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient.
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<http://heritage.org/>
On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz< mailto:jordan@internetnz.net.nz <jordan@internetnz.net.nz>>> wrote:
Robin, I don't think that is what is being proposed.
All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board.
That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement.
Then it got qualified by noting that if there had been an IRP, etc etc.
But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it.
I would not support any such changes.
cheers Jordan
On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org< mailto:robin@ipjustice.org <robin@ipjustice.org>>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can’t slip it in at this impossibly late hour.
Robin
On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au <Bruce.Tonkin@melbourneit.com.au>>> wrote:
Hello All,
To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.
For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.
For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.
Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.
Regards, Bruce Tonkin
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