Dear Becky

Thank you very much again for your further clarifications.

I feel these are very useful for colleagues (both within the CCWG and the GAC) who still are unclear on key aspects of the carve-out proposal, and who might want to participate in future –such as tomorrow’s- discussion on the topic.

For instance, today I have read at least three different emails from (usually) very well-informed people who linked the carve-out only to Board decisions implementing GAC Advice, where the Board decision would be deemed inconsistent with the Bylaws.

Now we know, that, although you estimate that 99.9% of the cases would fit that description, the carve-out rule as spelled out makes no such linkage or provision, and, therefore, the carve-out applies generally, with no condition of Bylaws inconsistency. Hence, the carve-out applies also when there exists only a difference of opinion between the GAC and other SO/ACs.

Today I have also received a question asking me whether the GAC would be the only SO/AC affected by such a carve-out rule and whether all other SO/AC would be able to participate on the two tracks without any limitation, even when, for instance, a Board decision is deemed inconsistent with the Bylaws and is based on the recommendation and/or advice of that SO/AC.

Now we also have confirmation that this is a GAC-rule only, and that all other SO/ACs will have full participation on both tracks.

I’m just putting this in writing for the sake of greater clarity and to avoid that obvious aspects of this proposal stay unclear for those who have not the ability of following this debate as closely as others, but who may have the chance of reading this exchange.

I hope you might indulge this…

Best regards

Jorge

Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Burr, Becky
Gesendet: Montag, 22. Februar 2016 15:22
An: Accountability Community <accountability-cross-community@icann.org>
Betreff: [CCWG-ACCT] further responses to ICANN

My further responses inline

Dear Becky

Thank you very much for your replies.

However, I feel we should separate intentions from facts in such replies and/or clarifications.

In this regard, although only 0.1% (in your estimation) of the instances the carve-out would apply are those where the Board decision is consistent with the Bylaws, the fact is that the carve-out rule makes no such distinction, correct?

Correct, that distinction is not made in the context of any of the community powers and was not made in the GAC carve-out context until the Board’s recent intervention.

As to the participation of any other SO and AC on both tracks, I kindly asked to confirm a fact (that any other SO or AC may fully participate, with the only exception pf the GAC). I infer that you are confirming it, right?

Yes, I think that’s perfectly obvious Jorge.

(Reasons for doing so are something different and have been discussed and no full agreement found to date if I dare say so.)

thanks again and regards

Jorge

Von meinem iPhone gesendet

Am 22.02.2016 um 14:54 schrieb Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>:

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

Von: Cancio Jorge BAKOM
Gesendet: Montag, 22. Februar 2016 15:09
An: Burr, Becky <Becky.Burr@neustar.biz>
Cc: kavouss.arasteh@gmail.com; steve.crocker@icann.org; icann-board@icann.org; accountability-cross-community@icann.org
Betreff: Re: AW: [CCWG-ACCT] The GAC made me do it

Dear Becky

Thank you very much for your replies.

However, I feel we should separate intentions from facts in such replies and/or clarifications.

(Reasons for doing so are something different and have been discussed and no full agreement found to date if I dare say so.)

thanks again and regards

Jorge

Von meinem iPhone gesendet

Am 22.02.2016 um 14:54 schrieb Burr, Becky <Becky.Burr@neustar.biz>:

Responses in line

From: "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch>
Date: Monday, February 22, 2016 at 8:13 AM
To: Becky Burr <becky.burr@neustar.biz>, Kavouss Arasteh <kavouss.arasteh@gmail.com>
Cc: "steve.crocker@icann.org" <steve.crocker@icann.org>, "icann-board@icann.org" <icann-board@icann.org>, Accountability Community <accountability-cross-community@icann.org>
Subject: AW: [CCWG-ACCT] The GAC made me do it

Dear Kavouss, dear Becky

Thanks so much!

From the responses I received, it seems that the carve-out applies generally whenever there is a Board decision to implement GAC Advice, even when that Board decision is deemed by the IRP to be perfectly consistent with ICANN Bylaws.

Hence, we should be clear that there is no relation between the carve-out and the consistency with the Bylaws, right? Reasons for bringing such a challenge can be purely based on different interests, right?

No, the carve out reflects the principle that we have discussed at great length. The GAC should not have the authority BOTH to force the Board to the negotiating table at any time over any issues and to block community challenge of the results of those Board/GAC negotiations. The status of GAC Advice differentiates it from any other kind of advice. I suspect that 99.9% of the time that challenge will involve an alleged bylaws violations, but maybe not.

It is just a rule that excludes the GAC from (a decisional role in) any community decision where a Board decision to implement GAC Advice is at stake.

Correct, it bars the GAC from participating as a decision-maker in a discussion of a decision to use one of the community powers in that situation.

A further question: if such a Board decision is based both on a SO recommendation, an ALAC advice and a GAC Advice, the only entity to be excluded from a community process would be the GAC, right? But the other SO and AC would participate on both tracks, correct?

I’ve provided my views on this several times Jorge. Please refer to my email about why GAC Advice is different from a PDP.

As to the threshold question: it merely has to do with the Board recall, but does not affect any of the mentioned characteristics of the carve-out, correct?

The Boards concern is only about lowering the threshold to 3 in the context of Board recall.

Thanks very much for any further guidance

Best

Jorge

Von: Burr, Becky [mailto:Becky.Burr@neustar.biz]
Gesendet: Montag, 22. Februar 2016 14:00
An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; kavouss.arasteh@gmail.com
Cc: steve.crocker@icann.org; icann-board@icann.org; accountability-cross-community@icann.org
Betreff: Re: [CCWG-ACCT] The GAC made me do it

Jorge-

The carve out would apply but you would need 4 SO/AC s to recall the Board.

Becky

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

From: "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch>
Date: Monday, February 22, 2016 at 6:44 AM
To: Kavouss Arasteh <kavouss.arasteh@gmail.com>
Cc: "steve.crocker@icann.org" <steve.crocker@icann.org>, "icann-board@icann.org" <icann-board@icann.org>, Accountability Community <accountability-cross-community@icann.org>
Subject: Re: [CCWG-ACCT] The GAC made me do it

Dear Kavouss

Thanks for the clarification.

Hence, do I understand correctly that the carve-out (exclusion of GAC as decisional participant) applies also if the Board decision to implement GAC Advice has been found by the IRP to be perfectly consistent with the Bylaws?

Thanks for your guidance

Regards

Jorge

Von: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com]
Gesendet: Montag, 22. Februar 2016 12:41
An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>
Cc: Mueller, Milton L <milton@gatech.edu>; Steve Crocker <steve.crocker@icann.org>; accountability-cross-community@icann.org; Icann-board ICANN <icann-board@icann.org>
Betreff: Re: [CCWG-ACCT] The GAC made me do it

Dear Jorge,

You are right

The carve out applies to all cases either in application of IRP or in the absence of IRP

For the first Board's agreed with reduced threshold from 4 to 3 for Board's Spill

For the second the Board wishes that the 4 SO/AC threshold applies .

Some people in the community like me fully supportting the Board's views.

Some others are against

This is one of the issue that must be resolved tomorrow

Regards

Kavouss

2016-02-22 12:25 GMT+01:00 <Jorge.Cancio@bakom.admin.ch>:

Dear all

From this email by Milton it seems that some (as Milton) are understanding that the carve-out only would apply if the Board decision to implement GAC Advice is found (by the IRP I guess) to be inconsistent with the Bylaws.

I have been away for one week, but I feel that the carve-out was meant to apply generally to situations where there is Board implementation of GAC Advice...

Could someone kindly clarify the status?

Best regards

Jorge

-----Ursprüngliche Nachricht-----
Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mueller, Milton L
Gesendet: Sonntag, 21. Februar 2016 23:34
An: Steve Crocker <steve.crocker@icann.org>; Accountability Community <accountability-cross-community@icann.org>
Cc: Icann-board ICANN <icann-board@icann.org>
Betreff: Re: [CCWG-ACCT] The GAC made me do it

Steve

I think Andrew got the issue exactly right. I do not see how your answer even engages with his argument, which is that nearly all of the community has agreed that when board actions are challenged for being out of mission by following GAC advice, that the GAC should not be in a position to rule on that.

Claiming that the GAC does not have "extraordinary power" does not answer Andrew's argument. Whether the GAC has extraordinary power or not, if it advises you (the board) to do something that the rest of the community thinks is outside of the bounds of the bylaws (which it has a demonstrated tendency to do) the GAC should not be a decisional member of the empowered community that decides whether we get to challenge that action.

From that premise on, it is all arithmetic, as Andrew showed:

> > This is a choice entirely within the GAC's power. It must choose.

> > If it chooses to be board-advisor-GAC, then it is in effect choosing

> > that it prefers that mode of operation to being part of the wider

> > Empowered Community mechanism. In effect, a GAC choice can reduce

> > the possible actors in the Empowered Community to four. Otherwise,

> > the GAC is in a position to insist on advice it gave being

> > considered first by the board, and then that the GAC can also

> > participate in the judgement of the Board's actions. That's the

> > very "two bites" problem that we were trying to solve. I believe

> > that in most organizations (including many governments), it would be

> > regarded as surprising that a participant in the to-be-judged action also gets to be one of the judges.

You have not refuted this, as I said before you have not even engaged with this.

This increases my suspicion that the board's position is based on a political calculus, not on good governance or accountability criteria.

Further, it is clear from the reaction you have gotten that the board is not proposing a "friendly amendment." In these rules of procedure, a friendly amendment has to be accepted by the group that proposed it, and clearly it is not.

I am deeply disturbed by the board upsetting a consensual compromise, and a very difficult one, for the third time in this process. I wonder if you have any appreciation of the potential costs of this, particularly when it involves an issue as sensitive as the role of national governments in ICANN.

Dr. Milton L. Mueller

Professor, School of Public Policy

Georgia Institute of Technology

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