Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I'm submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: * Reject a proposed Operating Plan/Strategic Plan/Budget; * Recall the entire Board of Directors; and * Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, "Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability." Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace "may" with "shall" and add an additional explanatory clause: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
Thanks for submitting Keith Sent from my BlackBerry - the most secure mobile device - via the AT&T Network From:kdrazek@verisign.com Sent:February 27, 2016 3:05 PM To:accountability-cross-community@icann.org Subject:[CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16
Keith , I wish to add my name to this signature list. Thanks Phil Buckingham From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: 27 February 2016 20:04 To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I'm submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: . Reject a proposed Operating Plan/Strategic Plan/Budget; . Recall the entire Board of Directors; and . Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, "Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability." Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace "may" with "shall" and add an additional explanatory clause: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
Makes sense to me to change the may to a shall and add explanatory material. avri On 27-Feb-16 15:03, Drazek, Keith wrote:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds /must/ be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC */choosing/* to not participate, and an SO or AC being */blocked/* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC */elects/*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support */shall/*be adjusted */to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers/*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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I agree Yes this also makes sense to me... I support yhe "may" to SHALL and the addition od explanatory material ... On 28 Feb 2016 8:56 am, "avri doria" <avri@apc.org> wrote:
Makes sense to me to change the may to a shall and add explanatory material.
avri
On 27-Feb-16 15:03, Drazek, Keith wrote:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds /must/ be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC */choosing/* to not participate, and an SO or AC being */blocked/* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC */elects/*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support */shall/*be adjusted */to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers/*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Thanks Cheryl, I would hope that this would be a relatively non-contentious issue as it is designed to reflect the long standing principle that we have been working under since the start of this wild and wonderful journey. -James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Cheryl Langdon-Orr <langdonorr@gmail.com<mailto:langdonorr@gmail.com>> Date: Saturday 27 February 2016 at 10:03 p.m. To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue I agree Yes this also makes sense to me... I support yhe "may" to SHALL and the addition od explanatory material ... On 28 Feb 2016 8:56 am, "avri doria" <avri@apc.org<mailto:avri@apc.org>> wrote: Makes sense to me to change the may to a shall and add explanatory material. avri On 27-Feb-16 15:03, Drazek, Keith wrote:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds /must/ be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC */choosing/* to not participate, and an SO or AC being */blocked/* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC */elects/*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support */shall/*be adjusted */to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers/*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear Co-Chairs, Before I make my comment, I like to raise 2 points based on my understanding of current status: 1. If my timing is right, I believe the proposal is currently on the table of the chartering organisations hence no changes can be done on the proposal. 2. Any comment regarding any change would emerge from the formal response of the chartering organisations(not even from individual members unless endorsed by the CO). Now to substance, I agree with changing the "may" to "shall" but such threshold review must be discussed and endorsed by the EC based on the threshold for amending fundamental bylaw or in the case where it happens before initial bylaw implementation, then it must be approved by the current chartering organisation. I am saying this just incase the intent is to enable such automatic threshold change during the bylaw drafting. Secondly, I disagree with the follow-up explanation indicated in red (except the "shall"). For the obvious reason that anything below 4 AC/SO to exercise those critical powers would not be representative of the ICANN community with all its diversity. Regards Sent from my LG G4 Kindly excuse brevity and typos On 27 Feb 2016 21:04, "Drazek, Keith" <kdrazek@verisign.com> wrote:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Seun just to make this clear you then by extension support the concept of unanimous support requirement for the exercising of the community powers? Because I will remind you that the non unanimity principal has been core to the last 18 months of work that we have done… Obviously Im fine with that if that’s your position but I would appreciate clarity on wether I am reading between the lines correctly? -jg From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Saturday 27 February 2016 at 10:16 p.m. To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Dear Co-Chairs, Before I make my comment, I like to raise 2 points based on my understanding of current status: 1. If my timing is right, I believe the proposal is currently on the table of the chartering organisations hence no changes can be done on the proposal. 2. Any comment regarding any change would emerge from the formal response of the chartering organisations(not even from individual members unless endorsed by the CO). Now to substance, I agree with changing the "may" to "shall" but such threshold review must be discussed and endorsed by the EC based on the threshold for amending fundamental bylaw or in the case where it happens before initial bylaw implementation, then it must be approved by the current chartering organisation. I am saying this just incase the intent is to enable such automatic threshold change during the bylaw drafting. Secondly, I disagree with the follow-up explanation indicated in red (except the "shall"). For the obvious reason that anything below 4 AC/SO to exercise those critical powers would not be representative of the ICANN community with all its diversity. Regards Sent from my LG G4 Kindly excuse brevity and typos On 27 Feb 2016 21:04, "Drazek, Keith" <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi James, Not that I am opposed to unanimous support requirement, but I am opposed to locking in on such requirement. Especially now that it is clear that minimum of 5 SO/AC may not always be achieved. I hope you will agree with me that having 3 SO/AC spill the board is quite low threshold for a community of 7 SO/AC. If for instance ASO decides to pull out of ICANN completely(because they want to run their show themselves), that would make the SO/AC become 6 and it would still make a good balance if 3 spills the board. Overall, my point is that the wording should be flexible enough and not restrict the community from making the required decision in future. What we are setting now may not be required in the next 10 to 15 years but it will be good for the community then to agree on what is workable by that time. The main point that needs to be communicated is that the threshold will be reviewed if there is an upward or downward change in the number of EC. That should be sufficient wording with which I also agree to. Regards Sent from my LG G4 Kindly excuse brevity and typos On 27 Feb 2016 23:28, "James Gannon" <james@cyberinvasion.net> wrote:
Seun just to make this clear you then by extension support the concept of unanimous support requirement for the exercising of the community powers? Because I will remind you that the non unanimity principal has been core to the last 18 months of work that we have done…
Obviously Im fine with that if that’s your position but I would appreciate clarity on wether I am reading between the lines correctly?
-jg
From: <accountability-cross-community-bounces@icann.org> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com> Date: Saturday 27 February 2016 at 10:16 p.m. To: "accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear Co-Chairs,
Before I make my comment, I like to raise 2 points based on my understanding of current status:
1. If my timing is right, I believe the proposal is currently on the table of the chartering organisations hence no changes can be done on the proposal.
2. Any comment regarding any change would emerge from the formal response of the chartering organisations(not even from individual members unless endorsed by the CO).
Now to substance, I agree with changing the "may" to "shall" but such threshold review must be discussed and endorsed by the EC based on the threshold for amending fundamental bylaw or in the case where it happens before initial bylaw implementation, then it must be approved by the current chartering organisation. I am saying this just incase the intent is to enable such automatic threshold change during the bylaw drafting.
Secondly, I disagree with the follow-up explanation indicated in red (except the "shall"). For the obvious reason that anything below 4 AC/SO to exercise those critical powers would not be representative of the ICANN community with all its diversity.
Regards Sent from my LG G4 Kindly excuse brevity and typos On 27 Feb 2016 21:04, "Drazek, Keith" <kdrazek@verisign.com> wrote:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall*be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Makes sense. Then non-unanimity principle is not an absolute rule, but was thought for the 5 participating SO/AC scenario. Hence, it also must have a minimum level of participation requirement to make sense. As to process, I agree with Seun. best Jorge Von meinem iPhone gesendet Am 28.02.2016 um 06:35 schrieb Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>: Hi James, Not that I am opposed to unanimous support requirement, but I am opposed to locking in on such requirement. Especially now that it is clear that minimum of 5 SO/AC may not always be achieved. I hope you will agree with me that having 3 SO/AC spill the board is quite low threshold for a community of 7 SO/AC. If for instance ASO decides to pull out of ICANN completely(because they want to run their show themselves), that would make the SO/AC become 6 and it would still make a good balance if 3 spills the board. Overall, my point is that the wording should be flexible enough and not restrict the community from making the required decision in future. What we are setting now may not be required in the next 10 to 15 years but it will be good for the community then to agree on what is workable by that time. The main point that needs to be communicated is that the threshold will be reviewed if there is an upward or downward change in the number of EC. That should be sufficient wording with which I also agree to. Regards Sent from my LG G4 Kindly excuse brevity and typos On 27 Feb 2016 23:28, "James Gannon" <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: Seun just to make this clear you then by extension support the concept of unanimous support requirement for the exercising of the community powers? Because I will remind you that the non unanimity principal has been core to the last 18 months of work that we have done… Obviously Im fine with that if that’s your position but I would appreciate clarity on wether I am reading between the lines correctly? -jg From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Saturday 27 February 2016 at 10:16 p.m. To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Dear Co-Chairs, Before I make my comment, I like to raise 2 points based on my understanding of current status: 1. If my timing is right, I believe the proposal is currently on the table of the chartering organisations hence no changes can be done on the proposal. 2. Any comment regarding any change would emerge from the formal response of the chartering organisations(not even from individual members unless endorsed by the CO). Now to substance, I agree with changing the "may" to "shall" but such threshold review must be discussed and endorsed by the EC based on the threshold for amending fundamental bylaw or in the case where it happens before initial bylaw implementation, then it must be approved by the current chartering organisation. I am saying this just incase the intent is to enable such automatic threshold change during the bylaw drafting. Secondly, I disagree with the follow-up explanation indicated in red (except the "shall"). For the obvious reason that anything below 4 AC/SO to exercise those critical powers would not be representative of the ICANN community with all its diversity. Regards Sent from my LG G4 Kindly excuse brevity and typos On 27 Feb 2016 21:04, "Drazek, Keith" <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
If we are going to have a minimum level of participation should it not be fair, then, to weigh SOAC's on the relative weight of their composition? I could, although would prefer not to, argue that the GNSO by shear numbers and diversity should be weighed several, if not hundreds, of multiples more than some of the smaller (although for now nonparticipating) ACs. In fact, that is one of the problems of the entire model. Based upon current published numbers, for example, the NCUC is larger and more diverse, based upon countries members are from, than ALAC. Yet ALAC is weighted as equal on our model to the entire GNSO of which the NCUC is only a small part of, being itself contained both within the NCSG and the GNSO. Unanimity or a high minimum level of participation, provided non participation is voluntary and not forced, in my view establish thresholds so high as to make many of these accountability reforms unusable. Let us not forget when speaking of the "7", the Board actually has a role in determining the composition of some of these smaller groups. Of the remaining five one group, the ASO, has made it clear that our community is not their only or indeed preferred accountability mechanism so may be less interested in participating in individual matters than hoped, another, the GAC, has shown itself as being problematic by its nature in making decisions, while a third, ALAC, in this process in my view has often sided with the Board's positions far more than the other active groups. Unanimity or a high threshold , given these characteristics and our unfortunate reliance on spilling the Board, or members thereof, as our ultimate means of enforcement (a sad side effect of rejection of the superior membership model), would render that ultimate means virtually unusable and should be rejected. We already have accountability mechanisms that look good on paper yet fail in practice. Let's not make that mistake again. Ed Sent from my iPhone
On 28 Feb 2016, at 06:06, <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> wrote:
Makes sense. Then non-unanimity principle is not an absolute rule, but was thought for the 5 participating SO/AC scenario. Hence, it also must have a minimum level of participation requirement to make sense.
As to process, I agree with Seun.
best
Jorge
Von meinem iPhone gesendet
Am 28.02.2016 um 06:35 schrieb Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>:
Hi James,
Not that I am opposed to unanimous support requirement, but I am opposed to locking in on such requirement. Especially now that it is clear that minimum of 5 SO/AC may not always be achieved.
I hope you will agree with me that having 3 SO/AC spill the board is quite low threshold for a community of 7 SO/AC. If for instance ASO decides to pull out of ICANN completely(because they want to run their show themselves), that would make the SO/AC become 6 and it would still make a good balance if 3 spills the board.
Overall, my point is that the wording should be flexible enough and not restrict the community from making the required decision in future. What we are setting now may not be required in the next 10 to 15 years but it will be good for the community then to agree on what is workable by that time. The main point that needs to be communicated is that the threshold will be reviewed if there is an upward or downward change in the number of EC. That should be sufficient wording with which I also agree to.
Regards Sent from my LG G4 Kindly excuse brevity and typos
On 27 Feb 2016 23:28, "James Gannon" <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: Seun just to make this clear you then by extension support the concept of unanimous support requirement for the exercising of the community powers? Because I will remind you that the non unanimity principal has been core to the last 18 months of work that we have done…
Obviously Im fine with that if that’s your position but I would appreciate clarity on wether I am reading between the lines correctly?
-jg
From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Saturday 27 February 2016 at 10:16 p.m. To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear Co-Chairs,
Before I make my comment, I like to raise 2 points based on my understanding of current status:
1. If my timing is right, I believe the proposal is currently on the table of the chartering organisations hence no changes can be done on the proposal.
2. Any comment regarding any change would emerge from the formal response of the chartering organisations(not even from individual members unless endorsed by the CO).
Now to substance, I agree with changing the "may" to "shall" but such threshold review must be discussed and endorsed by the EC based on the threshold for amending fundamental bylaw or in the case where it happens before initial bylaw implementation, then it must be approved by the current chartering organisation. I am saying this just incase the intent is to enable such automatic threshold change during the bylaw drafting.
Secondly, I disagree with the follow-up explanation indicated in red (except the "shall"). For the obvious reason that anything below 4 AC/SO to exercise those critical powers would not be representative of the ICANN community with all its diversity.
Regards Sent from my LG G4 Kindly excuse brevity and typos
On 27 Feb 2016 21:04, "Drazek, Keith" <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@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@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Jorge This issue was first raised by Alan No action was followed thereto Kavouss Sent from my iPhone
On 28 Feb 2016, at 07:03, <Jorge.Cancio@bakom.admin.ch> <Jorge.Cancio@bakom.admin.ch> wrote:
Makes sense. Then non-unanimity principle is not an absolute rule, but was thought for the 5 participating SO/AC scenario. Hence, it also must have a minimum level of participation requirement to make sense.
As to process, I agree with Seun.
best
Jorge
Von meinem iPhone gesendet
Am 28.02.2016 um 06:35 schrieb Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>>:
Hi James,
Not that I am opposed to unanimous support requirement, but I am opposed to locking in on such requirement. Especially now that it is clear that minimum of 5 SO/AC may not always be achieved.
I hope you will agree with me that having 3 SO/AC spill the board is quite low threshold for a community of 7 SO/AC. If for instance ASO decides to pull out of ICANN completely(because they want to run their show themselves), that would make the SO/AC become 6 and it would still make a good balance if 3 spills the board.
Overall, my point is that the wording should be flexible enough and not restrict the community from making the required decision in future. What we are setting now may not be required in the next 10 to 15 years but it will be good for the community then to agree on what is workable by that time. The main point that needs to be communicated is that the threshold will be reviewed if there is an upward or downward change in the number of EC. That should be sufficient wording with which I also agree to.
Regards Sent from my LG G4 Kindly excuse brevity and typos
On 27 Feb 2016 23:28, "James Gannon" <james@cyberinvasion.net<mailto:james@cyberinvasion.net>> wrote: Seun just to make this clear you then by extension support the concept of unanimous support requirement for the exercising of the community powers? Because I will remind you that the non unanimity principal has been core to the last 18 months of work that we have done…
Obviously Im fine with that if that’s your position but I would appreciate clarity on wether I am reading between the lines correctly?
-jg
From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> Date: Saturday 27 February 2016 at 10:16 p.m. To: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear Co-Chairs,
Before I make my comment, I like to raise 2 points based on my understanding of current status:
1. If my timing is right, I believe the proposal is currently on the table of the chartering organisations hence no changes can be done on the proposal.
2. Any comment regarding any change would emerge from the formal response of the chartering organisations(not even from individual members unless endorsed by the CO).
Now to substance, I agree with changing the "may" to "shall" but such threshold review must be discussed and endorsed by the EC based on the threshold for amending fundamental bylaw or in the case where it happens before initial bylaw implementation, then it must be approved by the current chartering organisation. I am saying this just incase the intent is to enable such automatic threshold change during the bylaw drafting.
Secondly, I disagree with the follow-up explanation indicated in red (except the "shall"). For the obvious reason that anything below 4 AC/SO to exercise those critical powers would not be representative of the ICANN community with all its diversity.
Regards Sent from my LG G4 Kindly excuse brevity and typos
On 27 Feb 2016 21:04, "Drazek, Keith" <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@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@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1. Well said. On Feb 27, 2016, at 3:05 PM, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 as well. This seems uncontroversial to me . 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 <http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=em ail&utm_campaign=speakers-us2016> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Salaets, Ken Sent: Saturday, February 27, 2016 5:17 PM To: Drazek, Keith <kdrazek@verisign.com> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue +1. Well said. On Feb 27, 2016, at 3:05 PM, Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com> > wrote: Hi Thomas, Mathieu and Leon. I'm submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: * Reject a proposed Operating Plan/Strategic Plan/Budget; * Recall the entire Board of Directors; and * Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, "Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability." Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace "may" with "shall" and add an additional explanatory clause: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of "preventing the need for unanimous support". Taking an extreme case, what if only one SO or AC "chooses" to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than "If fewer than 5", it could be "If at least 4" Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I'm submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: * Reject a proposed Operating Plan/Strategic Plan/Budget; * Recall the entire Board of Directors; and * Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, "Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability." Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace "may" with "shall" and add an additional explanatory clause: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
Dear Bruce See my nail pls. Kavousd Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear All, It is not the responsibilty of CCWG to instruct the GAC on how it wishes to participate in the exerciose of the community power. We better leave the issue for those who are eligible and competent to decide . Regards Kavouss 2016-02-29 16:12 GMT+01:00 Mueller, Milton L <milton@gatech.edu>:
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Kavouss, I don’t think anyone is trying to tell the GAC *how* to decide. Rather, it’s a question of timing….there is a recognition that a decision needs to be made prior to the drafting of the bylaws. Regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, February 29, 2016 10:17 AM To: Mueller, Milton L Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Dear All, It is not the responsibilty of CCWG to instruct the GAC on how it wishes to participate in the exerciose of the community power. We better leave the issue for those who are eligible and competent to decide . Regards Kavouss 2016-02-29 16:12 GMT+01:00 Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>: This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Keith, We ar not drafting Bylaws on 29.02.2016. Moreover, we need to recognize the rights of the SO/AC to decide wquietly and smoothly. I do not undersatnd such a hurry. GAC will meeting in Marrakech and discuss the issue. I do not know what they decide notr I wish to speak on their behalf Pls wait and let the matter be resolved properly. Kavouss 2016-02-29 16:33 GMT+01:00 Drazek, Keith <kdrazek@verisign.com>:
Dear Kavouss,
I don’t think anyone is trying to tell the GAC **how** to decide.
Rather, it’s a question of timing….there is a recognition that a decision needs to be made prior to the drafting of the bylaws.
Regards,
Keith
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, February 29, 2016 10:17 AM *To:* Mueller, Milton L
*Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear All,
It is not the responsibilty of CCWG to instruct the GAC on how it wishes to participate in the exerciose of the community power.
We better leave the issue for those who are eligible and competent to decide .
Regards
Kavouss
2016-02-29 16:12 GMT+01:00 Mueller, Milton L <milton@gatech.edu>:
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 to both Milton and Keith ________________________________ 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/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Monday, February 29, 2016 10:33 AM To: Kavouss Arasteh; Mueller, Milton L Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Dear Kavouss, I don’t think anyone is trying to tell the GAC *how* to decide. Rather, it’s a question of timing….there is a recognition that a decision needs to be made prior to the drafting of the bylaws. Regards, Keith From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, February 29, 2016 10:17 AM To: Mueller, Milton L Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Dear All, It is not the responsibilty of CCWG to instruct the GAC on how it wishes to participate in the exerciose of the community power. We better leave the issue for those who are eligible and competent to decide . Regards Kavouss 2016-02-29 16:12 GMT+01:00 Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>: This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>
Keith is correct. The CCWG Proposal leaves this decision to the GAC. But as has been noted many times, the absence of a decision continues to complicate our discussions. 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: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: Monday, February 29, 2016 at 10:33 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>, "Mueller, Milton L" <milton@gatech.edu<mailto:milton@gatech.edu>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Dear Kavouss, I don’t think anyone is trying to tell the GAC *how* to decide. Rather, it’s a question of timing….there is a recognition that a decision needs to be made prior to the drafting of the bylaws. Regards, Keith From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Monday, February 29, 2016 10:17 AM To: Mueller, Milton L Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Dear All, It is not the responsibilty of CCWG to instruct the GAC on how it wishes to participate in the exerciose of the community power. We better leave the issue for those who are eligible and competent to decide . Regards Kavouss 2016-02-29 16:12 GMT+01:00 Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>: This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=y-dpH9KHNATaDkioJkpPMp_4eBreGGShWsyrSrZEq2U&s=GRAaIkH0WTtFuKb6b9BJNgUaeyFdCchVE28Tgna4XT0&e=>
Hi, Just for clarity, I don't think there is/"should be" any complication at all, certainly not at this stage. The CCWG proposal was based on 5 EC period. Irrespective of what GAC decides later, it's good to understand what happens when/if the number of EC increases or reduces from 5 SO/AC. The CCWG currently implies that the threshold would be reviewed when that happen but used the word "may"which I believe creates some uncertainties, I believe any other clarification on this can be done during bylaw implementation (re: reason why IMO, the discussion of shall vs will is not necessary at the moment). What is important now is the COs approving(disapproving) the report so we can move forward on next step. Regards Sent from my LG G4 Kindly excuse brevity and typos On 29 Feb 2016 18:22, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
Keith is correct. The CCWG Proposal leaves this decision to the GAC. But as has been noted many times, the absence of a decision continues to complicate our discussions.
*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: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: Monday, February 29, 2016 at 10:33 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com>, "Mueller, Milton L" < milton@gatech.edu> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear Kavouss,
I don’t think anyone is trying to tell the GAC **how** to decide.
Rather, it’s a question of timing….there is a recognition that a decision needs to be made prior to the drafting of the bylaws.
Regards,
Keith
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, February 29, 2016 10:17 AM *To:* Mueller, Milton L *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear All,
It is not the responsibilty of CCWG to instruct the GAC on how it wishes to participate in the exerciose of the community power.
We better leave the issue for those who are eligible and competent to decide .
Regards
Kavouss
2016-02-29 16:12 GMT+01:00 Mueller, Milton L <milton@gatech.edu>:
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall*be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear All, I do not understand why there is so much focus on the GAC. Let them discuss the matter and come back I also do not know how one could guzess the decision of GAC being A decisional Maker Non decisional maker Abstansion Do nothing They may have different position Pateince is a good habit Regards Kavouss 2016-02-29 18:37 GMT+01:00 Seun Ojedeji <seun.ojedeji@gmail.com>:
Hi, Just for clarity, I don't think there is/"should be" any complication at all, certainly not at this stage. The CCWG proposal was based on 5 EC period. Irrespective of what GAC decides later, it's good to understand what happens when/if the number of EC increases or reduces from 5 SO/AC.
The CCWG currently implies that the threshold would be reviewed when that happen but used the word "may"which I believe creates some uncertainties, I believe any other clarification on this can be done during bylaw implementation (re: reason why IMO, the discussion of shall vs will is not necessary at the moment). What is important now is the COs approving(disapproving) the report so we can move forward on next step.
Regards Sent from my LG G4 Kindly excuse brevity and typos On 29 Feb 2016 18:22, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
Keith is correct. The CCWG Proposal leaves this decision to the GAC. But as has been noted many times, the absence of a decision continues to complicate our discussions.
*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: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: Monday, February 29, 2016 at 10:33 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com>, "Mueller, Milton L" < milton@gatech.edu> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear Kavouss,
I don’t think anyone is trying to tell the GAC **how** to decide.
Rather, it’s a question of timing….there is a recognition that a decision needs to be made prior to the drafting of the bylaws.
Regards,
Keith
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* Monday, February 29, 2016 10:17 AM *To:* Mueller, Milton L *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear All,
It is not the responsibilty of CCWG to instruct the GAC on how it wishes to participate in the exerciose of the community power.
We better leave the issue for those who are eligible and competent to decide .
Regards
Kavouss
2016-02-29 16:12 GMT+01:00 Mueller, Milton L <milton@gatech.edu>:
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall*be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_li...>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I tend to agree with Milton on this one. Personally I think it is only when there is an increase in EC(as a result of new AC/SO) OR a decrease that happens as a result of an SO/AC completely disengaging from ICANN (ASO for instance) and in that case there won't be a coming in back to EC for such AC/SO. Regards Sent from my LG G4 Kindly excuse brevity and typos On 29 Feb 2016 16:12, "Mueller, Milton L" <milton@gatech.edu> wrote:
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
This does miss my concern, Milton: there is a difference between a decision by an SO/AC to abstain (for whatever reason – perhaps they consider that it is not an issue that they have a view on and it is for the directly impacted parties to decide) and an inability of the SO/AC to agree on how to cast its vote. Neither of these are related to opting in or out and could have a serious impact on the meaning of any voting. From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: 29 February 2016 15:12 To: Martin Boyle <Martin.Boyle@nominet.uk>; Kavouss Arasteh <kavouss.arasteh@gmail.com>; Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: RE: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now. If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16
Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing. Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
<> From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community> No virus found in this message. Checked by AVG - www.avg.com <http://www.avg.com/> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
Hi, This is not an acceptable tactic, I really don't understand what the goal of this thread is any longer as I thought this was just to clarify what happens when/if the EC is reduced/increased from the current 5. The ACs that are not participating in EC have categorically said so and such did not come from GAC. All we need to be clear on is what happens if for instance GAC (or any other SO/AC) formerly indicates it won't be participating in the EC. I will strongly recommend that we don't draw this process back with unnecessary threatening statements; no end is loose as far as this topic is concerned except the part that uses the word "may" instead of shall/will etc which I believe can be addressed during implementation since we all seem to have the understanding that "may" is not an appropriate word to use. It is my hope that the Co-Chairs will remain focused on process as per the timeline. All from me on this thread! Regards Sent from my LG G4 Kindly excuse brevity and typos On 29 Feb 2016 19:28, "Robin Gross" <robin@ipjustice.org> wrote:
Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
*Philip S. Corwin, Founding Principal* *Virtualaw LLC* *1155 F Street, NW* *Suite 1050* *Washington, DC 20004* *202-559-8597/Direct* *202-559-8750/Fax* *202-255-6172/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Monday, February 29, 2016 10:12 AM *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
------------------------------ No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Hi all In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain. We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist. Anything else would be an utter travesty at this point and undermine our process. On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers. cheers Jordan On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org> wrote:
Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
*Philip S. Corwin, Founding Principal* *Virtualaw LLC* *1155 F Street, NW* *Suite 1050* *Washington, DC 20004* *202-559-8597/Direct* *202-559-8750/Fax* *202-255-6172/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Monday, February 29, 2016 10:12 AM *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
------------------------------ No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Chief Executive *InternetNZ * +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz | www.internetnz.nz *A better world through a better Internet*
By my reading, the GAC position completely sidesteps the issue of whether they will participate as a "decisional participant" (i.e., whether they will be counted one way or the other when a decision must be made). Am I misreading this? Greg On Mon, Feb 29, 2016 at 3:04 PM, Jordan Carter <jordan@internetnz.net.nz> wrote:
Hi all
In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain.
We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist.
Anything else would be an utter travesty at this point and undermine our process.
On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers.
cheers Jordan
On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org> wrote:
Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
*Philip S. Corwin, Founding Principal* *Virtualaw LLC* *1155 F Street, NW* *Suite 1050* *Washington, DC 20004* *202-559-8597 <202-559-8597>/Direct* *202-559-8750 <202-559-8750>/Fax* *202-255-6172 <202-255-6172>/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Monday, February 29, 2016 10:12 AM *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
------------------------------ No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter
Chief Executive *InternetNZ *
+64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz | www.internetnz.nz
*A better world through a better Internet*
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Agreed. The intent (from my perspective) is to clarify expectations and ensure the CCWG and the Board are aligned on what happens to the thresholds *if* an SO or AC chooses non-participation and the number drops from 5 to 4. [This issue arose only because of our tangential discussions on the GAC carve-out threshold and the ambiguity of the word “may.”] If the Board can confirm concurrence with our long-standing expectation of a non-unanimity principle, then I’ll be comfortable the issue is addressed. I don’t see this requiring a reopening of our report if we can otherwise confirm a common understanding and ensure the bylaw drafters have instructions consistent with that view. Separately, the GAC can further clarify its intent during or after Marrakech, but at least we’ll have common understanding on the structural impact of that decision. Regards, Keith From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Monday, February 29, 2016 3:04 PM Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi all In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain. We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist. Anything else would be an utter travesty at this point and undermine our process. On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers. cheers Jordan On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing. Robin On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: +1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now. If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet
Agree, in order to respect the non-unanimity principle, the thresholds must be revised if and when one of the 5 SO/ACs decides not to participate. This is just a common sense reading of the Proposal. 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: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: Monday, February 29, 2016 at 3:52 PM To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Agreed. The intent (from my perspective) is to clarify expectations and ensure the CCWG and the Board are aligned on what happens to the thresholds *if* an SO or AC chooses non-participation and the number drops from 5 to 4. [This issue arose only because of our tangential discussions on the GAC carve-out threshold and the ambiguity of the word “may.”] If the Board can confirm concurrence with our long-standing expectation of a non-unanimity principle, then I’ll be comfortable the issue is addressed. I don’t see this requiring a reopening of our report if we can otherwise confirm a common understanding and ensure the bylaw drafters have instructions consistent with that view. Separately, the GAC can further clarify its intent during or after Marrakech, but at least we’ll have common understanding on the structural impact of that decision. Regards, Keith From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Monday, February 29, 2016 3:04 PM Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi all In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain. We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist. Anything else would be an utter travesty at this point and undermine our process. On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers. cheers Jordan On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing. Robin On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: +1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now. If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=HgsFAetdfYKQD5rALEvDt7i1306eVVFSrQoQgsgY_No&s=yA-Azu7cUNwL0DqR5OTMV8ajhw804PKdbGep_HL0Zi4&e=> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avg.com_&d=CwMGaQ&c=...> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=HgsFAetdfYKQD5rALEvDt7i1306eVVFSrQoQgsgY_No&s=yA-Azu7cUNwL0DqR5OTMV8ajhw804PKdbGep_HL0Zi4&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=HgsFAetdfYKQD5rALEvDt7i1306eVVFSrQoQgsgY_No&s=yA-Azu7cUNwL0DqR5OTMV8ajhw804PKdbGep_HL0Zi4&e=> -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.internetnz.nz&d=CwMG...> A better world through a better Internet
Agree with Keith’s clarification of intent. That’s what I assumed we meant in sending this letter. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Monday, February 29, 2016 at 3:13 PM To: Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Agree, in order to respect the non-unanimity principle, the thresholds must be revised if and when one of the 5 SO/ACs decides not to participate. This is just a common sense reading of the Proposal. 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: <Drazek>, Keith Drazek <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> Date: Monday, February 29, 2016 at 3:52 PM To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Agreed. The intent (from my perspective) is to clarify expectations and ensure the CCWG and the Board are aligned on what happens to the thresholds *if* an SO or AC chooses non-participation and the number drops from 5 to 4. [This issue arose only because of our tangential discussions on the GAC carve-out threshold and the ambiguity of the word “may.”] If the Board can confirm concurrence with our long-standing expectation of a non-unanimity principle, then I’ll be comfortable the issue is addressed. I don’t see this requiring a reopening of our report if we can otherwise confirm a common understanding and ensure the bylaw drafters have instructions consistent with that view. Separately, the GAC can further clarify its intent during or after Marrakech, but at least we’ll have common understanding on the structural impact of that decision. Regards, Keith From:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Monday, February 29, 2016 3:04 PM Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi all In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain. We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist. Anything else would be an utter travesty at this point and undermine our process. On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers. cheers Jordan On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing. Robin On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: +1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now. If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=HgsFAetdfYKQD5rALEvDt7i1306eVVFSrQoQgsgY_No&s=yA-Azu7cUNwL0DqR5OTMV8ajhw804PKdbGep_HL0Zi4&e=> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.avg.com_&d=CwMGaQ&c=...> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=HgsFAetdfYKQD5rALEvDt7i1306eVVFSrQoQgsgY_No&s=yA-Azu7cUNwL0DqR5OTMV8ajhw804PKdbGep_HL0Zi4&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=HgsFAetdfYKQD5rALEvDt7i1306eVVFSrQoQgsgY_No&s=yA-Azu7cUNwL0DqR5OTMV8ajhw804PKdbGep_HL0Zi4&e=> -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.internetnz.nz&d=CwMG...> A better world through a better Internet
Likewise. On 2/29/2016 9:28 PM, Steve DelBianco wrote:
Agree with Keith’s clarification of intent. That’s what I assumed we meant in sending this letter.
From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> Date: Monday, February 29, 2016 at 3:13 PM To: Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>>, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Cc: "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Agree, in order to respect the non-unanimity principle, the thresholds must be revised if and when one of the 5 SO/ACs decides not to participate. This is just a common sense reading of the Proposal.
*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: <Drazek>, Keith Drazek <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> Date: Monday, February 29, 2016 at 3:52 PM To: Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> Cc: Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Agreed.
The intent (from my perspective) is to clarify expectations and ensure the CCWG and the Board are aligned on what happens to the thresholds **if** an SO or AC chooses non-participation and the number drops from 5 to 4.
[This issue arose only because of our tangential discussions on the GAC carve-out threshold and the ambiguity of the word “may.”]
If the Board can confirm concurrence with our long-standing expectation of a non-unanimity principle, then I’ll be comfortable the issue is addressed.
I don’t see this requiring a reopening of our report if we can otherwise confirm a common understanding and ensure the bylaw drafters have instructions consistent with that view.
Separately, the GAC can further clarify its intent during or after Marrakech, but at least we’ll have common understanding on the structural impact of that decision.
Regards,
Keith
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Jordan Carter *Sent:* Monday, February 29, 2016 3:04 PM *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi all
In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain.
We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist.
Anything else would be an utter travesty at this point and undermine our process.
On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers.
cheers
Jordan
On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org>> wrote:
Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/cell*
**
*Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Monday, February 29, 2016 10:12 AM *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “/preventing the need for unanimous support”./
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:*accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds /must/ be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
·Reject a proposed Operating Plan/Strategic Plan/Budget;
·Recall the entire Board of Directors; and
·Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC */choosing/* to not participate, and an SO or AC being */blocked/* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC */elects/*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support */shall/*be adjusted */to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers/*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
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I've written and discarded about 6 different messages in this thread. They didn't all say the same thing. We've seen some procedural objections to the clarification, but virtually none that objected to the substance. Trying to fix the plane in midair is a dangerous maneuver. We seem to know what we mean and how this is supposed to work (as Becky says "it's common sense"), and we can fix the plane on the ground. Trying to force the GAC's hand now (which was not really part of the original post) adds further unnecessary drama (esp. since there's no way that would happen before Marrakech). The point is made. *Les jeux sont faits.* Let's make sure this gets taken care of at the earliest appropriate time, without adding friction to the consideration of the proposal by the SO/ACs. I'm confident this will work out as it should. It must and it shall. Greg On Mon, Feb 29, 2016 at 5:58 PM, Matthew Shears <mshears@cdt.org> wrote:
Likewise.
On 2/29/2016 9:28 PM, Steve DelBianco wrote:
Agree with Keith’s clarification of intent. That’s what I assumed we meant in sending this letter.
From: < <accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org> on behalf of Becky Burr <Becky.Burr@neustar.biz> Date: Monday, February 29, 2016 at 3:13 PM To: Keith Drazek < <kdrazek@verisign.com>kdrazek@verisign.com>, Jordan Carter <jordan@internetnz.net.nz> Cc: " <accountability-cross-community@icann.org> accountability-cross-community@icann.org" < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Agree, in order to respect the non-unanimity principle, the thresholds must be revised if and when one of the 5 SO/ACs decides not to participate. This is just a common sense reading of the Proposal.
*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: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: Monday, February 29, 2016 at 3:52 PM To: Jordan Carter <jordan@internetnz.net.nz> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Agreed.
The intent (from my perspective) is to clarify expectations and ensure the CCWG and the Board are aligned on what happens to the thresholds **if** an SO or AC chooses non-participation and the number drops from 5 to 4.
[This issue arose only because of our tangential discussions on the GAC carve-out threshold and the ambiguity of the word “may.”]
If the Board can confirm concurrence with our long-standing expectation of a non-unanimity principle, then I’ll be comfortable the issue is addressed.
I don’t see this requiring a reopening of our report if we can otherwise confirm a common understanding and ensure the bylaw drafters have instructions consistent with that view.
Separately, the GAC can further clarify its intent during or after Marrakech, but at least we’ll have common understanding on the structural impact of that decision.
Regards,
Keith
*From:*accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Jordan Carter *Sent:* Monday, February 29, 2016 3:04 PM *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi all
In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain.
We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist.
Anything else would be an utter travesty at this point and undermine our process.
On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers.
cheers
Jordan
On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org> wrote:
Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
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*Suite 1050*
*Washington, DC 20004*
*202-559-8597 <202-559-8597>/Direct*
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*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
*From:* <accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org [ <accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Monday, February 29, 2016 10:12 AM *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin *Cc:* <accountability-cross-community@icann.org> accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* <accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org [ <accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* <accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org [ <accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin < <Bruce.Tonkin@melbourneit.com.au> Bruce.Tonkin@melbourneit.com.au> *Cc:* <accountability-cross-community@icann.org> accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin < <Bruce.Tonkin@melbourneit.com.au> Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:* <accountability-cross-community-bounces@icann.org> accountability-cross-community-bounces@icann.org [ <accountability-cross-community-bounces@icann.org> mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* <accountability-cross-community@icann.org> accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
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CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner.
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Dear All, We should not rush to make any assumption but just wait. We are not writhing Bylaws now The current text is sufficiently cover the situation Regards Kavousd Sent from my iPhone
On 29 Feb 2016, at 23:58, Matthew Shears <mshears@cdt.org> wrote:
Likewise.
On 2/29/2016 9:28 PM, Steve DelBianco wrote: Agree with Keith’s clarification of intent. That’s what I assumed we meant in sending this letter.
From: <accountability-cross-community-bounces@icann.org> on behalf of Becky Burr <Becky.Burr@neustar.biz> Date: Monday, February 29, 2016 at 3:13 PM To: Keith Drazek <kdrazek@verisign.com>, Jordan Carter <jordan@internetnz.net.nz> Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Agree, in order to respect the non-unanimity principle, the thresholds must be revised if and when one of the 5 SO/ACs decides not to participate. This is just a common sense reading of the Proposal. 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: <Drazek>, Keith Drazek <kdrazek@verisign.com> Date: Monday, February 29, 2016 at 3:52 PM To: Jordan Carter <jordan@internetnz.net.nz> Cc: Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Agreed.
The intent (from my perspective) is to clarify expectations and ensure the CCWG and the Board are aligned on what happens to the thresholds *if* an SO or AC chooses non-participation and the number drops from 5 to 4.
[This issue arose only because of our tangential discussions on the GAC carve-out threshold and the ambiguity of the word “may.”]
If the Board can confirm concurrence with our long-standing expectation of a non-unanimity principle, then I’ll be comfortable the issue is addressed.
I don’t see this requiring a reopening of our report if we can otherwise confirm a common understanding and ensure the bylaw drafters have instructions consistent with that view.
Separately, the GAC can further clarify its intent during or after Marrakech, but at least we’ll have common understanding on the structural impact of that decision.
Regards, Keith
From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Monday, February 29, 2016 3:04 PM Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi all
In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain.
We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist.
Anything else would be an utter travesty at this point and undermine our process.
On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers.
cheers Jordan
On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
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+64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz | www.internetnz.nz
A better world through a better Internet
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CDT's Annual Dinner, Tech Prom, is April 6, 2016. Don't miss out - register at cdt.org/annual-dinner.
This email has been sent from a virus-free computer protected by Avast. www.avast.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 On 29-Feb-16 15:04, Jordan Carter wrote:
Hi all
In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain.
We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist.
Anything else would be an utter travesty at this point and undermine our process.
On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers.
cheers Jordan
On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org>> wrote:
Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com <mailto:psc@vlaw-dc.com>> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
*Philip S. Corwin, Founding Principal* *Virtualaw LLC* *1155 F Street, NW* *Suite 1050* *Washington, DC 20004* *202-559-8597/Direct* *202-559-8750/Fax* *202-255-6172/cell*** * * *Twitter: @VlawDC*
*/"Luck is the residue of design" -- Branch Rickey/*
*From:* accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Mueller, Milton L *Sent:* Monday, February 29, 2016 10:12 AM *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> *Cc:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “/preventing the need for unanimous support”./
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds /must/ be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC */choosing/* to not participate, and an SO or AC being */blocked/* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC */elects/*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support */shall/* be adjusted */to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers/*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Chief Executive *InternetNZ * * * +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> | www.internetnz.nz <http://www.internetnz.nz> / / /A better world through a better Internet/
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Jordan, It seems to me that your position is forcing the GAC to participate even though it has not decided to do so. In essence, it creates a default of participation and creates a burden on those governments not inclined to get GAC consensus on non-participation. Why is this less discriminatory to GAC autonomy than requiring them to reach a decision to participate? In addition, as a practical matter for EC decision making, considering the GAC’s difficulty in reaching decisions, in many (most?) instances one of the 5 participants would be abstaining or not taking a position. Best, Brett From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Monday, February 29, 2016 3:04 PM Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi all In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain. We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist. Anything else would be an utter travesty at this point and undermine our process. On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers. cheers Jordan On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing. Robin On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: +1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now. If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey ________________________________ 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/> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto: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 Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet
hi Brett It's not my position, so please don't characterise it as such. It is the position of the CCWG as expressed in all three versions of our report. The difficulties of decision-making you refer to have been understood and taken into account throughout our work. The thresholds for decisions were established with that reality firmly in mind. best, Jordan On 1 March 2016 at 10:39, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:
Jordan,
It seems to me that your position is forcing the GAC to participate even though it has not decided to do so.
In essence, it creates a default of participation and creates a burden on those governments not inclined to get GAC consensus on non-participation. Why is this less discriminatory to GAC autonomy than requiring them to reach a decision to participate?
In addition, as a practical matter for EC decision making, considering the GAC’s difficulty in reaching decisions, in many (most?) instances one of the 5 participants would be abstaining or not taking a position.
Best,
Brett
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Jordan Carter *Sent:* Monday, February 29, 2016 3:04 PM *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi all
In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain.
We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist.
Anything else would be an utter travesty at this point and undermine our process.
On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers.
cheers
Jordan
On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org> wrote:
Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
------------------------------ 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:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Mueller, Milton L
*Sent:* Monday, February 29, 2016 10:12 AM *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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--
Jordan Carter
Chief Executive *InternetNZ *
+64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz | 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) | Skype: jordancarter jordan@internetnz.net.nz | www.internetnz.nz *A better world through a better Internet*
Apologies, the position laid out in your e-mail. From: Jordan Carter [mailto:jordan@internetnz.net.nz] Sent: Monday, February 29, 2016 4:38 PM To: Schaefer, Brett Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue hi Brett It's not my position, so please don't characterise it as such. It is the position of the CCWG as expressed in all three versions of our report. The difficulties of decision-making you refer to have been understood and taken into account throughout our work. The thresholds for decisions were established with that reality firmly in mind. best, Jordan On 1 March 2016 at 10:39, Schaefer, Brett <Brett.Schaefer@heritage.org<mailto:Brett.Schaefer@heritage.org>> wrote: Jordan, It seems to me that your position is forcing the GAC to participate even though it has not decided to do so. In essence, it creates a default of participation and creates a burden on those governments not inclined to get GAC consensus on non-participation. Why is this less discriminatory to GAC autonomy than requiring them to reach a decision to participate? In addition, as a practical matter for EC decision making, considering the GAC’s difficulty in reaching decisions, in many (most?) instances one of the 5 participants would be abstaining or not taking a position. Best, Brett From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Jordan Carter Sent: Monday, February 29, 2016 3:04 PM Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi all In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain. We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist. Anything else would be an utter travesty at this point and undermine our process. On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers. cheers Jordan On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing. Robin On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: +1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now. If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey ________________________________ 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/> ________________________________ 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/> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto: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 Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118<tel:%2B64-4-495-2118> (office) | +64-21-442-649<tel:%2B64-21-442-649> (mob) | Skype: jordancarter jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<http://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) | Skype: jordancarter jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet
Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _undecided_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing: By my reading, the GAC position completely sidesteps the issue of whether they will participate as a "decisional participant" (i.e., whether they will be counted one way or the other when a decision must be made). Am I misreading this? No, he is not misreading it. We are waiting for the GAC to decide whether they are in or out. Jordan: no assumptions about GAC’s status can be made. --MM From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Schaefer, Brett Sent: Monday, February 29, 2016 4:39 PM To: Jordan Carter <jordan@internetnz.net.nz> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Jordan, It seems to me that your position is forcing the GAC to participate even though it has not decided to do so. In essence, it creates a default of participation and creates a burden on those governments not inclined to get GAC consensus on non-participation. Why is this less discriminatory to GAC autonomy than requiring them to reach a decision to participate? In addition, as a practical matter for EC decision making, considering the GAC’s difficulty in reaching decisions, in many (most?) instances one of the 5 participants would be abstaining or not taking a position. Best, Brett From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Monday, February 29, 2016 3:04 PM Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi all In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain. We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist. Anything else would be an utter travesty at this point and undermine our process. On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers. cheers Jordan On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing. Robin On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: +1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now. If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey ________________________________ 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/> From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet
hi Milton Sorry, wrong. The assumption has been made and it is the same as the assumption that was made in the Third, Second and First Draft Reports. GAC is going to be listed in the fundamental bylaws as a decisional participant in the Empowered Community. The only way that could change would be if GAC advised it did not wish to do so. Same with any other group. As we have clarified in the thread, if that happens, then we need to reopen the thresholds. It should not be necessary to point out that being listed as one of the five creates no obligation on any of the five decisional participants to do, or not do, anything. They retain the absolute ability to participate or not in any decision of the empowered community. best, Jordan On 1 March 2016 at 13:16, Mueller, Milton L <milton@gatech.edu> wrote:
Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _*undecided*_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing:
By my reading, the GAC position completely sidesteps the issue of whether they will participate as a "decisional participant" (i.e., whether they will be counted one way or the other when a decision must be made). Am I misreading this?
No, he is not misreading it.
We are waiting for the GAC to decide whether they are in or out.
Jordan: no assumptions about GAC’s status can be made.
--MM
*From:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Schaefer, Brett *Sent:* Monday, February 29, 2016 4:39 PM *To:* Jordan Carter <jordan@internetnz.net.nz>
*Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Jordan,
It seems to me that your position is forcing the GAC to participate even though it has not decided to do so.
In essence, it creates a default of participation and creates a burden on those governments not inclined to get GAC consensus on non-participation. Why is this less discriminatory to GAC autonomy than requiring them to reach a decision to participate?
In addition, as a practical matter for EC decision making, considering the GAC’s difficulty in reaching decisions, in many (most?) instances one of the 5 participants would be abstaining or not taking a position.
Best,
Brett
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Jordan Carter *Sent:* Monday, February 29, 2016 3:04 PM *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi all
In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain.
We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist.
Anything else would be an utter travesty at this point and undermine our process.
On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers.
cheers
Jordan
On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org> wrote:
Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
*Philip S. Corwin, Founding Principal*
*Virtualaw LLC*
*1155 F Street, NW*
*Suite 1050*
*Washington, DC 20004*
*202-559-8597/Direct*
*202-559-8750/Fax*
*202-255-6172/cell*
*Twitter: @VlawDC*
*"Luck is the residue of design" -- Branch Rickey*
------------------------------
*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:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Mueller, Milton L *Sent:* Monday, February 29, 2016 10:12 AM *To:* Martin Boyle; Kavouss Arasteh; Bruce Tonkin *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Martin Boyle *Sent:* Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Kavouss Arasteh *Sent:* 28 February 2016 17:32 *To:* Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce
Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity
Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
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Jordan Carter
Chief Executive *InternetNZ *
+64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz | 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) | Skype: jordancarter jordan@internetnz.net.nz | www.internetnz.nz *A better world through a better Internet*
From: Jordan Carter [mailto:jordan@internetnz.net.nz] Sorry, wrong. The assumption has been made and it is the same as the assumption that was made in the Third, Second and First Draft Reports. GAC is going to be listed in the fundamental bylaws as a decisional participant in the Empowered Community. Huh? See below The only way that could change would be if GAC advised it did not wish to do so. Same with any other group. Which they haven’t done yet. Ergo, my statement below was correct. On 1 March 2016 at 13:16, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _undecided_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing:
Dear All, Yo are too worried about something that we still do not know how it happens The text approriate and clearly mention that if the No of Decision Making SO and AC changed the threshold should be adjusted That is more than sufficient. People need to refrain concentrating/ focussing on a particular AC nor envisage all possible senarios. We are not wtritting Bylaws at this stage . There is ample time and competent individuals to look at the matter once happened. Let us discontinue this counterproductive discussion Regards Kavouss 2016-03-01 16:32 GMT+01:00 Mueller, Milton L <milton@gatech.edu>:
*From:* Jordan Carter [mailto:jordan@internetnz.net.nz]
Sorry, wrong. The assumption has been made and it is the same as the assumption that was made in the Third, Second and First Draft Reports. GAC is going to be listed in the fundamental bylaws as a decisional participant in the Empowered Community.
Huh? See below
The only way that could change would be if GAC advised it did not wish to do so. Same with any other group.
Which they haven’t done yet. Ergo, my statement below was correct.
On 1 March 2016 at 13:16, Mueller, Milton L <milton@gatech.edu> wrote:
Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _*undecided*_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing:
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Kavouss, I am mildly surprised that you, as someone who has been very protective of the right of the GAC to make its own decisions, is not upset with the determination by the CCWG to make GAC a decisional participant by default before it has actually made this decision for itself. Best, Brett From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Tuesday, March 01, 2016 11:28 AM To: Mathieu Weill; Thomas Rickert; León Felipe Sánchez Ambía Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Dear All, Yo are too worried about something that we still do not know how it happens The text approriate and clearly mention that if the No of Decision Making SO and AC changed the threshold should be adjusted That is more than sufficient. People need to refrain concentrating/ focussing on a particular AC nor envisage all possible senarios. We are not wtritting Bylaws at this stage . There is ample time and competent individuals to look at the matter once happened. Let us discontinue this counterproductive discussion Regards Kavouss 2016-03-01 16:32 GMT+01:00 Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>: From: Jordan Carter [mailto:jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>] Sorry, wrong. The assumption has been made and it is the same as the assumption that was made in the Third, Second and First Draft Reports. GAC is going to be listed in the fundamental bylaws as a decisional participant in the Empowered Community. Huh? See below The only way that could change would be if GAC advised it did not wish to do so. Same with any other group. Which they haven’t done yet. Ergo, my statement below was correct. On 1 March 2016 at 13:16, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _undecided_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing: ________________________________ 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/> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>
Hi, I thought doing it this way was one of the earlier compromises in this extended end game. avri On 01-Mar-16 11:37, Schaefer, Brett wrote:
Kavouss,
I am mildly surprised that you, as someone who has been very protective of the right of the GAC to make its own decisions, is not upset with the determination by the CCWG to make GAC a decisional participant by default before it has actually made this decision for itself.
Best,
Brett
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Tuesday, March 01, 2016 11:28 AM *To:* Mathieu Weill; Thomas Rickert; León Felipe Sánchez Ambía *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear All,
Yo are too worried about something that we still do not know how it happens
The text approriate and clearly mention that if the No of Decision Making SO and AC changed the threshold should be adjusted
That is more than sufficient.
People need to refrain concentrating/ focussing on a particular AC nor envisage all possible senarios.
We are not wtritting Bylaws at this stage .
There is ample time and competent individuals to look at the matter once happened.
Let us discontinue this counterproductive discussion
Regards
Kavouss
2016-03-01 16:32 GMT+01:00 Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>>:
*From:*Jordan Carter [mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>]
Sorry, wrong. The assumption has been made and it is the same as the assumption that was made in the Third, Second and First Draft Reports. GAC is going to be listed in the fundamental bylaws as a decisional participant in the Empowered Community.
Huh? See below
The only way that could change would be if GAC advised it did not wish to do so. Same with any other group.
Which they haven’t done yet. Ergo, my statement below was correct.
On 1 March 2016 at 13:16, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _/undecided/_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing:
------------------------------------------------------------------------ BrettSchaefer 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/>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Avri, I have been paying attention to the overall discussion, but I have paid particularly close attention to this issue. After multiple, lengthy discussions, I thought that we had agreed that it was up to the GAC to decide to be in or out. I thought that THAT was the compromise, not that the GAC was in by default, but could choose to be out. If this had been made clear, I would have been very vocal in opposing it. The text on this issue in the final CCWG-Accountability report is ambiguous: 99. Implementation of the Empowered Community currently anticipates that all of ICANN’s SOs, the ALAC and GAC (if the GAC chooses to participate) would participate in the Empowered Community – that is, they will be listed in the Bylaws as the five Decisional Participants. I read that as GAC participation was dependent on an affirmative GAC decision to participate. Most apparently disagree with this interpretation. I know that most of the CCWG-Accountability is ready to move on, but I hope the implications – that the practical ability of the EC to actually exercise its powers will be much harder with a habitually indecisive GAC as a participant – are widely understood. 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/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Tuesday, March 01, 2016 12:23 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi, I thought doing it this way was one of the earlier compromises in this extended end game. avri On 01-Mar-16 11:37, Schaefer, Brett wrote:
Kavouss,
I am mildly surprised that you, as someone who has been very protective of the right of the GAC to make its own decisions, is not upset with the determination by the CCWG to make GAC a decisional participant by default before it has actually made this decision for itself.
Best,
Brett
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Tuesday, March 01, 2016 11:28 AM *To:* Mathieu Weill; Thomas Rickert; León Felipe Sánchez Ambía *Cc:* accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear All,
Yo are too worried about something that we still do not know how it happens
The text approriate and clearly mention that if the No of Decision Making SO and AC changed the threshold should be adjusted
That is more than sufficient.
People need to refrain concentrating/ focussing on a particular AC nor envisage all possible senarios.
We are not wtritting Bylaws at this stage .
There is ample time and competent individuals to look at the matter once happened.
Let us discontinue this counterproductive discussion
Regards
Kavouss
2016-03-01 16:32 GMT+01:00 Mueller, Milton L <milton@gatech.edu
<mailto:milton@gatech.edu%0b>> <mailto:milton@gatech.edu>>:
*From:*Jordan Carter [mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz><mailto:jordan@internetnz.net.nz%0b%3e%20%3cmailto:jordan@internetnz.net.nz%3e>]
Sorry, wrong. The assumption has been made and it is the same as the assumption that was made in the Third, Second and First Draft Reports. GAC is going to be listed in the fundamental bylaws as a decisional participant in the Empowered Community.
Huh? See below
The only way that could change would be if GAC advised it did not wish to do so. Same with any other group.
Which they haven’t done yet. Ergo, my statement below was correct.
On 1 March 2016 at 13:16, Mueller, Milton L <milton@gatech.edu
<mailto:milton@gatech.edu%0b>> <mailto:milton@gatech.edu>> wrote:
Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _/undecided/_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing:
------------------------------------------------------------------------ BrettSchaefer 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/>
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Dear Brett I am protective of all So7AC. You misunderstood me totally. Everybody wants to decide on whether or not GAC participate in decision making I simply said we do not know yet. Leave it to them to decide and be patient. It is not the time to talk whether we would have 5 or 4 SO/AC. Please then kindly do not put any words in my mouth. Tks being so kind and read the text as it was. Regards Kavouss 2016-03-01 19:48 GMT+01:00 Schaefer, Brett <Brett.Schaefer@heritage.org>:
Avri,
I have been paying attention to the overall discussion, but I have paid particularly close attention to this issue. After multiple, lengthy discussions, I thought that we had agreed that it was up to the GAC to decide to be in or out.
I thought that THAT was the compromise, not that the GAC was in by default, but could choose to be out. If this had been made clear, I would have been very vocal in opposing it. The text on this issue in the final CCWG-Accountability report is ambiguous:
99. Implementation of the Empowered Community currently anticipates that all of ICANN’s SOs, the ALAC and GAC (if the GAC chooses to participate) would participate in the Empowered Community – that is, they will be listed in the Bylaws as the five Decisional Participants.
I read that as GAC participation was dependent on an affirmative GAC decision to participate. Most apparently disagree with this interpretation.
I know that most of the CCWG-Accountability is ready to move on, but I hope the implications – that the practical ability of the EC to actually exercise its powers will be much harder with a habitually indecisive GAC as a participant – are widely understood.
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:* accountability-cross-community-bounces@icann.org [mailto: accountability-cross-community-bounces@icann.org] *On Behalf Of *Avri Doria *Sent:* Tuesday, March 01, 2016 12:23 PM *To:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi,
I thought doing it this way was one of the earlier compromises in this extended end game.
avri
On 01-Mar-16 11:37, Schaefer, Brett wrote:
Kavouss,
I am mildly surprised that you, as someone who has been very protective of the right of the GAC to make its own decisions, is not upset with the determination by the CCWG to make GAC a decisional participant by default before it has actually made this decision for itself.
Best,
Brett
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org
<accountability-cross-community-bounces@icann.org>] *On Behalf
Of *Kavouss Arasteh *Sent:* Tuesday, March 01, 2016 11:28 AM *To:* Mathieu Weill; Thomas Rickert; León Felipe Sánchez Ambía *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear All,
Yo are too worried about something that we still do not know how it happens
The text approriate and clearly mention that if the No of Decision Making SO and AC changed the threshold should be adjusted
That is more than sufficient.
People need to refrain concentrating/ focussing on a particular AC nor envisage all possible senarios.
We are not wtritting Bylaws at this stage .
There is ample time and competent individuals to look at the matter once happened.
Let us discontinue this counterproductive discussion
Regards
Kavouss
2016-03-01 16:32 GMT+01:00 Mueller, Milton L <milton@gatech.edu <milton@gatech.edu%0b>> <mailto:milton@gatech.edu <milton@gatech.edu>>>:
*From:*Jordan Carter [mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <jordan@internetnz.net.nz%0b%3e%20%3cmailto:jordan@internetnz.net.nz%3e>]
Sorry, wrong. The assumption has been made and it is the same as the assumption that was made in the Third, Second and First Draft Reports. GAC is going to be listed in the fundamental bylaws as a decisional participant in the Empowered Community.
Huh? See below
The only way that could change would be if GAC advised it did not wish to do so. Same with any other group.
Which they haven’t done yet. Ergo, my statement below was correct.
On 1 March 2016 at 13:16, Mueller, Milton L <milton@gatech.edu <milton@gatech.edu%0b>> <mailto:milton@gatech.edu <milton@gatech.edu>>> wrote:
Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _/undecided/_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing:
------------------------------------------------------------------------ BrettSchaefer 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/>
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org <Accountability-Cross-Community@icann.org>> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear All Once again, pls do not prejudge the GAC outcome Regards Kavousd Sent from my iPhone
On 1 Mar 2016, at 18:48, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:
Avri,
I have been paying attention to the overall discussion, but I have paid particularly close attention to this issue. After multiple, lengthy discussions, I thought that we had agreed that it was up to the GAC to decide to be in or out.
I thought that THAT was the compromise, not that the GAC was in by default, but could choose to be out. If this had been made clear, I would have been very vocal in opposing it. The text on this issue in the final CCWG-Accountability report is ambiguous:
99. Implementation of the Empowered Community currently anticipates that all of ICANN’s SOs, the ALAC and GAC (if the GAC chooses to participate) would participate in the Empowered Community – that is, they will be listed in the Bylaws as the five Decisional Participants.
I read that as GAC participation was dependent on an affirmative GAC decision to participate. Most apparently disagree with this interpretation.
I know that most of the CCWG-Accountability is ready to move on, but I hope the implications – that the practical ability of the EC to actually exercise its powers will be much harder with a habitually indecisive GAC as a participant – are widely understood.
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: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Avri Doria Sent: Tuesday, March 01, 2016 12:23 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi,
I thought doing it this way was one of the earlier compromises in this extended end game.
avri
On 01-Mar-16 11:37, Schaefer, Brett wrote:
Kavouss,
I am mildly surprised that you, as someone who has been very protective of the right of the GAC to make its own decisions, is not upset with the determination by the CCWG to make GAC a decisional participant by default before it has actually made this decision for itself.
Best,
Brett
*From:*accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] *On Behalf Of *Kavouss Arasteh *Sent:* Tuesday, March 01, 2016 11:28 AM *To:* Mathieu Weill; Thomas Rickert; León Felipe Sánchez Ambía *Cc:* accountability-cross-community@icann.org *Subject:* Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear All,
Yo are too worried about something that we still do not know how it happens
The text approriate and clearly mention that if the No of Decision Making SO and AC changed the threshold should be adjusted
That is more than sufficient.
People need to refrain concentrating/ focussing on a particular AC nor envisage all possible senarios.
We are not wtritting Bylaws at this stage .
There is ample time and competent individuals to look at the matter once happened.
Let us discontinue this counterproductive discussion
Regards
Kavouss
2016-03-01 16:32 GMT+01:00 Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>>:
*From:*Jordan Carter [mailto:jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>]
Sorry, wrong. The assumption has been made and it is the same as the assumption that was made in the Third, Second and First Draft Reports. GAC is going to be listed in the fundamental bylaws as a decisional participant in the Empowered Community.
Huh? See below
The only way that could change would be if GAC advised it did not wish to do so. Same with any other group.
Which they haven’t done yet. Ergo, my statement below was correct.
On 1 March 2016 at 13:16, Mueller, Milton L <milton@gatech.edu <mailto:milton@gatech.edu>> wrote:
Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _/undecided/_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing:
------------------------------------------------------------------------ BrettSchaefer 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/>
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Dear Brett Once again I have not made any proposal at all GAC participation is well addressed in the proposal . Pls kindly do not misinterpret me and pls do not advocate something that you want to say on my behalf I have no comments to the CCWG AS CURRENTLY WRITTEN. I hope this clarified the natter twice Regards Kavouss . Sent from my iPhone
On 1 Mar 2016, at 17:37, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:
Kavouss,
I am mildly surprised that you, as someone who has been very protective of the right of the GAC to make its own decisions, is not upset with the determination by the CCWG to make GAC a decisional participant by default before it has actually made this decision for itself.
Best,
Brett
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: Tuesday, March 01, 2016 11:28 AM To: Mathieu Weill; Thomas Rickert; León Felipe Sánchez Ambía Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear All, Yo are too worried about something that we still do not know how it happens The text approriate and clearly mention that if the No of Decision Making SO and AC changed the threshold should be adjusted That is more than sufficient. People need to refrain concentrating/ focussing on a particular AC nor envisage all possible senarios. We are not wtritting Bylaws at this stage . There is ample time and competent individuals to look at the matter once happened. Let us discontinue this counterproductive discussion Regards Kavouss
2016-03-01 16:32 GMT+01:00 Mueller, Milton L <milton@gatech.edu>:
From: Jordan Carter [mailto:jordan@internetnz.net.nz]
Sorry, wrong. The assumption has been made and it is the same as the assumption that was made in the Third, Second and First Draft Reports. GAC is going to be listed in the fundamental bylaws as a decisional participant in the Empowered Community.
Huh? See below
The only way that could change would be if GAC advised it did not wish to do so. Same with any other group.
Which they haven’t done yet. Ergo, my statement below was correct.
On 1 March 2016 at 13:16, Mueller, Milton L <milton@gatech.edu> wrote: Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _undecided_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing:
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 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Milton You made a prejudgement Pls wait and kindly do nit rush Kavousd Sent from my iPhone
On 1 Mar 2016, at 01:16, Mueller, Milton L <milton@gatech.edu> wrote:
Whether one agrees with Brett or not, the fact remains that GAC has explicitly told us that it is _undecided_ on whether to be a decisional participant or not. Therefore, until we get a positive decision from them, we cannot assume that they will be by default. Greg S. was saying essentially the same thing:
By my reading, the GAC position completely sidesteps the issue of whether they will participate as a "decisional participant" (i.e., whether they will be counted one way or the other when a decision must be made). Am I misreading this?
No, he is not misreading it. We are waiting for the GAC to decide whether they are in or out. Jordan: no assumptions about GAC’s status can be made.
--MM
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Schaefer, Brett Sent: Monday, February 29, 2016 4:39 PM To: Jordan Carter <jordan@internetnz.net.nz> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Jordan,
It seems to me that your position is forcing the GAC to participate even though it has not decided to do so.
In essence, it creates a default of participation and creates a burden on those governments not inclined to get GAC consensus on non-participation. Why is this less discriminatory to GAC autonomy than requiring them to reach a decision to participate?
In addition, as a practical matter for EC decision making, considering the GAC’s difficulty in reaching decisions, in many (most?) instances one of the 5 participants would be abstaining or not taking a position.
Best,
Brett
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Jordan Carter Sent: Monday, February 29, 2016 3:04 PM Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi all
In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain.
We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist.
Anything else would be an utter travesty at this point and undermine our process.
On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers.
cheers Jordan
On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
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: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Chief Executive InternetNZ
+64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz | www.internetnz.nz
A better world through a better Internet
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Agreed! And on your last point I agree with Bruce and others that there has be a (minimum) threshold , to ensure that a decision is taken by a large enough part of the community Best, Roelof From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> Date: maandag 29 februari 2016 21:04 Cc: "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi all In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain. We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist. Anything else would be an utter travesty at this point and undermine our process. On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers. cheers Jordan On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing. Robin On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: +1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now. If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com/> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community -- Jordan Carter Chief Executive InternetNZ +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> | www.internetnz.nz<http://www.internetnz.nz> A better world through a better Internet
Dear All I almost agree with what Jordan Said except the last part " no unanimity is required" Yes in our last call and as it appears now , under the GAC Carve-out to recall the entire Board when IRP is not available we need 4 SO/AC As GAC IS EXCEEDED Regards Kavouss Sent from my iPhone
On 2 Mar 2016, at 11:09, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:
Agreed! And on your last point I agree with Bruce and others that there has be a (minimum) threshold , to ensure that a decision is taken by a large enough part of the community
Best,
Roelof
From: <accountability-cross-community-bounces@icann.org> on behalf of Jordan Carter <jordan@internetnz.net.nz> Date: maandag 29 februari 2016 21:04 Cc: "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi all
In three versions of the proposal from this group the GAC has been a decisional participant. I firmly agree with what Thomas said, that is what our proposal says and that is how it has to remain.
We haven't demanded any SO/AC has to say they are in. We have just said that we take them out if they insist.
Anything else would be an utter travesty at this point and undermine our process.
On the point raised by the letter that started this thread, I only re-state my view that IF the list of decisional participants changed, THEN the thresholds would have to change, BECAUSE we cannot have a situation where formal total unanimity is required to exercise community powers.
cheers Jordan
On 1 March 2016 at 07:27, Robin Gross <robin@ipjustice.org> wrote: Unless the GAC can reach a consensus and decide to be “in" the EC, it would have to be considered “out” of the EC. If GAC can’t decide to accept this new role and its responsibility, we have no place on insisting that it does accept this change in its role and responsibility. We can’t leave loose ends like this in our report without expecting disastrous results - we must have certainty about what we are proposing.
Robin
On Feb 29, 2016, at 10:07 AM, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
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A better world through a better Internet
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+1 It's hard to explain our proposal to the general public when we can't even tell them who the decisional parties will be or can honestly tell them the role of governments going forward. Ed Sent from my iPhone
On 29 Feb 2016, at 12:10, Phil Corwin <psc@vlaw-dc.com> wrote:
+1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now.
If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis.
My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice.
If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out.
--MM
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM
Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong.
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss
Sent from my iPhone
On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I will add that this proposal does not impose any decision on the GAC. It is merely trying to deal with the uncertainty created by the GAC’s indecision. If the GAC decides to participate, then this proposal has no effect (we know, barring some great surprise, whether the other SOACs intend to participate or not). The only thing this proposal does is make clear that, if the GAC decides not to participate, the thresholds must be adjusted to prevent a unanimous support among the decisional participants to exercise the 7 powers, which has been the working assumption all along but remains unclear due to the use of “may”. As to Kavouss’ argument about “shall” versus “must”, if it makes him feel better, I am fine with using “must”, although I fail to see why “shall” poses an issue. ________________________________ 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/> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Edward Morris Sent: Monday, February 29, 2016 1:28 PM To: Phil Corwin Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue +1 It's hard to explain our proposal to the general public when we can't even tell them who the decisional parties will be or can honestly tell them the role of governments going forward. Ed Sent from my iPhone On 29 Feb 2016, at 12:10, Phil Corwin <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>> wrote: +1. The GAC needs to decide whether they want to be in or out of the EC, and the decision time is now. If the GAC can’t reach a consensus on something that basic then trying to use the accountability measures with them in the EC will be like trying to drive a car with the parking brake engaged. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Mueller, Milton L Sent: Monday, February 29, 2016 10:12 AM To: Martin Boyle; Kavouss Arasteh; Bruce Tonkin Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue This discussion is an example of the absurdity of making participation in the empowered community (EC) optional. You were all warned about this months ago. The boundaries of the EC need to be fixed and completely unambiguous. You must be either in or out. There should be no “oh, today I think I am part of it but tomorrow I may not be.” It should not be determined on a case-by-case basis. My understanding is that all 3 SOs are part of the empowered community, as is ALAC. My understanding is that GAC has not decided whether it is in or out. But once it does decide, it should be in or out, full stop, for all cases except the narrow carve out related to GAC advice. If the individual entities who are in the EC (ACs and SOs) do not support a vote to spill the board, reject an IANA review decision, etc. they are voting against it, full stop. They are not “unable to cast a vote.” So a lower threshold never means that there is a chance that one SO or AC can make the decision. The threshold only changes based on whether GAC is in or out. --MM From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Martin Boyle Sent: Sunday, February 28, 2016 3:09 PM Kavouss makes a good point: if views are so divided in the SO/ACs that many are not able to cast a vote, there is an indication that something is wrong. From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Kavouss Arasteh Sent: 28 February 2016 17:32 To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Bruce Accruing to some established rule ,out if seven SO/AC, the minimum would be simple majority ( 4) bellow that the process does have no longer any legal validity Ksvouss Sent from my iPhone On 28 Feb 2016, at 00:02, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> ________________________________ No virus found in this message. Checked by AVG - www.avg.com<http://www.avg.com> Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>
Is this at all realistic. We have commitments from the 3 SOs and ALAC has fought tooth and nail to be included. The idea that there will be fewer than 4 decisional participants in the EC is . well, much less likely than the Board's adoption of GAC advice :) P 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 <http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=em ail&utm_campaign=speakers-us2016> From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Saturday, February 27, 2016 6:03 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of "preventing the need for unanimous support". Taking an extreme case, what if only one SO or AC "chooses" to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than "If fewer than 5", it could be "If at least 4" Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I'm submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: * Reject a proposed Operating Plan/Strategic Plan/Budget; * Recall the entire Board of Directors; and * Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, "Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability." Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace "may" with "shall" and add an additional explanatory clause: "The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN's SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs." Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
Hi Bruce, Thanks for your reply. I agree fully there needs to be a minimum. Speaking personally, I think 4 SO/ACs should be the minimum level of participation, with 3 of those 4 in support/not objecting required to use the powers. I hope we can all confirm a common understanding so the bylaw drafters will have clear and unambiguous direction. Regards, Keith On Feb 27, 2016, at 6:03 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Bruce and Keith + 1. 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 <mailto:ceo@auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> auDA – Australia’s Domain Name Administrator Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.
On 29 Feb 2016, at 12:02 , Drazek, Keith <kdrazek@verisign.com> wrote:
Hi Bruce,
Thanks for your reply.
I agree fully there needs to be a minimum. Speaking personally, I think 4 SO/ACs should be the minimum level of participation, with 3 of those 4 in support/not objecting required to use the powers.
I hope we can all confirm a common understanding so the bylaw drafters will have clear and unambiguous direction.
Regards, Keith
On Feb 27, 2016, at 6:03 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
<> From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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 Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
hi all I think this does need to be clear, and the approach set out is what I think our proposal is meant to convey. best, Jordan On 29 February 2016 at 14:12, Chris Disspain <chris@disspain.id.au> wrote:
Bruce and Keith + 1.
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
*Important Notice* *- *This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.
On 29 Feb 2016, at 12:02 , Drazek, Keith <kdrazek@verisign.com> wrote:
Hi Bruce,
Thanks for your reply.
I agree fully there needs to be a minimum. Speaking personally, I think 4 SO/ACs should be the minimum level of participation, with 3 of those 4 in support/not objecting required to use the powers.
I hope we can all confirm a common understanding so the bylaw drafters will have clear and unambiguous direction.
Regards, Keith
On Feb 27, 2016, at 6:03 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter Chief Executive *InternetNZ * +64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz | www.internetnz.nz *A better world through a better Internet*
Dear All, The hyperlink which provide some information on the use of " shall" "shallnot" and so on provided by Network Working Group *is for comments see below and dated 20 years ago.* *"Network Working Group S. BradnerRequest for Comments: 2119 Harvard UniversityBCP: 14 March 1997Category: Best Current Practice* *S. BradnerRequest for Comments: 2119" Harvard UniversityBCP: 14 March 1997* My comment is that we have to look at the matter within the context of the phrase and within an example claimed to be best practice I strongly believe that if we want to change the text we need to discuss it at our forthcoming physical meeting on 04 March At that mmeting we have to agree the use of " should" or " would" instead of "may" AND CERTAINLY NOT SHALL Moreover we need to clearly mentioned the minimum number of SO/AC in order that exercising the community power has some legal validity. That minimum seems to be 4 ( simple majority) of 7 SO/AC¨ Regards Kavouss 2016-02-29 4:48 GMT+01:00 Jordan Carter <jordan@internetnz.net.nz>:
hi all
I think this does need to be clear, and the approach set out is what I think our proposal is meant to convey.
best, Jordan
On 29 February 2016 at 14:12, Chris Disspain <chris@disspain.id.au> wrote:
Bruce and Keith + 1.
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
*Important Notice* *- *This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.
On 29 Feb 2016, at 12:02 , Drazek, Keith <kdrazek@verisign.com> wrote:
Hi Bruce,
Thanks for your reply.
I agree fully there needs to be a minimum. Speaking personally, I think 4 SO/ACs should be the minimum level of participation, with 3 of those 4 in support/not objecting required to use the powers.
I hope we can all confirm a common understanding so the bylaw drafters will have clear and unambiguous direction.
Regards, Keith
On Feb 27, 2016, at 6:03 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
-- Jordan Carter
Chief Executive *InternetNZ *
+64-4-495-2118 (office) | +64-21-442-649 (mob) | Skype: jordancarter jordan@internetnz.net.nz | www.internetnz.nz
*A better world through a better Internet*
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Kavouss, Even though being called Request For Comments, they are actually the binding structure of Internet Protocols that allows the Internet to be what it is today. Nevertheless, it was at some point (years after its initial publishing) recognised as a Best Current Practice and keeps this status to this date, and become referenced in almost all newer protocol specifications, so this document survived the scrutiny of times. Rubens .;
On Feb 29, 2016, at 4:42 AM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear All, The hyperlink which provide some information on the use of " shall" "shallnot" and so on provided by Network Working Group is for comments see below and dated 20 years ago.
"Network Working Group S. Bradner Request for Comments: 2119 Harvard University BCP: 14 March 1997 Category: Best Current Practice S. Bradner Request for Comments: 2119" Harvard University BCP: 14 March 1997
My comment is that we have to look at the matter within the context of the phrase and within an example claimed to be best practice I strongly believe that if we want to change the text we need to discuss it at our forthcoming physical meeting on 04 March At that mmeting we have to agree the use of " should" or " would" instead of "may" AND CERTAINLY NOT SHALL Moreover we need to clearly mentioned the minimum number of SO/AC in order that exercising the community power has some legal validity. That minimum seems to be 4 ( simple majority) of 7 SO/AC¨ Regards Kavouss
2016-02-29 4:48 GMT+01:00 Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>>: hi all
I think this does need to be clear, and the approach set out is what I think our proposal is meant to convey.
best, Jordan
On 29 February 2016 at 14:12, Chris Disspain <chris@disspain.id.au <mailto:chris@disspain.id.au>> wrote: Bruce and Keith + 1.
Cheers,
Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 <tel:%2B61%203%208341%204111> | F: +61 3 8341 4112 <tel:%2B61%203%208341%204112> E: ceo@auda.org.au <mailto:ceo@auda.org.au> | W: www.auda.org.au <http://www.auda.org.au/> auDA – Australia’s Domain Name Administrator
Important Notice - This email may contain information which is confidential and/or subject to legal privilege, and is intended for the use of the named addressee only. If you are not the intended recipient, you must not use, disclose or copy any part of this email. If you have received this email by mistake, please notify the sender and delete this message immediately. Please consider the environment before printing this email.
On 29 Feb 2016, at 12:02 , Drazek, Keith <kdrazek@verisign.com <mailto:kdrazek@verisign.com>> wrote:
Hi Bruce,
Thanks for your reply.
I agree fully there needs to be a minimum. Speaking personally, I think 4 SO/ACs should be the minimum level of participation, with 3 of those 4 in support/not objecting required to use the powers.
I hope we can all confirm a common understanding so the bylaw drafters will have clear and unambiguous direction.
Regards, Keith
On Feb 27, 2016, at 6:03 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”.
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards, Bruce Tonkin
<> From: accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
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A better world through a better Internet
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In this case one support and two deeply divided would trounce one opposition even if there is no actual majority of SO/AC? As I noted yesterday, there is a fundamental difference between no opposition because we don't see the issue causing that led to the process as one that impacts us, so we don't want to support or prevent its resolution and no opposition because the SO/AC is too divided to agree a position. I think that would worry me! Martin Martin Boyle Senior Policy Advisor Sent from my iPhone [cid:image001.jpg@01D0FCF7.DEE0F1F0] nominet.uk<http://nominet.uk/> DD: +44 (0)1865 332251<tel:+44%20(0)1865%20332251> Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom On 29 Feb 2016, at 01:06, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Hi Bruce, Thanks for your reply. I agree fully there needs to be a minimum. Speaking personally, I think 4 SO/ACs should be the minimum level of participation, with 3 of those 4 in support/not objecting required to use the powers. I hope we can all confirm a common understanding so the bylaw drafters will have clear and unambiguous direction. Regards, Keith On Feb 27, 2016, at 6:03 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello Keith, I assume there also needs to be some lower limit of participants that applies to the concept of “preventing the need for unanimous support”. Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default. How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community. So rather than “If fewer than 5”, it could be “If at least 4” Regards, Bruce Tonkin From: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Drazek, Keith Sent: Sunday, 28 February 2016 7:04 AM To: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: [CCWG-ACCT] Request for Clarification on Threshold Issue Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Martin, I have been dealing with the issue of "shall", should, would could might may for forthy years I belive that " may "deals with the prevailing circumostances that we do not know yet However, I coud agree to replace " may" by "should " at the extreme case. In addition we need to clearly indicate the minimum no. of SO/AC below which the entire process is legally invalid Kavouss 2016-02-29 10:14 GMT+01:00 Martin Boyle <Martin.Boyle@nominet.uk>:
In this case one support and two deeply divided would trounce one opposition even if there is no actual majority of SO/AC?
As I noted yesterday, there is a fundamental difference between no opposition because we don't see the issue causing that led to the process as one that impacts us, so we don't want to support or prevent its resolution and no opposition because the SO/AC is too divided to agree a position.
I think that would worry me!
Martin
Martin Boyle
Senior Policy Advisor
Sent from my iPhone
[image: cid:image001.jpg@01D0FCF7.DEE0F1F0]
*nominet.uk* <http://nominet.uk/> DD: +44 (0)1865 332251 <+44%20(0)1865%20332251>
Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
On 29 Feb 2016, at 01:06, Drazek, Keith <kdrazek@verisign.com> wrote:
Hi Bruce,
Thanks for your reply.
I agree fully there needs to be a minimum. Speaking personally, I think 4 SO/ACs should be the minimum level of participation, with 3 of those 4 in support/not objecting required to use the powers.
I hope we can all confirm a common understanding so the bylaw drafters will have clear and unambiguous direction.
Regards, Keith
On Feb 27, 2016, at 6:03 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:
Hello Keith,
I assume there also needs to be some lower limit of participants that applies to the concept of “*preventing the need for unanimous support”.*
Taking an extreme case, what if only one SO or AC “chooses” to be part of the decisional process? Every decision taken would be unanimous by default.
How many participants of the 7 SOs and ACs makes a viable Empowered Community? Should it be 2, 3, or 4. I hope we get at least 4 out of 7 for it to genuinely represent a significant portion of the community.
So rather than “If fewer than 5”, it could be “If at least 4”
Regards,
Bruce Tonkin
*From:* accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] *On Behalf Of *Drazek, Keith *Sent:* Sunday, 28 February 2016 7:04 AM *To:* accountability-cross-community@icann.org *Subject:* [CCWG-ACCT] Request for Clarification on Threshold Issue
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Co-Chairs, Can we please do the call to discuss the unfinalizing of the refinalized Final Proposal on Monday, please? On Tuesday I am busy and this is something I don't want to miss. el -- Sent from Dr Lisse's iPad mini 4
On 27 Feb 2016, at 22:03, Drazek, Keith <kdrazek@verisign.com> wrote:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
--------------------------------------------- Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Ch-Chairs, I understand that people start to bargaining what the results of poll in brining another issue Quote *“Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:* * “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”* Unquote First of all, while there may be a need to review the above text but we should be clear not to mixed up a general issue ( likelihood of fewer than x number of SO/(AC participating in decision making ) by the specific carve-out concept in regard with Board Recall as specified in in paragraph 72 of Recommendation 2 which was settled. Consequently, whatever adjustment we make for Annexes 1 and 2 ,that should specifically expect Paragraph 72 Secondly, the structure proposed Quote *“**If** fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support **shall* *be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers.”* Does not seems to be consistent the* “conditional structure **Rule i.e use of the conditional part in present tense must be followed by future tense in the response( following part ) of the conditional clause. Example If you come late I *will* not wait for you It is never said If you come late I *shal*l not wait for you This is an important basic and fundamental issue to be respected. Thirdly, There seems to be another action we did in rush when the added text to Annexes 1& 2 was ahgreed. Please note comments from Bruce. While we need to carefuzll study what to do , we may not be able to fix it in a virtual call. Perhaps that should be put on the agenda of physical meeting with a full review of any possible scenario out of that. Regards Kavouss 2016-02-28 9:31 GMT+01:00 Dr Eberhard W Lisse <epilisse@gmail.com>:
Dear Co-Chairs,
Can we please do the call to discuss the unfinalizing of the refinalized Final Proposal on Monday, please? On Tuesday I am busy and this is something I don't want to miss.
el
-- Sent from Dr Lisse's iPad mini 4
On 27 Feb 2016, at 22:03, Drazek, Keith <kdrazek@verisign.com> wrote:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
If we leave issues like this to the F2F then we will likely hit timeline issues once again.. This should not be a controversial request but rather a reflection of a core working principle that we have had since the early days of our work. -James From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Date: Sunday 28 February 2016 at 3:14 p.m. To: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx<mailto:leonfelipe@sanchez.mx>>, Mathieu Weill <Mathieu.Weill@afnic.fr<mailto:Mathieu.Weill@afnic.fr>> Cc: CCWG Accountability <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Dear Ch-Chairs, I understand that people start to bargaining what the results of poll in brining another issue Quote “Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Unquote First of all, while there may be a need to review the above text but we should be clear not to mixed up a general issue ( likelihood of fewer than x number of SO/(AC participating in decision making ) by the specific carve-out concept in regard with Board Recall as specified in in paragraph 72 of Recommendation 2 which was settled. Consequently, whatever adjustment we make for Annexes 1 and 2 ,that should specifically expect Paragraph 72 Secondly, the structure proposed Quote “If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers.” Does not seems to be consistent the “conditional structure *Rule i.e use of the conditional part in present tense must be followed by future tense in the response( following part ) of the conditional clause. Example If you come late I will not wait for you It is never said If you come late I shall not wait for you This is an important basic and fundamental issue to be respected. Thirdly, There seems to be another action we did in rush when the added text to Annexes 1& 2 was ahgreed. Please note comments from Bruce. While we need to carefuzll study what to do , we may not be able to fix it in a virtual call. Perhaps that should be put on the agenda of physical meeting with a full review of any possible scenario out of that. Regards Kavouss 2016-02-28 9:31 GMT+01:00 Dr Eberhard W Lisse <epilisse@gmail.com<mailto:epilisse@gmail.com>>: Dear Co-Chairs, Can we please do the call to discuss the unfinalizing of the refinalized Final Proposal on Monday, please? On Tuesday I am busy and this is something I don't want to miss. el -- Sent from Dr Lisse's iPad mini 4 On 27 Feb 2016, at 22:03, Drazek, Keith <kdrazek@verisign.com<mailto:kdrazek@verisign.com>> wrote: Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: · Reject a proposed Operating Plan/Strategic Plan/Budget; · Recall the entire Board of Directors; and · Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Yes, shoddy work, poor management and making up the rules as we go along. el -- Sent from Dr Lisse's iPad mini 4
On 28 Feb 2016, at 20:58, James Gannon <james@cyberinvasion.net> wrote:
If we leave issues like this to the F2F then we will likely hit timeline issues once again..
This should not be a controversial request but rather a reflection of a core working principle that we have had since the early days of our work.
-James
From: <accountability-cross-community-bounces@icann.org> on behalf of Kavouss Arasteh <kavouss.arasteh@gmail.com> Date: Sunday 28 February 2016 at 3:14 p.m. To: Thomas Rickert <thomas@rickert.net>, León Felipe Sánchez Ambía <leonfelipe@sanchez.mx>, Mathieu Weill <Mathieu.Weill@afnic.fr> Cc: CCWG Accountability <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
Dear Ch-Chairs,
I understand that people start to bargaining what the results of poll in brining another issue
Quote
“Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Unquote
First of all, while there may be a need to review the above text but we should be clear not to mixed up a general issue ( likelihood of fewer than x number of SO/(AC participating in decision making ) by the specific carve-out concept in regard with Board Recall as specified in in paragraph 72 of Recommendation 2 which was settled. Consequently, whatever adjustment we make for Annexes 1 and 2 ,that should specifically expect Paragraph 72
Secondly, the structure proposed
Quote
“If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers.”
Does not seems to be consistent the “conditional structure *Rule
i.e use of the conditional part in present tense must be followed by future tense in the response( following part ) of the conditional clause.
Example
If you come late I will not wait for you
It is never said
If you come late I shall not wait for you
This is an important basic and fundamental issue to be respected.
Thirdly, There seems to be another action we did in rush when the added text to Annexes 1& 2 was ahgreed. Please note comments from Bruce.
While we need to carefuzll study what to do , we may not be able to fix it in a virtual call.
Perhaps that should be put on the agenda of physical meeting with a full review of any possible scenario out of that.
Regards
Kavouss
2016-02-28 9:31 GMT+01:00 Dr Eberhard W Lisse <epilisse@gmail.com>:
Dear Co-Chairs,
Can we please do the call to discuss the unfinalizing of the refinalized Final Proposal on Monday, please? On Tuesday I am busy and this is something I don't want to miss.
el
-- Sent from Dr Lisse's iPad mini 4
On 27 Feb 2016, at 22:03, Drazek, Keith <kdrazek@verisign.com> wrote:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shallbe adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
I don't agree with your example. however valid the rest of your comment. Traditionally, the auxilary "shall" is used for the future tense with the first-person pronouns I and We. "Will" is used with the first-person (again, I refer to traditional usage) to express determination not merely futurity. The opposite is true for second- and third-person pronouns: with these "will" is used in the future tense, and "shall" is used only when we wish to express determination or to emphasize certainty. So both of your examples are right, not just one; and they bear subtly different meanings . . . . "If you come late I WILL NOT wait for you" means :- "I have no desire to wait for you if you are late. I am determined in that view" (the conclusion that "you should not expect to see me there" is merely implicit) However . . . "If you come late I SHALL NOT wait for you" means literally and EXPLICITLY simply that :- "Do not expect to see me there if you arrive late". This form says nothing about my feelings or desires explicitly (though you might imply this, it is not certain at all; and my reasons for not being there if your are late may be external unrelated to my desires, wishes or intentions.). 'Shall' is very commonly used in legislation in the third person to imply mandatoriness. Nigel (PS: WILL NOT and SHALL NOT may be replaced with WON'T and SHAN'T)
Example
If you come late I *will*not wait for you
It is never said
If you come late I *shal*l not wait for you
This is an important basic and fundamental issue to be respected.
"'Shall' is very commonly used in legislation in the third person to imply mandatoriness." Agreed. In four decades of U.S. legislative experience I have always seen "shall" used to denote a mandatory outcome. "May", on the other hand, allows for discretionary judgment -- and is usually accompanied by a listing of considerations that should be considered in exercising that discretion. I would note further that the current language we are seeking to have clarified neither provides any such list of considerations, nor does it designate who the decisional entity would be. Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Sunday, February 28, 2016 3:01 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue I don't agree with your example. however valid the rest of your comment. Traditionally, the auxilary "shall" is used for the future tense with the first-person pronouns I and We. "Will" is used with the first-person (again, I refer to traditional usage) to express determination not merely futurity. The opposite is true for second- and third-person pronouns: with these "will" is used in the future tense, and "shall" is used only when we wish to express determination or to emphasize certainty. So both of your examples are right, not just one; and they bear subtly different meanings . . . . "If you come late I WILL NOT wait for you" means :- "I have no desire to wait for you if you are late. I am determined in that view" (the conclusion that "you should not expect to see me there" is merely implicit) However . . . "If you come late I SHALL NOT wait for you" means literally and EXPLICITLY simply that :- "Do not expect to see me there if you arrive late". This form says nothing about my feelings or desires explicitly (though you might imply this, it is not certain at all; and my reasons for not being there if your are late may be external unrelated to my desires, wishes or intentions.). 'Shall' is very commonly used in legislation in the third person to imply mandatoriness. Nigel (PS: WILL NOT and SHALL NOT may be replaced with WON'T and SHAN'T)
Example
If you come late I *will*not wait for you
It is never said
If you come late I *shal*l not wait for you
This is an important basic and fundamental issue to be respected.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16
RFC-2119/BCP-14 might also be a reference here: https://www.ietf.org/rfc/rfc2119.txt <https://www.ietf.org/rfc/rfc2119.txt> 1. MUST This word, or the terms "REQUIRED" or "SHALL", mean that the definition is an absolute requirement of the specification. 2. MUST NOT This phrase, or the phrase "SHALL NOT", mean that the definition is an absolute prohibition of the specification. 3. SHOULD This word, or the adjective "RECOMMENDED", mean that there may exist valid reasons in particular circumstances to ignore a particular item, but the full implications must be understood and carefully weighed before choosing a different course. 4. SHOULD NOT This phrase, or the phrase "NOT RECOMMENDED" mean that there may exist valid reasons in particular circumstances when the particular behavior is acceptable or even useful, but the full implications should be understood and the case carefully weighed before implementing any behavior described with this label. Bradner Best Current Practice [Page 1] RFC 2119 RFC Key Words March 1997 5. MAY This word, or the adjective "OPTIONAL", mean that an item is truly optional. One vendor may choose to include the item because a particular marketplace requires it or because the vendor feels that it enhances the product while another vendor may omit the same item. An implementation which does not include a particular option MUST be prepared to interoperate with another implementation which does include the option, though perhaps with reduced functionality. In the same vein an implementation which does include a particular option MUST be prepared to interoperate with another implementation which does not include the option (except, of course, for the feature the option provides.) 6. Guidance in the use of these Imperatives Imperatives of the type defined in this memo must be used with care and sparingly. In particular, they MUST only be used where it is actually required for interoperation or to limit behavior which has potential for causing harm (e.g., limiting retransmisssions) For example, they must not be used to try to impose a particular method on implementors where the method is not required for interoperability.
On Feb 28, 2016, at 5:14 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
"'Shall' is very commonly used in legislation in the third person to imply mandatoriness."
Agreed.
In four decades of U.S. legislative experience I have always seen "shall" used to denote a mandatory outcome. "May", on the other hand, allows for discretionary judgment -- and is usually accompanied by a listing of considerations that should be considered in exercising that discretion. I would note further that the current language we are seeking to have clarified neither provides any such list of considerations, nor does it designate who the decisional entity would be.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Sunday, February 28, 2016 3:01 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
I don't agree with your example. however valid the rest of your comment.
Traditionally, the auxilary "shall" is used for the future tense with the first-person pronouns I and We. "Will" is used with the first-person (again, I refer to traditional usage) to express determination not merely futurity.
The opposite is true for second- and third-person pronouns: with these "will" is used in the future tense, and "shall" is used only when we wish to express determination or to emphasize certainty.
So both of your examples are right, not just one; and they bear subtly different meanings . . . .
"If you come late I WILL NOT wait for you"
means :-
"I have no desire to wait for you if you are late. I am determined in that view" (the conclusion that "you should not expect to see me there" is merely implicit)
However . . .
"If you come late I SHALL NOT wait for you" means literally and EXPLICITLY simply that :-
"Do not expect to see me there if you arrive late".
This form says nothing about my feelings or desires explicitly (though you might imply this, it is not certain at all; and my reasons for not being there if your are late may be external unrelated to my desires, wishes or intentions.).
'Shall' is very commonly used in legislation in the third person to imply mandatoriness.
Nigel
(PS: WILL NOT and SHALL NOT may be replaced with WON'T and SHAN'T)
Example
If you come late I *will*not wait for you
It is never said
If you come late I *shal*l not wait for you
This is an important basic and fundamental issue to be respected.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Colleagues The only consistent struture is If ..... 2016-02-28 21:42 GMT+01:00 Rubens Kuhl <rubensk@nic.br>:
RFC-2119/BCP-14 might also be a reference here: https://www.ietf.org/rfc/rfc2119.txt
1. MUST This word, or the terms "REQUIRED" or "SHALL", mean that the definition is an absolute requirement of the specification.
2. MUST NOT This phrase, or the phrase "SHALL NOT", mean that the definition is an absolute prohibition of the specification.
3. SHOULD This word, or the adjective "RECOMMENDED", mean that there may exist valid reasons in particular circumstances to ignore a particular item, but the full implications must be understood and carefully weighed before choosing a different course.
4. SHOULD NOT This phrase, or the phrase "NOT RECOMMENDED" mean that there may exist valid reasons in particular circumstances when the particular behavior is acceptable or even useful, but the full implications should be understood and the case carefully weighed before implementing any behavior described with this label.
Bradner Best Current Practice [Page 1]
RFC 2119 RFC Key Words March 1997
5. MAY This word, or the adjective "OPTIONAL", mean that an item is truly optional. One vendor may choose to include the item because a particular marketplace requires it or because the vendor feels that it enhances the product while another vendor may omit the same item. An implementation which does not include a particular option MUST be prepared to interoperate with another implementation which does include the option, though perhaps with reduced functionality. In the same vein an implementation which does include a particular option MUST be prepared to interoperate with another implementation which does not include the option (except, of course, for the feature the option provides.)
6. Guidance in the use of these Imperatives
Imperatives of the type defined in this memo must be used with care and sparingly. In particular, they MUST only be used where it is actually required for interoperation or to limit behavior which has potential for causing harm (e.g., limiting retransmisssions) For example, they must not be used to try to impose a particular method on implementors where the method is not required for interoperability.
On Feb 28, 2016, at 5:14 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
"'Shall' is very commonly used in legislation in the third person to imply mandatoriness."
Agreed.
In four decades of U.S. legislative experience I have always seen "shall" used to denote a mandatory outcome. "May", on the other hand, allows for discretionary judgment -- and is usually accompanied by a listing of considerations that should be considered in exercising that discretion. I would note further that the current language we are seeking to have clarified neither provides any such list of considerations, nor does it designate who the decisional entity would be.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Nigel Roberts Sent: Sunday, February 28, 2016 3:01 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
I don't agree with your example. however valid the rest of your comment.
Traditionally, the auxilary "shall" is used for the future tense with the first-person pronouns I and We. "Will" is used with the first-person (again, I refer to traditional usage) to express determination not merely futurity.
The opposite is true for second- and third-person pronouns: with these "will" is used in the future tense, and "shall" is used only when we wish to express determination or to emphasize certainty.
So both of your examples are right, not just one; and they bear subtly different meanings . . . .
"If you come late I WILL NOT wait for you"
means :-
"I have no desire to wait for you if you are late. I am determined in that view" (the conclusion that "you should not expect to see me there" is merely implicit)
However . . .
"If you come late I SHALL NOT wait for you" means literally and EXPLICITLY simply that :-
"Do not expect to see me there if you arrive late".
This form says nothing about my feelings or desires explicitly (though you might imply this, it is not certain at all; and my reasons for not being there if your are late may be external unrelated to my desires, wishes or intentions.).
'Shall' is very commonly used in legislation in the third person to imply mandatoriness.
Nigel
(PS: WILL NOT and SHALL NOT may be replaced with WON'T and SHAN'T)
Example
If you come late I *will*not wait for you
It is never said
If you come late I *shal*l not wait for you
This is an important basic and fundamental issue to be respected.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Colleagues The only consistent struture is to replace the word " shall " ibn the proposed text by either " should " or "would" BUT NOT SHALL Sorry I do not agree with your argument either. It haS nothing to do with natiove language and non native language It is a matter of principle. I WILL TOTALLY DISAGREE WITH THE USE OF SHALL BesrRegardsK KAVOUsS 2016-02-28 21:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear Colleagues The only consistent struture is If .....
2016-02-28 21:42 GMT+01:00 Rubens Kuhl <rubensk@nic.br>:
RFC-2119/BCP-14 might also be a reference here: https://www.ietf.org/rfc/rfc2119.txt
1. MUST This word, or the terms "REQUIRED" or "SHALL", mean that the definition is an absolute requirement of the specification.
2. MUST NOT This phrase, or the phrase "SHALL NOT", mean that the definition is an absolute prohibition of the specification.
3. SHOULD This word, or the adjective "RECOMMENDED", mean that there may exist valid reasons in particular circumstances to ignore a particular item, but the full implications must be understood and carefully weighed before choosing a different course.
4. SHOULD NOT This phrase, or the phrase "NOT RECOMMENDED" mean that there may exist valid reasons in particular circumstances when the particular behavior is acceptable or even useful, but the full implications should be understood and the case carefully weighed before implementing any behavior described with this label.
Bradner Best Current Practice [Page 1]
RFC 2119 RFC Key Words March 1997
5. MAY This word, or the adjective "OPTIONAL", mean that an item is truly optional. One vendor may choose to include the item because a particular marketplace requires it or because the vendor feels that it enhances the product while another vendor may omit the same item. An implementation which does not include a particular option MUST be prepared to interoperate with another implementation which does include the option, though perhaps with reduced functionality. In the same vein an implementation which does include a particular option MUST be prepared to interoperate with another implementation which does not include the option (except, of course, for the feature the option provides.)
6. Guidance in the use of these Imperatives
Imperatives of the type defined in this memo must be used with care and sparingly. In particular, they MUST only be used where it is actually required for interoperation or to limit behavior which has potential for causing harm (e.g., limiting retransmisssions) For example, they must not be used to try to impose a particular method on implementors where the method is not required for interoperability.
On Feb 28, 2016, at 5:14 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
"'Shall' is very commonly used in legislation in the third person to imply mandatoriness."
Agreed.
In four decades of U.S. legislative experience I have always seen "shall" used to denote a mandatory outcome. "May", on the other hand, allows for discretionary judgment -- and is usually accompanied by a listing of considerations that should be considered in exercising that discretion. I would note further that the current language we are seeking to have clarified neither provides any such list of considerations, nor does it designate who the decisional entity would be.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Nigel Roberts Sent: Sunday, February 28, 2016 3:01 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
I don't agree with your example. however valid the rest of your comment.
Traditionally, the auxilary "shall" is used for the future tense with the first-person pronouns I and We. "Will" is used with the first-person (again, I refer to traditional usage) to express determination not merely futurity.
The opposite is true for second- and third-person pronouns: with these "will" is used in the future tense, and "shall" is used only when we wish to express determination or to emphasize certainty.
So both of your examples are right, not just one; and they bear subtly different meanings . . . .
"If you come late I WILL NOT wait for you"
means :-
"I have no desire to wait for you if you are late. I am determined in that view" (the conclusion that "you should not expect to see me there" is merely implicit)
However . . .
"If you come late I SHALL NOT wait for you" means literally and EXPLICITLY simply that :-
"Do not expect to see me there if you arrive late".
This form says nothing about my feelings or desires explicitly (though you might imply this, it is not certain at all; and my reasons for not being there if your are late may be external unrelated to my desires, wishes or intentions.).
'Shall' is very commonly used in legislation in the third person to imply mandatoriness.
Nigel
(PS: WILL NOT and SHALL NOT may be replaced with WON'T and SHAN'T)
Example
If you come late I *will*not wait for you
It is never said
If you come late I *shal*l not wait for you
This is an important basic and fundamental issue to be respected.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4537/11693 - Release Date: 02/25/16 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear All, Please look at ICANN Mission and Commitment, you will find many areas in which taking actions are absolute necessity or absolute obligations. However, some of you insisted that we could not use the term “ shall “ .I did not push for that because they did not want to agree with things which were crystal clear. But now the same person who is one of the signatories of the proposed amendment just simply forgot his insistence that shall was incorrect in those example of ICANN Mission or Commitment. By the same argument I cannot agree with the use of “shall “. In addition to that in a conditional structure we have never used the term “ shall “ However, either of “ should “ or” would “ or” may “ could be used Best Regards Kavouss 2016-02-28 21:58 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear Colleagues The only consistent struture is to replace the word " shall " ibn the proposed text by either " should " or "would" BUT NOT SHALL Sorry I do not agree with your argument either. It haS nothing to do with natiove language and non native language It is a matter of principle. I WILL TOTALLY DISAGREE WITH THE USE OF SHALL BesrRegardsK KAVOUsS
2016-02-28 21:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear Colleagues The only consistent struture is If .....
2016-02-28 21:42 GMT+01:00 Rubens Kuhl <rubensk@nic.br>:
RFC-2119/BCP-14 might also be a reference here: https://www.ietf.org/rfc/rfc2119.txt
1. MUST This word, or the terms "REQUIRED" or "SHALL", mean that the definition is an absolute requirement of the specification.
2. MUST NOT This phrase, or the phrase "SHALL NOT", mean that the definition is an absolute prohibition of the specification.
3. SHOULD This word, or the adjective "RECOMMENDED", mean that there may exist valid reasons in particular circumstances to ignore a particular item, but the full implications must be understood and carefully weighed before choosing a different course.
4. SHOULD NOT This phrase, or the phrase "NOT RECOMMENDED" mean that there may exist valid reasons in particular circumstances when the particular behavior is acceptable or even useful, but the full implications should be understood and the case carefully weighed before implementing any behavior described with this label.
Bradner Best Current Practice [Page 1]
RFC 2119 RFC Key Words March 1997
5. MAY This word, or the adjective "OPTIONAL", mean that an item is truly optional. One vendor may choose to include the item because a particular marketplace requires it or because the vendor feels that it enhances the product while another vendor may omit the same item. An implementation which does not include a particular option MUST be prepared to interoperate with another implementation which does include the option, though perhaps with reduced functionality. In the same vein an implementation which does include a particular option MUST be prepared to interoperate with another implementation which does not include the option (except, of course, for the feature the option provides.)
6. Guidance in the use of these Imperatives
Imperatives of the type defined in this memo must be used with care and sparingly. In particular, they MUST only be used where it is actually required for interoperation or to limit behavior which has potential for causing harm (e.g., limiting retransmisssions) For example, they must not be used to try to impose a particular method on implementors where the method is not required for interoperability.
On Feb 28, 2016, at 5:14 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
"'Shall' is very commonly used in legislation in the third person to imply mandatoriness."
Agreed.
In four decades of U.S. legislative experience I have always seen "shall" used to denote a mandatory outcome. "May", on the other hand, allows for discretionary judgment -- and is usually accompanied by a listing of considerations that should be considered in exercising that discretion. I would note further that the current language we are seeking to have clarified neither provides any such list of considerations, nor does it designate who the decisional entity would be.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Nigel Roberts Sent: Sunday, February 28, 2016 3:01 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
I don't agree with your example. however valid the rest of your comment.
Traditionally, the auxilary "shall" is used for the future tense with the first-person pronouns I and We. "Will" is used with the first-person (again, I refer to traditional usage) to express determination not merely futurity.
The opposite is true for second- and third-person pronouns: with these "will" is used in the future tense, and "shall" is used only when we wish to express determination or to emphasize certainty.
So both of your examples are right, not just one; and they bear subtly different meanings . . . .
"If you come late I WILL NOT wait for you"
means :-
"I have no desire to wait for you if you are late. I am determined in that view" (the conclusion that "you should not expect to see me there" is merely implicit)
However . . .
"If you come late I SHALL NOT wait for you" means literally and EXPLICITLY simply that :-
"Do not expect to see me there if you arrive late".
This form says nothing about my feelings or desires explicitly (though you might imply this, it is not certain at all; and my reasons for not being there if your are late may be external unrelated to my desires, wishes or intentions.).
'Shall' is very commonly used in legislation in the third person to imply mandatoriness.
Nigel
(PS: WILL NOT and SHALL NOT may be replaced with WON'T and SHAN'T)
Example
If you come late I *will*not wait for you
It is never said
If you come late I *shal*l not wait for you
This is an important basic and fundamental issue to be respected.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear All, If the nombre of SO/ACis less than 4 ,the community power can not be legally applied due to the fact that 3 SO/AC are not sufficient to decide on any empowered case for 7 SO/AC . this must be clearly mentioned in the text. We can not destabilized the situation of an organization without having atleast a simple majority of the constituent SO/AC i.e half plus one means 4 SO/AC Regards Kavouss 2016-02-28 22:14 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear All,
Please look at ICANN Mission and Commitment, you will find many areas in which taking actions are absolute necessity or absolute obligations. However, some of you insisted that we could not use the term “ shall “ .I did not push for that because they did not want to agree with things which were crystal clear. But now the same person who is one of the signatories of the proposed amendment just simply forgot his insistence that shall was incorrect in those example of ICANN Mission or Commitment.
By the same argument I cannot agree with the use of “shall “.
In addition to that in a conditional structure we have never used the term “ shall “ However, either of “ should “ or” would “ or” may “ could be used
Best Regards
Kavouss
2016-02-28 21:58 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear Colleagues The only consistent struture is to replace the word " shall " ibn the proposed text by either " should " or "would" BUT NOT SHALL Sorry I do not agree with your argument either. It haS nothing to do with natiove language and non native language It is a matter of principle. I WILL TOTALLY DISAGREE WITH THE USE OF SHALL BesrRegardsK KAVOUsS
2016-02-28 21:52 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear Colleagues The only consistent struture is If .....
2016-02-28 21:42 GMT+01:00 Rubens Kuhl <rubensk@nic.br>:
RFC-2119/BCP-14 might also be a reference here: https://www.ietf.org/rfc/rfc2119.txt
1. MUST This word, or the terms "REQUIRED" or "SHALL", mean that the definition is an absolute requirement of the specification.
2. MUST NOT This phrase, or the phrase "SHALL NOT", mean that the definition is an absolute prohibition of the specification.
3. SHOULD This word, or the adjective "RECOMMENDED", mean that there may exist valid reasons in particular circumstances to ignore a particular item, but the full implications must be understood and carefully weighed before choosing a different course.
4. SHOULD NOT This phrase, or the phrase "NOT RECOMMENDED" mean that there may exist valid reasons in particular circumstances when the particular behavior is acceptable or even useful, but the full implications should be understood and the case carefully weighed before implementing any behavior described with this label.
Bradner Best Current Practice [Page 1]
RFC 2119 RFC Key Words March 1997
5. MAY This word, or the adjective "OPTIONAL", mean that an item is truly optional. One vendor may choose to include the item because a particular marketplace requires it or because the vendor feels that it enhances the product while another vendor may omit the same item. An implementation which does not include a particular option MUST be prepared to interoperate with another implementation which does include the option, though perhaps with reduced functionality. In the same vein an implementation which does include a particular option MUST be prepared to interoperate with another implementation which does not include the option (except, of course, for the feature the option provides.)
6. Guidance in the use of these Imperatives
Imperatives of the type defined in this memo must be used with care and sparingly. In particular, they MUST only be used where it is actually required for interoperation or to limit behavior which has potential for causing harm (e.g., limiting retransmisssions) For example, they must not be used to try to impose a particular method on implementors where the method is not required for interoperability.
On Feb 28, 2016, at 5:14 PM, Phil Corwin <psc@vlaw-dc.com> wrote:
"'Shall' is very commonly used in legislation in the third person to imply mandatoriness."
Agreed.
In four decades of U.S. legislative experience I have always seen "shall" used to denote a mandatory outcome. "May", on the other hand, allows for discretionary judgment -- and is usually accompanied by a listing of considerations that should be considered in exercising that discretion. I would note further that the current language we are seeking to have clarified neither provides any such list of considerations, nor does it designate who the decisional entity would be.
Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell
Twitter: @VlawDC
"Luck is the residue of design" -- Branch Rickey
-----Original Message----- From: accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org <accountability-cross-community-bounces@icann.org>] On Behalf Of Nigel Roberts Sent: Sunday, February 28, 2016 3:01 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue
I don't agree with your example. however valid the rest of your comment.
Traditionally, the auxilary "shall" is used for the future tense with the first-person pronouns I and We. "Will" is used with the first-person (again, I refer to traditional usage) to express determination not merely futurity.
The opposite is true for second- and third-person pronouns: with these "will" is used in the future tense, and "shall" is used only when we wish to express determination or to emphasize certainty.
So both of your examples are right, not just one; and they bear subtly different meanings . . . .
"If you come late I WILL NOT wait for you"
means :-
"I have no desire to wait for you if you are late. I am determined in that view" (the conclusion that "you should not expect to see me there" is merely implicit)
However . . .
"If you come late I SHALL NOT wait for you" means literally and EXPLICITLY simply that :-
"Do not expect to see me there if you arrive late".
This form says nothing about my feelings or desires explicitly (though you might imply this, it is not certain at all; and my reasons for not being there if your are late may be external unrelated to my desires, wishes or intentions.).
'Shall' is very commonly used in legislation in the third person to imply mandatoriness.
Nigel
(PS: WILL NOT and SHALL NOT may be replaced with WON'T and SHAN'T)
Example
If you come late I *will*not wait for you
It is never said
If you come late I *shal*l not wait for you
This is an important basic and fundamental issue to be respected.
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear colleagues, On Sun, Feb 28, 2016 at 08:14:41PM +0000, Phil Corwin wrote:
"'Shall' is very commonly used in legislation in the third person to imply mandatoriness."
Agreed.
Also, in an Internet context, these words for some have special meaning. Roughly standards-track RFC for many years now has included this text: The key words "MUST", "MUST NOT", "REQUIRED", "SHALL", "SHALL NOT", "SHOULD", "SHOULD NOT", "RECOMMENDED", "MAY", and "OPTIONAL" in this document are to be interpreted as described in RFC 2119. So this may be one occasion in which people of policy and technical backgrounds won't confuse each other :) For those interested, <http://tools.ietf.org/html/rfc2119>. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
I understand the scope of application of shall. However, such application and use is totally inconsistent with the " conditional structure of the phrase" as well as within the context that to be used Tks again I am not convinced at all Kavouss Sent from my iPhone
On 28 Feb 2016, at 23:28, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:
Dear colleagues,
On Sun, Feb 28, 2016 at 08:14:41PM +0000, Phil Corwin wrote: "'Shall' is very commonly used in legislation in the third person to imply mandatoriness."
Agreed.
Also, in an Internet context, these words for some have special meaning. Roughly standards-track RFC for many years now has included this text:
The key words "MUST", "MUST NOT", "REQUIRED", "SHALL", "SHALL NOT", "SHOULD", "SHOULD NOT", "RECOMMENDED", "MAY", and "OPTIONAL" in this document are to be interpreted as described in RFC 2119.
So this may be one occasion in which people of policy and technical backgrounds won't confuse each other :)
For those interested, <http://tools.ietf.org/html/rfc2119>.
Best regards,
A
-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Keith, all, below you find a quick summary of where we are on this with respect to our report: - GAC is a decisional participant unless we get a clear signal (as from RSAC and SSAC) that they don't want to be one. - All decisional particants can vote yes, no, abstain or do nothing. - If there is a change in structure, i.e. a decisional participants does not further want to be one, an SO / AC is closed down or if there is an addition, we need a bylaw change. This is what the group responded to the Board's wish to include percentages. The CCWG refused percentages as we need a bylaw change anyway if a change is taking place. - Should the Board refuse to make / support a required bylaw change, we have the tools in our report. - Any clarification needed to that effect can be made during the implementation phase. Thanks, Thomas Am 27.02.2016 um 21:03 schrieb Drazek, Keith:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds /must/ be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC */choosing/* to not participate, and an SO or AC being */blocked/* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC */elects/*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support */shall/*be adjusted */to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers/*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
--
In response to Thomas's note: On Mon, Feb 29, 2016 at 11:48 AM, Thomas Rickert <thomas@rickert.net> wrote:
Dear Keith, all, below you find a quick summary of where we are on this with respect to our report:
- GAC is a decisional participant unless we get a clear signal (as from RSAC and SSAC) that they don't want to be one.
I had thought that GAC had to make a decision about whether or not to be a decisional participant. If what you say is true, GAC will be a decisional participant unless they come to a full consensus decision that are not a decisional participant. I hope that GAC will go one better than that, and affirm that they are a decisional participant and are committed to meaningful participation in the decisional mechanism of the EC.
- All decisional particants can vote yes, no, abstain or do nothing.
I'm unclear whether there is any substantive difference between "abstaining" and "doing nothing." It would be unfortunate if we had any decisional participant that was "in" because it could not decide to get out, and then "did nothing" because it could not decide to do anything else. We would then end up with de facto unanimity required where the threshold is 4. There may be no way to prevent that, but the way to reduce the likelihood of such an outcome would be to require each decisional participant to opt in. That is one of the reasons we need a decision from the GAC.
- If there is a change in structure, i.e. a decisional participants does not further want to be one, an SO / AC is closed down or if there is an addition, we need a bylaw change. This is what the group responded to the Board's wish to include percentages. The CCWG refused percentages as we need a bylaw change anyway if a change is taking place.
I agree with this entirely -- if one of the 5 presumed participants opts out or closes down, "we need a bylaw change." Unfortunately, the Proposal doesn't say that -- if it did, this request would not have been made. Instead the report says we "may" need a change (which also leaves open the possibility we "may not" need a change). We merely seek to clarify this understanding by changing "may" to "shall" (or "must" or "will") to eliminate the unintended "wiggle room" that could result in
- Should the Board refuse to make / support a required bylaw change, we have the tools in our report.
Again I agree -- but we don't have a "required" bylaw change stemming from our proposal, because we have the word "may" and not the word "shall/must/will." We seek only to clarify that a bylaw change will be "required' under these circumstances.
- Any clarification needed to that effect can be made during the implementation phase.
Why wait when we can nip this in the bud? If it's a mere clarification, then it should be noncontroversial. I fear that some who oppose this very much like the wiggle room the word "may" affords them, and will use it to oppose any such change if and when the time comes. Furthermore, it's far from clear how much control we will have during the implementation process in order to make such change. I recognize this is a bit messy and thus undesirable from a process management perspective -- but leaving open an option (no change) that was clearly unintended by the broad majority of the group is also undesirable. I think there's a very real chance we will only have 4 decisional participants, and we're better off preparing for that now. Greg
Thanks, Thomas
Am 27.02.2016 um 21:03 schrieb Drazek, Keith:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds *must* be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC *choosing* to not participate, and an SO or AC being *blocked* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC *elects*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support *shall* be adjusted *to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing listAccountability-Cross-Community@icann.orghttps://mm.icann.org/mailman/listinfo/accountability-cross-community
--
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Greg, Well said, I agree completely. Best, Brett From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Monday, February 29, 2016 12:34 PM To: Thomas Rickert Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue In response to Thomas's note: On Mon, Feb 29, 2016 at 11:48 AM, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> wrote: Dear Keith, all, below you find a quick summary of where we are on this with respect to our report: - GAC is a decisional participant unless we get a clear signal (as from RSAC and SSAC) that they don't want to be one. I had thought that GAC had to make a decision about whether or not to be a decisional participant. If what you say is true, GAC will be a decisional participant unless they come to a full consensus decision that are not a decisional participant. I hope that GAC will go one better than that, and affirm that they are a decisional participant and are committed to meaningful participation in the decisional mechanism of the EC. - All decisional particants can vote yes, no, abstain or do nothing. I'm unclear whether there is any substantive difference between "abstaining" and "doing nothing." It would be unfortunate if we had any decisional participant that was "in" because it could not decide to get out, and then "did nothing" because it could not decide to do anything else. We would then end up with de facto unanimity required where the threshold is 4. There may be no way to prevent that, but the way to reduce the likelihood of such an outcome would be to require each decisional participant to opt in. That is one of the reasons we need a decision from the GAC. - If there is a change in structure, i.e. a decisional participants does not further want to be one, an SO / AC is closed down or if there is an addition, we need a bylaw change. This is what the group responded to the Board's wish to include percentages. The CCWG refused percentages as we need a bylaw change anyway if a change is taking place. I agree with this entirely -- if one of the 5 presumed participants opts out or closes down, "we need a bylaw change." Unfortunately, the Proposal doesn't say that -- if it did, this request would not have been made. Instead the report says we "may" need a change (which also leaves open the possibility we "may not" need a change). We merely seek to clarify this understanding by changing "may" to "shall" (or "must" or "will") to eliminate the unintended "wiggle room" that could result in - Should the Board refuse to make / support a required bylaw change, we have the tools in our report. Again I agree -- but we don't have a "required" bylaw change stemming from our proposal, because we have the word "may" and not the word "shall/must/will." We seek only to clarify that a bylaw change will be "required' under these circumstances. - Any clarification needed to that effect can be made during the implementation phase. Why wait when we can nip this in the bud? If it's a mere clarification, then it should be noncontroversial. I fear that some who oppose this very much like the wiggle room the word "may" affords them, and will use it to oppose any such change if and when the time comes. Furthermore, it's far from clear how much control we will have during the implementation process in order to make such change. I recognize this is a bit messy and thus undesirable from a process management perspective -- but leaving open an option (no change) that was clearly unintended by the broad majority of the group is also undesirable. I think there's a very real chance we will only have 4 decisional participants, and we're better off preparing for that now. Greg Thanks, Thomas Am 27.02.2016 um 21:03 schrieb Drazek, Keith: Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears ________________________________ 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/> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto: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 Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community>
'Why wait when we can nip this in the bud? If it's a mere clarification, then it should be noncontroversial. I fear that some who oppose this very much like the wiggle room the word "may" affords them, and will use it to oppose any such change if and when the time comes.' Exactly. Which is why this must be addressed now. If we can't reach consensus on a textual revision that reflects a long-standing understanding regarding the possible exercise of the core accountability mechanism, do we truly have an agreement? If there isn't a willingness to address this matter now, perhaps the previous vote should be revisited. Ken
On Feb 29, 2016, at 12:35 PM, Greg Shatan <gregshatanipc@gmail.com> wrote:
Why wait when we can nip this in the bud? If it's a mere clarification, then it should be noncontroversial. I fear that some who oppose this very much like the wiggle room the word "may" affords them, and will use it to oppose any such change if and when the time comes.
Asking as both a Participant, and also as what I suggest is often quaintly described as a 'community leader' of one of the Chartering Organisations (i.e. a Council Member of the ccNSO), will the Co-Chairs please address the following question, either with, or without, the aid of the Members. "Does the Draft Final Report that was transmitted to the COs several days ago accurately represent the agreed work product of the CCWG?" That question has a binary answer. It seems to me that discussion continues on further modifications or amendment to it. Is my understanding correct? On 29/02/16 18:39, Salaets, Ken wrote:
r now, perhaps the previous vote should be revisited.
Hi Nigel.
"Does the Draft Final Report that was transmitted to the COs several days ago accurately represent the agreed work product of the CCWG?"
That question has a binary answer.
The answer is yes. Thomas
It seems to me that discussion continues on further modifications or amendment to it.
Is my understanding correct?
On 29/02/16 18:39, Salaets, Ken wrote:
r now, perhaps the previous vote should be revisited.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Then shouldn't we stop with the post facto relitigation? Or as our American colleagues put it: "Monday morning quarterbacking". On 29/02/16 21:58, Thomas Rickert wrote:
Hi Nigel.
"Does the Draft Final Report that was transmitted to the COs several days ago accurately represent the agreed work product of the CCWG?"
That question has a binary answer.
The answer is yes.
Thomas
It seems to me that discussion continues on further modifications or amendment to it.
Is my understanding correct?
On 29/02/16 18:39, Salaets, Ken wrote:
r now, perhaps the previous vote should be revisited.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
+1 Nigel. It's either finaized or not. The co-chair states that it is finalized. So why the continuing discussion? /Stephen -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Nigel Roberts Sent: Monday, February 29, 2016 5:32 PM To: Thomas Rickert <thomas@rickert.net> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Request for Clarification on Threshold Issue Then shouldn't we stop with the post facto relitigation? Or as our American colleagues put it: "Monday morning quarterbacking". On 29/02/16 21:58, Thomas Rickert wrote:
Hi Nigel.
"Does the Draft Final Report that was transmitted to the COs several days
ago accurately represent the agreed work product of the CCWG?"
That question has a binary answer.
The answer is yes.
Thomas
It seems to me that discussion continues on further modifications or amendment to it.
Is my understanding correct?
On 29/02/16 18:39, Salaets, Ken wrote:
r now, perhaps the previous vote should be revisited.
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Hi Greg, all, first of all - sorry for mistyping RSSAC!!!! in my previous e-mail. Also, I would like to clarify that - to me - the difference between abstaining and „doing nothing“ is that the former includes statement (I abstain) whereby the latter is just no response at all. The effect is the same. Let’s not further dwell on this. I did not mean to confuse or complicate matters. You may find this excerpt from the GAC comment on the 3rd draft helpful: "Establishing an empowered community for enforcing community powers (RECOMMENDATION 1) The GAC anticipates that it intends to participate in the proposed community mechanism with the following qualifications. The GAC would focus on participation in the processes of engagement and escalation detailed in Recommendation 2 with a view to supporting dialogue and mutual understanding that would lead to resolution of disputes rather than escalation. GAC participation would be primarily guided by a careful and prudent analysis of whether the issue under consideration has public policy and/or legal implications. The GAC’s participation at the enforcement stage as appropriate is still under discussion." Thomas
Am 29.02.2016 um 18:33 schrieb Greg Shatan <gregshatanipc@gmail.com>:
In response to Thomas's note:
On Mon, Feb 29, 2016 at 11:48 AM, Thomas Rickert <thomas@rickert.net <mailto:thomas@rickert.net>> wrote: Dear Keith, all, below you find a quick summary of where we are on this with respect to our report:
- GAC is a decisional participant unless we get a clear signal (as from RSAC and SSAC) that they don't want to be one.
I had thought that GAC had to make a decision about whether or not to be a decisional participant. If what you say is true, GAC will be a decisional participant unless they come to a full consensus decision that are not a decisional participant. I hope that GAC will go one better than that, and affirm that they are a decisional participant and are committed to meaningful participation in the decisional mechanism of the EC.
- All decisional particants can vote yes, no, abstain or do nothing.
I'm unclear whether there is any substantive difference between "abstaining" and "doing nothing." It would be unfortunate if we had any decisional participant that was "in" because it could not decide to get out, and then "did nothing" because it could not decide to do anything else. We would then end up with de facto unanimity required where the threshold is 4. There may be no way to prevent that, but the way to reduce the likelihood of such an outcome would be to require each decisional participant to opt in. That is one of the reasons we need a decision from the GAC.
- If there is a change in structure, i.e. a decisional participants does not further want to be one, an SO / AC is closed down or if there is an addition, we need a bylaw change. This is what the group responded to the Board's wish to include percentages. The CCWG refused percentages as we need a bylaw change anyway if a change is taking place.
I agree with this entirely -- if one of the 5 presumed participants opts out or closes down, "we need a bylaw change." Unfortunately, the Proposal doesn't say that -- if it did, this request would not have been made. Instead the report says we "may" need a change (which also leaves open the possibility we "may not" need a change). We merely seek to clarify this understanding by changing "may" to "shall" (or "must" or "will") to eliminate the unintended "wiggle room" that could result in
- Should the Board refuse to make / support a required bylaw change, we have the tools in our report.
Again I agree -- but we don't have a "required" bylaw change stemming from our proposal, because we have the word "may" and not the word "shall/must/will." We seek only to clarify that a bylaw change will be "required' under these circumstances.
- Any clarification needed to that effect can be made during the implementation phase.
Why wait when we can nip this in the bud? If it's a mere clarification, then it should be noncontroversial. I fear that some who oppose this very much like the wiggle room the word "may" affords them, and will use it to oppose any such change if and when the time comes. Furthermore, it's far from clear how much control we will have during the implementation process in order to make such change. I recognize this is a bit messy and thus undesirable from a process management perspective -- but leaving open an option (no change) that was clearly unintended by the broad majority of the group is also undesirable. I think there's a very real chance we will only have 4 decisional participants, and we're better off preparing for that now.
Greg
Thanks, Thomas
Am 27.02.2016 um 21:03 schrieb Drazek, Keith:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>
--
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Thanks Thomas. This is indeed the last substantive consensus position we agreed in the GAC. Starting next Saturday we will hopefully further develop it. best Jorge Von meinem iPhone gesendet Am 29.02.2016 um 19:53 schrieb Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>: Hi Greg, all, first of all - sorry for mistyping RSSAC!!!! in my previous e-mail. Also, I would like to clarify that - to me - the difference between abstaining and „doing nothing“ is that the former includes statement (I abstain) whereby the latter is just no response at all. The effect is the same. Let’s not further dwell on this. I did not mean to confuse or complicate matters. You may find this excerpt from the GAC comment on the 3rd draft helpful: "Establishing an empowered community for enforcing community powers (RECOMMENDATION 1) The GAC anticipates that it intends to participate in the proposed community mechanism with the following qualifications. The GAC would focus on participation in the processes of engagement and escalation detailed in Recommendation 2 with a view to supporting dialogue and mutual understanding that would lead to resolution of disputes rather than escalation. GAC participation would be primarily guided by a careful and prudent analysis of whether the issue under consideration has public policy and/or legal implications. The GAC’s participation at the enforcement stage as appropriate is still under discussion." Thomas Am 29.02.2016 um 18:33 schrieb Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>: In response to Thomas's note: On Mon, Feb 29, 2016 at 11:48 AM, Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>> wrote: Dear Keith, all, below you find a quick summary of where we are on this with respect to our report: - GAC is a decisional participant unless we get a clear signal (as from RSAC and SSAC) that they don't want to be one. I had thought that GAC had to make a decision about whether or not to be a decisional participant. If what you say is true, GAC will be a decisional participant unless they come to a full consensus decision that are not a decisional participant. I hope that GAC will go one better than that, and affirm that they are a decisional participant and are committed to meaningful participation in the decisional mechanism of the EC. - All decisional particants can vote yes, no, abstain or do nothing. I'm unclear whether there is any substantive difference between "abstaining" and "doing nothing." It would be unfortunate if we had any decisional participant that was "in" because it could not decide to get out, and then "did nothing" because it could not decide to do anything else. We would then end up with de facto unanimity required where the threshold is 4. There may be no way to prevent that, but the way to reduce the likelihood of such an outcome would be to require each decisional participant to opt in. That is one of the reasons we need a decision from the GAC. - If there is a change in structure, i.e. a decisional participants does not further want to be one, an SO / AC is closed down or if there is an addition, we need a bylaw change. This is what the group responded to the Board's wish to include percentages. The CCWG refused percentages as we need a bylaw change anyway if a change is taking place. I agree with this entirely -- if one of the 5 presumed participants opts out or closes down, "we need a bylaw change." Unfortunately, the Proposal doesn't say that -- if it did, this request would not have been made. Instead the report says we "may" need a change (which also leaves open the possibility we "may not" need a change). We merely seek to clarify this understanding by changing "may" to "shall" (or "must" or "will") to eliminate the unintended "wiggle room" that could result in - Should the Board refuse to make / support a required bylaw change, we have the tools in our report. Again I agree -- but we don't have a "required" bylaw change stemming from our proposal, because we have the word "may" and not the word "shall/must/will." We seek only to clarify that a bylaw change will be "required' under these circumstances. - Any clarification needed to that effect can be made during the implementation phase. Why wait when we can nip this in the bud? If it's a mere clarification, then it should be noncontroversial. I fear that some who oppose this very much like the wiggle room the word "may" affords them, and will use it to oppose any such change if and when the time comes. Furthermore, it's far from clear how much control we will have during the implementation process in order to make such change. I recognize this is a bit messy and thus undesirable from a process management perspective -- but leaving open an option (no change) that was clearly unintended by the broad majority of the group is also undesirable. I think there's a very real chance we will only have 4 decisional participants, and we're better off preparing for that now. Greg Thanks, Thomas Am 27.02.2016 um 21:03 schrieb Drazek, Keith: Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO: --------------------------------------------- Dear CCWG-Accountability Chairs, We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” In our view, there is no question that the thresholds must be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to: • Reject a proposed Operating Plan/Strategic Plan/Budget; • Recall the entire Board of Directors; and • Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process. These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.” Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC choosing to not participate, and an SO or AC being blocked from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC elects, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld. However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase. Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause: “The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support shall be adjusted to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.” Signed, Phil Corwin Steve DelBianco Keith Drazek James Gannon Robin Gross Ed Morris Brett Schaefer Greg Shatan Matthew Shears _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Thomas With respect, this is arrant nonsense. At least in the English speaking world. sich (der Stimme) enthalten --------------------------- The act of abstention is an act of omission. It is just non-voting. It is most definitely NOT the act of actively announcing an intention not to vote which is never required. To arrive at the number of abstentions one does NOT positively count votes. One adds the postive and negative votes together, and the difference between that and the total electorate is the number of abstentions. To do otherwise is a mere fad of convenience. In order to exercise a right to abstain one one may not be required to "positively vote neither 'Aye' nor 'Nay'. That is basic democracy in action. Otherwise you should need a fourth category. On 29/02/16 18:51, Thomas Rickert wrote:
Also, I would like to clarify that - to me - the difference between abstaining and „doing nothing“ is that the former includes statement (I abstain) whereby the latter is just no response at all. The effect is
the same. Let’s not further dwell on this. I did not mean to confuse or complicate matters.
http://www.bbc.co.uk/news/world-asia-china-35685999 This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'. It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not?
Hi Nigel, This will be an interesting discussion on our WS2 work plan. I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course. Best regards, León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
As you rightly say, I am foreshadowing WS2. But I am also renewing my strong objection to the "applicable law" formulation, for the following reason. It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property. That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process. But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content. For example, the right to privacy and the right to free expression intersect in different places in different countries. This is the well-known "margin of appreciation" in Human Rights jurisprudence. So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority). On 02/03/16 13:20, León Felipe Sánchez Ambía wrote:
Hi Nigel,
This will be an interesting discussion on our WS2 work plan.
I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course.
Best regards,
León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
And, it does so for gTLDs only. el On 2016-03-02 15:42 , Nigel Roberts wrote:
As you rightly say, I am foreshadowing WS2.
But I am also renewing my strong objection to the "applicable law" formulation, for the following reason.
It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property.
That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process.
But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content.
For example, the right to privacy and the right to free expression intersect in different places in different countries.
This is the well-known "margin of appreciation" in Human Rights jurisprudence.
So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote:
Hi Nigel,
This will be an interesting discussion on our WS2 work plan.
I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course.
Best regards,
León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality. That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too. I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then. Martin Martin Boyle Senior Policy Advisor Sent from my iPhone [cid:image001.jpg@01D0FCF7.DEE0F1F0] nominet.uk<http://nominet.uk/> DD: +44 (0)1865 332251<tel:+44%20(0)1865%20332251> Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na<mailto:el@lisse.na>> wrote: And, it does so for gTLDs only. el On 2016-03-02 15:42 , Nigel Roberts wrote: As you rightly say, I am foreshadowing WS2. But I am also renewing my strong objection to the "applicable law" formulation, for the following reason. It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property. That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process. But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content. For example, the right to privacy and the right to free expression intersect in different places in different countries. This is the well-known "margin of appreciation" in Human Rights jurisprudence. So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority). On 02/03/16 13:20, Le?n Felipe S?nchez Amb?a wrote: Hi Nigel, This will be an interesting discussion on our WS2 work plan. I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course. Best regards, Le?n El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net<mailto:nigel@channelisles.net>> escribi?: http://www.bbc.co.uk/news/world-asia-china-35685999 This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'. It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear All, Thanks to all of you. I am not in favour to define nor interpret " Applicable Law" We would be opening a very complex discussion and almost inconclusive results Kavouss Sent from my iPhone
On 3 Mar 2016, at 20:12, Martin Boyle <Martin.Boyle@nominet.uk> wrote:
Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality.
That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too.
I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then.
Martin
Martin Boyle Senior Policy Advisor
Sent from my iPhone
nominet.uk DD: +44 (0)1865 332251 Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na> wrote:
And,
it does so for gTLDs only.
el
On 2016-03-02 15:42 , Nigel Roberts wrote: As you rightly say, I am foreshadowing WS2. But I am also renewing my strong objection to the "applicable law" formulation, for the following reason. It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property. That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process. But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content. For example, the right to privacy and the right to free expression intersect in different places in different countries. This is the well-known "margin of appreciation" in Human Rights jurisprudence. So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote: Hi Nigel, This will be an interesting discussion on our WS2 work plan. I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course. Best regards, León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net> escribió: http://www.bbc.co.uk/news/world-asia-china-35685999 This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'. It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Why would that be, is Iranian law on human rights very complex? el -- Sent from Dr Lisse's iPad mini 4
On 3 Mar 2016, at 21:20, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear All, Thanks to all of you. I am not in favour to define nor interpret " Applicable Law" We would be opening a very complex discussion and almost inconclusive results Kavouss
Sent from my iPhone
On 3 Mar 2016, at 20:12, Martin Boyle <Martin.Boyle@nominet.uk> wrote:
Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality.
That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too.
I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then.
Martin
Martin Boyle Senior Policy Advisor
Sent from my iPhone
nominet.uk DD: +44 (0)1865 332251 Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na> wrote:
And,
it does so for gTLDs only.
el
On 2016-03-02 15:42 , Nigel Roberts wrote: As you rightly say, I am foreshadowing WS2.
But I am also renewing my strong objection to the "applicable law" formulation, for the following reason.
It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property.
That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process.
But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content.
For example, the right to privacy and the right to free expression intersect in different places in different countries.
This is the well-known "margin of appreciation" in Human Rights jurisprudence.
So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote: Hi Nigel,
This will be an interesting discussion on our WS2 work plan.
I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course.
Best regards,
León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Kavouss You cannot use a legal term-of0-art in a legal document, such as a contract, or the By-Laws, without defining it, unless it is so commonly understood as to make definition trite and otiose. On 03/03/16 21:20, Kavouss Arasteh wrote:
Dear All, Thanks to all of you. I am not in favour to define nor interpret " Applicable Law" We would be opening a very complex discussion and almost inconclusive results Kavouss
Sent from my iPhone
On 3 Mar 2016, at 20:12, Martin Boyle <Martin.Boyle@nominet.uk <mailto:Martin.Boyle@nominet.uk>> wrote:
Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality.
That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too.
I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then.
Martin
Martin Boyle
Senior Policy Advisor
Sent from my iPhone
cid:image001.jpg@01D0FCF7.DEE0F1F0
*nominet.uk* <http://nominet.uk/>**DD: +44 (0)1865 332251 <tel:+44%20(0)1865%20332251>
Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na <mailto:el@lisse.na>> wrote:
And,
it does so for gTLDs only.
el
On 2016-03-02 15:42 , Nigel Roberts wrote:
As you rightly say, I am foreshadowing WS2.
But I am also renewing my strong objection to the "applicable law" formulation, for the following reason.
It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property.
That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process.
But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content.
For example, the right to privacy and the right to free expression intersect in different places in different countries.
This is the well-known "margin of appreciation" in Human Rights jurisprudence.
So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote:
Hi Nigel,
This will be an interesting discussion on our WS2 work plan.
I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course.
Best regards,
León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@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@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@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
Martin - just to be clear the European Court of Justice introduced the extraterritoriality concept into EU law making with regard to human rights standards. Take for example the most recent ruling about the validity of the Safe Harbor agreement. Erika On Thu, Mar 3, 2016 at 9:12 PM, Martin Boyle <Martin.Boyle@nominet.uk> wrote:
Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality.
That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too.
I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then.
Martin
Martin Boyle
Senior Policy Advisor
Sent from my iPhone
[image: cid:image001.jpg@01D0FCF7.DEE0F1F0]
*nominet.uk* <http://nominet.uk/> DD: +44 (0)1865 332251 <+44%20(0)1865%20332251>
Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na> wrote:
And,
it does so for gTLDs only.
el
On 2016-03-02 15:42 , Nigel Roberts wrote:
As you rightly say, I am foreshadowing WS2.
But I am also renewing my strong objection to the "applicable law"
formulation, for the following reason.
It's quite valid to comment, in response, that ICANN *already* regulates
the takedown of domain names in the protection of third-party rights -
the protection of intellectual property.
That is all well and good, and is a worthy step in the protection of
that person/organisations rights under (for example) Art. 1, Prot.1 of
the ECHR -- provided it is balanced against the rights to free
expression and due process.
But it's not hard to see that the "applicable law" scenarion could be
misused to impose controls on content.
For example, the right to privacy and the right to free expression
intersect in different places in different countries.
This is the well-known "margin of appreciation" in Human Rights
jurisprudence.
So, ICANN, by binding itself to 'applicable law' would potentially bind
itself to breaching the First Amendment, by having a by-law obligation
to 'applicable law' in say the UK (libel), France (celebrity) or China
(respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote:
Hi Nigel,
This will be an interesting discussion on our WS2 work plan.
I fail to see why or how ICANN would be obliged to develop such
policies as ICANN is not an entity with (legal) powers to take down
any kind of content. The only situation in which I see ICANN taking
down a site, as opposed to a particular content within a website, is
in case a Court ordered such take down which, in my mind at least,
would be subject to different applicable norms in the context of
international cooperation I think, and for that Court order to be
escalated to ICANN level I would think it would need to be taken
through the path of registrant-registrar-registry before even getting
to ICANN but that is just an assumption, of course.
Best regards,
León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts
<nigel@channelisles.net> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN
should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute
policies allowing for takedown of the material that is contained in
the books referred to in this article, would it not?
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________
Accountability-Cross-Community mailing list
Accountability-Cross-Community@icann.org
https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear All European decision in this regard could only be applied by 28 countries Member of EU Extraterritoriality Law can not be applied elsewhere Regards Kavouss Sent from my iPhone
On 3 Mar 2016, at 21:49, Erika Mann <erika@erikamann.com> wrote:
Martin - just to be clear the European Court of Justice introduced the extraterritoriality concept into EU law making with regard to human rights standards. Take for example the most recent ruling about the validity of the Safe Harbor agreement.
Erika
On Thu, Mar 3, 2016 at 9:12 PM, Martin Boyle <Martin.Boyle@nominet.uk> wrote: Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality.
That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too.
I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then.
Martin
Martin Boyle Senior Policy Advisor
Sent from my iPhone
nominet.uk DD: +44 (0)1865 332251 Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na> wrote:
And,
it does so for gTLDs only.
el
On 2016-03-02 15:42 , Nigel Roberts wrote: As you rightly say, I am foreshadowing WS2. But I am also renewing my strong objection to the "applicable law" formulation, for the following reason. It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property. That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process. But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content. For example, the right to privacy and the right to free expression intersect in different places in different countries. This is the well-known "margin of appreciation" in Human Rights jurisprudence. So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote: Hi Nigel, This will be an interesting discussion on our WS2 work plan. I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course. Best regards, León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net> escribió: http://www.bbc.co.uk/news/world-asia-china-35685999 This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'. It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
The Convention is a living instrument. It is legally binding (in international law) on 47 countries. It influences and is influenced by the EU Charter, and the UN Declaration. But this is a red herring, since NONE of it applies to ICANN's work (with the sole exception of the GAC, and then only to GACREPS from those 47 countries). On 03/03/16 21:58, Kavouss Arasteh wrote:
Dear All European decision in this regard could only be applied by 28 countries Member of EU Extraterritoriality Law can not be applied elsewhere Regards Kavouss
Sent from my iPhone
On 3 Mar 2016, at 21:49, Erika Mann <erika@erikamann.com <mailto:erika@erikamann.com>> wrote:
Martin - just to be clear the European Court of Justice introduced the extraterritoriality concept into EU law making with regard to human rights standards. Take for example the most recent ruling about the validity of the Safe Harbor agreement.
Erika
On Thu, Mar 3, 2016 at 9:12 PM, Martin Boyle <Martin.Boyle@nominet.uk <mailto:Martin.Boyle@nominet.uk>> wrote:
Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality.
That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too.
I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then.
Martin
Martin Boyle____
Senior Policy Advisor____
Sent from my iPhone
cid:image001.jpg@01D0FCF7.DEE0F1F0____
*nominet.uk* <http://nominet.uk/>**DD: +44 (0)1865 332251 <tel:+44%20(0)1865%20332251>____
Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na <mailto:el@lisse.na>> wrote:
And,
it does so for gTLDs only.
el
On 2016-03-02 15:42 , Nigel Roberts wrote:
As you rightly say, I am foreshadowing WS2.
But I am also renewing my strong objection to the "applicable law" formulation, for the following reason.
It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property.
That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process.
But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content.
For example, the right to privacy and the right to free expression intersect in different places in different countries.
This is the well-known "margin of appreciation" in Human Rights jurisprudence.
So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote:
Hi Nigel,
This will be an interesting discussion on our WS2 work plan.
I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course.
Best regards,
León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear Kavouss - I wish you would be right but unfortunately the most recent European Court of Justice rulings point in a different direction. Happy to talk about this, Erika On Thu, Mar 3, 2016 at 10:58 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Dear All European decision in this regard could only be applied by 28 countries Member of EU Extraterritoriality Law can not be applied elsewhere Regards Kavouss
Sent from my iPhone
On 3 Mar 2016, at 21:49, Erika Mann <erika@erikamann.com> wrote:
Martin - just to be clear the European Court of Justice introduced the extraterritoriality concept into EU law making with regard to human rights standards. Take for example the most recent ruling about the validity of the Safe Harbor agreement.
Erika
On Thu, Mar 3, 2016 at 9:12 PM, Martin Boyle <Martin.Boyle@nominet.uk> wrote:
Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality.
That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too.
I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then.
Martin
Martin Boyle
Senior Policy Advisor
Sent from my iPhone
[image: cid:image001.jpg@01D0FCF7.DEE0F1F0]
*nominet.uk* <http://nominet.uk/> DD: +44 (0)1865 332251 <+44%20(0)1865%20332251>
Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na> wrote:
And,
it does so for gTLDs only.
el
On 2016-03-02 15:42 , Nigel Roberts wrote:
As you rightly say, I am foreshadowing WS2.
But I am also renewing my strong objection to the "applicable law"
formulation, for the following reason.
It's quite valid to comment, in response, that ICANN *already* regulates
the takedown of domain names in the protection of third-party rights -
the protection of intellectual property.
That is all well and good, and is a worthy step in the protection of
that person/organisations rights under (for example) Art. 1, Prot.1 of
the ECHR -- provided it is balanced against the rights to free
expression and due process.
But it's not hard to see that the "applicable law" scenarion could be
misused to impose controls on content.
For example, the right to privacy and the right to free expression
intersect in different places in different countries.
This is the well-known "margin of appreciation" in Human Rights
jurisprudence.
So, ICANN, by binding itself to 'applicable law' would potentially bind
itself to breaching the First Amendment, by having a by-law obligation
to 'applicable law' in say the UK (libel), France (celebrity) or China
(respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote:
Hi Nigel,
This will be an interesting discussion on our WS2 work plan.
I fail to see why or how ICANN would be obliged to develop such
policies as ICANN is not an entity with (legal) powers to take down
any kind of content. The only situation in which I see ICANN taking
down a site, as opposed to a particular content within a website, is
in case a Court ordered such take down which, in my mind at least,
would be subject to different applicable norms in the context of
international cooperation I think, and for that Court order to be
escalated to ICANN level I would think it would need to be taken
through the path of registrant-registrar-registry before even getting
to ICANN but that is just an assumption, of course.
Best regards,
León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts
<nigel@channelisles.net> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN
should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute
policies allowing for takedown of the material that is contained in
the books referred to in this article, would it not?
_______________________________________________
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But for ICANN to apply US interpretations on EU based organisations without some proper process that adopted the interpretation in EU legislation? Either way, from a ccTLD point of view, I would have serious concern about ICANN leading decisions about what is the standard they apply and the legal base that they use. This is a complicated issue and one best left for WS2 as I noted below. From: Erika Mann [mailto:erika@erikamann.com] Sent: 03 March 2016 21:50 To: Martin Boyle <Martin.Boyle@nominet.uk> Cc: Dr Eberhard W Lisse <el@lisse.na>; Lisse Eberhard <directors@omadhina.net>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Human Rights Martin - just to be clear the European Court of Justice introduced the extraterritoriality concept into EU law making with regard to human rights standards. Take for example the most recent ruling about the validity of the Safe Harbor agreement. Erika On Thu, Mar 3, 2016 at 9:12 PM, Martin Boyle <Martin.Boyle@nominet.uk<mailto:Martin.Boyle@nominet.uk>> wrote: Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality. That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too. I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then. Martin Martin Boyle Senior Policy Advisor Sent from my iPhone nominet.uk<http://nominet.uk/> DD: +44 (0)1865 332251<tel:+44%20(0)1865%20332251> Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na<mailto:el@lisse.na>> wrote: And, it does so for gTLDs only. el On 2016-03-02 15:42 , Nigel Roberts wrote: As you rightly say, I am foreshadowing WS2. But I am also renewing my strong objection to the "applicable law" formulation, for the following reason. It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property. That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process. But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content. For example, the right to privacy and the right to free expression intersect in different places in different countries. This is the well-known "margin of appreciation" in Human Rights jurisprudence. So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority). On 02/03/16 13:20, León Felipe Sánchez Ambía wrote: Hi Nigel, This will be an interesting discussion on our WS2 work plan. I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course. Best regards, León El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net<mailto:nigel@channelisles.net>> escribió: http://www.bbc.co.uk/news/world-asia-china-35685999 This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'. It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@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@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@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
I don't know where you get that idea. However, given ICANN's General Counsel's office penchant for literal construction (I have read many of their submissions in the various IRPs and Court cases) there are two serious legal issues which need dealing with in order to ENANCE (and not REMOVE) accountability of the Organisation in human rights matters. That is the dualist nature of the legal system where ICANN is incorporated (both the US and the UK are dualist), and the lack of any applicable law whatsoever in the US that applies to non-state-actors. The junior senator for Alberta clearly is concerned with the concept of applicable Chinese law, judging by yesterday's letter to Steve. On 03/03/16 20:12, Martin Boyle wrote:
Nigel, you seem to be advocating US interpretation of human rights, which in turn would imply a degree of extraterritoriality.
That should not be the case for ccTLDs as Eberhard points out, but it might be a big issue for geo-TLDs, too.
I think that "applicable law" is the best formulation for where we are and WS2 can have the joy of interpreting what are the implications of that. Let's leave such a difficult discussion to then. en Martin
Martin Boyle
Senior Policy Advisor
Sent from my iPhone
cid:image001.jpg@01D0FCF7.DEE0F1F0
*nominet.uk* <http://nominet.uk/>**DD: +44 (0)1865 332251 <tel:+44%20(0)1865%20332251>
Minerva House, Edmund Halley Road, Oxford, OX4 4DQ, United Kingdom
On 2 Mar 2016, at 13:58, Dr Eberhard W Lisse <el@lisse.na <mailto:el@lisse.na>> wrote:
And,
it does so for gTLDs only.
el
On 2016-03-02 15:42 , Nigel Roberts wrote:
As you rightly say, I am foreshadowing WS2.
But I am also renewing my strong objection to the "applicable law" formulation, for the following reason.
It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property.
That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process.
But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content.
For example, the right to privacy and the right to free expression intersect in different places in different countries.
This is the well-known "margin of appreciation" in Human Rights jurisprudence.
So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote:
Hi Nigel,
This will be an interesting discussion on our WS2 work plan.
I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course.
Best regards,
León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net <mailto:nigel@channelisles.net>> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@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@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community
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Dear All For these reasons and many other reasons, it is not productive to make any attempt to define nor interpret "Applicable Law" This term was intentionally selected to calm down the people Regards Kavousd Sent from my iPhone
On 2 Mar 2016, at 13:42, Nigel Roberts <nigel@channelisles.net> wrote:
As you rightly say, I am foreshadowing WS2.
But I am also renewing my strong objection to the "applicable law" formulation, for the following reason.
It's quite valid to comment, in response, that ICANN *already* regulates the takedown of domain names in the protection of third-party rights - the protection of intellectual property.
That is all well and good, and is a worthy step in the protection of that person/organisations rights under (for example) Art. 1, Prot.1 of the ECHR -- provided it is balanced against the rights to free expression and due process.
But it's not hard to see that the "applicable law" scenarion could be misused to impose controls on content.
For example, the right to privacy and the right to free expression intersect in different places in different countries.
This is the well-known "margin of appreciation" in Human Rights jurisprudence.
So, ICANN, by binding itself to 'applicable law' would potentially bind itself to breaching the First Amendment, by having a by-law obligation to 'applicable law' in say the UK (libel), France (celebrity) or China (respect for authority).
On 02/03/16 13:20, León Felipe Sánchez Ambía wrote: Hi Nigel,
This will be an interesting discussion on our WS2 work plan.
I fail to see why or how ICANN would be obliged to develop such policies as ICANN is not an entity with (legal) powers to take down any kind of content. The only situation in which I see ICANN taking down a site, as opposed to a particular content within a website, is in case a Court ordered such take down which, in my mind at least, would be subject to different applicable norms in the context of international cooperation I think, and for that Court order to be escalated to ICANN level I would think it would need to be taken through the path of registrant-registrar-registry before even getting to ICANN but that is just an assumption, of course.
Best regards,
León
El 29/02/2016, a las 8:26 p.m., Nigel Roberts <nigel@channelisles.net> escribió:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
Dear Staff, would somebody check why this mail appears as a follow up to the “Request for Clarification on Threshold Issue”. It is very annoying Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg Current UTC offset: -6.00 (Costa Rica) On 29 Feb 2016, at 13:26, Nigel Roberts wrote:
http://www.bbc.co.uk/news/world-asia-china-35685999
This tells me that the right to free expression is one which ICANN should respect, and not merely 'as required by applicable law'.
It seems to me that 'applicable law' here would have ICANN institute policies allowing for takedown of the material that is contained in the books referred to in this article, would it not? _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community
On Wed, Mar 02, 2016 at 08:50:32AM -0600, Carlos Raúl Gutiérrez G. wrote:
Dear Staff,
would somebody check why this mail appears as a follow up to the “Request for Clarification on Threshold Issue”. It is very annoying
You can check it yourself. The reason is because there's an In-Reply-To: <56D497CC.5060507@channelisles.net> header, which means that it is in response to something else. That message-id was indeed part of the "Request for Clarification" thread. The mail system is doing what it's told. People should not "reply to" a message on a different topic; if they don't, there's nothing staff can do about it. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com
Alles klar Thomas! Danke Carlos Raúl Gutiérrez +506 8837 7176 Skype: carlos.raulg Current UTC offset: -6.00 (Costa Rica) On 29 Feb 2016, at 10:48, Thomas Rickert wrote:
Dear Keith, all, below you find a quick summary of where we are on this with respect to our report:
- GAC is a decisional participant unless we get a clear signal (as from RSAC and SSAC) that they don't want to be one.
- All decisional particants can vote yes, no, abstain or do nothing.
- If there is a change in structure, i.e. a decisional participants does not further want to be one, an SO / AC is closed down or if there is an addition, we need a bylaw change. This is what the group responded to the Board's wish to include percentages. The CCWG refused percentages as we need a bylaw change anyway if a change is taking place.
- Should the Board refuse to make / support a required bylaw change, we have the tools in our report.
- Any clarification needed to that effect can be made during the implementation phase.
Thanks, Thomas
Am 27.02.2016 um 21:03 schrieb Drazek, Keith:
Hi Thomas, Mathieu and Leon. I’m submitting the following on behalf of the undersigned members/participants from the GNSO:
---------------------------------------------
Dear CCWG-Accountability Chairs,
We are very concerned with the response of the Board to the request for clarification regarding the need to adjust the thresholds for the Empowered Community to exercise its powers if the number of decisional participants is less than 5 SOACs. Currently the text in Annex 1 and 2 regarding this possibility is ambiguous:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support may be adjusted. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
In our view, there is no question that the thresholds /must/ be adjusted if there are fewer than five decisional participants. We have acknowledged repeatedly and operated under the assumption that there should not be a requirement of unanimous support for the Empowered Community to exercise its powers. Yet, if there are less than five decisional participants, unless the thresholds are adjusted it would require unanimous support for the Empowered Community to:
· Reject a proposed Operating Plan/Strategic Plan/Budget;
· Recall the entire Board of Directors; and
· Reject an ICANN Board decision relating to reviews of IANA functions, including the triggering of any PTI separation process.
These powers are central to ensuring that ICANN remains accountable to the Empowered Community. This matter is too critical to the primary purpose of the CCWG-Accountability proposal to remain unclear. As the Board has noted in its own formal comments, “Leaving this issue for future consideration raises the potential for renegotiation of the community thresholds. This potential for renegotiation adds a level of instability and a lack of predictability.”
Although it has a superficial resemblance to the recent debate over thresholds in the GAC carve-out, we believe it is fundamentally different. There is a great distinction between an SO or AC */choosing/* to not participate, and an SO or AC being */blocked/* from participation in a specific instance, as was the case in the case of the GAC carve-out. We were willing to accept a unanimous threshold for Board recall in the unique circumstances of the GAC carve-out, where the GAC was blocked from participation, but we believe firmly that if any SO or AC */elects/*, whether through a conscious decision or an inability to decide, to not participate, then the non-unanimity principle must be upheld.
However, as we saw with the debate over the thresholds in the GAC carve-out, this could be a contentious issue. It is far better to resolve this matter now (and during the drafting of bylaws), prior to the official transfer of the proposal to NTIA, than to delay it when it could have significant negative ramifications on the transition through a failure to resolve it during the implementation phase.
Therefore, we respectfully request that the current text in Annex 1 and Annex 2 be edited to replace “may” with “shall” and add an additional explanatory clause:
“The thresholds presented in this document were determined based on this assessment. If fewer than five of ICANN’s SOs and ACs agree to be decisional Participants, these thresholds for consensus support */shall/*be adjusted */to prevent the need for unanimous support among the decisional Participants to exercise any of the seven Community powers/*. Thresholds may also have to be adjusted if ICANN changes to have more SOs or ACs.”
Signed,
Phil Corwin
Steve DelBianco
Keith Drazek
James Gannon
Robin Gross
Ed Morris
Brett Schaefer
Greg Shatan
Matthew Shears
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--
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participants (35)
-
Andrew Sullivan -
avri doria -
Avri Doria -
Bruce Tonkin -
Burr, Becky -
Carlos Raúl Gutiérrez G. -
Cheryl Langdon-Orr -
Chris Disspain -
Dr Eberhard W Lisse -
Dr Eberhard W Lisse -
Drazek, Keith -
Edward Morris -
Erika Mann -
Greg Shatan -
James Gannon -
Jordan Carter -
Jorge.Cancio＠bakom.admin.ch -
Kavouss Arasteh -
León Felipe Sánchez Ambía -
Martin Boyle -
Matthew Shears -
Mueller, Milton L -
Nigel Roberts -
Paul Rosenzweig -
Phil Buckingham -
Phil Corwin -
Robin Gross -
Roelof Meijer -
Rubens Kuhl -
Salaets, Ken -
Schaefer, Brett -
Seun Ojedeji -
Stephen Deerhake -
Steve DelBianco -
Thomas Rickert