Re: [CCWG-ACCT] what the Board is objecting to here -
The Supplemental Proposal says that the threshold CAN be reduced to three under two conditions: (1) after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or (2) if the IRP is not available to challenge the Board action in question. My recollection is that the Board proposed only (1). Becky (and/or perhaps others) proposed (2), but I do not recall it being accepted by the Board or by the CCWG as a whole. Alan At 19/02/2016 04:38 PM, Jordan Carter wrote:
Ok. If Steve Crocker could also confirm that his understanding is the same, that would be very helpful.
On the overall point - the board has already made its view on that question clear. Steve's email doesn't reference the GPI test that is the only basis the Board has set out to object to ccwg proposals, and which it has invoked prior.
The intervention thus has two effects. It is a source of uncertainty, because it isn't clear. And it is a source of delay, because the intent and the group's response to it has to be clarified.
Once again, we face a further delay thanks to the way the ICANN board has chosen to behave. I guess I wish I could say I was surprised, or disappointed - but that's long gone. I'm just confused: what is the end game here?
If anyone knows, please feel free to share.
Jordan
On Saturday, 20 February 2016, Samantha Eisner <<mailto:Samantha.Eisner@icann.org>Samantha.Eisner@icann.org> wrote: Hi Becky -
There was another thread on this from Alan, but wanted to confirm in this thread too that this is the correct understanding of the Boardâs concern.
Thanks, Sam
From: <accountability-cross-community-bounces@icann.org> on behalf of "Burr, Becky" <Becky.Burr@neustar.biz> Date: Friday, February 19, 2016 at 10:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, 'Phil Corwin' <psc@vlaw-dc.com>, 'Greg Shatan' <gregshatanipc@gmail.com>, 'Kavouss Arasteh' <kavouss.arasteh@gmail.com> Cc: 'Thomas Rickert' <thomas@rickert.net>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] what the Board is objecting to here -
Just for the sake of absolute precision, I think the Boardâs point is that the carve out and hence the 3 SO/AC threshold â could apply where an IRP determines that the Boardâs actions in response to GAC Advice contravene the Bylaws. I think what worries the Board is that the notion that the Board could be recalled by 3 SO/AC combination for action that DOES NOT contravene the Bylaws.
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 /<http://www.neustar.biz>neustar.biz
From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Date: Friday, February 19, 2016 at 1:15 PM To: 'Phil Corwin' <psc@vlaw-dc.com>, Greg Shatan <gregshatanipc@gmail.com>, Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: 'Thomas Rickert' <thomas@rickert.net>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Carve-out issue
+1
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com
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From: Phil Corwin [mailto:psc@vlaw-dc.com] Sent: Friday, February 19, 2016 12:52 PM To: Greg Shatan <gregshatanipc@gmail.com>; Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Carve-out issue
Greg:
Assuming that the new Board position is indeed a response to a minority position of a few GAC members, I am in full agreement that it âshould serve as a warning to us allâ.
Indeed, it emphasizes exactly why the GAC should not be able to block the communityâs ability to hold the Board accountable for implementing GAC consensus advice that the community feels is outside the scope of the Bylaws or Mission Statement.
Best. Philip
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From:accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Friday, February 19, 2016 12:38 PM To: Kavouss Arasteh Cc: accountability-cross-community@icann.org; Thomas Rickert Subject: Re: [CCWG-ACCT] Carve-out issue
It is alarming that a few GAC members could seek to undo a carefully balanced compromise. And even more alarming that those few GAC members could so quickly trigger a Board intervention.
The carve-out is balanced against the concerns of other stakeholders with regard to (i) the proposed supermajority threshold for Board rejection of GAC advice and (ii) the GAC's overall role as a decisional participant in the Empowered Community, rather than its traditional advisory capacity. The carve-out itself underwent a compromise, requiring the Community to go through an IRP before exercising the power of Board recall.
When one pulls on one end of a compromise, the other end tends to move as well.
Do other stakeholders need to send countervailing warnings? Will the Board respond as quickly? Do we want to find out?
I think this extraordinary response to a minority report should serve as a warning to us all.
Greg
On Fri, Feb 19, 2016 at 12:22 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:
Please kindly confirm and acknowledge recipt of wanrning message
Regards
Kavouss
2016-02-19 18:10 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>:
Dear Co-chairs
You have seen the concerns of 11 Governments which would certainly be echoed by other gouvernements soon.
This is an ALARMING SITUATION ,
If there is no consensus means there is no consensus ,
We could not favour one community in disfavouring another one.
Perhaps it was hoped that the people could join the consensus but it does not come up as such
If a mistake has occurred we should repair it .
Howmany times we have changed our concept from Voluntry Model to Sole member from Sole Member to Sole designator .
THE ISSUE IS CRITICAL
Pls do not rush to publish the report as being sent to the chartering organization just hold on for few more days untill your 26 feb. calls
Try to find out some solution including going back to the initial stage of REC. 11 without no carve-out and with two options of simple majority and 2/3 theshold and rediscuss that.
You can not ignor the growing concerns of several governments and would certainly be further grown up soon
Regards
Kavouss
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I think your construction is not quite right Alan, which is understandable given how much of this takes place at 1 am. First of all, we had stable consensus on the carve out, which included adjusting the threshold, prior to 13 February when the Board issued its request for additional change on this point. Following Bruce’s email, on our call on 16 February we agreed that the support of 4 members of the EC would be needed if an IRP found that the Board had not violated the Bylaws. That’s quite clear in the transcript. The transcript does not reflect agreement that an IRP must be brought in any or all cases. Because you cannot bring an IRP where there is no Bylaws violation, that would quite clearly exclude situations where the recall was not based on bylaws violations (however rare and theoretical such case could be). Hours following that call there were some questions and concerns on the list, so I posted the following email: Brett, My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding? If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds). Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles. I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable. Becky ****************** Bruce confirmed that the Board was, indeed, seeking the very broad reading of this proposal. We tried, through discussions on the list following the call to further accommodate the Board’s concern by clarifying that an IRP must be invoked where available. Those further accommodations are reflected in the draft circulated nearly 48 hours ago. The Board has indicated it is still unhappy. And that provides the opportunity to unwind hard-won consensus. No good deed goes unpunished. 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: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Friday, February 19, 2016 at 5:17 PM To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] what the Board is objecting to here - The Supplemental Proposal says that the threshold CAN be reduced to three under two conditions: (1) after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or (2) if the IRP is not available to challenge the Board action in question. My recollection is that the Board proposed only (1). Becky (and/or perhaps others) proposed (2), but I do not recall it being accepted by the Board or by the CCWG as a whole. Alan At 19/02/2016 04:38 PM, Jordan Carter wrote: Ok. If Steve Crocker could also confirm that his understanding is the same, that would be very helpful. On the overall point - the board has already made its view on that question clear. Steve's email doesn't reference the GPI test that is the only basis the Board has set out to object to ccwg proposals, and which it has invoked prior. The intervention thus has two effects. It is a source of uncertainty, because it isn't clear. And it is a source of delay, because the intent and the group's response to it has to be clarified. Once again, we face a further delay thanks to the way the ICANN board has chosen to behave. I guess I wish I could say I was surprised, or disappointed - but that's long gone. I'm just confused: what is the end game here? If anyone knows, please feel free to share. Jordan On Saturday, 20 February 2016, Samantha Eisner < Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Becky - There was another thread on this from Alan, but wanted to confirm in this thread too that this is the correct understanding of the Board’s concern. Thanks, Sam From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, February 19, 2016 at 10:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Phil Corwin' <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, 'Kavouss Arasteh' <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] what the Board is objecting to here - Just for the sake of absolute precision, I think the Board’s point is that the carve out – and hence the 3 SO/AC threshold  “ could apply where an IRP determines that the Board’s actions in response to GAC Advice contravene the Bylaws. I think what worries the Board is that the notion that the Board could be recalled by 3 SO/AC combination for action that DOES NOT contravene the Bylaws. 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: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Friday, February 19, 2016 at 1:15 PM To: 'Phil Corwin' <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Carve-out issue +1 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> [[]]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_ev...> From: Phil Corwin [ mailto:psc@vlaw-dc.com] Sent: Friday, February 19, 2016 12:52 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>; Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Carve-out issue Greg: Assuming that the new Board position is indeed a response to a minority position of a few GAC members, I am in full agreement that it “should serve as a warning to us allâ€. Indeed, it emphasizes exactly why the GAC should not be able to block the community’s ability to hold the Board accountable for implementing GAC consensus advice that the community feels is outside the scope of the Bylaws or Mission Statement. Best. Philip 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 Greg Shatan Sent: Friday, February 19, 2016 12:38 PM To: Kavouss Arasteh Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; Thomas Rickert Subject: Re: [CCWG-ACCT] Carve-out issue It is alarming that a few GAC members could seek to undo a carefully balanced compromise. And even more alarming that those few GAC members could so quickly trigger a Board intervention. The carve-out is balanced against the concerns of other stakeholders with regard to (i) the proposed supermajority threshold for Board rejection of GAC advice and (ii) the GAC's overall role as a decisional participant in the Empowered Community, rather than its traditional advisory capacity. The carve-out itself underwent a compromise, requiring the Community to go through an IRP before exercising the power of Board recall. When one pulls on one end of a compromise, the other end tends to move as well. Do other stakeholders need to send countervailing warnings? Will the Board respond as quickly? Do we want to find out? I think this extraordinary response to a minority report should serve as a warning to us all. Greg On Fri, Feb 19, 2016 at 12:22 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Please kindly confirm and acknowledge recipt of wanrning message Regards Kavouss 2016-02-19 18:10 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>: Dear Co-chairs You have seen the concerns of 11 Governments which would certainly be echoed by other gouvernements soon. This is an ALARMING SITUATION , If there is no consensus means there is no consensus , We could not favour one community in disfavouring another one. Perhaps it was hoped that the people could join the consensus but it does not come up as such If a mistake has occurred we should repair it . Howmany times we have changed our concept from Voluntry Model to Sole member from Sole Member to Sole designator . THE ISSUE IS CRITICAL Pls do not rush to publish the report as being sent to the chartering organization just hold on for few more days untill your 26 feb. calls Try to find out some solution including going back to the initial stage of REC. 11 without no carve-out and with two options of simple majority and 2/3 theshold and rediscuss that. You can not ignor the growing concerns of several governments and would certainly be further grown up soon Regards Kavouss _______________________________________________ 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=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=guusLuvtqD1j7nKqaUhBU6PnWk15AIgAcdJMrsbOcGU&s=Hzg0trn6-DcJzuYFDYd60Q_xbVgd4ZG9Vk6RIh2drL8&e=> No virus found in this message. 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My apologies if I got it wrong. I tried to make it clear that I was recounting how I remembered it. I did see some of those messages, but I did not conclude that there was any agreement. Alan -- Sent from my mobile. Please excuse brevity and typos. On February 19, 2016 6:46:47 PM EST, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
I think your construction is not quite right Alan, which is understandable given how much of this takes place at 1 am.
First of all, we had stable consensus on the carve out, which included adjusting the threshold, prior to 13 February when the Board issued its request for additional change on this point.
Following Bruce’s email, on our call on 16 February we agreed that the support of 4 members of the EC would be needed if an IRP found that the Board had not violated the Bylaws. That’s quite clear in the transcript. The transcript does not reflect agreement that an IRP must be brought in any or all cases. Because you cannot bring an IRP where there is no Bylaws violation, that would quite clearly exclude situations where the recall was not based on bylaws violations (however rare and theoretical such case could be).
Hours following that call there were some questions and concerns on the list, so I posted the following email:
Brett,
My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding?
If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).
Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles.
I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable.
Becky
******************
Bruce confirmed that the Board was, indeed, seeking the very broad reading of this proposal. We tried, through discussions on the list following the call to further accommodate the Board’s concern by clarifying that an IRP must be invoked where available. Those further accommodations are reflected in the draft circulated nearly 48 hours ago. The Board has indicated it is still unhappy. And that provides the opportunity to unwind hard-won consensus. No good deed goes unpunished.
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: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Friday, February 19, 2016 at 5:17 PM To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] what the Board is objecting to here -
The Supplemental Proposal says that the threshold CAN be reduced to three under two conditions:
(1) after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or
(2) if the IRP is not available to challenge the Board action in question.
My recollection is that the Board proposed only (1). Becky (and/or perhaps others) proposed (2), but I do not recall it being accepted by the Board or by the CCWG as a whole.
Alan
At 19/02/2016 04:38 PM, Jordan Carter wrote: Ok. If Steve Crocker could also confirm that his understanding is the same, that would be very helpful.
On the overall point - the board has already made its view on that question clear. Steve's email doesn't reference the GPI test that is the only basis the Board has set out to object to ccwg proposals, and which it has invoked prior.
The intervention thus has two effects. It is a source of uncertainty, because it isn't clear. And it is a source of delay, because the intent and the group's response to it has to be clarified.
Once again, we face a further delay thanks to the way the ICANN board has chosen to behave. I guess I wish I could say I was surprised, or disappointed - but that's long gone. I'm just confused: what is the end game here?
If anyone knows, please feel free to share.
Jordan
On Saturday, 20 February 2016, Samantha Eisner < Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote:
Hi Becky -
There was another thread on this from Alan, but wanted to confirm in this thread too that this is the correct understanding of the Board’s concern.
Thanks, Sam
From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, February 19, 2016 at 10:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Phil Corwin' <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, 'Kavouss Arasteh' <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] what the Board is objecting to here -
Just for the sake of absolute precision, I think the Board’s point is that the carve out – and hence the 3 SO/AC threshold  “ could apply where an IRP determines that the Board’s actions in response to GAC Advice contravene the Bylaws. I think what worries the Board is that the notion that the Board could be recalled by 3 SO/AC combination for action that DOES NOT contravene the Bylaws.
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: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Friday, February 19, 2016 at 1:15 PM To: 'Phil Corwin' <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Carve-out issue
+1
Paul Rosenzweig
paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>
O: +1 (202) 547-0660
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From: Phil Corwin [ mailto:psc@vlaw-dc.com] Sent: Friday, February 19, 2016 12:52 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>; Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Carve-out issue
Greg:
Assuming that the new Board position is indeed a response to a minority position of a few GAC members, I am in full agreement that it “should serve as a warning to us allâ€.
Indeed, it emphasizes exactly why the GAC should not be able to block the community’s ability to hold the Board accountable for implementing GAC consensus advice that the community feels is outside the scope of the Bylaws or Mission Statement.
Best. Philip
Philip S. Corwin, Founding Principal
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"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 Greg Shatan Sent: Friday, February 19, 2016 12:38 PM To: Kavouss Arasteh Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; Thomas Rickert Subject: Re: [CCWG-ACCT] Carve-out issue
It is alarming that a few GAC members could seek to undo a carefully balanced compromise. And even more alarming that those few GAC members could so quickly trigger a Board intervention.
The carve-out is balanced against the concerns of other stakeholders with regard to (i) the proposed supermajority threshold for Board rejection of GAC advice and (ii) the GAC's overall role as a decisional participant in the Empowered Community, rather than its traditional advisory capacity. The carve-out itself underwent a compromise, requiring the Community to go through an IRP before exercising the power of Board recall.
When one pulls on one end of a compromise, the other end tends to move as well.
Do other stakeholders need to send countervailing warnings? Will the Board respond as quickly? Do we want to find out?
I think this extraordinary response to a minority report should serve as a warning to us all.
Greg
On Fri, Feb 19, 2016 at 12:22 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote:
Please kindly confirm and acknowledge recipt of wanrning message
Regards
Kavouss
2016-02-19 18:10 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>:
Dear Co-chairs
You have seen the concerns of 11 Governments which would certainly be echoed by other gouvernements soon.
This is an ALARMING SITUATION ,
If there is no consensus means there is no consensus ,
We could not favour one community in disfavouring another one.
Perhaps it was hoped that the people could join the consensus but it does not come up as such
If a mistake has occurred we should repair it .
Howmany times we have changed our concept from Voluntry Model to Sole member from Sole Member to Sole designator .
THE ISSUE IS CRITICAL
Pls do not rush to publish the report as being sent to the chartering organization just hold on for few more days untill your 26 feb. calls
Try to find out some solution including going back to the initial stage of REC. 11 without no carve-out and with two options of simple majority and 2/3 theshold and rediscuss that.
You can not ignor the growing concerns of several governments and would certainly be further grown up soon
Regards
Kavouss
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The point is that we agreed that the threshold would be 4 where an IRP found there was no bylaws violation. That is not the same as agreeing that the only time the threshold would be 3 was if an IRP found a bylaws violation. 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: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Friday, February 19, 2016 at 6:58 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] what the Board is objecting to here - My apologies if I got it wrong. I tried to make it clear that I was recounting how I remembered it. I did see some of those messages, but I did not conclude that there was any agreement. Alan -- Sent from my mobile. Please excuse brevity and typos. On February 19, 2016 6:46:47 PM EST, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I think your construction is not quite right Alan, which is understandable given how much of this takes place at 1 am. First of all, we had stable consensus on the carve out, which included adjusting the threshold, prior to 13 February when the Board issued its request for additional change on this point. Following Bruce’s email, on our call on 16 February we agreed that the support of 4 members of the EC would be needed if an IRP found that the Board had not violated the Bylaws. That’s quite clear in the transcript. The transcript does not reflect agreement that an IRP must be brought in any or all cases. Because you cannot bring an IRP where there is no Bylaws violation, that would quite clearly exclude situations where the recall was not based on bylaws violations (however rare and theoretical such case could be). Hours following that call there were some questions and concerns on the list, so I posted the following email: Brett, My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding? If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds). Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles. I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable. Becky ****************** Bruce confirmed that the Board was, indeed, seeking the very broad reading of this proposal. We tried, through discussions on the list following the call to further accommodate the Board’s concern by clarifying that an IRP must be invoked where available. Those further accommodations are reflected in the draft circulated nearly 48 hours ago. The Board has indicated it is still unhappy. And that provides the opportunity to unwind hard-won consensus. No good deed goes unpunished. 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: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Friday, February 19, 2016 at 5:17 PM To: Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] what the Board is objecting to here - The Supplemental Proposal says that the threshold CAN be reduced to three under two conditions: (1) after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or (2) if the IRP is not available to challenge the Board action in question. My recollection is that the Board proposed only (1). Becky (and/or perhaps others) proposed (2), but I do not recall it being accepted by the Board or by the CCWG as a whole. Alan At 19/02/2016 04:38 PM, Jordan Carter wrote: Ok. If Steve Crocker could also confirm that his understanding is the same, that would be very helpful. On the overall point - the board has already made its view on that question clear. Steve's email doesn't reference the GPI test that is the only basis the Board has set out to object to ccwg proposals, and which it has invoked prior. The intervention thus has two effects. It is a source of uncertainty, because it isn't clear. And it is a source of delay, because the intent and the group's response to it has to be clarified. Once again, we face a further delay thanks to the way the ICANN board has chosen to behave. I guess I wish I could say I was surprised, or disappointed - but that's long gone. I'm just confused: what is the end game here? If anyone knows, please feel free to share. Jordan On Saturday, 20 February 2016, Samantha Eisner < Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> wrote: Hi Becky - There was another thread on this from Alan, but wanted to confirm in this thread too that this is the correct understanding of the Board’s concern. Thanks, Sam From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: Friday, February 19, 2016 at 10:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>>, 'Phil Corwin' <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, 'Greg Shatan' <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, 'Kavouss Arasteh' <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: [CCWG-ACCT] what the Board is objecting to here - Just for the sake of absolute precision, I think the Board’s point is that the carve out – and hence the 3 SO/AC threshold  “ could apply where an IRP determines that the Board’s actions in response to GAC Advice contravene the Bylaws. I think what worries the Board is that the notion that the Board could be recalled by 3 SO/AC combination for action that DOES NOT contravene the Bylaws. 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: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Friday, February 19, 2016 at 1:15 PM To: 'Phil Corwin' <psc@vlaw-dc.com<mailto:psc@vlaw-dc.com>>, Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: 'Thomas Rickert' <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Carve-out issue +1 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com> O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.redbranchconsulting....> [[]]<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.rsaconference.com_ev...> From: Phil Corwin [ mailto:psc@vlaw-dc.com] Sent: Friday, February 19, 2016 12:52 PM To: Greg Shatan <gregshatanipc@gmail.com<mailto:gregshatanipc@gmail.com>>; Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Carve-out issue Greg: Assuming that the new Board position is indeed a response to a minority position of a few GAC members, I am in full agreement that it “should serve as a warning to us allâ€. Indeed, it emphasizes exactly why the GAC should not be able to block the community’s ability to hold the Board accountable for implementing GAC consensus advice that the community feels is outside the scope of the Bylaws or Mission Statement. Best. Philip 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 Greg Shatan Sent: Friday, February 19, 2016 12:38 PM To: Kavouss Arasteh Cc: accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; Thomas Rickert Subject: Re: [CCWG-ACCT] Carve-out issue It is alarming that a few GAC members could seek to undo a carefully balanced compromise. And even more alarming that those few GAC members could so quickly trigger a Board intervention. The carve-out is balanced against the concerns of other stakeholders with regard to (i) the proposed supermajority threshold for Board rejection of GAC advice and (ii) the GAC's overall role as a decisional participant in the Empowered Community, rather than its traditional advisory capacity. The carve-out itself underwent a compromise, requiring the Community to go through an IRP before exercising the power of Board recall. When one pulls on one end of a compromise, the other end tends to move as well. Do other stakeholders need to send countervailing warnings? Will the Board respond as quickly? Do we want to find out? I think this extraordinary response to a minority report should serve as a warning to us all. Greg On Fri, Feb 19, 2016 at 12:22 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Please kindly confirm and acknowledge recipt of wanrning message Regards Kavouss 2016-02-19 18:10 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>>: Dear Co-chairs You have seen the concerns of 11 Governments which would certainly be echoed by other gouvernements soon. This is an ALARMING SITUATION , If there is no consensus means there is no consensus , We could not favour one community in disfavouring another one. Perhaps it was hoped that the people could join the consensus but it does not come up as such If a mistake has occurred we should repair it . Howmany times we have changed our concept from Voluntry Model to Sole member from Sole Member to Sole designator . THE ISSUE IS CRITICAL Pls do not rush to publish the report as being sent to the chartering organization just hold on for few more days untill your 26 feb. calls Try to find out some solution including going back to the initial stage of REC. 11 without no carve-out and with two options of simple majority and 2/3 theshold and rediscuss that. You can not ignor the growing concerns of several governments and would certainly be further grown up soon Regards Kavouss _______________________________________________ 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=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=guusLuvtqD1j7nKqaUhBU6PnWk15AIgAcdJMrsbOcGU&s=Hzg0trn6-DcJzuYFDYd60Q_xbVgd4ZG9Vk6RIh2drL8&e=> No virus found in this message. 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Hi Becky, I tried parsing what you just said and it seem to be the same thing with what the board is asking. Leaving aside the word "agreed" in the first sentence it seem to imply that less than 4 can indeed spill the board if the IRP found it violates the bylaw. Isn't that what a number of us have been saying (nevermind that I personally have always being of the opinion that the "carve out" was not necessary in the first place). Unless this is just English deficiency on my side, I think there is no difference between the 2 sentences you indicated. As the second sentence seem to confirm the first one. Otherwise it may be good to know what other time the threshold can be 3? Regards On 20 Feb 2016 1:14 a.m., "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
The point is that we agreed that the threshold would be 4 where an IRP found there was no bylaws violation. That is not the same as agreeing that the only time the threshold would be 3 was if an IRP found a bylaws violation.
*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: Alan Greenberg <alan.greenberg@mcgill.ca> Date: Friday, February 19, 2016 at 6:58 PM To: Becky Burr <becky.burr@neustar.biz>, Jordan Carter < jordan@internetnz.net.nz>, Samantha Eisner <Samantha.Eisner@icann.org> Cc: Thomas Rickert <thomas@rickert.net>, Accountability Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] what the Board is objecting to here -
My apologies if I got it wrong. I tried to make it clear that I was recounting how I remembered it. I did see some of those messages, but I did not conclude that there was any agreement.
Alan -- Sent from my mobile. Please excuse brevity and typos.
On February 19, 2016 6:46:47 PM EST, "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
I think your construction is not quite right Alan, which is understandable given how much of this takes place at 1 am.
First of all, we had stable consensus on the carve out, which included adjusting the threshold, prior to 13 February when the Board issued its request for additional change on this point.
Following Bruce’s email, on our call on 16 February *we agreed that the support of 4 members of the EC would be needed if an IRP found that the Board had not violated the Bylaws*. That’s quite clear in the transcript. The transcript does *not* reflect agreement that an IRP must be brought in any or all cases. Because you cannot bring an IRP where there is no Bylaws violation, that would quite clearly exclude situations where the recall was not based on bylaws violations (however rare and theoretical such case could be).
Hours following that call there were some questions and concerns on the list, so I posted the following email:
*Brett,*
*My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding?*
*If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).*
*Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles.*
*I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable.*
*Becky*
******************
Bruce confirmed that the Board was, indeed, seeking the very broad reading of this proposal. We tried, through discussions on the list following the call to further accommodate the Board’s concern by clarifying that an IRP must be invoked where available. Those further accommodations are reflected in the draft circulated nearly 48 hours ago. The Board has indicated it is still unhappy. And that provides the opportunity to unwind hard-won consensus. No good deed goes unpunished.
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...
Agree Seun. The dispute relates to efforts to spill the board on other grounds. I think we all agree that where an IRP Ian available - because the implementation involved an alleged violation of the bylaws - that should be the first recourse. Sent from my iPad On Feb 19, 2016, at 9:15 PM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Becky, I tried parsing what you just said and it seem to be the same thing with what the board is asking. Leaving aside the word "agreed" in the first sentence it seem to imply that less than 4 can indeed spill the board if the IRP found it violates the bylaw. Isn't that what a number of us have been saying (nevermind that I personally have always being of the opinion that the "carve out" was not necessary in the first place). Unless this is just English deficiency on my side, I think there is no difference between the 2 sentences you indicated. As the second sentence seem to confirm the first one. Otherwise it may be good to know what other time the threshold can be 3? Regards On 20 Feb 2016 1:14 a.m., "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: The point is that we agreed that the threshold would be 4 where an IRP found there was no bylaws violation. That is not the same as agreeing that the only time the threshold would be 3 was if an IRP found a bylaws violation. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://www.neustar.biz> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Friday, February 19, 2016 at 6:58 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] what the Board is objecting to here - My apologies if I got it wrong. I tried to make it clear that I was recounting how I remembered it. I did see some of those messages, but I did not conclude that there was any agreement. Alan -- Sent from my mobile. Please excuse brevity and typos. On February 19, 2016 6:46:47 PM EST, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I think your construction is not quite right Alan, which is understandable given how much of this takes place at 1 am. First of all, we had stable consensus on the carve out, which included adjusting the threshold, prior to 13 February when the Board issued its request for additional change on this point. Following Bruce’s email, on our call on 16 February we agreed that the support of 4 members of the EC would be needed if an IRP found that the Board had not violated the Bylaws. That’s quite clear in the transcript. The transcript does not reflect agreement that an IRP must be brought in any or all cases. Because you cannot bring an IRP where there is no Bylaws violation, that would quite clearly exclude situations where the recall was not based on bylaws violations (however rare and theoretical such case could be). Hours following that call there were some questions and concerns on the list, so I posted the following email: Brett, My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding? If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds). Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles. I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable. Becky ****************** Bruce confirmed that the Board was, indeed, seeking the very broad reading of this proposal. We tried, through discussions on the list following the call to further accommodate the Board’s concern by clarifying that an IRP must be invoked where available. Those further accommodations are reflected in the draft circulated nearly 48 hours ago. The Board has indicated it is still unhappy. And that provides the opportunity to unwind hard-won consensus. No good deed goes unpunished. _______________________________________________ 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=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=TOx1OsDrumE11sx4ZN6lwbwk96htSOJab4jz9lA8c3o&s=9rXkRr8zVmBaD05udaQ3tS2jCPV594p5R-Czx1IT5so&e=> ...
Dear Alan. Dear All, The understanding of Alan is right. The no 2 was prooposed as interpretation made by Beckie but it was and still on debate. However, if no IRP is available the only valid approach would be the Spill over by 4 SO/AC. This issue is still Under consideration and yet to be resolved. Regards Kavouss *"The Supplemental Proposal says that the threshold CAN be reduced to three under two conditions: (1) after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or (2) if the IRP is not available to challenge the Board action in question. My recollection is that the Board proposed only (1). Becky (and/or perhaps others) proposed (2), but I do not recall it being accepted by the Board or by the CCWG as a whole.* Alan" 2016-02-20 3:22 GMT+01:00 Burr, Becky <Becky.Burr@neustar.biz>:
Agree Seun. The dispute relates to efforts to spill the board on other grounds. I think we all agree that where an IRP Ian available - because the implementation involved an alleged violation of the bylaws - that should be the first recourse.
Sent from my iPad
On Feb 19, 2016, at 9:15 PM, Seun Ojedeji <seun.ojedeji@gmail.com> wrote:
Hi Becky,
I tried parsing what you just said and it seem to be the same thing with what the board is asking. Leaving aside the word "agreed" in the first sentence it seem to imply that less than 4 can indeed spill the board if the IRP found it violates the bylaw. Isn't that what a number of us have been saying (nevermind that I personally have always being of the opinion that the "carve out" was not necessary in the first place).
Unless this is just English deficiency on my side, I think there is no difference between the 2 sentences you indicated. As the second sentence seem to confirm the first one. Otherwise it may be good to know what other time the threshold can be 3?
Regards On 20 Feb 2016 1:14 a.m., "Burr, Becky" <Becky.Burr@neustar.biz> wrote:
The point is that we agreed that the threshold would be 4 where an IRP found there was no bylaws violation. That is not the same as agreeing that the only time the threshold would be 3 was if an IRP found a bylaws violation.
*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: Alan Greenberg <alan.greenberg@mcgill.ca> Date: Friday, February 19, 2016 at 6:58 PM To: Becky Burr <becky.burr@neustar.biz>, Jordan Carter < jordan@internetnz.net.nz>, Samantha Eisner <Samantha.Eisner@icann.org> Cc: Thomas Rickert <thomas@rickert.net>, Accountability Community < accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] what the Board is objecting to here -
My apologies if I got it wrong. I tried to make it clear that I was recounting how I remembered it. I did see some of those messages, but I did not conclude that there was any agreement.
Alan -- Sent from my mobile. Please excuse brevity and typos.
On February 19, 2016 6:46:47 PM EST, "Burr, Becky" < Becky.Burr@neustar.biz> wrote:
I think your construction is not quite right Alan, which is understandable given how much of this takes place at 1 am.
First of all, we had stable consensus on the carve out, which included adjusting the threshold, prior to 13 February when the Board issued its request for additional change on this point.
Following Bruce’s email, on our call on 16 February *we agreed that the support of 4 members of the EC would be needed if an IRP found that the Board had not violated the Bylaws*. That’s quite clear in the transcript. The transcript does *not* reflect agreement that an IRP must be brought in any or all cases. Because you cannot bring an IRP where there is no Bylaws violation, that would quite clearly exclude situations where the recall was not based on bylaws violations (however rare and theoretical such case could be).
Hours following that call there were some questions and concerns on the list, so I posted the following email:
*Brett,*
*My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding?*
*If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).*
*Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles.*
*I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable.*
*Becky*
******************
Bruce confirmed that the Board was, indeed, seeking the very broad reading of this proposal. We tried, through discussions on the list following the call to further accommodate the Board’s concern by clarifying that an IRP must be invoked where available. Those further accommodations are reflected in the draft circulated nearly 48 hours ago. The Board has indicated it is still unhappy. And that provides the opportunity to unwind hard-won consensus. No good deed goes unpunished.
_______________________________________________ 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...>
...
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As the transcript shows and I explained in my post last night, on 16 February we agreed that four SO/ACs were needed to recall the Board where an IRP found that the Bylaws were not violated. That is quite different from Alan's characterization. Apparently people now feel that is not enough -fine. Let's focus on finding a solution rather than asserting facts on the ground that don't exist. Sent from my iPad On Feb 19, 2016, at 10:19 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> wrote: Dear Alan. Dear All, The understanding of Alan is right. The no 2 was prooposed as interpretation made by Beckie but it was and still on debate. However, if no IRP is available the only valid approach would be the Spill over by 4 SO/AC. This issue is still Under consideration and yet to be resolved. Regards Kavouss "The Supplemental Proposal says that the threshold CAN be reduced to three under two conditions: (1) after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or (2) if the IRP is not available to challenge the Board action in question. My recollection is that the Board proposed only (1). Becky (and/or perhaps others) proposed (2), but I do not recall it being accepted by the Board or by the CCWG as a whole. Alan" 2016-02-20 3:22 GMT+01:00 Burr, Becky <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>>: Agree Seun. The dispute relates to efforts to spill the board on other grounds. I think we all agree that where an IRP Ian available - because the implementation involved an alleged violation of the bylaws - that should be the first recourse. Sent from my iPad On Feb 19, 2016, at 9:15 PM, Seun Ojedeji <seun.ojedeji@gmail.com<mailto:seun.ojedeji@gmail.com>> wrote: Hi Becky, I tried parsing what you just said and it seem to be the same thing with what the board is asking. Leaving aside the word "agreed" in the first sentence it seem to imply that less than 4 can indeed spill the board if the IRP found it violates the bylaw. Isn't that what a number of us have been saying (nevermind that I personally have always being of the opinion that the "carve out" was not necessary in the first place). Unless this is just English deficiency on my side, I think there is no difference between the 2 sentences you indicated. As the second sentence seem to confirm the first one. Otherwise it may be good to know what other time the threshold can be 3? Regards On 20 Feb 2016 1:14 a.m., "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: The point is that we agreed that the threshold would be 4 where an IRP found there was no bylaws violation. That is not the same as agreeing that the only time the threshold would be 3 was if an IRP found a bylaws violation. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932<tel:%2B1.202.533.2932> Mobile: +1.202.352.6367<tel:%2B1.202.352.6367> / neustar.biz<http://www.neustar.biz> From: Alan Greenberg <alan.greenberg@mcgill.ca<mailto:alan.greenberg@mcgill.ca>> Date: Friday, February 19, 2016 at 6:58 PM To: Becky Burr <becky.burr@neustar.biz<mailto:becky.burr@neustar.biz>>, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>>, Samantha Eisner <Samantha.Eisner@icann.org<mailto:Samantha.Eisner@icann.org>> Cc: Thomas Rickert <thomas@rickert.net<mailto:thomas@rickert.net>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] what the Board is objecting to here - My apologies if I got it wrong. I tried to make it clear that I was recounting how I remembered it. I did see some of those messages, but I did not conclude that there was any agreement. Alan -- Sent from my mobile. Please excuse brevity and typos. On February 19, 2016 6:46:47 PM EST, "Burr, Becky" <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> wrote: I think your construction is not quite right Alan, which is understandable given how much of this takes place at 1 am. First of all, we had stable consensus on the carve out, which included adjusting the threshold, prior to 13 February when the Board issued its request for additional change on this point. Following Bruce’s email, on our call on 16 February we agreed that the support of 4 members of the EC would be needed if an IRP found that the Board had not violated the Bylaws. That’s quite clear in the transcript. The transcript does not reflect agreement that an IRP must be brought in any or all cases. Because you cannot bring an IRP where there is no Bylaws violation, that would quite clearly exclude situations where the recall was not based on bylaws violations (however rare and theoretical such case could be). Hours following that call there were some questions and concerns on the list, so I posted the following email: Brett, My support for the Board’s approach would be limited to cases where the community seeks to recall the Board because its implementation of GAC Advice violates the Bylaws or Articles. In that case, I think that an IRP is the most appropriate, least disruptive approach. I can live with the notion that the community would respect the final determination of an IRP in such cases – and isn’t that what it means for the IRP to be binding? If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds). Bruce – I think we need clarification from you as to the Board’s intent. One could read your proposal as an attempt to limit any use of the spill the Board power in response to the Board’s implementation to GAC Advice to situations where that implementation amounts to a violation of the Bylaws/Articles. This reading would – at least theoretically – materially narrow the spill the board power. So I think Brett is right on the principle. But I also think the read I’ve proposed doesn’t really undermine the Board’s goal either, inasmuch as I believe that the community will be rightly reluctant to spill the Board in response to an action/inaction that is not alleged to violate the Bylaws/Articles. I suspect there are some details to be worked out on how you resolve a dispute between the Board and the community on whether a spill the Board effort is based on an action/inaction that can be reviewed under the IRP, but I don’t think they are insurmountable. Becky ****************** Bruce confirmed that the Board was, indeed, seeking the very broad reading of this proposal. We tried, through discussions on the list following the call to further accommodate the Board’s concern by clarifying that an IRP must be invoked where available. Those further accommodations are reflected in the draft circulated nearly 48 hours ago. The Board has indicated it is still unhappy. And that provides the opportunity to unwind hard-won consensus. No good deed goes unpunished. _______________________________________________ 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=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=TOx1OsDrumE11sx4ZN6lwbwk96htSOJab4jz9lA8c3o&s=9rXkRr8zVmBaD05udaQ3tS2jCPV594p5R-Czx1IT5so&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=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=mwAIA6CQR8fM7Dz4kA15JT-nYQHCB1K3woiSYawt5x8&s=KfmLRiRGVqALqU0_yaiCTNnGE4EISBX1bJDFn8tZOpw&e=>
participants (4)
-
Alan Greenberg -
Burr, Becky -
Kavouss Arasteh -
Seun Ojedeji