Jordan, The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice. In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how. This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise. I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change. If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient. Best, Brett ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/> On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote: Robin, I don't think that is what is being proposed. All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board. That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement. Then it got qualified by noting that if there had been an IRP, etc etc. But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it. I would not support any such changes. cheers Jordan On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can’t slip it in at this impossibly late hour. Robin On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello All, To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice. For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal. For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed. Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision. Regards, Bruce Tonkin _______________________________________________ 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 - your voice for the Open Internet +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz> _______________________________________________ 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 Kavouss and CCWG colleagues I agree. Recall of the entire Board would be an extraordinary course to take that would have widespread ramifications - quite possibly political ones included - in view of its likely impact on ICANN governance and confidence in the overall stability of the global domain name system and how it is managed and coordinated. It is well recognised - as the Board has made clear and GAC representatives too - that a process leading to a decision of such magnitude should involve the entire ICANN community including governments. In the even more extraordinary eventuality of this happening as a consequence of Board acceptance of GAC advice so that the GAC would not able to participate directly in the decision phase of the escalation path - though doubtless continuing to act in an advisory role - there needs to be a safeguard against such a decision being too narrowly based. If I understand it correctly, the proposal by the Board to add the requirement of a finding by the Independent Review Panel against the Board decision based on consensus GAC advice provides that crucial safeguard requirement before a process to reach a decision to recall the Board can be undertaken. So I would recommend support for the Board's proposal as an adjunct to the threshold in this specific scenario. I hope that these comments are helpful. Kind regards Mark Mark Carvell ​United Kingdom Representative on the Governmental Advisory Committee ​of ICANN Global Internet Governance Policy Department for Culture, Media and Sport mark.carvell@culture.gov.uk tel +44 (0) 20 7211 6062 On 17 February 2016 at 07:34, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote:

Dear All Too much theory and some mixing up the situation. Mission is part of the Bylaws . The Carve- out deals with just when ICANN is alleged by the community exceeding its Mission and nothing else. Too broad interpretation of Bruce , s amendments. One could not simply spill the Board with just 3 SOs/AC. Regards Kavouss

Sent from my iPhone

...

On 17 Feb 2016, at 04:40, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:

Jordan,

The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice.

In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how.

This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise.

I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change.

If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient.

Best,

Brett

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

On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz>> wrote:

Robin, I don't think that is what is being proposed.

All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board.

That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement.

Then it got qualified by noting that if there had been an IRP, etc etc.

But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it.

I would not support any such changes.

cheers Jordan

On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org<mailto: robin@ipjustice.org>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can’t slip it in at this impossibly late hour.

Robin

On Feb 16, 2016, at 5:28 PM, Bruce Tonkin < Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ 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 - your voice for the Open Internet

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

_______________________________________________ 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

---

Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Mark, Where the IRP has standing to hear the matter at hand it can function as the safeguard you wish. When the IRP does not have standing to hear the issue in dispute it does no such thing: instead it serves strictly as an obstacle as the IRP would not have the power to rule on the substantive issue at hand. It effectively negates a portion of the negotiated GAC carve out and replaces it in cases where the IRP has no standing not with a reasoned body to evaluate the substantive matter but with a body unable to do same and whose inability to rule automatically negates the agreed carve out. This entire situation is not acceptable on several grounds. One, the Board intervention is coming too late. This should be a minority statement, nothing more. Two, substantively the Board is arguing for a safeguard that in certain instances will function not as a safeguard but as an automatic block that raises thresholds regardless of the merits of the substantive matter. I would encourage the Board to reconsider this decision and agree to have its proposal apply only in cases where the IRP has subject matter jurisdiction. Although the process still is a violation of our working methods and is procedurally wrong I'll hold my nose and accept it. Otherwise by the close of business today I will file a complaint with the Office of the Ombudsman concerning fairness of the manner in which this last minute proposal is being considered. If it stands myself and my fellow GNSO Councillors will then have to consider our ability to accept and approve this last minute intervention of the Board. It would be a shame if we felt forced to reject multiple elements of the accountability proposal because of this poorly designed, last minute, procedurally unwarranted substantive intervention by the our colleagues on the Board. Kind Regards, Ed Morris

On 17 Feb 2016, at 10:48, Mark Carvell <mark.carvell@culture.gov.uk> wrote:

Dear Kavouss and CCWG colleagues

I agree. Recall of the entire Board would be an extraordinary course to take that would have widespread ramifications - quite possibly political ones included - in view of its likely impact on ICANN governance and confidence in the overall stability of the global domain name system and how it is managed and coordinated. It is well recognised - as the Board has made clear and GAC representatives too - that a process leading to a decision of such magnitude should involve the entire ICANN community including governments. In the even more extraordinary eventuality of this happening as a consequence of Board acceptance of GAC advice so that the GAC would not able to participate directly in the decision phase of the escalation path - though doubtless continuing to act in an advisory role - there needs to be a safeguard against such a decision being too narrowly based. If I understand it correctly, the proposal by the Board to add the requirement of a finding by the Independent Review Panel against the Board decision based on consensus GAC advice provides that crucial safeguard requirement before a process to reach a decision to recall the Board can be undertaken. So I would recommend support for the Board's proposal as an adjunct to the threshold in this specific scenario.

I hope that these comments are helpful. Kind regards

Mark

Mark Carvell ​United Kingdom Representative on the Governmental Advisory Committee ​of ICANN

Global Internet Governance Policy Department for Culture, Media and Sport mark.carvell@culture.gov.uk tel +44 (0) 20 7211 6062

...

On 17 February 2016 at 07:34, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote: Dear All Too much theory and some mixing up the situation. Mission is part of the Bylaws . The Carve- out deals with just when ICANN is alleged by the community exceeding its Mission and nothing else. Too broad interpretation of Bruce , s amendments. One could not simply spill the Board with just 3 SOs/AC. Regards Kavouss

Sent from my iPhone

...

On 17 Feb 2016, at 04:40, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:

Jordan,

The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice.

In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how.

This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise.

I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change.

If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient.

Best,

Brett

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

On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote:

Robin, I don't think that is what is being proposed.

All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board.

That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement.

Then it got qualified by noting that if there had been an IRP, etc etc.

But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it.

I would not support any such changes.

cheers Jordan

On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can’t slip it in at this impossibly late hour.

Robin

On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ 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 - your voice for the Open Internet

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

_______________________________________________ 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

---

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

Brett, it appears to me that you are correct. The switch from the membership model left us dependent upon spilling the Board, or parts of it, as the ultimate community power. Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP. I note Becky Burr's comments on this issue: 'If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).' Many members of the CCWG, including myself, have indicated agreement with Becky's view. Can somebody point to me where this limitation on community power has been proposed, discussed and agreed by the community? Can someone show me where the two readings have been held on this issue? If not then this is a process violation and I will be forced to ask the NCSG policy committee to file a complaint with the Office of the Ombudsman. I don't believe the community has or will agree to this limitation of the GAC carve out if given a chance to examine it and weigh in on the matter. It sorrows me that the Board is pushing this last minute change that threatens the ongoing status of our fine Proposal. Of course, given the timing this proposal could and should placed in the Supplemental as a Minority Statement, nothing more, Best, Ed Sent from my iPhone

On 17 Feb 2016, at 02:49, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:

Well, this is clear and it is what I was concerned about.

Essentially, the Board is insisting in a 4 SOAC threshold for spilling the Board in all circumstances except when it is defying an IRP ruling against a decision based on consensus GAC advice. It is a significant change making it more difficult for the EC to exercise its ultimate enforcement power.

Moreover, it seems likely that, if the GAC decides not to participate in the EC as a full decisions like participant, and the thresholds are adjusted, the Board would insist on a unanimous 4 SOAC threshold to spill the Board.

Am I wrong?

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

Begin forwarded message:

From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> Date: February 16, 2016 at 8:28:04 PM EST To: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ 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>

Sent from my iPhone

On 17 Feb 2016, at 03:43, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:

Jordan,

The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice.

In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how.

This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise.

I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change.

If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient.

Best,

Brett

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

On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz<mailto:jordan@internetnz.net.nz>> wrote:

Robin, I don't think that is what is being proposed.

All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board.

That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement.

Then it got qualified by noting that if there had been an IRP, etc etc.

But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it.

I would not support any such changes.

cheers Jordan

On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org<mailto:robin@ipjustice.org>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can’t slip it in at this impossibly late hour.

Robin

On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ 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 - your voice for the Open Internet

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

_______________________________________________ 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

Why are you surprised? Standard negotiation tactics. 'Ask for more!' And now we've agreed on the price and the specification of the car, I'll have a full tank of gas and a set of floor mats as well, please. Nigel PS: I'd have been surprised if the Board DIDN'T do this-- it would be making me suspicious as to what I'd missed. On 17/02/16 08:52, Edward Morris wrote:

Brett, it appears to me that you are correct. The switch from the membership model left us dependent upon spilling the Board, or parts of it, as the ultimate community power. Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP.

I note Becky Burr's comments on this issue:

'If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).'

Many members of the CCWG, including myself, have indicated agreement with Becky's view.

Can somebody point to me where this limitation on community power has been proposed, discussed and agreed by the community? Can someone show me where the two readings have been held on this issue?

If not then this is a process violation and I will be forced to ask the NCSG policy committee to file a complaint with the Office of the Ombudsman. I don't believe the community has or will agree to this limitation of the GAC carve out if given a chance to examine it and weigh in on the matter. It sorrows me that the Board is pushing this last minute change that threatens the ongoing status of our fine Proposal. Of course, given the timing this proposal could and should placed in the Supplemental as a Minority Statement, nothing more,

Best,

Ed

Sent from my iPhone

...

On 17 Feb 2016, at 02:49, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>> wrote:

Well, this is clear and it is what I was concerned about.

Essentially, the Board is insisting in a 4 SOAC threshold for spilling the Board in all circumstances except when it is defying an IRP ruling against a decision based on consensus GAC advice. It is a significant change making it more difficult for the EC to exercise its ultimate enforcement power.

Moreover, it seems likely that, if the GAC decides not to participate in the EC as a full decisions like participant, and the thresholds are adjusted, the Board would insist on a unanimous 4 SOAC threshold to spill the Board.

Am I wrong?

________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE <x-apple-data-detectors://3/1> Washington, DC 20002 <x-apple-data-detectors://3/1> 202-608-6097 <tel:202-608-6097> heritage.org <http://heritage.org/><http://heritage.org/>

Begin forwarded message:

From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au><mailto:Bruce.Tonkin@melbourneit.com.au>> Date: February 16, 2016 at 8:28:04 PM EST To: Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org><mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps...>

Sent from my iPhone

On 17 Feb 2016, at 03:43, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>> wrote:

...

Jordan,

The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice.

In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how.

This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise.

I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change.

If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient.

Best,

Brett

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

On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz><mailto:jordan@internetnz.net.nz>> wrote:

Robin, I don't think that is what is being proposed.

All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board.

That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement.

Then it got qualified by noting that if there had been an IRP, etc etc.

But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it.

I would not support any such changes.

cheers Jordan

On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org><mailto:robin@ipjustice.org>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can’t slip it in at this impossibly late hour.

Robin

On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au><mailto:Bruce.Tonkin@melbourneit.com.au>> wrote:

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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><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 - your voice for the Open Internet

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

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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

Respectfully, Nigel, I disagree. When I learned negotiation tactics, this one was referred to as ³Ticking Clock.² J. On 2/17/16, 3:11 , "accountability-cross-community-bounces@icann.org on behalf of Nigel Roberts" <accountability-cross-community-bounces@icann.org on behalf of nigel@channelisles.net> wrote:

Why are you surprised? Standard negotiation tactics. 'Ask for more!'

And now we've agreed on the price and the specification of the car, I'll have a full tank of gas and a set of floor mats as well, please.

Nigel PS: I'd have been surprised if the Board DIDN'T do this-- it would be making me suspicious as to what I'd missed.

On 17/02/16 08:52, Edward Morris wrote:

...

Brett, it appears to me that you are correct. The switch from the membership model left us dependent upon spilling the Board, or parts of it, as the ultimate community power. Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP.

I note Becky Burr's comments on this issue:

'If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).'

Many members of the CCWG, including myself, have indicated agreement with Becky's view.

Can somebody point to me where this limitation on community power has been proposed, discussed and agreed by the community? Can someone show me where the two readings have been held on this issue?

If not then this is a process violation and I will be forced to ask the NCSG policy committee to file a complaint with the Office of the Ombudsman. I don't believe the community has or will agree to this limitation of the GAC carve out if given a chance to examine it and weigh in on the matter. It sorrows me that the Board is pushing this last minute change that threatens the ongoing status of our fine Proposal. Of course, given the timing this proposal could and should placed in the Supplemental as a Minority Statement, nothing more,

Best,

Ed

Sent from my iPhone

...

On 17 Feb 2016, at 02:49, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>> wrote:

Well, this is clear and it is what I was concerned about.

Essentially, the Board is insisting in a 4 SOAC threshold for spilling the Board in all circumstances except when it is defying an IRP ruling against a decision based on consensus GAC advice. It is a significant change making it more difficult for the EC to exercise its ultimate enforcement power.

Moreover, it seems likely that, if the GAC decides not to participate in the EC as a full decisions like participant, and the thresholds are adjusted, the Board would insist on a unanimous 4 SOAC threshold to spill the Board.

Am I wrong?

________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE <x-apple-data-detectors://3/1> Washington, DC 20002 <x-apple-data-detectors://3/1> 202-608-6097 <tel:202-608-6097> heritage.org <http://heritage.org/><http://heritage.org/>

Begin forwarded message:

From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au

<mailto:Bruce.Tonkin@melbourneit.com.au><mailto:Bruce.Tonkin@melbourneit .com.au>> Date: February 16, 2016 at 8:28:04 PM EST To: Accountability Cross Community <accountability-cross-community@icann.org

<mailto:accountability-cross-community@icann.org><mailto:accountability- cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org

<mailto:Accountability-Cross-Community@icann.org><mailto:Accountability- Cross-Community@icann.org>

https://mm.icann.org/mailman/listinfo/accountability-cross-community<htt ps://mm.icann.org/mailman/listinfo/accountability-cross-community>

<https://mm.icann.org/mailman/listinfo/accountability-cross-community%3C https://mm.icann.org/mailman/listinfo/accountability-cross-community%3E>

Sent from my iPhone

On 17 Feb 2016, at 03:43, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org>> wrote:

...

Jordan,

The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice.

In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how.

This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise.

I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change.

If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient.

Best,

Brett

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

On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz><mailto:jordan@internetnz.net.nz>> wrote:

Robin, I don't think that is what is being proposed.

All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board.

That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement.

Then it got qualified by noting that if there had been an IRP, etc etc.

But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it.

I would not support any such changes.

cheers Jordan

On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org><mailto:robin@ipjustice.org>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can¹t slip it in at this impossibly late hour.

Robin

On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au

<mailto:Bruce.Tonkin@melbourneit.com.au><mailto:Bruce.Tonkin@melbourneit .com.au>> wrote:

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org

<mailto:Accountability-Cross-Community@icann.org><mailto:Accountability- Cross-Community@icann.org>

https://mm.icann.org/mailman/listinfo/accountability-cross-community<htt ps://mm.icann.org/mailman/listinfo/accountability-cross-community>

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org

<mailto:Accountability-Cross-Community@icann.org><mailto:Accountability- Cross-Community@icann.org>

https://mm.icann.org/mailman/listinfo/accountability-cross-community<htt ps://mm.icann.org/mailman/listinfo/accountability-cross-community>

-- Jordan Carter

Chief Executive InternetNZ - your voice for the Open Internet

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

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org

<mailto: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

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Hello Edward,

...

Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP. 

Just to be clear the Board proposal is only with respect to the recent proposal from the CCWG to lower the thresholds for Board removal in the case of GAC advice. The position of the CCWG on this matter only became clear a week or so ago. I am not sure how the Board could have given its view much earlier. The Board provided a compromise proposal to match the "new" situation where a lower threshold applies. The Board is not raising the threshold that was in the 3rd draft proposal from the CCWG, and continues to support this threshold. Regards, Bruce Tonkin

Edward Can I sugges this is an unhelpful line of questioning to start? I understand you musst be frustrated that the board did not provide a response akin to its own proposal prior to the calls where the compromise proposal was accepted by the CCWG. But I feel that inquiring as to motivation or causation is not going to get anyone anywhere, and is just going to be distracting. Would it not be better to take the equivalent effort instead and examine the benefits and disbenefits of what they have to say? And it it doesn't suit you, throw it out. Alternatively, if you can live with it, then you've saved time. On 17/02/16 12:16, Edward Morris wrote:

Hi Bruce,

Why was the Board unable to provide a response akin to its current proposal prior to the calls where the compromise proposal was accepted by the CCWG?

Thanks,

Edward Morris

Sent from my iPhone

...

On 17 Feb 2016, at 11:59, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Edward,

...

...

Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP.

Just to be clear the Board proposal is only with respect to the recent proposal from the CCWG to lower the thresholds for Board removal in the case of GAC advice. The position of the CCWG on this matter only became clear a week or so ago. I am not sure how the Board could have given its view much earlier.

The Board provided a compromise proposal to match the "new" situation where a lower threshold applies. The Board is not raising the threshold that was in the 3rd draft proposal from the CCWG, and continues to support this threshold.

Regards, Bruce Tonkin _______________________________________________ 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

On 17/02/16 12:16, Edward Morris wrote:

Hi Bruce,

Why was the Board unable to provide a response akin to its current proposal prior to the calls where the compromise proposal was accepted by the CCWG?

Thanks,

Edward Morris

Sent from my iPhone

...

On 17 Feb 2016, at 11:59, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au> wrote:

Hello Edward,

...

...

Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP.

Just to be clear the Board proposal is only with respect to the recent proposal from the CCWG to lower the thresholds for Board removal in the case of GAC advice. The position of the CCWG on this matter only became clear a week or so ago. I am not sure how the Board could have given its view much earlier.

The Board provided a compromise proposal to match the "new" situation where a lower threshold applies. The Board is not raising the threshold that was in the 3rd draft proposal from the CCWG, and continues to support this threshold.

Regards, Bruce Tonkin _______________________________________________ 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

Hello Edward,

...

Why was the Board unable to provide a response akin to its current proposal prior to the calls where the compromise proposal was accepted by the CCWG?

The Board comprises 20 members that also need time to consider a proposal and reach consensus on a view. The GAC compromise emerged after the Board's last meeting together, and the matter has been considered via the email list since it emerged from the CCWG. There is still an ongoing discussion on the Board mailing list, just like there is on this list. Regards, Bruce Tonkin

Dear Co-Chairs Now you have a problem. A significant number of us do NOT agree with the Board’s proposed modification of the spill power post-Board acceptance of GAC advice. A number of others apparently do agree with this further change from the closed text of Rec 1. It appears as though the supplementary proposal is not complete. I, personally, would take what was in the compromise proposal – the same “all but one objecting SO/AC” standard – that is in the current draft (which, I note, has not been released). If you are going to think about changing the draft (as you are free to do), I would respectfully request a full proposal fromteh Board (text and justirifcation); two readings; and the development of consensus one-way or the other. We should not adopt the Board’s proposal at all – but if we do, it should not be in this higgledy piggledy haphazard way of having the Board liason communicate an idea that is only clarified in email converations. Where is the redline text? And when is the consideration? Paul 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=article...> Link to my PGP Key <http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...> From: Edward Morris [mailto:egmorris1@toast.net] Sent: Wednesday, February 17, 2016 3:53 AM To: Schaefer, Brett <Brett.Schaefer@heritage.org> Cc: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice Brett, it appears to me that you are correct. The switch from the membership model left us dependent upon spilling the Board, or parts of it, as the ultimate community power. Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP. I note Becky Burr's comments on this issue: 'If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).' Many members of the CCWG, including myself, have indicated agreement with Becky's view. Can somebody point to me where this limitation on community power has been proposed, discussed and agreed by the community? Can someone show me where the two readings have been held on this issue? If not then this is a process violation and I will be forced to ask the NCSG policy committee to file a complaint with the Office of the Ombudsman. I don't believe the community has or will agree to this limitation of the GAC carve out if given a chance to examine it and weigh in on the matter. It sorrows me that the Board is pushing this last minute change that threatens the ongoing status of our fine Proposal. Of course, given the timing this proposal could and should placed in the Supplemental as a Minority Statement, nothing more, Best, Ed Sent from my iPhone On 17 Feb 2016, at 02:49, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org> > wrote: Well, this is clear and it is what I was concerned about. Essentially, the Board is insisting in a 4 SOAC threshold for spilling the Board in all circumstances except when it is defying an IRP ruling against a decision based on consensus GAC advice. It is a significant change making it more difficult for the EC to exercise its ultimate enforcement power. Moreover, it seems likely that, if the GAC decides not to participate in the EC as a full decisions like participant, and the thresholds are adjusted, the Board would insist on a unanimous 4 SOAC threshold to spill the Board. Am I wrong? ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE <x-apple-data-detectors://3/1> Washington, DC 20002 <x-apple-data-detectors://3/1> 202-608-6097 <tel:202-608-6097> heritage.org <http://heritage.org/> <http://heritage.org/> Begin forwarded message: From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au> <mailto:Bruce.Tonkin@melbourneit.com.au>> Date: February 16, 2016 at 8:28:04 PM EST To: Accountability Cross Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org> <mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice Hello All, To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice. For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal. For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed. Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> <mailto:Accountability-Cross-Community@icann.org> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps...> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community> Sent from my iPhone On 17 Feb 2016, at 03:43, Schaefer, Brett <Brett.Schaefer@heritage.org <mailto:Brett.Schaefer@heritage.org> > wrote: Jordan, The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice. In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how. This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise. I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change. If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient. Best, Brett ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org <http://heritage.org> <http://heritage.org/> On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz>> wrote: Robin, I don't think that is what is being proposed. All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board. That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement. Then it got qualified by noting that if there had been an IRP, etc etc. But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it. I would not support any such changes. cheers Jordan On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org <mailto:robin@ipjustice.org> <mailto:robin@ipjustice.org>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can’t slip it in at this impossibly late hour. Robin On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au> <mailto:Bruce.Tonkin@melbourneit.com.au>> wrote: Hello All, To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice. For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal. For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed. Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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%3chttps...> <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> <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3chttps...> <https://mm.icann.org/mailman/listinfo/accountability-cross-community> -- Jordan Carter Chief Executive InternetNZ - your voice for the Open Internet +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz <mailto:jordan@internetnz.net.nz> <mailto:jordan@internetnz.net.nz> Skype: jordancarter Web: www.internetnz.nz <http://www.internetnz.nz> <http://www.internetnz.nz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto: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

No wonder the time line doesn't work, I have no clue how I can write a Minority Report on a Final Report which is not Final. Let me just go on record with the formal objection in case we poll. el On 2016-02-17 14:27, Paul Rosenzweig wrote:

Dear Co-Chairs

Now you have a problem. A significant number of us do NOT agree with the Board’s proposed modification of the spill power post-Board acceptance of GAC advice. A number of others apparently do agree with this further change from the closed text of Rec 1. It appears as though the supplementary proposal is not complete. I, personally, would take what was in the compromise proposal – the same “all but one objecting SO/AC” standard – that is in the current draft (which, I note, has not been released).

If you are going to think about changing the draft (as you are free to do), I would respectfully request a full proposal fromteh Board (text and justirifcation); two readings; and the development of consensus one-way or the other. We should not adopt the Board’s proposal at all – but if we do, it should not be in this higgledy piggledy haphazard way of having the Board liason communicate an idea that is only clarified in email converations.

Where is the redline text? And when is the consideration?

Paul [...] -- Dr. Eberhard W. Lisse \ / Obstetrician & Gynaecologist (Saar) el@lisse.NA / * | Telephone: +264 81 124 6733 (cell) PO Box 8421 \ / Bachbrecht, Namibia ;____/

Dear Edward, dear Paul, dear Co-Chairs - Bruce might not be able to respond and we had no chance in the board yet to review Edward's or other comments. Give us few hours to sort this out and we will respond as quickly as possible. Thanks, Erika On Wed, Feb 17, 2016 at 1:27 PM, Paul Rosenzweig < paul.rosenzweig@redbranchconsulting.com> wrote:

Dear Co-Chairs

Now you have a problem. A significant number of us do NOT agree with the Board’s proposed modification of the spill power post-Board acceptance of GAC advice. A number of others apparently do agree with this further change from the closed text of Rec 1. It appears as though the supplementary proposal is not complete. I, personally, would take what was in the compromise proposal – the same “all but one objecting SO/AC” standard – that is in the current draft (which, I note, has not been released).

If you are going to think about changing the draft (as you are free to do), I would respectfully request a full proposal fromteh Board (text and justirifcation); two readings; and the development of consensus one-way or the other. We should not adopt the Board’s proposal at all – but if we do, it should not be in this higgledy piggledy haphazard way of having the Board liason communicate an idea that is only clarified in email converations.

Where is the redline text? And when is the consideration?

Paul

Paul Rosenzweig

paul.rosenzweig@redbranchconsulting.com <paul.rosenzweigesq@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 <http://www.redbranchconsulting.com/index.php?option=com_content&view=article...>

<http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...>

*From:* Edward Morris [mailto:egmorris1@toast.net] *Sent:* Wednesday, February 17, 2016 3:53 AM *To:* Schaefer, Brett <Brett.Schaefer@heritage.org> *Cc:* Accountability Cross Community < accountability-cross-community@icann.org>

*Subject:* Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice

Brett, it appears to me that you are correct. The switch from the membership model left us dependent upon spilling the Board, or parts of it, as the ultimate community power. Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP.

I note Becky Burr's comments on this issue:

'If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).'

Many members of the CCWG, including myself, have indicated agreement with Becky's view.

Can somebody point to me where this limitation on community power has been proposed, discussed and agreed by the community? Can someone show me where the two readings have been held on this issue?

If not then this is a process violation and I will be forced to ask the NCSG policy committee to file a complaint with the Office of the Ombudsman. I don't believe the community has or will agree to this limitation of the GAC carve out if given a chance to examine it and weigh in on the matter. It sorrows me that the Board is pushing this last minute change that threatens the ongoing status of our fine Proposal. Of course, given the timing this proposal could and should placed in the Supplemental as a Minority Statement, nothing more,

Best,

Ed

Sent from my iPhone

On 17 Feb 2016, at 02:49, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:

Well, this is clear and it is what I was concerned about.

Essentially, the Board is insisting in a 4 SOAC threshold for spilling the Board in all circumstances except when it is defying an IRP ruling against a decision based on consensus GAC advice. It is a significant change making it more difficult for the EC to exercise its ultimate enforcement power.

Moreover, it seems likely that, if the GAC decides not to participate in the EC as a full decisions like participant, and the thresholds are adjusted, the Board would insist on a unanimous 4 SOAC threshold to spill the Board.

Am I wrong?

________________________________

Brett Schaefer

Jay Kingham Senior Research Fellow in International Regulatory Affairs

Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy

The Heritage Foundation

214 Massachusetts Avenue, NE

Washington, DC 20002

202-608-6097

heritage.org<http://heritage.org/>

Begin forwarded message:

From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au< mailto:Bruce.Tonkin@melbourneit.com.au <Bruce.Tonkin@melbourneit.com.au>>>

Date: February 16, 2016 at 8:28:04 PM EST

To: Accountability Cross Community < accountability-cross-community@icann.org< mailto:accountability-cross-community@icann.org <accountability-cross-community@icann.org>>>

Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards,

Bruce Tonkin

_______________________________________________

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<https://mm.icann.org/mailman/listinfo/accountability-cross-community> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps...>

Sent from my iPhone

On 17 Feb 2016, at 03:43, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote:

Jordan,

The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice.

In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how.

This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise.

I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change.

If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient.

Best,

Brett

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

On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz< mailto:jordan@internetnz.net.nz <jordan@internetnz.net.nz>>> wrote:

Robin, I don't think that is what is being proposed.

All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board.

That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement.

Then it got qualified by noting that if there had been an IRP, etc etc.

But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it.

I would not support any such changes.

cheers Jordan

On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org< mailto:robin@ipjustice.org <robin@ipjustice.org>>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can’t slip it in at this impossibly late hour.

Robin

On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au <mailto:Bruce.Tonkin@melbourneit.com.au <Bruce.Tonkin@melbourneit.com.au>>> wrote:

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ 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<https://mm.icann.org/mailman/listinfo/accountability-cross-community> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3chttps...>

_______________________________________________ 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<https://mm.icann.org/mailman/listinfo/accountability-cross-community> <https://mm.icann.org/mailman/listinfo/accountability-cross-community%3chttps...>

-- Jordan Carter

Chief Executive InternetNZ - your voice for the Open Internet

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

_______________________________________________ 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 _______________________________________________ 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

+1 Thanks Erica. From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Reply-To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<mailto:paul.rosenzweig@redbranchconsulting.com>> Date: Wednesday 17 February 2016 at 12:51 p.m. To: Erika Mann <erika@erikamann.com<mailto:erika@erikamann.com>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice Happy to wait.... -- Paul Rosenzweig Sent from myMail app for Android Wednesday, 17 February 2016, 07:50AM -05:00 from Erika Mann <erika@erikamann.com<mailto:erika@erikamann.com>>: Dear Edward, dear Paul, dear Co-Chairs - Bruce might not be able to respond and we had no chance in the board yet to review Edward's or other comments. Give us few hours to sort this out and we will respond as quickly as possible. Thanks, Erika On Wed, Feb 17, 2016 at 1:27 PM, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com<//e-aj.my.com/compose/?mailto=mailto%3apaul.rosenzweig@redbranchconsulting.com>> wrote: Dear Co-Chairs Now you have a problem. A significant number of us do NOT agree with the Board’s proposed modification of the spill power post-Board acceptance of GAC advice. A number of others apparently do agree with this further change from the closed text of Rec 1. It appears as though the supplementary proposal is not complete. I, personally, would take what was in the compromise proposal – the same “all but one objecting SO/AC” standard – that is in the current draft (which, I note, has not been released). If you are going to think about changing the draft (as you are free to do), I would respectfully request a full proposal fromteh Board (text and justirifcation); two readings; and the development of consensus one-way or the other. We should not adopt the Board’s proposal at all – but if we do, it should not be in this higgledy piggledy haphazard way of having the Board liason communicate an idea that is only clarified in email converations. Where is the redline text? And when is the consideration? Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com<//e-aj.my.com/compose/?mailto=mailto%3apaul.rosenzweigesq@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<http://www.redbranchconsulting.com/index.php?option=com_content&view=article...> [X]<http://www.rsaconference.com/events/us16?utm_source=signature&utm_medium=ema...> From: Edward Morris [mailto:egmorris1@toast.net<//e-aj.my.com/compose/?mailto=mailto%3aegmorris1@toast.net>] Sent: Wednesday, February 17, 2016 3:53 AM To: Schaefer, Brett <Brett.Schaefer@heritage.org<//e-aj.my.com/compose/?mailto=mailto%3aBrett.Schaefer@heritage.org>> Cc: Accountability Cross Community <accountability-cross-community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice Brett, it appears to me that you are correct. The switch from the membership model left us dependent upon spilling the Board, or parts of it, as the ultimate community power. Now, following weeks of proper consideration where the Board did not raise this concern, they are making a last minute end run around the process attempting to raise the threshold for board spillage in those areas where the issue for spillage involves consensus Board advice that is not within the scope of an IRP. I note Becky Burr's comments on this issue: 'If the community seeks to dump the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then, in my view, the lower threshold should apply and there should be no obligation to file an IRP (which, presumably, would be dismissed on standing grounds).' Many members of the CCWG, including myself, have indicated agreement with Becky's view. Can somebody point to me where this limitation on community power has been proposed, discussed and agreed by the community? Can someone show me where the two readings have been held on this issue? If not then this is a process violation and I will be forced to ask the NCSG policy committee to file a complaint with the Office of the Ombudsman. I don't believe the community has or will agree to this limitation of the GAC carve out if given a chance to examine it and weigh in on the matter. It sorrows me that the Board is pushing this last minute change that threatens the ongoing status of our fine Proposal. Of course, given the timing this proposal could and should placed in the Supplemental as a Minority Statement, nothing more, Best, Ed Sent from my iPhone On 17 Feb 2016, at 02:49, Schaefer, Brett <Brett.Schaefer@heritage.org<//e-aj.my.com/compose/?mailto=mailto%3aBrett.Schaefer@heritage.org>> wrote: Well, this is clear and it is what I was concerned about. Essentially, the Board is insisting in a 4 SOAC threshold for spilling the Board in all circumstances except when it is defying an IRP ruling against a decision based on consensus GAC advice. It is a significant change making it more difficult for the EC to exercise its ultimate enforcement power. Moreover, it seems likely that, if the GAC decides not to participate in the EC as a full decisions like participant, and the thresholds are adjusted, the Board would insist on a unanimous 4 SOAC threshold to spill the Board. Am I wrong? ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org/><http://heritage.org/> Begin forwarded message: From: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<//e-aj.my.com/compose/?mailto=mailto%3aBruce.Tonkin@melbourneit.com.au><mailto:Bruce.Tonkin@melbourneit.com.au<//e-aj.my.com/compose/?mailto=mailto%3aBruce.Tonkin@melbourneit.com.au>>> Date: February 16, 2016 at 8:28:04 PM EST To: Accountability Cross Community <accountability-cross-community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org><mailto:accountability-cross-community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aaccountability%2dcross%2dcommunity@icann.org>>> Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice Hello All, To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice. For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal. For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed. Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org><mailto:Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org>> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community><https://mm.icann.org/mailman/listinfo/accountability-cross-community%3Chttps:/mm.icann.org/mailman/listinfo/accountability-cross-community%3E> Sent from my iPhone On 17 Feb 2016, at 03:43, Schaefer, Brett <Brett.Schaefer@heritage.org<//e-aj.my.com/compose/?mailto=mailto%3aBrett.Schaefer@heritage.org>> wrote: Jordan, The way I read it, the Board is insisting on a 4 SOAC threshold for spilling the Board in all circumstances except when it is specifically defying an IRP ruling against a decision based on consensus GAC advice. In other words, if the community wants to spill the Board based on its implementation of GAC Advice, but where the justification for the use of this community power is something other than a violation of the Bylaws or Articles, then the Board says that the 4 SOAC threshold should apply rather than the 3 SOAC threshold currently proposed under the GAC carve out. If this read is wrong, please let me know how. This may be acceptable to the CCWG, but let's not pretend that it is some minor tweak. As Becky noted, this would materially narrow the spill the Board power by making it harder to exercise. I agree that this situation should rarely arise. The community is populated by serious people and the Board should not fear that these powers will be exercised lightly. But they also need to be reasonably available if necessary. That is why we resisted setting the thresholds at levels requiring unanimous support in the first place. In my opinion, the Board has not offered a compelling reason for their proposed change. If the Board is needs some assurance, then Becky's narrower interpretation should be sufficient. Best, Brett ________________________________ Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org<http://heritage.org><http://heritage.org/> On Feb 16, 2016, at 10:02 PM, Jordan Carter <jordan@internetnz.net.nz<//e-aj.my.com/compose/?mailto=mailto%3ajordan@internetnz.net.nz><mailto:jordan@internetnz.net.nz<//e-aj.my.com/compose/?mailto=mailto%3ajordan@internetnz.net.nz>>> wrote: Robin, I don't think that is what is being proposed. All that is being discussed is in relation to the GAC carveout, where we had earlier agreed that where there was a challenge to the Board's implementation of GAC advice, GAC couldn't also be a decisional participant in any move to recall the Board. That got added to by including a lower thresholds in that situation, to avoid a unanimity requirement. Then it got qualified by noting that if there had been an IRP, etc etc. But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it. I would not support any such changes. cheers Jordan On 17 February 2016 at 15:55, Robin Gross <robin@ipjustice.org<//e-aj.my.com/compose/?mailto=mailto%3arobin@ipjustice.org><mailto:robin@ipjustice.org<//e-aj.my.com/compose/?mailto=mailto%3arobin@ipjustice.org>>> wrote: The CCWG never discussed, let alone agreed to narrow the grounds for spilling the board to only those grounds for an IRP as the board suddenly proposes. We cannot have such a significant narrowing of our mechanisms at the hour 23:59. The board should have proposed this curtailment months ago, when the issue could have been fairly considered. But the board can’t slip it in at this impossibly late hour. Robin On Feb 16, 2016, at 5:28 PM, Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au<//e-aj.my.com/compose/?mailto=mailto%3aBruce.Tonkin@melbourneit.com.au><mailto:Bruce.Tonkin@melbourneit.com.au<//e-aj.my.com/compose/?mailto=mailto%3aBruce.Tonkin@melbourneit.com.au>>> wrote: Hello All, To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice. For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal. For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed. Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org><mailto:Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org>> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community><https://mm.icann.org/mailman/listinfo/accountability-cross-community%3chttps:/mm.icann.org/mailman/listinfo/accountability-cross-community%3e> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org><mailto:Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org>> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://mm.icann.org/mailman/listinfo/accountability-cross-community><https://mm.icann.org/mailman/listinfo/accountability-cross-community%3chttps:/mm.icann.org/mailman/listinfo/accountability-cross-community%3e> -- Jordan Carter Chief Executive InternetNZ - your voice for the Open Internet +64-4-495-2118 (office) | +64-21-442-649 (mob) Email: jordan@internetnz.net.nz<//e-aj.my.com/compose/?mailto=mailto%3ajordan@internetnz.net.nz><mailto:jordan@internetnz.net.nz<//e-aj.my.com/compose/?mailto=mailto%3ajordan@internetnz.net.nz>> Skype: jordancarter Web: www.internetnz.nz<http://www.internetnz.nz><http://www.internetnz.nz> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org><mailto:Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org>> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<//e-aj.my.com/compose/?mailto=mailto%3aAccountability%2dCross%2dCommunity@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Hello Jordan,

...

But what is not being proposed, as I understand it, is any change to the general power to recall the ICANN Board or the thresholds to operate it.

Correct. Regards, Bruce Tonkin

All I sent this email 3 days ago. . There is a glitch somewhere. . Apologies -- Paul Rosenzweig Sent from myMail app for Android Tuesday, 16 February 2016, 10:29PM -05:00 from "Paul Rosenzweig" < paul.rosenzweig@redbranchconsulting.com> :

Bruce

I have absolutely no idea what you are saying. On the one hand you talk about GAC advice situations. On the other, you say "For all other attempts" -- is that referring to Board spill in non-GAC advice situations.

In any event, I join with Robin in firmly opposing any effort by the Board to interpose even greater limits on EC powers. The Board spill has always been "all the SOs and ACs with no more than one objecting" and there is no reason to change that for GAC advice (where the GAC has no power) any more than any other power (where the GAC might have a voice).

This is especially so since, as is most likely , I think, the GAC may never even choose to become a voting participant in the EC. In that situation even the Board's limited suggestion would have the perverse effect of making Board responses to GAC advice less capable of being corrected by the community than other situations -- exactly the opposite result from what is intended.

Paul

Paul Rosenzweig 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

-----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au] Sent: Tuesday, February 16, 2016 8:28 PM To: Accountability Cross Community < accountability-cross-community@icann.org > Subject: Re: [CCWG-ACCT] Board comments on Board removal in the context of GAC advice

Hello All,

To reiterate the Board's position in the case of the carve out compromise involving GAC advice, the Board can agree to reducing the threshold for Board removal to three SOs or ACs, with no more than one objecting, when there was an IRP finding against the Board regarding the acceptance of GAC advice.

 For all other attempts to remove the full ICANN Board, the Board does not support lowering the threshold below four SOs or ACs, with no more than one objecting. . The power to spill the Board would remain available as contemplated within the CCWG's third draft proposal.

For the avoidance of doubt, if the Board accepts GAC advice within the limitations of ICANN's mission and bylaws, an IRP panel confirms that is the case, and the community simply dislikes the GAC advice - then the threshold of 4 SOs and ACs continues to apply. If the GAC is excluded from participating then this would mean that the ccNSO, GNSO, ASO and ALAC would need to agree that the Board should be removed.

Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes. The IRP is the most appropriate vehicle to resolve disputes in this area. In general the Board consults widely with the whole community before accepting the advice from any one part of the community. We think a situation where the community broadly disagrees with an action the Board has taken that is within the mission and bylaws is likely to be extremely rare, and the threshold of 4 SOs and ACs is still appropriate in that scenario if the community simply dislikes the Board's decision.

Regards, Bruce Tonkin

_______________________________________________ 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, Variety of issued are put on the table from early warning to a Veto by government to dismissal of the Board and finally need or otherwise of IRP. To many issues in one shot? Difficult to analyse? Regards Kavousd Sent from my iPhone

On 17 Feb 2016, at 11:11, Malcolm Hutty <malcolm@linx.net> wrote:

...

On 17/02/2016 01:28, Bruce Tonkin wrote: Our view is that past cases relating to disagreement on GAC advice have been focussed on concerns that ICANN is exceeding its mission or is not following its processes.

What has happened in the past is not necessarily the boundary of everything that might foreseeably happen in the future.

Consider the scenario of the following hypothetical GAC advice: "Where an Early Warning has been received, processing of the Application shall be suspended until such time as the Early Warning is withdrawn".

Implementation of such a rule would give each and every government an independent veto on new gTLDs. This might be said to be transformative. I am sure it is not what the NTIA has in mind. Perhaps it might even be sufficient that the community might wish to insist it is not adopted.

I cannot see that the IRP provides a route for preventing the Board from accepting and implementing such advice.

If one community wished to propose dismissing the Board for vesting such a veto power in governments, should the GAC get to participate in that decision? I think the logic of Becky's compromise carve-out is that it should not.

More generally, I cannot see why the community would ever wish to dismiss the Board having won an IRP case, unless it be because the Board disregarded or defied the IRP ruling. If the community won an IRP and it was accepted, it would have had sufficient remedy.

Board dismissal exists to cover cases that are not susceptible to IRP determination, either because the rules are inadequate, or because the complaint is simply non-justiciable in character.

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/

London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ

Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community