As I explained in my last message I think that a more objective running of this stress test is possible. I find it problematic to say new wording does not change the mission without some sort of testing to inform the conclusion. By all means the stress test should be as fact based as possible. This may also be a good function for the advising power of our experts, especially those who have legal training and have worked in environments where such discrimination was necessary. Whether Milton and I, or you and I, ever agree of what is in scope or out of scope is irrelevant. Can we show that the text is equivalent, is the question I think needs answering. There are many other dimensions of the Board acting properly or not. For example they can make a decision on an in-scope issue without proper bottom-up process. This would be improper and reason for going to the escalation process in protest after transition, yet would be irrelevant on the scope issues that are precipitated by changing the words of the mission beyond the words needed to satisfy our partners from the other Operational Communities. avri On 09-Jan-16 09:24, Malcolm Hutty wrote:

On 08/01/2016 20:06, Avri Doria wrote:

...

I think testing the assertion can be done using a stress test. At first sight, stress testing accidental changes to the Mission sounds sensible and prudent. However, on reflection I think it would be completely destructive of the possibility of achieving consensus in this group.

Let me explain.

Milton thinks that when Fadi launched Netmundial he was acting outside ICANN's Mission at the time, never mind now. Avri thinks this was within the scope of the Mission. Nor is this just Milton and Avri: each of them have quite a lot of people who agree with them of this point.

At the moment, Milton and Avri can agree to disagree: nothing can be done about Netmundial now, so the argument is moot. We can move on.

"Stress testing" for inadvertent changes to the Mission by assessing past actions against the proposed text means going back over old arguments like this, and seeing who is shown to be right when the proposed text is applied. Essentially, this means either (a) proving that Milton is unequivocally wrong or (b) accepting that Milton may have an arguable point under our proposed text, and so amending it so as to remove any opportunity for him to argue his point.

How could Milton possibly support the outcome of such a process?

This is not just about this one instance either: stress testing implies that we then going on to do the same analysis and text-"correction" for any other area where there is a disagreement, or an identifiable potential disagreement, as to whether ICANN's past action were within the Mission.

Personally, I happen to agree with Avri on the legitimacy of ICANN's involvement in launching Netmundial. But I don't want to prove it at a cost of forcing Milton to oppose transition - along with everyone who agrees with Milton on this, and everyone else who thinks the Board has ever acted improperly in the past.

Malcolm.

--- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

Hi, On Sat, Jan 09, 2016 at 12:08:32PM -0500, Avri Doria wrote:

Whether Milton and I, or you and I, ever agree of what is in scope or out of scope is irrelevant. Can we show that the text is equivalent, is the question I think needs answering.

Overall, I agree with Avri's view that testing the new text against past decisions is a good heuristic for checking that the new text doesn't change the mission. I would hope, however, that we'd understand the test such that, if any past decision were not obviously supported by the new text, the new text would not necessarily be judged problematic. After all, the new text is supposed to clarify. It could be that, at the margins, particularly contentious past cases would be decided differently with appeal to the new text. That would be ok, I think, as long as those cases were the contentious ones. I'm aware this yields the new problem that we decide what cases are contentious. I have no idea how to do that. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com

Milton, With all respect - you are answering the question! Sorry if I had not formulated the question properly. So let me try again. Is there, in your view, any kind of GAC advice that today (with the current Mission Statement) is within ICANN's mission, but that in the future with the revised Mission Statement as defined in the CCWG 3rd draft report would be outside the revised mission for ICANN, so that the Board does not have the possibility any longer to take the advice into account? I hope the question is clearer now. There are only two possible answers: yes or no! Best, Finn Fra: Mueller, Milton L [mailto:milton@gatech.edu] Sendt: 8. januar 2016 23:18 Til: Finn Petersen; accountability-cross-community@icann.org Emne: RE: Mission Statement Finn,

From our latest exchanges regarding the new Mission Statement and as stated in the chat yesterday, DK is of the view that the Board can of course only take decisions based on GAC advice that is within the ICANN's mission.

MM: Thank you for that. But what we have been seeking is a clear answer to see if the proposed changes to the Mission Statement would imply that the Board in the future would be further constrained in taking GAC advice into account. MM: Well, it depends on the advice, doesn't it? I understood from Becky during our CCWG call yesterday, "that ICANN should be able to continue to accept and implement GAC advice as it has been"- in other words the Board will have the same possibility to take into account GAC advice in the future (after the IANA transition) as the Board has today. If that is the case, I would think that it is now crystal clear to me. MM: As above, if GAC advises ICANN to do things that are outside its mission you can expect challenges.

Finn Peterson, FYI, we are not changing the intended mission of ICANN. To be more precise, we are giving the community the opportunity to use the IRP to challenge things ICANN does that are outside its stated mission. This means that we have to define the mission more carefully, because its meaning and interpretation will actually matter. Under the current ICANN bylaws and accountability structures, there is no way to challenge ICANN's actions on the grounds that they exceeded its mission. Therefore, the actual definition of the mission mattered less. So, to answer your question: FP: Is there, in your view, any kind of GAC advice that today (with the current Mission Statement) is within ICANN's mission, but that in the future with the revised Mission Statement as defined in the CCWG 3rd draft report would be outside the revised mission for ICANN, so that the Board does not have the possibility any longer to take the advice into account? MM: Yes, I think there are numerous things in the PICs that GAC imposed on registries outside the bottom up policy development process that were outside the mission, but since there was no effective way to appeal them, GAC and ICANN "got away with it." MM: For the sake of the stability of the affected businesses, we have expressed a willingness to accept ("grandmother" or "grandfather," whatever your gender preference) existing PICs. But we would not accept such expansion in the future, if the advice is to do something that takes ICANN outside its mission. FP: I hope the question is clearer now. There are only two possible answers: yes or no! MM: I hope the answer is clearer now. And I hope you understand now that there is a lot more to be said about this than yes or no. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology