As does mine - and it certainly is the compromise I believe is needed if the CCWG is interested in successfully meeting the concerns expressed by the GNSO on this aspect of the third draft proposal. ---------------------------------------- From: "Robin Gross" <robin@ipjustice.org> Sent: Friday, February 19, 2016 11:14 PM To: "Schaefer, Brett" <Brett.Schaefer@heritage.org> Cc: "Fadi Chehade" <fadi.chehade@icann.org>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] what the Board is objecting to here - My memory on this issue matches Brett's, outlined below. Thanks, Robin On Feb 19, 2016, at 2:49 PM, Schaefer, Brett <Brett.Schaefer@heritage.org> wrote: Alan and Fadi, That is incorrect, the proposal circulated on the lists two weeks ago and debated on the calls shortly thereafter - as Becky can attest to - were for reduced thresholds under the GAC carve-out for Board recall under all possibilities. There was no caveat or restriction. The issue of the IRP requirement and the 4 SOAC approval for Board recall under the GAC carve-out were raised by the Board in the aftermath of those calls. Best, Brett ---------------------------------------- Brett Schaefer Jay Kingham Senior Research Fellow in International Regulatory Affairs Margaret Thatcher Center for Freedom Davis Institute for National Security and Foreign Policy The Heritage Foundation 214 Massachusetts Avenue, NE Washington, DC 20002 202-608-6097 heritage.org From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Fadi Chehade Sent: Friday, February 19, 2016 5:34 PM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] what the Board is objecting to here - Alan, that is my understanding as well. There is a solution to this dialog that can maintain the fundamental balance of the multistakeholder model When the IRP rules that the Board has violated the Bylaws/Articles in accepting GAC advice, the threshold can be 3. When there is no IRP ruling, or no allegation that the Board has violated the Bylaws, keep the threshold at the same level that it was set in the prior versions of the report - 4. Fadi From: Alan Greenberg <alan.greenberg@mcgill.ca> Date: Friday, February 19, 2016 at 2:17 PM To: Jordan Carter <jordan@internetnz.net.nz>, Samantha Eisner <samantha.eisner@icann.org> Cc: Thomas Rickert <thomas@rickert.net>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] what the Board is objecting to here - The Supplemental Proposal says that the threshold CAN be reduced to three under two conditions: (1) after an IRP has found that, in implementing GAC advice, the Board acted inconsistently with the ICANN Bylaws, or (2) if the IRP is not available to challenge the Board action in question. My recollection is that the Board proposed only (1). Becky (and/or perhaps others) proposed (2), but I do not recall it being accepted by the Board or by the CCWG as a whole. Alan At 19/02/2016 04:38 PM, Jordan Carter wrote: Ok. If Steve Crocker could also confirm that his understanding is the same, that would be very helpful. On the overall point - the board has already made its view on that question clear. Steve's email doesn't reference the GPI test that is the only basis the Board has set out to object to ccwg proposals, and which it has invoked prior. The intervention thus has two effects. It is a source of uncertainty, because it isn't clear. And it is a source of delay, because the intent and the group's response to it has to be clarified. Once again, we face a further delay thanks to the way the ICANN board has chosen to behave. I guess I wish I could say I was surprised, or disappointed - but that's long gone. I'm just confused: what is the end game here? If anyone knows, please feel free to share. Jordan On Saturday, 20 February 2016, Samantha Eisner < Samantha.Eisner@icann.org> wrote: Hi Becky - There was another thread on this from Alan, but wanted to confirm in this thread too that this is the correct understanding of the Boardâ?Ts concern. Thanks, Sam From: <accountability-cross-community-bounces@icann.org> on behalf of "Burr, Becky" <Becky.Burr@neustar.biz> Date: Friday, February 19, 2016 at 10:55 AM To: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com>, 'Phil Corwin' <psc@vlaw-dc.com>, 'Greg Shatan' <gregshatanipc@gmail.com>, 'Kavouss Arasteh' <kavouss.arasteh@gmail.com> Cc: 'Thomas Rickert' <thomas@rickert.net>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Subject: [CCWG-ACCT] what the Board is objecting to here - Just for the sake of absolute precision, I think the Boardâ?Ts point is that the carve out - and hence the 3 SO/AC threshold â??" could apply where an IRP determines that the Boardâ?Ts actions in response to GAC Advice contravene the Bylaws. I think what worries the Board is that the notion that the Board could be recalled by 3 SO/AC combination for action that DOES NOT contravene the Bylaws. J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz From: Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> Date: Friday, February 19, 2016 at 1:15 PM To: 'Phil Corwin' <psc@vlaw-dc.com>, Greg Shatan <gregshatanipc@gmail.com>, Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: 'Thomas Rickert' <thomas@rickert.net>, Accountability Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Carve-out issue +1 Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key From: Phil Corwin [ mailto:psc@vlaw-dc.com] Sent: Friday, February 19, 2016 12:52 PM To: Greg Shatan <gregshatanipc@gmail.com>; Kavouss Arasteh <kavouss.arasteh@gmail.com> Cc: Thomas Rickert <thomas@rickert.net>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] Carve-out issue Greg: Assuming that the new Board position is indeed a response to a minority position of a few GAC members, I am in full agreement that it â?oshould serve as a warning to us allâ?. Indeed, it emphasizes exactly why the GAC should not be able to block the communityâ?Ts ability to hold the Board accountable for implementing GAC consensus advice that the community feels is outside the scope of the Bylaws or Mission Statement. Best. Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC "Luck is the residue of design" -- Branch Rickey From:accountability-cross-community-bounces@icann.org [ mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Greg Shatan Sent: Friday, February 19, 2016 12:38 PM To: Kavouss Arasteh Cc: accountability-cross-community@icann.org; Thomas Rickert Subject: Re: [CCWG-ACCT] Carve-out issue It is alarming that a few GAC members could seek to undo a carefully balanced compromise. And even more alarming that those few GAC members could so quickly trigger a Board intervention. The carve-out is balanced against the concerns of other stakeholders with regard to (i) the proposed supermajority threshold for Board rejection of GAC advice and (ii) the GAC's overall role as a decisional participant in the Empowered Community, rather than its traditional advisory capacity. The carve-out itself underwent a compromise, requiring the Community to go through an IRP before exercising the power of Board recall. When one pulls on one end of a compromise, the other end tends to move as well. Do other stakeholders need to send countervailing warnings? Will the Board respond as quickly? Do we want to find out? I think this extraordinary response to a minority report should serve as a warning to us all. Greg On Fri, Feb 19, 2016 at 12:22 PM, Kavouss Arasteh <kavouss.arasteh@gmail.com> wrote: Please kindly confirm and acknowledge recipt of wanrning message Regards Kavouss 2016-02-19 18:10 GMT+01:00 Kavouss Arasteh <kavouss.arasteh@gmail.com>: Dear Co-chairs You have seen the concerns of 11 Governments which would certainly be echoed by other gouvernements soon. This is an ALARMING SITUATION , If there is no consensus means there is no consensus , We could not favour one community in disfavouring another one. Perhaps it was hoped that the people could join the consensus but it does not come up as such If a mistake has occurred we should repair it . Howmany times we have changed our concept from Voluntry Model to Sole member from Sole Member to Sole designator . THE ISSUE IS CRITICAL Pls do not rush to publish the report as being sent to the chartering organization just hold on for few more days untill your 26 feb. calls Try to find out some solution including going back to the initial stage of REC. 11 without no carve-out and with two options of simple majority and 2/3 theshold and rediscuss that. You can not ignor the growing concerns of several governments and would certainly be further grown up soon Regards Kavouss _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4530/11623 - Release Date: 02/14/16 -- Jordan Carter Chief Executive, InternetNZ +64-21-442-649 | jordan@internetnz.net.nz Sent on the run, apologies for brevity Content-Type: image/png; name="image001.png" Content-Disposition: inline; filename="image001.png" Content-ID: <image001.png@01D16B17.90D93970> X-Attachment-Id: 8ad2965fd910ef78_0.1 _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Dear colleagues, I'd like to propose another way of framing this issue. I think people are speaking about this as though the threshold is changing. But it may be that what is changing is the number of possible actors. The only case we are talking about is the one where the GAC -- not the community or anyone else -- has decided in effect to remove itself from the Empowered Community. If the GAC wishes to act in the mode in which it gets to give special advice to the Board, and in which the Board must then engage with the GAC (and not everyone else) directly, then in effect the GAC takes itself out of the Empowered Community and acts in its specal GAC-advice role. In that case, the number of possible community participants in the process is a total of four. At the moment, there are seven total logically-possible participants. Two of them have already excluded themselves. That leaves a total possible number of five. But if the GAC decides that it wants special access to give advice to the board, then the "carve out" says that the GAC doesn't get to participate in the Empowered Community on that issue. This is a choice entirely within the GAC's power. It must choose. If it chooses to be board-advisor-GAC, then it is in effect choosing that it prefers that mode of operation to being part of the wider Empowered Community mechanism. In effect, a GAC choice can reduce the possible actors in the Empowered Community to four. Otherwise, the GAC is in a position to insist on advice it gave being considered first by the board, and then that the GAC can also participate in the judgement of the Board's actions. That's the very "two bites" problem that we were trying to solve. I believe that in most organizations (including many governments), it would be regarded as surprising that a participant in the to-be-judged action also gets to be one of the judges. Now, I believe there's been a long-standing principle that unanimity of the community not be required to exercise the community powers. Therefore, the only possible number of SOs and ACs left as the number for action is three. Viewed this way, it makes no difference at all whether there is an IRP, whether one is possible, whether anyone claims there is a violation of the mission, or anything else, because there are only four possible actors. One fewer than four is three, and that's how we get to a threshold of three. I understand why people are uncomfortable with such a small number of participating SOs and ACs making such a serious decision -- I am too -- but it is a consequence of the way this community has decided to organize itself, and the decisions of some ACs as to whether they participate in the Empowered Community. Once we accept that model of organization, it's very hard for me to see how the threshold we're talking about is not a logical consequence. And after all, the many practical barriers to action and rather long process for removing the board are there precisely to allow rational discussion and negotiation of settlements to happen. Those who complain that the GAC is somehow being singled out are, in my opinion, making an argument that does not stand up even to casual scrutiny. If the GAC wants to participate in the same way as every other SO and AC, then there is no difference whatever in how it will be treated. The GAC has instead asked that its historic ability to give certain kinds of priority advice to the board be maintained. And so it is, but with the rule that if the GAC wants to be special then it has to be special in other ways too. The "unfair treatment" argument is basically one that the GAC ought to be special all the time. I'm sorry, but that's not how community-driven organizations work. Moreover, if the situation is really the corner-case of a corner-case that many seem to be arguing, then the practical consequences are not significant anyway; and we are having an argument that might upend everything we have worked so hard to achieve even though there is no real problem to solve. I don't really care how this is resolved, to be honest, because I'm way more interested in getting _something_ everyone can live with. Still, I'm having a hard time constructing a reasonable argument for the board's position. I think it is time to end this seeming-unending discussion, and move ahead with the admittedly imperfect compromises that have been hammered out over many months. Finally, I must note that the IANA transition is waiting on us, and we are way past the time when we can be debating these substantive issues. If we blow the transition because some people want special treatment all the time, I fear very much for the legitimacy of ICANN's claims (as a community) to be a responsible steward of IANA functions. For me, it is very hard to predict what might happen if the transition fails. But I hope it is crystal clear that the _status quo ante_ may not be what comes of such a failure. Best regards, A PS: As usual, I'm speaking in my individual capacity; but I think it important to emphasise it in this case. -- Andrew Sullivan ajs@anvilwalrusden.com

Andrew, et al, With respect, this is not the right way to frame the issue. All of this quite convoluted discussion and negotiation seems to be based on a fear of the extraordinary power of the GAC to apply pressure on the Board. While it is true there is a rule in the bylaws compelling the Board to engage in meaningful discussion with the GAC whenever the Board is inclined not to accept GAC advice, at the end of the day the Board makes a decision and is accountable for it. As the recent IRP ruling made clear, the Board cannot justify an action by pointing to the GAC and saying, in effect, the GAC made me do it. At best, if the Board points to the GAC, it has to cite justification provided by the GAC that stands up to scrutiny irrespective of the fact that it was the GAC who said it. To say it more compactly, if there is a reason to spill the Board, it has to be because of what the Board has or has not done, not because of anything the GAC did or did not do. But what about the GAC’s special role, you might ask? Well, to start with there is really less to its special role than it might seem. As I said, the obligation on the Board is to engage in meaningful discussion. That’s perfectly reasonable, and, if we want to explore how to level the playing field, perhaps the right thing is for the Board to treat the other advisory organizations with the same deference. I’m not suggesting we attempt to make that change at this particular moment, but I am suggesting we separate the issues. Please consider the Board’s posture as a friendly amendment, not an adversarial one. It’s intended to simplify without changing the intent. Over the nearly twenty years of operation of ICANN, one of the ills we deal with is the accumulation of special cases and inconsistencies. This serves no one and is simply poor governance. Let’s move toward simpler and more regular structures and processes. Among other benefits, it’s an extremely helpful aid to transparency and with greater transparency comes greater accountability. Steve On Feb 19, 2016, at 9:15 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:

Dear colleagues,

I'd like to propose another way of framing this issue.

I think people are speaking about this as though the threshold is changing. But it may be that what is changing is the number of possible actors.

The only case we are talking about is the one where the GAC -- not the community or anyone else -- has decided in effect to remove itself from the Empowered Community. If the GAC wishes to act in the mode in which it gets to give special advice to the Board, and in which the Board must then engage with the GAC (and not everyone else) directly, then in effect the GAC takes itself out of the Empowered Community and acts in its specal GAC-advice role.

In that case, the number of possible community participants in the process is a total of four. At the moment, there are seven total logically-possible participants. Two of them have already excluded themselves. That leaves a total possible number of five. But if the GAC decides that it wants special access to give advice to the board, then the "carve out" says that the GAC doesn't get to participate in the Empowered Community on that issue.

This is a choice entirely within the GAC's power. It must choose. If it chooses to be board-advisor-GAC, then it is in effect choosing that it prefers that mode of operation to being part of the wider Empowered Community mechanism. In effect, a GAC choice can reduce the possible actors in the Empowered Community to four. Otherwise, the GAC is in a position to insist on advice it gave being considered first by the board, and then that the GAC can also participate in the judgement of the Board's actions. That's the very "two bites" problem that we were trying to solve. I believe that in most organizations (including many governments), it would be regarded as surprising that a participant in the to-be-judged action also gets to be one of the judges.

Now, I believe there's been a long-standing principle that unanimity of the community not be required to exercise the community powers. Therefore, the only possible number of SOs and ACs left as the number for action is three.

Viewed this way, it makes no difference at all whether there is an IRP, whether one is possible, whether anyone claims there is a violation of the mission, or anything else, because there are only four possible actors. One fewer than four is three, and that's how we get to a threshold of three.

I understand why people are uncomfortable with such a small number of participating SOs and ACs making such a serious decision -- I am too -- but it is a consequence of the way this community has decided to organize itself, and the decisions of some ACs as to whether they participate in the Empowered Community. Once we accept that model of organization, it's very hard for me to see how the threshold we're talking about is not a logical consequence. And after all, the many practical barriers to action and rather long process for removing the board are there precisely to allow rational discussion and negotiation of settlements to happen.

Those who complain that the GAC is somehow being singled out are, in my opinion, making an argument that does not stand up even to casual scrutiny. If the GAC wants to participate in the same way as every other SO and AC, then there is no difference whatever in how it will be treated. The GAC has instead asked that its historic ability to give certain kinds of priority advice to the board be maintained. And so it is, but with the rule that if the GAC wants to be special then it has to be special in other ways too. The "unfair treatment" argument is basically one that the GAC ought to be special all the time. I'm sorry, but that's not how community-driven organizations work.

Moreover, if the situation is really the corner-case of a corner-case that many seem to be arguing, then the practical consequences are not significant anyway; and we are having an argument that might upend everything we have worked so hard to achieve even though there is no real problem to solve. I don't really care how this is resolved, to be honest, because I'm way more interested in getting _something_ everyone can live with. Still, I'm having a hard time constructing a reasonable argument for the board's position. I think it is time to end this seeming-unending discussion, and move ahead with the admittedly imperfect compromises that have been hammered out over many months.

Finally, I must note that the IANA transition is waiting on us, and we are way past the time when we can be debating these substantive issues. If we blow the transition because some people want special treatment all the time, I fear very much for the legitimacy of ICANN's claims (as a community) to be a responsible steward of IANA functions. For me, it is very hard to predict what might happen if the transition fails. But I hope it is crystal clear that the _status quo ante_ may not be what comes of such a failure.

Best regards,

A

PS: As usual, I'm speaking in my individual capacity; but I think it important to emphasise it in this case.

-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ icann-board mailing list icann-board@icann.org https://mm.icann.org/mailman/listinfo/icann-board

Yes, crystal clear. Thank you. RD On Feb 20, 2016 11:50 AM, "Seun Ojedeji" <seun.ojedeji@gmail.com> wrote:

Reading this on a day like this just made my day.

Thanks Steve

Regards On 20 Feb 2016 4:23 p.m., "Steve Crocker" <steve.crocker@icann.org> wrote:

...

Andrew, et al,

With respect, this is not the right way to frame the issue. All of this quite convoluted discussion and negotiation seems to be based on a fear of the extraordinary power of the GAC to apply pressure on the Board. While it is true there is a rule in the bylaws compelling the Board to engage in meaningful discussion with the GAC whenever the Board is inclined not to accept GAC advice, at the end of the day the Board makes a decision and is accountable for it. As the recent IRP ruling made clear, the Board cannot justify an action by pointing to the GAC and saying, in effect, the GAC made me do it. At best, if the Board points to the GAC, it has to cite justification provided by the GAC that stands up to scrutiny irrespective of the fact that it was the GAC who said it.

To say it more compactly, if there is a reason to spill the Board, it has to be because of what the Board has or has not done, not because of anything the GAC did or did not do.

But what about the GAC’s special role, you might ask? Well, to start with there is really less to its special role than it might seem. As I said, the obligation on the Board is to engage in meaningful discussion. That’s perfectly reasonable, and, if we want to explore how to level the playing field, perhaps the right thing is for the Board to treat the other advisory organizations with the same deference. I’m not suggesting we attempt to make that change at this particular moment, but I am suggesting we separate the issues.

Please consider the Board’s posture as a friendly amendment, not an adversarial one. It’s intended to simplify without changing the intent. Over the nearly twenty years of operation of ICANN, one of the ills we deal with is the accumulation of special cases and inconsistencies. This serves no one and is simply poor governance. Let’s move toward simpler and more regular structures and processes. Among other benefits, it’s an extremely helpful aid to transparency and with greater transparency comes greater accountability.

Steve

On Feb 19, 2016, at 9:15 PM, Andrew Sullivan <ajs@anvilwalrusden.com> wrote:

...

Dear colleagues,

I'd like to propose another way of framing this issue.

I think people are speaking about this as though the threshold is changing. But it may be that what is changing is the number of possible actors.

The only case we are talking about is the one where the GAC -- not the community or anyone else -- has decided in effect to remove itself from the Empowered Community. If the GAC wishes to act in the mode in which it gets to give special advice to the Board, and in which the Board must then engage with the GAC (and not everyone else) directly, then in effect the GAC takes itself out of the Empowered Community and acts in its specal GAC-advice role.

In that case, the number of possible community participants in the process is a total of four. At the moment, there are seven total logically-possible participants. Two of them have already excluded themselves. That leaves a total possible number of five. But if the GAC decides that it wants special access to give advice to the board, then the "carve out" says that the GAC doesn't get to participate in the Empowered Community on that issue.

This is a choice entirely within the GAC's power. It must choose. If it chooses to be board-advisor-GAC, then it is in effect choosing that it prefers that mode of operation to being part of the wider Empowered Community mechanism. In effect, a GAC choice can reduce the possible actors in the Empowered Community to four. Otherwise, the GAC is in a position to insist on advice it gave being considered first by the board, and then that the GAC can also participate in the judgement of the Board's actions. That's the very "two bites" problem that we were trying to solve. I believe that in most organizations (including many governments), it would be regarded as surprising that a participant in the to-be-judged action also gets to be one of the judges.

Now, I believe there's been a long-standing principle that unanimity of the community not be required to exercise the community powers. Therefore, the only possible number of SOs and ACs left as the number for action is three.

Viewed this way, it makes no difference at all whether there is an IRP, whether one is possible, whether anyone claims there is a violation of the mission, or anything else, because there are only four possible actors. One fewer than four is three, and that's how we get to a threshold of three.

I understand why people are uncomfortable with such a small number of participating SOs and ACs making such a serious decision -- I am too -- but it is a consequence of the way this community has decided to organize itself, and the decisions of some ACs as to whether they participate in the Empowered Community. Once we accept that model of organization, it's very hard for me to see how the threshold we're talking about is not a logical consequence. And after all, the many practical barriers to action and rather long process for removing the board are there precisely to allow rational discussion and negotiation of settlements to happen.

Those who complain that the GAC is somehow being singled out are, in my opinion, making an argument that does not stand up even to casual scrutiny. If the GAC wants to participate in the same way as every other SO and AC, then there is no difference whatever in how it will be treated. The GAC has instead asked that its historic ability to give certain kinds of priority advice to the board be maintained. And so it is, but with the rule that if the GAC wants to be special then it has to be special in other ways too. The "unfair treatment" argument is basically one that the GAC ought to be special all the time. I'm sorry, but that's not how community-driven organizations work.

Moreover, if the situation is really the corner-case of a corner-case that many seem to be arguing, then the practical consequences are not significant anyway; and we are having an argument that might upend everything we have worked so hard to achieve even though there is no real problem to solve. I don't really care how this is resolved, to be honest, because I'm way more interested in getting _something_ everyone can live with. Still, I'm having a hard time constructing a reasonable argument for the board's position. I think it is time to end this seeming-unending discussion, and move ahead with the admittedly imperfect compromises that have been hammered out over many months.

Finally, I must note that the IANA transition is waiting on us, and we are way past the time when we can be debating these substantive issues. If we blow the transition because some people want special treatment all the time, I fear very much for the legitimacy of ICANN's claims (as a community) to be a responsible steward of IANA functions. For me, it is very hard to predict what might happen if the transition fails. But I hope it is crystal clear that the _status quo ante_ may not be what comes of such a failure.

Best regards,

A

PS: As usual, I'm speaking in my individual capacity; but I think it important to emphasise it in this case.

-- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ icann-board mailing list icann-board@icann.org https://mm.icann.org/mailman/listinfo/icann-board

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

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

Hi Steve, On Sat, Feb 20, 2016 at 10:23:27AM -0500, Steve Crocker wrote:

With respect, this is not the right way to frame the issue.

I don't understand why, and you haven't actually made an argument as to why. If some potential participant -- GNSO, ccNSO, ALAC, GAC, or Council of Martians and Other Planet-dwellers -- decides not to be part of the Empowered Community, that changes the number of participants and changes the way that majorities need to be calculated. For instance, suppose that both the GAC and the ALAC tomorrow announce that they don't want to be part of the Empowered Community after all. In that case, surely you wouldn't still require four SOs and ACs for action against the Board, because the threshold could never be met.

All of this quite convoluted discussion and negotiation seems to be based on a fear of the extraordinary power of the GAC to apply pressure on the Board.

I don't know what the state of mind of others is, but the argument I offered is not based on fear. It is based on the request of the GAC that their unusual function in ICANN discussions be maintained. The GAC wants to be able to inject its observations at a point in the process different to any other SO or AC. If it wants to use that power, it implicitly decides that it isn't like everyone else, and so it doesn't get treated like everyone else. If the GAC wants to be treated like everyone else, it gets to choose to do that, too.

As the recent IRP ruling made clear, the Board cannot justify an action by pointing to the GAC and saying, in effect, the GAC made me do it.

Of course, but that has nothing to do with how the GAC's participation in the Empowered Community mechanism. The choice about whether to do that lies entirely with the GAC.

To say it more compactly, if there is a reason to spill the Board, it has to be because of what the Board has or has not done, not because of anything the GAC did or did not do.

Correct; but that's not what's at issue here. What is at issue is who participates in determining that reason. The GAC is offered a choice as to whether it wants to participate, or whether it wants its views to be treated in an extraordinary way.

But what about the GAC’s special role, you might ask? Well, to start with there is really less to its special role than it might seem. As I said, the obligation on the Board is to engage in meaningful discussion. That’s perfectly reasonable

It is indeed perfectly reasonable, but as you acknowledge it is in fact different than the way the other ACs are treated. Much of the community is arguing that, if the GAC wants to be treated differently, then its participation needs to change too.

, and, if we want to explore how to level the playing field, perhaps the right thing is for the Board to treat the other advisory organizations with the same deference. I’m not suggesting we attempt to make that change at this particular moment, but I am suggesting we separate the issues.

But we're not building a process about how some _other_ arrangement would work. We're talking about how to handle things given the current roles of SOs and ACs. If ICANN wants to reorganize itself in the future (there's a whole work stream coming up, I understand) and change the arrangements then, it would then be worth talking about how to adjust these rules too. For instance, if other ACs get to give special-consideration advice to the Board, I'd expect them also to be excluded from the decision-making process later. Right now, the goal is to come up with a stable, practical, and legitimate process given the _current_ roles of the SOs and ACs. That's what the unamended proposal does.

the ills we deal with is the accumulation of special cases and inconsistencies. This serves no one and is simply poor governance.

I agree; and yet the current proposal from the Board would create a special case, because it would treat different kinds of actors the same except in some circumstances. It seems to me that the simplest arrangement is one under which, if an SO or AC wants to participate, it participates on an equal footing as all the others. That makes it easy to know who might be in and who might be out. Why isn't that the right way to frame this issue? Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com

Andrew: You raise a very important point with this statement: " I don't understand why, and you haven't actually made an argument as to why. If some potential participant -- GNSO, ccNSO, ALAC, GAC, or Council of Martians and Other Planet-dwellers -- decides not to be part of the Empowered Community, that changes the number of participants and changes the way that majorities need to be calculated. For instance, suppose that both the GAC and the ALAC tomorrow announce that they don't want to be part of the Empowered Community after all. In that case, surely you wouldn't still require four SOs and ACs for action against the Board, because the threshold could never be met." My observation of the GAC over the years leads me to believe that there is a high probability that the GAC will be unable to reach a Consensus position, as defined in ST 18 and Recommendation 11, in a timely manner on a wide variety of future matters. Indeed, the fact that the GAC could reach no Consensus position in regard to Recommendation 11 reinforces that view. Therefore, if and when we finally have a Final Report for review, we should in my view ascertain that the necessary accountability mechanisms will be available to the participating segments of the empowered community, by permitting a lower threshold for action, on those occasions when the GAC is unable to reach any consensus view and therefore abstains from participation. Best, Philip Philip S. Corwin, Founding Principal Virtualaw LLC 1155 F Street, NW Suite 1050 Washington, DC 20004 202-559-8597/Direct 202-559-8750/Fax 202-255-6172/cell Twitter: @VlawDC   "Luck is the residue of design" -- Branch Rickey -----Original Message----- From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Andrew Sullivan Sent: Saturday, February 20, 2016 11:38 AM To: Steve Crocker Cc: Icann-board ICANN; Accountability Community Subject: Re: [CCWG-ACCT] The GAC made me do it Hi Steve, On Sat, Feb 20, 2016 at 10:23:27AM -0500, Steve Crocker wrote:

With respect, this is not the right way to frame the issue.

I don't understand why, and you haven't actually made an argument as to why. If some potential participant -- GNSO, ccNSO, ALAC, GAC, or Council of Martians and Other Planet-dwellers -- decides not to be part of the Empowered Community, that changes the number of participants and changes the way that majorities need to be calculated. For instance, suppose that both the GAC and the ALAC tomorrow announce that they don't want to be part of the Empowered Community after all. In that case, surely you wouldn't still require four SOs and ACs for action against the Board, because the threshold could never be met.

All of this quite convoluted discussion and negotiation seems to be based on a fear of the extraordinary power of the GAC to apply pressure on the Board.

I don't know what the state of mind of others is, but the argument I offered is not based on fear. It is based on the request of the GAC that their unusual function in ICANN discussions be maintained. The GAC wants to be able to inject its observations at a point in the process different to any other SO or AC. If it wants to use that power, it implicitly decides that it isn't like everyone else, and so it doesn't get treated like everyone else. If the GAC wants to be treated like everyone else, it gets to choose to do that, too.

As the recent IRP ruling made clear, the Board cannot justify an action by pointing to the GAC and saying, in effect, the GAC made me do it.

Of course, but that has nothing to do with how the GAC's participation in the Empowered Community mechanism. The choice about whether to do that lies entirely with the GAC.

To say it more compactly, if there is a reason to spill the Board, it has to be because of what the Board has or has not done, not because of anything the GAC did or did not do.

Correct; but that's not what's at issue here. What is at issue is who participates in determining that reason. The GAC is offered a choice as to whether it wants to participate, or whether it wants its views to be treated in an extraordinary way.

But what about the GAC’s special role, you might ask? Well, to start with there is really less to its special role than it might seem. As I said, the obligation on the Board is to engage in meaningful discussion. That’s perfectly reasonable

It is indeed perfectly reasonable, but as you acknowledge it is in fact different than the way the other ACs are treated. Much of the community is arguing that, if the GAC wants to be treated differently, then its participation needs to change too.

, and, if we want to explore how to level the playing field, perhaps the right thing is for the Board to treat the other advisory organizations with the same deference. I’m not suggesting we attempt to make that change at this particular moment, but I am suggesting we separate the issues.

But we're not building a process about how some _other_ arrangement would work. We're talking about how to handle things given the current roles of SOs and ACs. If ICANN wants to reorganize itself in the future (there's a whole work stream coming up, I understand) and change the arrangements then, it would then be worth talking about how to adjust these rules too. For instance, if other ACs get to give special-consideration advice to the Board, I'd expect them also to be excluded from the decision-making process later. Right now, the goal is to come up with a stable, practical, and legitimate process given the _current_ roles of the SOs and ACs. That's what the unamended proposal does.

the ills we deal with is the accumulation of special cases and inconsistencies. This serves no one and is simply poor governance.

I agree; and yet the current proposal from the Board would create a special case, because it would treat different kinds of actors the same except in some circumstances. It seems to me that the simplest arrangement is one under which, if an SO or AC wants to participate, it participates on an equal footing as all the others. That makes it easy to know who might be in and who might be out. Why isn't that the right way to frame this issue? Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community ----- No virus found in this message. Checked by AVG - www.avg.com Version: 2016.0.7303 / Virus Database: 4530/11623 - Release Date: 02/14/16

Exactly right Andrew. . The best complete rebuttal I have seen. . Well said. -- Paul Rosenzweig Sent from myMail app for Android Saturday, 20 February 2016, 11:37AM -05:00 from Andrew Sullivan < ajs@anvilwalrusden.com> :

Hi Steve,

On Sat, Feb 20, 2016 at 10:23:27AM -0500, Steve Crocker wrote:

...

With respect, this is not the right way to frame the issue.

I don't understand why, and you haven't actually made an argument as to why. If some potential participant -- GNSO, ccNSO, ALAC, GAC, or Council of Martians and Other Planet-dwellers -- decides not to be part of the Empowered Community, that changes the number of participants and changes the way that majorities need to be calculated. For instance, suppose that both the GAC and the ALAC tomorrow announce that they don't want to be part of the Empowered Community after all. In that case, surely you wouldn't still require four SOs and ACs for action against the Board, because the threshold could never be met.

...

All of this quite convoluted discussion and negotiation seems to be based on a fear of the extraordinary power of the GAC to apply pressure on the Board.

I don't know what the state of mind of others is, but the argument I offered is not based on fear. It is based on the request of the GAC that their unusual function in ICANN discussions be maintained. The GAC wants to be able to inject its observations at a point in the process different to any other SO or AC. If it wants to use that power, it implicitly decides that it isn't like everyone else, and so it doesn't get treated like everyone else. If the GAC wants to be treated like everyone else, it gets to choose to do that, too.

...

As the recent IRP ruling made clear, the Board cannot justify an action by pointing to the GAC and saying, in effect, the GAC made me do it.

Of course, but that has nothing to do with how the GAC's participation in the Empowered Community mechanism. The choice about whether to do that lies entirely with the GAC.

...

To say it more compactly, if there is a reason to spill the Board, it has to be because of what the Board has or has not done, not because of anything the GAC did or did not do.

Correct; but that's not what's at issue here. What is at issue is who participates in determining that reason. The GAC is offered a choice as to whether it wants to participate, or whether it wants its views to be treated in an extraordinary way.

...

But what about the GAC’s special role, you might ask? Well, to start with there is really less to its special role than it might seem. As I said, the obligation on the Board is to engage in meaningful discussion. That’s perfectly reasonable

It is indeed perfectly reasonable, but as you acknowledge it is in fact different than the way the other ACs are treated. Much of the community is arguing that, if the GAC wants to be treated differently, then its participation needs to change too.

...

, and, if we want to explore how to level the playing field, perhaps the right thing is for the Board to treat the other advisory organizations with the same deference. I’m not suggesting we attempt to make that change at this particular moment, but I am suggesting we separate the issues.

But we're not building a process about how some _other_ arrangement would work. We're talking about how to handle things given the current roles of SOs and ACs. If ICANN wants to reorganize itself in the future (there's a whole work stream coming up, I understand) and change the arrangements then, it would then be worth talking about how to adjust these rules too. For instance, if other ACs get to give special-consideration advice to the Board, I'd expect them also to be excluded from the decision-making process later.

Right now, the goal is to come up with a stable, practical, and legitimate process given the _current_ roles of the SOs and ACs. That's what the unamended proposal does.

...

the ills we deal with is the accumulation of special cases and inconsistencies. This serves no one and is simply poor governance.

I agree; and yet the current proposal from the Board would create a special case, because it would treat different kinds of actors the same except in some circumstances. It seems to me that the simplest arrangement is one under which, if an SO or AC wants to participate, it participates on an equal footing as all the others. That makes it easy to know who might be in and who might be out. Why isn't that the right way to frame this issue?

Best regards,

A

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

+1 -- Paul Rosenzweig Sent from myMail app for Android Sunday, 21 February 2016, 05:34PM -05:00 from "Mueller, Milton L" < milton@gatech.edu> :

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

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

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

...

...

This is a choice entirely within the GAC's power. It must choose. If it chooses to be board-advisor-GAC, then it is in effect choosing that it prefers that mode of operation to being part of the wider Empowered Community mechanism. In effect, a GAC choice can reduce the possible actors in the Empowered Community to four. Otherwise, the GAC is in a position to insist on advice it gave being considered first by the board, and then that the GAC can also participate in the judgement of the Board's actions. That's the very "two bites" problem that we were trying to solve. I believe that in most organizations (including many governments), it would be regarded as surprising that a participant in the to-be-judged action also gets to be one of the judges.

You have not refuted this, as I said before you have not even engaged with this. This increases my suspicion that the board's position is based on a political calculus, not on good governance or accountability criteria.

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

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

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

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

Dear all

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

I have been away for one week, but I feel that the carve-out was meant to apply generally to situations where there is Board implementation of GAC Advice... Could someone kindly clarify the status? Best regards Jorge -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mueller, Milton L Gesendet: Sonntag, 21. Februar 2016 23:34 An: Steve Crocker <steve.crocker@icann.org>; Accountability Community <accountability-cross-community@icann.org> Cc: Icann-board ICANN <icann-board@icann.org> Betreff: Re: [CCWG-ACCT] The GAC made me do it Steve I think Andrew got the issue exactly right. I do not see how your answer even engages with his argument, which is that nearly all of the community has agreed that when board actions are challenged for being out of mission by following GAC advice, that the GAC should not be in a position to rule on that. Claiming that the GAC does not have "extraordinary power" does not answer Andrew's argument. Whether the GAC has extraordinary power or not, if it advises you (the board) to do something that the rest of the community thinks is outside of the bounds of the bylaws (which it has a demonstrated tendency to do) the GAC should not be a decisional member of the empowered community that decides whether we get to challenge that action.

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

You have not refuted this, as I said before you have not even engaged with this. This increases my suspicion that the board's position is based on a political calculus, not on good governance or accountability criteria. Further, it is clear from the reaction you have gotten that the board is not proposing a "friendly amendment." In these rules of procedure, a friendly amendment has to be accepted by the group that proposed it, and clearly it is not. I am deeply disturbed by the board upsetting a consensual compromise, and a very difficult one, for the third time in this process. I wonder if you have any appreciation of the potential costs of this, particularly when it involves an issue as sensitive as the role of national governments in ICANN. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ 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 Thanks for the clarification. Hence, do I understand correctly that the carve-out (exclusion of GAC as decisional participant) applies also if the Board decision to implement GAC Advice has been found by the IRP to be perfectly consistent with the Bylaws? Thanks for your guidance Regards Jorge Von: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Gesendet: Montag, 22. Februar 2016 12:41 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch> Cc: Mueller, Milton L <milton@gatech.edu>; Steve Crocker <steve.crocker@icann.org>; accountability-cross-community@icann.org; Icann-board ICANN <icann-board@icann.org> Betreff: Re: [CCWG-ACCT] The GAC made me do it Dear Jorge, You are right The carve out applies to all cases either in application of IRP or in the absence of IRP For the first Board's agreed with reduced threshold from 4 to 3 for Board's Spill For the second the Board wishes that the 4 SO/AC threshold applies . Some people in the community like me fully supportting the Board's views. Some others are against This is one of the issue that must be resolved tomorrow Regards Kavouss 2016-02-22 12:25 GMT+01:00 <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>: Dear all From this email by Milton it seems that some (as Milton) are understanding that the carve-out only would apply if the Board decision to implement GAC Advice is found (by the IRP I guess) to be inconsistent with the Bylaws. I have been away for one week, but I feel that the carve-out was meant to apply generally to situations where there is Board implementation of GAC Advice... Could someone kindly clarify the status? Best regards Jorge -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Mueller, Milton L Gesendet: Sonntag, 21. Februar 2016 23:34 An: Steve Crocker <steve.crocker@icann.org<mailto:steve.crocker@icann.org>>; Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: Icann-board ICANN <icann-board@icann.org<mailto:icann-board@icann.org>> Betreff: Re: [CCWG-ACCT] The GAC made me do it Steve I think Andrew got the issue exactly right. I do not see how your answer even engages with his argument, which is that nearly all of the community has agreed that when board actions are challenged for being out of mission by following GAC advice, that the GAC should not be in a position to rule on that. Claiming that the GAC does not have "extraordinary power" does not answer Andrew's argument. Whether the GAC has extraordinary power or not, if it advises you (the board) to do something that the rest of the community thinks is outside of the bounds of the bylaws (which it has a demonstrated tendency to do) the GAC should not be a decisional member of the empowered community that decides whether we get to challenge that action. From that premise on, it is all arithmetic, as Andrew showed:

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

You have not refuted this, as I said before you have not even engaged with this. This increases my suspicion that the board's position is based on a political calculus, not on good governance or accountability criteria. Further, it is clear from the reaction you have gotten that the board is not proposing a "friendly amendment." In these rules of procedure, a friendly amendment has to be accepted by the group that proposed it, and clearly it is not. I am deeply disturbed by the board upsetting a consensual compromise, and a very difficult one, for the third time in this process. I wonder if you have any appreciation of the potential costs of this, particularly when it involves an issue as sensitive as the role of national governments in ICANN. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community

Dear Kavouss, dear Becky Thanks so much!

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

Hence, we should be clear that there is no relation between the carve-out and the consistency with the Bylaws, right? Reasons for bringing such a challenge can be purely based on different interests, right? It is just a rule that excludes the GAC from (a decisional role in) any community decision where a Board decision to implement GAC Advice is at stake. A further question: if such a Board decision is based both on a SO recommendation, an ALAC advice and a GAC Advice, the only entity to be excluded from a community process would be the GAC, right? But the other SO and AC would participate on both tracks, correct? As to the threshold question: it merely has to do with the Board recall, but does not affect any of the mentioned characteristics of the carve-out, correct? Thanks very much for any further guidance Best Jorge Von: Burr, Becky [mailto:Becky.Burr@neustar.biz] Gesendet: Montag, 22. Februar 2016 14:00 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch>; kavouss.arasteh@gmail.com Cc: steve.crocker@icann.org; icann-board@icann.org; accountability-cross-community@icann.org Betreff: Re: [CCWG-ACCT] The GAC made me do it Jorge- The carve out would apply but you would need 4 SO/AC s to recall the Board. Becky J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Monday, February 22, 2016 at 6:44 AM To: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Cc: "steve.crocker@icann.org<mailto:steve.crocker@icann.org>" <steve.crocker@icann.org<mailto:steve.crocker@icann.org>>, "icann-board@icann.org<mailto:icann-board@icann.org>" <icann-board@icann.org<mailto:icann-board@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] The GAC made me do it Dear Kavouss Thanks for the clarification. Hence, do I understand correctly that the carve-out (exclusion of GAC as decisional participant) applies also if the Board decision to implement GAC Advice has been found by the IRP to be perfectly consistent with the Bylaws? Thanks for your guidance Regards Jorge Von: Kavouss Arasteh [mailto:kavouss.arasteh@gmail.com] Gesendet: Montag, 22. Februar 2016 12:41 An: Cancio Jorge BAKOM <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Cc: Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>>; Steve Crocker <steve.crocker@icann.org<mailto:steve.crocker@icann.org>>; accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>; Icann-board ICANN <icann-board@icann.org<mailto:icann-board@icann.org>> Betreff: Re: [CCWG-ACCT] The GAC made me do it Dear Jorge, You are right The carve out applies to all cases either in application of IRP or in the absence of IRP For the first Board's agreed with reduced threshold from 4 to 3 for Board's Spill For the second the Board wishes that the 4 SO/AC threshold applies . Some people in the community like me fully supportting the Board's views. Some others are against This is one of the issue that must be resolved tomorrow Regards Kavouss 2016-02-22 12:25 GMT+01:00 <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>: Dear all

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

I have been away for one week, but I feel that the carve-out was meant to apply generally to situations where there is Board implementation of GAC Advice... Could someone kindly clarify the status? Best regards Jorge -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>] Im Auftrag von Mueller, Milton L Gesendet: Sonntag, 21. Februar 2016 23:34 An: Steve Crocker <steve.crocker@icann.org<mailto:steve.crocker@icann.org>>; Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: Icann-board ICANN <icann-board@icann.org<mailto:icann-board@icann.org>> Betreff: Re: [CCWG-ACCT] The GAC made me do it Steve I think Andrew got the issue exactly right. I do not see how your answer even engages with his argument, which is that nearly all of the community has agreed that when board actions are challenged for being out of mission by following GAC advice, that the GAC should not be in a position to rule on that. Claiming that the GAC does not have "extraordinary power" does not answer Andrew's argument. Whether the GAC has extraordinary power or not, if it advises you (the board) to do something that the rest of the community thinks is outside of the bounds of the bylaws (which it has a demonstrated tendency to do) the GAC should not be a decisional member of the empowered community that decides whether we get to challenge that action.

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

You have not refuted this, as I said before you have not even engaged with this. This increases my suspicion that the board's position is based on a political calculus, not on good governance or accountability criteria. Further, it is clear from the reaction you have gotten that the board is not proposing a "friendly amendment." In these rules of procedure, a friendly amendment has to be accepted by the group that proposed it, and clearly it is not. I am deeply disturbed by the board upsetting a consensual compromise, and a very difficult one, for the third time in this process. I wonder if you have any appreciation of the potential costs of this, particularly when it involves an issue as sensitive as the role of national governments in ICANN. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=XVtvuvhpcijNtwUTpzlMWx5DtxW5ZF_9xS4V4ATYIOw&s=LQQYd1TqTMcwy8i-BXekAWw5RpkRXN7uVMzD9pyLdPg&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=XVtvuvhpcijNtwUTpzlMWx5DtxW5ZF_9xS4V4ATYIOw&s=LQQYd1TqTMcwy8i-BXekAWw5RpkRXN7uVMzD9pyLdPg&e=>

For clarity: 1. The carve-out (GAC non-decisional) would apply where the use of community power is sought to respond to Board implementation of GAC Advice. 2. The Board proposal would say that the threshold for recall in such cases would remain at 4 unless an IRP has determined that the Board’s implementation violated the Bylaws. J. Beckwith Burr Neustar, Inc. / Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office: +1.202.533.2932 Mobile: +1.202.352.6367 / neustar.biz<http://www.neustar.biz> From: "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Monday, February 22, 2016 at 6:25 AM To: "milton@gatech.edu<mailto:milton@gatech.edu>" <milton@gatech.edu<mailto:milton@gatech.edu>>, "steve.crocker@icann.org<mailto:steve.crocker@icann.org>" <steve.crocker@icann.org<mailto:steve.crocker@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: "icann-board@icann.org<mailto:icann-board@icann.org>" <icann-board@icann.org<mailto:icann-board@icann.org>> Subject: Re: [CCWG-ACCT] The GAC made me do it Dear all

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

I have been away for one week, but I feel that the carve-out was meant to apply generally to situations where there is Board implementation of GAC Advice... Could someone kindly clarify the status? Best regards Jorge -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mueller, Milton L Gesendet: Sonntag, 21. Februar 2016 23:34 An: Steve Crocker <steve.crocker@icann.org<mailto:steve.crocker@icann.org>>; Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: Icann-board ICANN <icann-board@icann.org<mailto:icann-board@icann.org>> Betreff: Re: [CCWG-ACCT] The GAC made me do it Steve I think Andrew got the issue exactly right. I do not see how your answer even engages with his argument, which is that nearly all of the community has agreed that when board actions are challenged for being out of mission by following GAC advice, that the GAC should not be in a position to rule on that. Claiming that the GAC does not have "extraordinary power" does not answer Andrew's argument. Whether the GAC has extraordinary power or not, if it advises you (the board) to do something that the rest of the community thinks is outside of the bounds of the bylaws (which it has a demonstrated tendency to do) the GAC should not be a decisional member of the empowered community that decides whether we get to challenge that action.

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

You have not refuted this, as I said before you have not even engaged with this. This increases my suspicion that the board's position is based on a political calculus, not on good governance or accountability criteria. Further, it is clear from the reaction you have gotten that the board is not proposing a "friendly amendment." In these rules of procedure, a friendly amendment has to be accepted by the group that proposed it, and clearly it is not. I am deeply disturbed by the board upsetting a consensual compromise, and a very difficult one, for the third time in this process. I wonder if you have any appreciation of the potential costs of this, particularly when it involves an issue as sensitive as the role of national governments in ICANN. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=p_nPas6nEBzFN_IpHLhx3a-ghOURb0Ool4R3dzMogA8&s=ELKBtwOcLCTwLk2oNUiueJDO-9e3pTDDCCpX1e0fkaw&e=>

So, for clarity, connecting two seemingly separate issues: * If a SO-run PDP leads to a bylaw change, blocking that change would require the support of the relevant SO And * If the board wants to implement GAC advice and the community intends to prevent that by recalling the board, the GAC does not even have a say Steve and his board are quite right, in my opinion: “the long established equilibrium” is up for grabs Best, Roelof From: <accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz<mailto:Becky.Burr@neustar.biz>> Date: maandag 22 februari 2016 13:55 To: "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>>, "milton@gatech.edu<mailto:milton@gatech.edu>" <milton@gatech.edu<mailto:milton@gatech.edu>>, "steve.crocker@icann.org<mailto:steve.crocker@icann.org>" <steve.crocker@icann.org<mailto:steve.crocker@icann.org>>, "accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: Icann-board ICANN <icann-board@icann.org<mailto:icann-board@icann.org>> Subject: Re: [CCWG-ACCT] The GAC made me do it For clarity: 1. The carve-out (GAC non-decisional) would apply where the use of community power is sought to respond to Board implementation of GAC Advice. 2. The Board proposal would say that the threshold for recall in such cases would remain at 4 unless an IRP has determined that the Board’s implementation violated the Bylaws. J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz<http://www.neustar.biz> From: "Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch<mailto:Jorge.Cancio@bakom.admin.ch>> Date: Monday, February 22, 2016 at 6:25 AM To: "milton@gatech.edu<mailto:milton@gatech.edu>" <milton@gatech.edu<mailto:milton@gatech.edu>>, "steve.crocker@icann.org<mailto:steve.crocker@icann.org>" <steve.crocker@icann.org<mailto:steve.crocker@icann.org>>, Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: "icann-board@icann.org<mailto:icann-board@icann.org>" <icann-board@icann.org<mailto:icann-board@icann.org>> Subject: Re: [CCWG-ACCT] The GAC made me do it Dear all

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

I have been away for one week, but I feel that the carve-out was meant to apply generally to situations where there is Board implementation of GAC Advice... Could someone kindly clarify the status? Best regards Jorge -----Ursprüngliche Nachricht----- Von: accountability-cross-community-bounces@icann.org<mailto:accountability-cross-community-bounces@icann.org> [mailto:accountability-cross-community-bounces@icann.org] Im Auftrag von Mueller, Milton L Gesendet: Sonntag, 21. Februar 2016 23:34 An: Steve Crocker <steve.crocker@icann.org<mailto:steve.crocker@icann.org>>; Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Cc: Icann-board ICANN <icann-board@icann.org<mailto:icann-board@icann.org>> Betreff: Re: [CCWG-ACCT] The GAC made me do it Steve I think Andrew got the issue exactly right. I do not see how your answer even engages with his argument, which is that nearly all of the community has agreed that when board actions are challenged for being out of mission by following GAC advice, that the GAC should not be in a position to rule on that. Claiming that the GAC does not have "extraordinary power" does not answer Andrew's argument. Whether the GAC has extraordinary power or not, if it advises you (the board) to do something that the rest of the community thinks is outside of the bounds of the bylaws (which it has a demonstrated tendency to do) the GAC should not be a decisional member of the empowered community that decides whether we get to challenge that action.

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

...

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

You have not refuted this, as I said before you have not even engaged with this. This increases my suspicion that the board's position is based on a political calculus, not on good governance or accountability criteria. Further, it is clear from the reaction you have gotten that the board is not proposing a "friendly amendment." In these rules of procedure, a friendly amendment has to be accepted by the group that proposed it, and clearly it is not. I am deeply disturbed by the board upsetting a consensual compromise, and a very difficult one, for the third time in this process. I wonder if you have any appreciation of the potential costs of this, particularly when it involves an issue as sensitive as the role of national governments in ICANN. Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=p_nPas6nEBzFN_IpHLhx3a-ghOURb0Ool4R3dzMogA8&s=ELKBtwOcLCTwLk2oNUiueJDO-9e3pTDDCCpX1e0fkaw&e=>

The “long established equilibrium” was thrown out the moment it was agreed that GAC gets to be a decisional participant on any of these key corporate governance matters, but it is interesting to watch the spin claim what is black is white, etc. Robin

On Feb 22, 2016, at 9:30 AM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:

So, for clarity, connecting two seemingly separate issues:

If a SO-run PDP leads to a bylaw change, blocking that change would require the support of the relevant SO And

If the board wants to implement GAC advice and the community intends to prevent that by recalling the board, the GAC does not even have a say

Steve and his board are quite right, in my opinion: “the long established equilibrium” is up for grabs

Best,

Roelof

From: <accountability-cross-community-bounces@icann.org <mailto:accountability-cross-community-bounces@icann.org>> on behalf of Becky Burr <Becky.Burr@neustar.biz <mailto:Becky.Burr@neustar.biz>> Date: maandag 22 februari 2016 13:55 To: "Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>>, "milton@gatech.edu <mailto:milton@gatech.edu>" <milton@gatech.edu <mailto:milton@gatech.edu>>, "steve.crocker@icann.org <mailto:steve.crocker@icann.org>" <steve.crocker@icann.org <mailto:steve.crocker@icann.org>>, "accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>" <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Cc: Icann-board ICANN <icann-board@icann.org <mailto:icann-board@icann.org>> Subject: Re: [CCWG-ACCT] The GAC made me do it

For clarity:

1. The carve-out (GAC non-decisional) would apply where the use of community power is sought to respond to Board implementation of GAC Advice. 2. The Board proposal would say that the threshold for recall in such cases would remain at 4 unless an IRP has determined that the Board’s implementation violated the Bylaws.

J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz <http://www.neustar.biz/>

From: "Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>" <Jorge.Cancio@bakom.admin.ch <mailto:Jorge.Cancio@bakom.admin.ch>> Date: Monday, February 22, 2016 at 6:25 AM To: "milton@gatech.edu <mailto:milton@gatech.edu>" <milton@gatech.edu <mailto:milton@gatech.edu>>, "steve.crocker@icann.org <mailto:steve.crocker@icann.org>" <steve.crocker@icann.org <mailto:steve.crocker@icann.org>>, Accountability Community <accountability-cross-community@icann.org <mailto:accountability-cross-community@icann.org>> Cc: "icann-board@icann.org <mailto:icann-board@icann.org>" <icann-board@icann.org <mailto:icann-board@icann.org>> Subject: Re: [CCWG-ACCT] The GAC made me do it

Dear all

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

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

Could someone kindly clarify the status?

Best regards

Jorge

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

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

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

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

...

...

This is a choice entirely within the GAC's power. It must choose. If it chooses to be board-advisor-GAC, then it is in effect choosing that it prefers that mode of operation to being part of the wider Empowered Community mechanism. In effect, a GAC choice can reduce the possible actors in the Empowered Community to four. Otherwise, the GAC is in a position to insist on advice it gave being considered first by the board, and then that the GAC can also participate in the judgement of the Board's actions. That's the very "two bites" problem that we were trying to solve. I believe that in most organizations (including many governments), it would be regarded as surprising that a participant in the to-be-judged action also gets to be one of the judges.

You have not refuted this, as I said before you have not even engaged with this. This increases my suspicion that the board's position is based on a political calculus, not on good governance or accountability criteria.

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

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

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFAw&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=p_nPas6nEBzFN_IpHLhx3a-ghOURb0Ool4R3dzMogA8&s=ELKBtwOcLCTwLk2oNUiueJDO-9e3pTDDCCpX1e0fkaw&e=>_______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org <mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community <https://mm.icann.org/mailman/listinfo/accountability-cross-community>

Dear All We are not hear to listen or read the minority statement.we have seen read them before. Regards Kavousd Sent from my iPhone

On 22 Feb 2016, at 18:50, Robin Gross <robin@ipjustice.org> wrote:

The “long established equilibrium” was thrown out the moment it was agreed that GAC gets to be a decisional participant on any of these key corporate governance matters, but it is interesting to watch the spin claim what is black is white, etc.

Robin

...

On Feb 22, 2016, at 9:30 AM, Roelof Meijer <Roelof.Meijer@sidn.nl> wrote:

So, for clarity, connecting two seemingly separate issues:

If a SO-run PDP leads to a bylaw change, blocking that change would require the support of the relevant SO And

If the board wants to implement GAC advice and the community intends to prevent that by recalling the board, the GAC does not even have a say

Steve and his board are quite right, in my opinion: “the long established equilibrium” is up for grabs

Best,

Roelof

From: <accountability-cross-community-bounces@icann.org> on behalf of Becky Burr <Becky.Burr@neustar.biz> Date: maandag 22 februari 2016 13:55 To: "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch>, "milton@gatech.edu" <milton@gatech.edu>, "steve.crocker@icann.org" <steve.crocker@icann.org>, "accountability-cross-community@icann.org" <accountability-cross-community@icann.org> Cc: Icann-board ICANN <icann-board@icann.org> Subject: Re: [CCWG-ACCT] The GAC made me do it

For clarity:

1. The carve-out (GAC non-decisional) would apply where the use of community power is sought to respond to Board implementation of GAC Advice. 2. The Board proposal would say that the threshold for recall in such cases would remain at 4 unless an IRP has determined that the Board’s implementation violated the Bylaws.

J. Beckwith Burr Neustar, Inc./Deputy General Counsel & Chief Privacy Officer 1775 Pennsylvania Avenue NW, Washington D.C. 20006 Office:+1.202.533.2932 Mobile:+1.202.352.6367 /neustar.biz

From: "Jorge.Cancio@bakom.admin.ch" <Jorge.Cancio@bakom.admin.ch> Date: Monday, February 22, 2016 at 6:25 AM To: "milton@gatech.edu" <milton@gatech.edu>, "steve.crocker@icann.org" <steve.crocker@icann.org>, Accountability Community <accountability-cross-community@icann.org> Cc: "icann-board@icann.org" <icann-board@icann.org> Subject: Re: [CCWG-ACCT] The GAC made me do it

Dear all

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

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

Could someone kindly clarify the status?

Best regards

Jorge

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

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

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

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

...

...

This is a choice entirely within the GAC's power. It must choose. If it chooses to be board-advisor-GAC, then it is in effect choosing that it prefers that mode of operation to being part of the wider Empowered Community mechanism. In effect, a GAC choice can reduce the possible actors in the Empowered Community to four. Otherwise, the GAC is in a position to insist on advice it gave being considered first by the board, and then that the GAC can also participate in the judgement of the Board's actions. That's the very "two bites" problem that we were trying to solve. I believe that in most organizations (including many governments), it would be regarded as surprising that a participant in the to-be-judged action also gets to be one of the judges.

You have not refuted this, as I said before you have not even engaged with this. This increases my suspicion that the board's position is based on a political calculus, not on good governance or accountability criteria.

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

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

Dr. Milton L. Mueller Professor, School of Public Policy Georgia Institute of Technology

_______________________________________________ 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

* If the board wants to implement GAC advice and the community intends to prevent that by recalling the board, the GAC does not even have a say Ah, Roelof I see. You really have a pretty serious misconception of what this controversy is about. As Becky noted,

No, the carve out reflects the principle that we have discussed at great

length. The GAC should not have the authority BOTH to force the Board to

the negotiating table at any time over any issues and to block community

challenge of the results of those Board/GAC negotiations. The status of GAC

Advice differentiates it from any other kind of advice. I suspect that 99.9% of

the time that challenge will involve an alleged bylaws violations, but maybe

not.

Perhaps if you understand better you will change your mind. AS you can clearly see, the GAC has already had a _unilateral_ say because of its ability to force the board to the negotiating table. NO OTHER SO/AC has that capability. Can you explain to me (and to all others on the list) how you can say they don't have a say? Why are you supporting two bites at the apple (other than the fact that as a ccTLD who is not regulated by ICANN at all, it doesn't affect you in any way? --MM