Thanks. @ 13, is there a definition for “regulatory requirements of independence”? From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Monday, December 14, 2015 5:49 AM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Hello Jordan, Thanks for posting to the list. The comments are also available in the public comment forum at: http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30n... We had a half day meeting of the full Board on Thursday 10 Dec, and then spent a few hours again with the full Board finalizing the comments yesterday – Sunday 13 Dec. That was in addition to another half day meeting held on Saturday 5 Dec. All dates are relative to my time zone ☺ Regards, Bruce Tonkin

There are several troubling things in the Board's comments on the Mission Statement. The CCWG Mission Statement had two fundamental constraints on ICANN's powers: a "picket fence," and a requirement that policies imposed by ICANN on DNS participants have to be developed through a consensus-based multi-stakeholder process. The Board's comments appear to do away with both of these constraints. Instead, the Board would substitute a simplified Mission Statement - "to ensure the stable and secure operation of the global, interoperable Internet's unique identifier systems" - a statement that ICANN will only as "reasonably appropriate" to achieve that Mission, and two additional Principles: (1) that "ICANN's entering into and enforcement of Registry and Registrar contracts is an important component of ICANN's work in coordination and allocation of names in the Root Zone of the DNS"; and (2) that "ICANN is not a regulator, and does not regulate content through these contracts." The consensus requirement has disappeared entirely. As I read it, anything that the ICANN Board decides is "reasonably appropriate" for the "stable and secure operation of the [DNS]" is within its power to impose on third parties - whether or not it has been subject of consensus decision-making. And the Mission Statement is watered down still further in regard to the question of ICANN's contracting powers. The CCWG proposal already acknowledged that "ICANN shall have the ability to negotiate, enter into, and enforce agreements with contracted parties in service of its Mission." This was intended to make clear that ICANN's powers to impose conditions on 3d parties through its contracts are limited by the Mission; ICANN can't make an "end run" around the Mission Statement limitations through its contracts. The Board's comment omits that italicized language, which would seem to imply a view that ICANN's power to contract with others (including Registries and Registrars) is NOT subject to ICANN's Mission, and that ICANN can condition access to the DNS on whatever conditions it sees fit to impose. If that's what was intended, I believe it represents a serious difference of opinion. Finally, why does the Board prefer its language in its Principle 2 - "ICANN is not a regulator, and does not regulate content through these contracts" - to the CCWG proposal language "ICANN shall not impose regulations on services that use the Internet's unique identifiers or the content such services carry or provide" ? To use an example we used before: Suppose ICANN requires all registrants to agree to abide by the decisions of its new Consumer Protection Dispute Resolution Procedure (CPDRP),which will evaluate claims of consumer fraud. A challenger says: "That's outside of ICANN's Mission, and it violates the "no content regulation" principle." I think it's fair to say that we want that challenge to succeed - this is precisely the sort of thing we don't want ICANN to be doing in the future. But under the Board's view, ICANN will be able to say: "No, we're not a regulator - and this isn't a 'regulation' of content or anything else - it's just a contract, and we can do what we like through our contracts." Unless I'm misreading your comments, it's difficult for me to see how these views can be reconciled. David At 03:13 PM 12/14/2015, Burr, Becky wrote:

Bruce -

Could I ask for some clarification on the Board’s comments on the Mission statement?

1. I understand that ICANN has an “operational” role with respect to names, but I am not sure why that is not encompassed by concept of “implementation of domain name policies”? (The Mission statement does not limit ICANN’s role to policy development, and specifically includes policy implementation.) So, it is important to understand what the Board means when it refers to “allocation and assignment of names in the root zone” and to understand why such activities might fall outside of policy implementation. It would help to have concrete examples of the Board’s concern here, because I suspect we agree that ICANN does not have authority to allocate and assign new gTLDs outside of a policy development process, or to allocate and assign ccTLDs outside RFC 1591. The Board’s view here also has important implications for resolving 2.B. below

2. I understand the Board is concerned about vague language regarding contractual enforcement. But I’’m a little vague on what language is and is not acceptable to the Board (keeping in mind that none of this is intended as final Bylaws language).

A. Does the Board accept (both conceptually and as a concept in the Bylaws) that “ICANN shall act strictly in accordance with, and only as reasonably appropriate to achieve its Mission”?

B. Does the Board propose to replace (in some place other than the Mission Statement) the following two concepts:

ICANN shall not impose regulations on services that use the Internet’s unique identifiers or the content that such services carry or provide; and ICANN shall have the ability to negotiate, enter into, and enforce agreements with contracted parties in service of its Mission

With these concepts:

ICANN’s entering into and enforcement of Registry and Registrar contracts is an important component of ICANN’s work in coordination and allocation of names in the Root Zone of the DNS; and ICANN is not a regulator and does not regulate content through these contracts. [Aside - I assume ICANN is merely asserting its status here, and is not actually willing to agree to language prohibiting it from acting as a “regulator”]

3. Whether or not the following concepts belong in the Bylaws, does the Board agree that:

I. The prohibition on regulation of “content” is not intended to prevent ICANN policies from taking into account the use of domain names as identifiers in various natural languages; II. Spec 1 of the RA and Spec 4 of the RAA describe activities within ICANN’s Mission; and III. The parties to existing Registry Agreements and Registrar Accreditation Agreements are bound by those agreements.

Thanks.

B

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

From: Bruce Tonkin <<mailto:Bruce.Tonkin@melbourneit.com.au>Bruce.Tonkin@melbourneit.com.au> Date: Monday, December 14, 2015 at 5:49 AM To: Accountability Community <<mailto:accountability-cross-community@icann.org>accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

Hello Jordan,

Thanks for posting to the list.

The comments are also available in the public comment forum at:

<https://urldefense.proofpoint.com/v2/url?u=http-3A__forum.icann.org_lists_comments-2Ddraft-2Dccwg-2Daccountability-2Dproposal-2D30nov15_msg00011.html&d=CwMGaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=iW32Hzmtks3csdT35yoDnewxY1qpThZOMgm4lAhs1is&s=5YoT41DhstPoCt-F83_aupS65UqO3DBFX9YrdeFCgdA&e=>http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30nov15/msg00011.html

We had a half day meeting of the full Board on Thursday 10 Dec, and then spent a few hours again with the full Board finalizing the comments yesterday – Sunday 13 Dec. That was in addition to another half day meeting held on Saturday 5 Dec. All dates are relative to my time zone J

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

******************************* David G Post - Senior Fellow, Open Technology Institute/New America Foundation blog (Volokh Conspiracy) http://www.washingtonpost.com/people/david-post book (Jefferson's Moose) http://tinyurl.com/c327w2n music http://tinyurl.com/davidpostmusic publications etc. http://www.davidpost.com *******************************

On 16/12/2015 05:56, Bruce Tonkin wrote:

...

...

B. Does the Board propose to replace (in some place other than the Mission Statement) the following two concepts:

...

...

ICANN shall not impose regulations on services that use the Internet's unique identifiers or the content that such services carry or provide; and ICANN shall have the ability to negotiate, enter into, and enforce agreements with contracted parties in service of its Mission

...

...

With these concepts:

...

...

ICANN's entering into and enforcement of Registry and Registrar contracts is an important component of ICANN's work in coordination and allocation of names in the Root Zone of the DNS; and ICANN is not a regulator and does not regulate content through these contracts.

Yes - as noted before though the key will be in developing appropriate bylaws language. It is not easy to draft.

...

...

[Aside - I assume ICANN is merely asserting its status here, and is not actually willing to agree to language prohibiting it from acting as a "regulator"]

Our US legal advisors have been consistent in that they do not believe that ICANN is a regulator under the US legal environment.

Nobody is suggesting that ICANN is a "regulator" in the sense of "a public authority invested with statutory or constitutional powers". We were thinking more of the general concept of "bringing registrants into conformity with ICANN policy through contractual requirements". CCWG wants to draw a bright line between the area where ICANN is supposed to develop policy (and enforce that policy through contracts) and the area where we believe ICANN should not have a policy. And we want this line to be enforceable by the IRP. We want this to be a clear and predictable "bright line" because we want it to be easy for ICANN to avoid stepping over it, and because we want predictable outcomes from the IRP in the event that it is alleged ICANN has done so. What we have been discussing is whether ICANN should be allowed to use its authority in DNS policy, and the contractual chain it holds with Registries, Registrars and Registrants, to seek to control what content domain registrants may or may not publish on web sites (or other such systems). Broadly speaking, we think that for ICANN to seek to limit what people are allowed to put on web sites is on the wrong side of that line. The wording is difficult, because finding words to generalise from "web sites" to other equivalent systems isn't easy, and because we don't want to inadvertently interfere with ICANN's ability to 'regulate' registrars, for example. And we've had to make further accomodations for existing activities (the grandfather clause). But the basic concept is pretty straightforward, even if the wording is not. So I beg of colleagues not to re-open discussion of the wording based on my loose description above; it's only a loose approximation. Nonetheless we need to know, does the Board support that basic idea? If it does, then we are fine. As Becky says, the final wording is still to go to lawyers. If it does not, I believe we have an irreconcilable difference. Malcolm. -- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

Thank goodness! In which case, there's no need to get worked up about the word "regulate"; it can be replaced by lawyers constructing the final bylaws text in accordance with this basic intent. On 16/12/2015 11:14, Bruce Tonkin wrote:

Hello Malcolm,

...

...

CCWG wants to draw a bright line between the area where ICANN is supposed to develop policy (and enforce that policy through contracts) and the area where we believe ICANN should not have a policy. And we want this line to be enforceable by the IRP.

The Board supports that concept.

...

...

What we have been discussing is whether ICANN should be allowed to use its authority in DNS policy, and the contractual chain it holds with Registries, Registrars and Registrants, to seek to control what content domain registrants may or may not publish on web sites (or other such systems).

...

...

Broadly speaking, we think that for ICANN to seek to limit what people are allowed to put on web sites is on the wrong side of that line.

We agree.

...

...

Nonetheless we need to know, does the Board support that basic idea?

We do.

Regards, Bruce Tonkin

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

-- Malcolm Hutty | tel: +44 20 7645 3523 Head of Public Affairs | Read the LINX Public Affairs blog London Internet Exchange | http://publicaffairs.linx.net/ London Internet Exchange Ltd Monument Place, 24 Monument Street, London EC3R 8AJ Company Registered in England No. 3137929 Trinity Court, Trinity Street, Peterborough PE1 1DA

Bruce, according to the CCWG charter, any determination by the board that a CCWG recommendation is “not in the public interest” requires a 2/3 majority of the board. Your comments contain 2 or 3 items which the board deems not in the “public interest.” Yet, as far as I can tell, no record of a vote is available. In order to verify that the board has actually passed its threshold, please provide a tally of the voting board members on each of those 3 items: 1. Inspection rights 2. Mission statement 3. Human rights Thanks, --MM From: accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] On Behalf Of Bruce Tonkin Sent: Monday, December 14, 2015 5:49 AM To: Accountability Cross Community Subject: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Hello Jordan, Thanks for posting to the list. The comments are also available in the public comment forum at: http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30n... We had a half day meeting of the full Board on Thursday 10 Dec, and then spent a few hours again with the full Board finalizing the comments yesterday – Sunday 13 Dec. That was in addition to another half day meeting held on Saturday 5 Dec. All dates are relative to my time zone ☺ Regards, Bruce Tonkin

Hi, On Mon, Dec 14, 2015 at 11:19:35PM +0000, Mueller, Milton L wrote:

a 2/3 majority of the board. Your comments contain 2 or 3 items which the board deems not in the “public interest.”

What I read is that the board might have to ask that question later, not that it has made a determination now. What did I miss? Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com

Hi Milton, Perhaps the below, which I sent to the ccTLD community yesterday, will help you to understand what the Board's position is. Chris

Hello All,

You will probably by now have seen that the Board has submitted some comments in respect to the Third CCWG-Accountability Draft Proposal and an accompanying letter from Steve Crocker. In case you haven’t seen these yet, they are attached.

I thought it was important, as a ccNSO elected member of the Board, to write to you to explain the background to these comments and offer to discuss them with you at your convenience.

I am writing personally and not at the behest of the Board nor to provide you with input/comment from the Board. These are my personal opinions about where I think the Board is at, their motivation (and mine) for making the comments and what some of the comments might mean.

In my opinion, the Board is 100% supportive of the transition and filled with admiration for the work and effort of those involved in the CCWG. The Board believes that there are a number of areas of concern in the report that need to be dealt with. I stress that these are concerns of the Board as a whole. They are not concerns of staff that have simply been agreed to by the Board but rather concerns that the Board has expressed. Whilst the comment document has been drafted by staff (as has the draft proposal from the CCWG) this has been done at the direction of the Board and the full Board has unanimously endorsed the comments.

Some of these areas of concern can be characterised as ‘might it be better if’ areas but a small number are of higher concern. The Board has carefully considered these and provided detailed comment together with suggestions for dealing with the problem(s) that the Board perceives. There may be other solutions to the problems and the Board is not tied to its suggested solution.

In my opinion, the Board believes that if these higher concern recommendations (or parts thereof) are not dealt with then when the Board applies the global public interest test, in accordance with its resolution of 16 October 2014 (https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2.d), there is a significant chance that the Board will find that some of those recommendations do not meet that test.

I fully endorse the Board comments and I believe that it is in all of our best interests as ccTLD managers to take them into account. I encourage you to carefully consider the CCWG recommendations and the comments of the Board and to provide your input to the ccNSO Council. I fully respect that some of you will not agree with all (or any!) of the comments of the Board but hope that, given my role and my commitment to the ccNSO and ccTLDs generally, you will understand that these comments are well intentioned and made in an effort to solve real issues with the current CCWG draft.

I stress again that the Board is, in my opinion, 100% behind the transition. However, the transition has to be 'done right' and ‘transition at all costs’ is not an acceptable stance, in my view. I know the time line is important but I would rather miss a deadline than not deal with the very real concerns of a group of 19 experienced individuals who have been nominated or elected to the Board to serve the ICANN community and to act in their best interests.

I will be delighted to answer any questions (on or off list) and to talk to you one-on-one or as a group. I stand ready to do whatever it takes to get a CCWG Final Report out to NTIA as soon as possible.

Cheers,

Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111 | F: +61 3 8341 4112 E: ceo@auda.org.au | W: www.auda.org.au auDA

On 15 Dec 2015, at 14:48, Mueller, Milton L <milton@gatech.edu> wrote:

Andrew:

...

What I read is that the board might have to ask that question later, not that it has made a determination now. What did I miss?

You missed the broader political context, as usual. While you are correct that the board statement does not explicitly say that the recommendations are not in the public interest, it is for all practical purposes issuing a threat. The threat is: change this to our liking or we will delay indefinitely the conclusion of this process by invoking our (unilaterally imposed) power to not accept the recommendation.

Specifically, here is what the board said:

" the Board will have to consider whether its concerns were addressed, and whether the final recommendations (including the specifics within those recommendations) are in the global public interest."

Given the timeline and the current situation, that is not only a threat, but a rather cowardly and disruptive one. If the board really does not believe that the recommendations "meet the global public interest", I want to know, and I think the entire CCWG and ICANN community has a right to know, how many board members, and which board members, share this opinion.

If the board is not willing to provide this information, then their comments are merely a suggestion, on t he order of any other public comment, and the CCWG can disregard those suggestions and go with its own opinion if it so chooses.

If the board as a whole, or at least 2/3 of it, really does believe that those recommendations are not acceptable to it (and frankly, I do not believe that the board is any better than determining what is in the global public interest than the CCWG, which is larger and more representative than the board) then they need to tell us now. And we have a right to know who those board members are.

We really don't have time to play games with hints and allegations.

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Hello Kavouss - I understood the Board comments to mean that the Board thinks the that the contractual issue should not be addressed in the Mission statement, but somewhere else to be determined by counsel. So I am not certain. But I agree this likely impacts the Mission Statement. 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: Kavouss Arasteh <kavouss.arasteh@gmail.com<mailto:kavouss.arasteh@gmail.com>> Date: Tuesday, December 15, 2015 at 12:23 AM To: Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>> Cc: Accountability Community <accountability-cross-community@icann.org<mailto:accountability-cross-community@icann.org>> Subject: Re: [CCWG-ACCT] FW: Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Dear Becky 1.You said that Quote "B. Does the Board propose to replace (in some place other than the Mission Statement) the following two concepts: ICANN shall not impose regulations on services that use the Internet’s unique identifiers or the content that such services carry or provide; and ICANN shall have the ability to negotiate, enter into, and enforce agreements with contracted parties in service of its Mission" Unquote May request you to kindly advise which on « in some place other than the Mission Statement” 2. Even if in those some other places that you referred the changes made by the Board ,it would have direct impact on the “ Mission Statement” on which many hours were spent to agree to the proposed language. May I respectfully ask your clarification please Regards Kavouss 2015-12-15 5:17 GMT+01:00 Chris Disspain <ceo@auda.org.au<mailto:ceo@auda.org.au>>: Hi Milton, Perhaps the below, which I sent to the ccTLD community yesterday, will help you to understand what the Board's position is. Chris Hello All, You will probably by now have seen that the Board has submitted some comments in respect to the Third CCWG-Accountability Draft Proposal and an accompanying letter from Steve Crocker. In case you haven’t seen these yet, they are attached. I thought it was important, as a ccNSO elected member of the Board, to write to you to explain the background to these comments and offer to discuss them with you at your convenience. I am writing personally and not at the behest of the Board nor to provide you with input/comment from the Board. These are my personal opinions about where I think the Board is at, their motivation (and mine) for making the comments and what some of the comments might mean. In my opinion, the Board is 100% supportive of the transition and filled with admiration for the work and effort of those involved in the CCWG. The Board believes that there are a number of areas of concern in the report that need to be dealt with. I stress that these are concerns of the Board as a whole. They are not concerns of staff that have simply been agreed to by the Board but rather concerns that the Board has expressed. Whilst the comment document has been drafted by staff (as has the draft proposal from the CCWG) this has been done at the direction of the Board and the full Board has unanimously endorsed the comments. Some of these areas of concern can be characterised as ‘might it be better if’ areas but a small number are of higher concern. The Board has carefully considered these and provided detailed comment together with suggestions for dealing with the problem(s) that the Board perceives. There may be other solutions to the problems and the Board is not tied to its suggested solution. In my opinion, the Board believes that if these higher concern recommendations (or parts thereof) are not dealt with then when the Board applies the global public interest test, in accordance with its resolution of 16 October 2014 (https://www.icann.org/resources/board-material/resolutions-2014-10-16-en#2.d<https://urldefense.proofpoint.com/v2/url?u=https-3A__www.icann.org_resources_board-2Dmaterial_resolutions-2D2014-2D10-2D16-2Den-232.d&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=n16Hqi4KARgo6ZXKrHJnKijRh7u4_NLRPH73DZvDPIU&s=jLNRSYxhMb2DnoFA6RFmb9J5OLlLA99qnMTa-Tr5ITI&e=>), there is a significant chance that the Board will find that some of those recommendations do not meet that test. I fully endorse the Board comments and I believe that it is in all of our best interests as ccTLD managers to take them into account. I encourage you to carefully consider the CCWG recommendations and the comments of the Board and to provide your input to the ccNSO Council. I fully respect that some of you will not agree with all (or any!) of the comments of the Board but hope that, given my role and my commitment to the ccNSO and ccTLDs generally, you will understand that these comments are well intentioned and made in an effort to solve real issues with the current CCWG draft. I stress again that the Board is, in my opinion, 100% behind the transition. However, the transition has to be 'done right' and ‘transition at all costs’ is not an acceptable stance, in my view. I know the time line is important but I would rather miss a deadline than not deal with the very real concerns of a group of 19 experienced individuals who have been nominated or elected to the Board to serve the ICANN community and to act in their best interests. I will be delighted to answer any questions (on or off list) and to talk to you one-on-one or as a group. I stand ready to do whatever it takes to get a CCWG Final Report out to NTIA as soon as possible. Cheers, Chris Disspain | Chief Executive Officer .au Domain Administration Ltd T: +61 3 8341 4111<tel:+61%203%208341%204111> | F: +61 3 8341 4112<tel:+61%203%208341%204112> E: ceo@auda.org.au<mailto:ceo@auda.org.au> | W: www.auda.org.au<https://urldefense.proofpoint.com/v2/url?u=http-3A__www.auda.org.au_&d=CwMFa...> auDA On 15 Dec 2015, at 14:48, Mueller, Milton L <milton@gatech.edu<mailto:milton@gatech.edu>> wrote: Andrew: What I read is that the board might have to ask that question later, not that it has made a determination now. What did I miss? You missed the broader political context, as usual. While you are correct that the board statement does not explicitly say that the recommendations are not in the public interest, it is for all practical purposes issuing a threat. The threat is: change this to our liking or we will delay indefinitely the conclusion of this process by invoking our (unilaterally imposed) power to not accept the recommendation. Specifically, here is what the board said: " the Board will have to consider whether its concerns were addressed, and whether the final recommendations (including the specifics within those recommendations) are in the global public interest." Given the timeline and the current situation, that is not only a threat, but a rather cowardly and disruptive one. If the board really does not believe that the recommendations "meet the global public interest", I want to know, and I think the entire CCWG and ICANN community has a right to know, how many board members, and which board members, share this opinion. If the board is not willing to provide this information, then their comments are merely a suggestion, on t he order of any other public comment, and the CCWG can disregard those suggestions and go with its own opinion if it so chooses. If the board as a whole, or at least 2/3 of it, really does believe that those recommendations are not acceptable to it (and frankly, I do not believe that the board is any better than determining what is in the global public interest than the CCWG, which is larger and more representative than the board) then they need to tell us now. And we have a right to know who those board members are. We really don't have time to play games with hints and allegations. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=n16Hqi4KARgo6ZXKrHJnKijRh7u4_NLRPH73DZvDPIU&s=VjATWkfuZFf8kCC7I1rtH3WBuzaWF_bTNo1AbBPYOSQ&e=> _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org<mailto:Accountability-Cross-Community@icann.org> https://mm.icann.org/mailman/listinfo/accountability-cross-community<https://urldefense.proofpoint.com/v2/url?u=https-3A__mm.icann.org_mailman_listinfo_accountability-2Dcross-2Dcommunity&d=CwMFaQ&c=MOptNlVtIETeDALC_lULrw&r=62cJFOifzm6X_GRlaq8Mo8TjDmrxdYahOP8WDDkMr4k&m=n16Hqi4KARgo6ZXKrHJnKijRh7u4_NLRPH73DZvDPIU&s=VjATWkfuZFf8kCC7I1rtH3WBuzaWF_bTNo1AbBPYOSQ&e=>

On 16/12/2015 10:27, Bruce Tonkin wrote:

Hello Becky,

We had recommended splitting the text into a simple mission statement followed by a scope of responsibility.

The Mission Statement should be a short and simple statement that conveys what ICANN's purpose is and relates to the specific sector of activities in which ICANN operates.

Scope of Responsibilities: The Board suggests that the purpose of this section is to define ICANN's current scope of responsibilities within its Mission and in service to its Mission. It should describe what ICANN does, not how it does it, and must not change ICANN's existing role because that would have consequences for ICANN's operations, commitments, and responsibility to the Community

Bruce, I saw this comment, but was uncertain as to the motivation for it. Do you simply want a nice, short, simple Mission for "marketing and communications" purposes? If so, I see no particular difficulty. I can see that it might be helpful in some contexts. However, we also say that the Mission is limited, that ICANN may not act outside the Mission, and that part of the IRP's job is to ajudicate on whether it has done so (and stop it from doing so), and all this is part of Fundamental Bylaws. If we split "Mission" into two parts, "Mission" and "Scope", are you content that all the corresponding changes are made so that the effect remains the same. i.e. The Bylaws say that the Scope is limited, that ICANN may not act outside the Scope, and that part of the IRP's job is to ajudicate on whether it has done so (and stop it from doing so), and all this also be part of Fundamental Bylaws? If we do that, all we've done is a wording change that may be helpful for communications. If, on the other hand, you want to move text out of the Mission definition into "Scope", but leave the Mission as the basis under which a challenge that ICANN has acted ultra vires is considered, (with the possibility that ICANN may act outside its Scope without recourse) then you are asking for a substantial change to the Mission limitation. I'm uncertain as to which you intend. Malcolm.

Suitable bylaws language supports the following two principles can be incorporated into the scope of responsibilities: (1) ICANN's entering into and enforcement of Registry and Registrar contracts is an important component of ICANN's work in coordination and allocation of names in the Root Zone of the DNS, and (2) ICANN is not a regulator, and does not regulate content through these contracts.

"does not regulate" -> "shall not regulate". The latter is a prohibiion; the former is merely an assertion.

Regards, Bruce Tonkin

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Hello Malcolm,

...

Do you simply want a nice, short, simple Mission for "marketing and communications" purposes? If so, I see no particular difficulty. I can see that it might be helpful in some contexts.

The concept is that a mission statement should be simple statement that is unlikely ever to be changed. The scope of responsibilities was intended to set out the current scope of responsibilities within its mission as agreed with the community. I expect these would be fundamental bylaws, but could be changed or refined over time in accordance with the process for changing fundamental bylaws. We constantly review ICANN's organization with AoC reviews, structure reviews etc - and in future some of these reviews may recommend changes. As part of the mission statement, we may get asked to manage different sets of identifiers that is consistent with the mission. We would check with the community to see if it is within the current scope of responsibilities. If not - any proposal to move forward would need community approval via the fundamental bylaws process. An example of a new function that ICANN took on in 2011 was the Internet time zone database: See: https://www.icann.org/en/system/files/press-materials/release-14oct11-en.pdf This is outside of any contract with the NTIA, and was outside of sets of parameters managed for the IETF at the time. We took on that task - and it is probably within the scope of responsibilities that we have laid out. If it wasn't then there is a clear process for fundamental bylaws change that could enacted. When making a change - we wouldn't scare the world by saying that ICANN is changing its mission - we would simply be taking on an additional responsibility that is consistent with the mission as agreed with the ICANN community. Using an analogy - you could say that NASA's mission is to explore space, but its current scope is unmanned missions to visit planets and other objects in our solar system. IN future the scope could be to send ships to visit distant stars, or build a colony on Mars . The mission doesn't change - but the scope does change. Some years ago the "vision" of NSASA was to put people on the moon. This vision was achieved but the mission is the same. Regards, Bruce Tonkin

On 16-Dec-15 05:27, Bruce Tonkin wrote:

(2) ICANN is not a regulator, and does not regulate content through these contracts.

doesn't this just mean it is not a content regulator without indicating that it is not a regulator in any other aspect of the role? avri --- This email has been checked for viruses by Avast antivirus software. https://www.avast.com/antivirus

+1 Becky, well-stated. On Wednesday, December 16, 2015, Burr, Becky <Becky.Burr@neustar.biz> wrote:

I believe, as Bruce indicated, that ICANN¹s counsel has long taken the+ position that ICANN is not a ³regulator² period. I think we could agree that ICANN doesn¹t have the kind of statutory grant of authority that sovereigns usually confer on formal regulatory bodies, but to me that is enormously irrelevant. ICANN regulates - the New gTLD Application Guidebook reflected bottom up policy making supplemented with implementing ³rules.² Just because no one is forced to apply for a new gTLD doesn¹t eliminate the regulatory role played by ICANN when it comes to registries and registrars.

So the question - and it is an important question - is what is the scope of ICANN¹s regulatory authority. As I¹ve said more than a few times, the scope of that authority is the picket fence.

I would be shocked if Bruce was to report that ICANN would agree to a prohibition on ³regulation² - and I don¹t think anything that the CCWG has done so far asks for that. Rather, the reference in the Board comments is likely just a reiteration of counsel¹s oft-repeated but IMHO meaningless assertion that ICANN does not have formal regulatory authority granted by a sovereign.

If it walks like a duck etc.

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>

On 12/16/15, 2:23 PM, "Avri Doria" <avri@acm.org <javascript:;>> wrote:

...

On 16-Dec-15 05:27, Bruce Tonkin wrote:

...

(2) ICANN is not a regulator, and does not regulate content through these contracts.

doesn't this just mean it is not a content regulator without indicating that it is not a regulator in any other aspect of the role?

avri

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Agree with Avri here: ICANN is responsible for several regulatory aspects of the DNS market, and should do so.

it is not a content regulator

That does not exclude normal regulatory aspects. CW On 16 Dec 2015, at 20:23, Avri Doria <avri@acm.org> wrote:

On 16-Dec-15 05:27, Bruce Tonkin wrote:

...

(2) ICANN is not a regulator, and does not regulate content through these contracts.

doesn't this just mean it is not a content regulator without indicating that it is not a regulator in any other aspect of the role?

avri

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Excuse and ignore last message. Wrong list! Sent from my BlackBerry 10 smartphone. 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: psc@vlaw-dc.com Sent: Wednesday, December 16, 2015 5:45 PM To: Christopher Wilkinson; Avri Doria; BRUCE TONKIN Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations No. Those are just ISP endorsements. CSG needs to coalesce. Sent from my BlackBerry 10 smartphone. 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: Christopher Wilkinson Sent: Wednesday, December 16, 2015 5:38 PM To: Avri Doria; BRUCE TONKIN Cc: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Agree with Avri here: ICANN is responsible for several regulatory aspects of the DNS market, and should do so.

it is not a content regulator

That does not exclude normal regulatory aspects. CW On 16 Dec 2015, at 20:23, Avri Doria <avri@acm.org> wrote:

On 16-Dec-15 05:27, Bruce Tonkin wrote:

...

(2) ICANN is not a regulator, and does not regulate content through these contracts.

doesn't this just mean it is not a content regulator without indicating that it is not a regulator in any other aspect of the role?

avri

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-----Original Message----- We had recommended splitting the text into a simple mission statement followed by a scope of responsibility.

The Mission Statement should be a short and simple statement that conveys what ICANN's purpose is and relates to the specific sector of activities in which ICANN operates.

Bruce, Please refer to David Post's critique of the alternative mission language in the board comments. Note in particular the absence of any commitment to bottom up, MS consensus as the basis for policy, and the absence of any recognition that contracting must be within mission. As I said in my just-prior message, it's difficult for us to take a unilateral, one-stakeholder rewrite of the entire mission statement seriously at this point. Rather than proposing to start over, the board needs to help us focus on getting the CCWG's intent into specific bylaw language that works. --MM

You are also ignoring the fact that the Board's threat is completely contrary to the promise of the CEO to the Senate that the Board would transmit whatever proposal it got from CCWG-A without modification. I find the Board's threat and behavior deeply unfortunate. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Mueller, Milton L [mailto:milton@gatech.edu] Sent: Monday, December 14, 2015 10:47 PM To: Andrew Sullivan <ajs@anvilwalrusden.com>; accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] FW: Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Andrew:

What I read is that the board might have to ask that question later, not that it has made a determination now. What did I miss?

You missed the broader political context, as usual. While you are correct that the board statement does not explicitly say that the recommendations are not in the public interest, it is for all practical purposes issuing a threat. The threat is: change this to our liking or we will delay indefinitely the conclusion of this process by invoking our (unilaterally imposed) power to not accept the recommendation. Specifically, here is what the board said: " the Board will have to consider whether its concerns were addressed, and whether the final recommendations (including the specifics within those recommendations) are in the global public interest." Given the timeline and the current situation, that is not only a threat, but a rather cowardly and disruptive one. If the board really does not believe that the recommendations "meet the global public interest", I want to know, and I think the entire CCWG and ICANN community has a right to know, how many board members, and which board members, share this opinion. If the board is not willing to provide this information, then their comments are merely a suggestion, on t he order of any other public comment, and the CCWG can disregard those suggestions and go with its own opinion if it so chooses. If the board as a whole, or at least 2/3 of it, really does believe that those recommendations are not acceptable to it (and frankly, I do not believe that the board is any better than determining what is in the global public interest than the CCWG, which is larger and more representative than the board) then they need to tell us now. And we have a right to know who those board members are. We really don't have time to play games with hints and allegations. _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

On Tue, Dec 15, 2015 at 09:32:29AM -0500, Paul Rosenzweig wrote:

You are also ignoring the fact that the Board's threat is completely contrary to the promise of the CEO to the Senate that the Board would transmit whatever proposal it got from CCWG-A without modification. I find the Board's threat and behavior deeply unfortunate.

I don't see where in its comments the board said it would fail to transmit the CCWG-A's output without modification. Can you point that out, please? It seems obvious to me that, if the board transmitted a proposal along with the observation that at least 2/3 of the board members do not believe it to be in the global public interest, that would be a bad thing. But I'm not yet convinced the distance between the views is unbridgeable, as long as we take everyone's efforts to be in good faith rather than assuming they're attempts to force some view on others. We may yet fail, but there's no reason to fail early. Best regards, A -- Andrew Sullivan ajs@anvilwalrusden.com

Andrew My answer to you is the same one the Milton gave -- the Board's threat to veto is a "my way or the highway" statement that is unfortunate and contrary to their promise to the Senate. In particular, the ground was whether they would refuse to submit a proposal that diminished their authority. Fadi said they would submit such a proposal if it came from the community. The Board now says that such a proposal is not in the GPI and it will veto it ... Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: 'Andrew Sullivan' [mailto:ajs@anvilwalrusden.com] Sent: Tuesday, December 15, 2015 10:24 AM To: accountability-cross-community@icann.org Subject: Re: [CCWG-ACCT] FW: Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations On Tue, Dec 15, 2015 at 09:32:29AM -0500, Paul Rosenzweig wrote:

You are also ignoring the fact that the Board's threat is completely contrary to the promise of the CEO to the Senate that the Board would transmit whatever proposal it got from CCWG-A without modification. I find the Board's threat and behavior deeply unfortunate.

I don't see where in its comments the board said it would fail to transmit the CCWG-A's output without modification. Can you point that out, please? It seems obvious to me that, if the board transmitted a proposal along with the observation that at least 2/3 of the board members do not believe it to be in the global public interest, that would be a bad thing. But I'm not yet convinced the distance between the views is unbridgeable, as long as we take everyone's efforts to be in good faith rather than assuming they're attempts to force some view on others. We may yet fail, but there's no reason to fail early. 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

Hello Paul,

...

You are also ignoring the fact that the Board's threat is completely contrary to the promise of the CEO to the Senate that the Board would transmit whatever proposal it got from CCWG-A without modification.

That commitment still stands. It is up to the CCWG to make any changes to recommendations based on Board input. Regards, Bruce Tonkin

Hello Bruce, I'm writing w.r.t. Recommendation 6, pages 19, 20 and 27 of the 14-Dec-15-Board_Comments_to_CCWG[1][1].pdf. First, I agree with the Board's observations (p19, para1) that the work has not progressed sufficient to allow non-placeholder text to be inserted into the Bylaws. Second, I appreciate the expression of concern (p19 and 20) that placeholder text may be construed by third-parties as having meaning not intended by its authors. Third, I wish to observe that to the best of my limited knowledge, no body of law is directly applicable to the "skitter core" (a term we owe to the intelligence and industrious activity of k.c. claffy and her co-workers at the Center for Applied Internet Data Analysis (CAIDA)), which is where the global uniqueness of identifiers (names-to-addresses) is manifested -- something not contained by any one territorial jurisdiction, yet present in all (including .kr, which has AS131279, announcing 175.45.176.0/22). This particular observation leads me to also observe that "the full scope of defined work on human rights should include consideration of impacts across all of ICANN's activities" is problematic. Whatever "human rights" may mean in the context of ICANN's core mission -- technical coordination of globally unique identifiers -- is the usual language -- it is unlikely that the same or even a comparable meaning exists for "human rights" within the contexts of the day to day operations of the offices in Los Angeles or Istanbul or Singapore, or the contexts of the Corporation and the Contracted Parties, etc., for which bodies of law exist. With regard to the Board's proposal (page 20, C) I wish to remind you as the Board's liaison of the exchange of notes on the subject of availability of, and correctness of, resolution of globally unique identifiers to underlying resources, in the CCWG mailing list, in which the current chair of a standards body has opined that prior efforts by the Corporation, through its Board Chair and CEO could be described as merely effecting operational concerns, not asserting some general right of access to resources through the resolution of globally unique identifiers. Finally, I wish to repeat the observation I shared at the Los Angeles face-to-face meeting of the CCWG, and many members of the Board -- that access to namespaces is within the direct control of the Corporation, and have been shown through the success of the .cat sponsored linguistic and cultural registry, the ccTLD IDN Fast Track program, and the expansion of the IDN Fast Track from ccTLDs to the 2014 new gTLD program, to have substantively advanced literacy and ease of use in (large populations) living languages. While not expressed as a "human right", the history of progressive support for namespaces and for identifiers in scripts other than the Latin script by the Corporation is a history of advancing a recognized human right. Personally I'm not concerned if this work is undertaken in WS1 or WS2, as I'm confident of the Board's intention to incorporate some meaningful, and correct, statement concerning the core function of the Corporation and some human rights, such as the advancement of languages other than English among users of the resources associated with globally unique identifiers via the DNS. Eric Brunner-Williams Eugene, Oregon On 12/14/15 2:49 AM, Bruce Tonkin wrote:

Hello Jordan,

Thanks for posting to the list.

The comments are also available in the public comment forum at:

http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30n...

We had a half day meeting of the full Board on Thursday 10 Dec, and then spent a few hours again with the full Board finalizing the comments yesterday – Sunday 13 Dec. That was in addition to another half day meeting held on Saturday 5 Dec. All dates are relative to my time zone J

Regards,

Bruce Tonkin

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Dear Bruce, Thank you again for providing our group with the Board comment. As raised in the CCWG call today, we are kindly requesting if the Board could provide our group with a response to the following question. What are the legal basis and criteria by which the Board considers a given Recommendation to be contrary to the Global Public Interest ? Clarification would really be useful to help our group, but also the Chartering Organizations, to check our own recommendations. Thank you for sharing this email with the Board, and happy to expand on the question if need be. Best, Thomas, Leon & Mathieu Co-chairs De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Bruce Tonkin Envoyé : lundi 14 décembre 2015 11:49 À : Accountability Cross Community Objet : Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Hello Jordan, Thanks for posting to the list. The comments are also available in the public comment forum at: http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30n... We had a half day meeting of the full Board on Thursday 10 Dec, and then spent a few hours again with the full Board finalizing the comments yesterday – Sunday 13 Dec. That was in addition to another half day meeting held on Saturday 5 Dec. All dates are relative to my time zone J Regards, Bruce Tonkin

Dear All, If in view of the Board some Recs. are against public interest and on the other hand they referred to the same issue( public interest to reject a given Recs.) Then I do not understand how they could refer to something for which( in their view ) there is no established definition and reject a Rec. using that non existent basis Regards Kavousd Sent from my iPhone

On 15 Dec 2015, at 16:11, Paul Rosenzweig <paul.rosenzweig@redbranchconsulting.com> wrote:

Since the Board acknowledges in its comments that there is currently no legal definition of “global public interest” the only reasonable answer to this question is “the judgment of 2/3rd of the Board.” To which I would respond that the “judgment of the CCWG-A” reflecting a rough consensus of the community is a far better judge of what is in the global public interest than the what 2/3rd of the Board say …. Indeed, the exercise of the Board’s “big foot” veto on GPI grounds is a textbook example of why greater accountability is needed.

Paul

Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key <image001.png>

From: Mathieu Weill [mailto:mathieu.weill@afnic.fr] Sent: Tuesday, December 15, 2015 2:47 AM To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au>; Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

Dear Bruce,

Thank you again for providing our group with the Board comment.

As raised in the CCWG call today, we are kindly requesting if the Board could provide our group with a response to the following question.

What are the legal basis and criteria by which the Board considers a given Recommendation to be contrary to the Global Public Interest ?

Clarification would really be useful to help our group, but also the Chartering Organizations, to check our own recommendations.

Thank you for sharing this email with the Board, and happy to expand on the question if need be.

Best, Thomas, Leon & Mathieu Co-chairs

De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Bruce Tonkin Envoyé : lundi 14 décembre 2015 11:49 À : Accountability Cross Community Objet : Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations

Hello Jordan,

Thanks for posting to the list.

The comments are also available in the public comment forum at:

http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30n...

We had a half day meeting of the full Board on Thursday 10 Dec, and then spent a few hours again with the full Board finalizing the comments yesterday – Sunday 13 Dec. That was in addition to another half day meeting held on Saturday 5 Dec. All dates are relative to my time zone J

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Dear Bruce, After the topic was raised again during our CCWG call today, may I kindly request an update on this request for clarification ? Best Mathieu De : Mathieu Weill [mailto:weill@afnic.fr] Envoyé : mardi 15 décembre 2015 08:34 À : Bruce Tonkin; Accountability Cross Community Cc : Kavouss Arasteh Objet : RE: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Dear Bruce, Thank you again for providing our group with the Board comment. As raised in the CCWG call today, we are kindly requesting if the Board could provide our group with a response to the following question. What are the legal basis and criteria by which the Board considers a given Recommendation to be contrary to the Global Public Interest ? Clarification would really be useful to help our group, but also the Chartering Organizations, to check our own recommendations. Thank you for sharing this email with the Board, and happy to expand on the question if need be. Best, Thomas, Leon & Mathieu Co-chairs De : accountability-cross-community-bounces@icann.org [mailto:accountability-cross-community-bounces@icann.org] De la part de Bruce Tonkin Envoyé : lundi 14 décembre 2015 11:49 À : Accountability Cross Community Objet : Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Hello Jordan, Thanks for posting to the list. The comments are also available in the public comment forum at: http://forum.icann.org/lists/comments-draft-ccwg-accountability-proposal-30n... We had a half day meeting of the full Board on Thursday 10 Dec, and then spent a few hours again with the full Board finalizing the comments yesterday – Sunday 13 Dec. That was in addition to another half day meeting held on Saturday 5 Dec. All dates are relative to my time zone J Regards, Bruce Tonkin

Hello Mathieu,

...

After the topic was raised again during our CCWG call today, may I kindly request an update on this request for clarification ?

Coming to an agreed definition of the global public interest is part of ICANN’s strategic plan. It is the 5th of five strategic initiatives: “Develop and implement a global public interest framework bounded by ICANN’s mission.” Until this is done, the Board is guided by the global public interest as set out in our Articles of Incorporation: in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, ICANN shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv)." By inference therefore any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board. Regards, Bruce Tonkin

With respect Bruce, that is not responsive. Your last statement that " any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board" is a truism -- but there are many things that might limit your ability (lack of funding say) that are not in any way connected to the global public interest. You cannot possibly mean that if the Board thinks it limits ICANN it is, by definition, not in the GPI -- or if you do mean that then the Board has a very, very inflated sense of itself and the relative importance of its mission. Likewise there are many things in the global public interest that would improve (or at least not diminish) ICANN's ability to deliver the services it is tasked with delivering. You can't possibly be saying that things which are affirmatively in the global interest (greater diversity, for example) are not in ICANN's definition of GPI if they can be judged by ICANN to interfere with its operations. That, in effect, gives the Board a veto to say that it if adversely effects us, it can't be in the GPI -- even when the broader definition of GPI clearly suggests that it is. The Board's objection to enhanced transparency (in its comments on the Third Proposal) is a perfect example of this latter case -- the Board substituting its own judgement of what is good for ICANN for a judgment of what is in the GPI. I am more than willing to agree that greater transparency might impose greater process restrictions on Board activity and thus, in some perverse sense, be read to "limit ICANN's ability to deliver" its services -- by putting in more restrictions on what the Board can do. But for the Board to equate that with a restriction that is contrary to the GPI is to mistake ICANN for the globe and ICANN's interests for those of the people it serves. I continue to be dismayed at this type of response from the Board which reflects a lack of understanding of what the accountability project is all about. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: Bruce Tonkin [mailto:Bruce.Tonkin@melbourneit.com.au] Sent: Wednesday, December 23, 2015 5:54 AM To: Accountability Cross Community <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Hello Mathieu,

...

After the topic was raised again during our CCWG call today, may I kindly request an update on this request for clarification ?

Coming to an agreed definition of the global public interest is part of ICANN’s strategic plan. It is the 5th of five strategic initiatives: “Develop and implement a global public interest framework bounded by ICANN’s mission.” Until this is done, the Board is guided by the global public interest as set out in our Articles of Incorporation: in recognition of the fact that the Internet is an international network of networks, owned by no single nation, individual or organization, ICANN shall, except as limited by Article 5 hereof, pursue the charitable and public purposes of lessening the burdens of government and promoting the global public interest in the operational stability of the Internet by (i) coordinating the assignment of Internet technical parameters as needed to maintain universal connectivity on the Internet; (ii) performing and overseeing functions related to the coordination of the Internet Protocol ("IP") address space; (iii) performing and overseeing functions related to the coordination of the Internet domain name system ("DNS"), including the development of policies for determining the circumstances under which new top-level domains are added to the DNS root system; (iv) overseeing operation of the authoritative Internet DNS root server system; and (v) engaging in any other related lawful activity in furtherance of items (i) through (iv)." By inference therefore any specifics of a proposal that could result in limiting ICANN’s ability to deliver on this role is a concern to the ICANN Board. Regards, Bruce Tonkin _______________________________________________ Accountability-Cross-Community mailing list Accountability-Cross-Community@icann.org https://mm.icann.org/mailman/listinfo/accountability-cross-community

Hello Paul,

...

You cannot possibly mean that if the Board thinks it limits ICANN it is, by definition, not in the GPI -- or if you do mean that then the Board has a very, very inflated sense of itself and the relative importance of its mission.

You are mis-reading my statement I think. I am not talking about limiting ICANN (whether through diversity or transparency), and I am talking about impacts on the ability of ICANN to deliver on its mission - which is set out in the Articles of Association and the Bylaws. Diversity - actually improves the ability for ICANN to deliver on its role and is supported by the Board. Transparency - is also supported by the Board. We have not made any comments against transparency. We are wary of getting tied up in processes where we need 100 staff to answer requests for information that are not always material but serve the curiosity of the requester. That would meant that we would not be devoting as many resources to our core mission as we should be. It is about ensuring an affective balance. Any information that is necessary for the ICANN community to make decisions will be made available. Regards, Bruce Tonkin

Hello James,

...

With respect Bruce that is a total misleading description of the transparency proposals that are in the CCWG’s 3rd Draft, the requirements that the CCWG have identified are based entirely on the existing California corporations code that hundreds if not thousands of non-profits both smaller and larger than ICANN adhere to on a daily basis without having a large staffing contingent to support that requirement.

I don’t believe I provided a description of the transparency proposal in the CCWG 3rd draft. I was responding to the general allegation that the Board did not support transparency. Our formal written feedback was provided in the context of the California corporations code. The law relating to access to records is quite brief, we have provided concrete processes implementing this power on the context of ICANN. We expect the processes set out in the bylaws will ultimately be adjudicated by the IRP process - and not a California court - so more detail on the processes is needed. We have actually gone beyond the bare minimum requirements in the corporations code - which relate to minutes of meetings and accounting records. We already provide much of that information publicly - so there is no need to visit the office and review minutes for example. We also provide quarterly financial reports. Accounting records on their own provide information on income received and suppliers paid. It doesn't always give you context. We stated: The Board supports a well-defined right of inspection of accounting records and minutes of meetings in support of the community powers. The Board proposes that the inspection right be framed in the Bylaws as follows: The community will have a right to seek accounting records and minutes of meetings that are related to the exercise of the Community Powers. To obtain records, the community should have a minimum of two SOs/ACs seeking a Community Forum on the topic, and no fewer than three SOs/ACs supporting a request for the records. The Sole Designator should have the power to enforce ICANN’s failure to abide by the records request, following an escalation path (as appropriate) of reconsideration, Ombudsman and ultimately IRP; the right to the records rests in the Empowered Community. This formation achieves a few objectives. First, similar to the use of inspection rights in the membership structure, this gives the community special access to records that are tethered to the powers that the community holds. Second, it reinforces the Empowered Community as having interests in the records, as opposed to making the Sole Designator as a separate power structure within ICANN. Third, because the inspection rights are tethered to the community powers, the Sole Designator is not being asked to take on inspection or investigatory powers that are beyond its enforcement role. With these limitations, the Board would support the inclusion of inspection rights in the Fundamental Bylaws. New Commitment to Investigations Separately, the Board understands that there could be areas where the community might wish to have additional power in requiring – and having transparency into – investigations of potential fraud or financial mismanagement in ICANN. To address these concerns, the Board supports the development of the following inspection or audit process: Upon three SOs/ACs coming together to identify a perceived issue with fraud or mismanagement of ICANN resources, ICANN will retain a third-party, independent firm (acceptable to the SOs/ACs that have identified the issue) to undertake a specified audit to investigate that issue. The audit report will be made public, and the ICANN Board will be required to consider the recommendations and findings of that report. The investigatory process should first be developed outside of the ICANN Bylaws, and can be incorporated into the Bylaws when appropriate. Allowing for the right to access specific documents related to the community powers, as well as a new ability to trigger third-party investigations, addresses the community concerns of greater access to documents and additional accountability in operations. These two companion processes provide a clear line between information that is appropriate for general public release (transparency), and information that may be confidential or proprietary but necessary to review if there are concerns raised about management practices. Regards, Bruce Tonkin

Dear Bruce This is a fact based question. Please share with us the work flow analysis and staffing assessment that the Board did which underlies this concern. In the absence of such a realistic analysis, this is, frankly, scare mongering. In particular, how does the Board think that giving a right of inspection to the SOs and ACs will cause such a problem? Frankly, I can't see it. Paul Paul Rosenzweig paul.rosenzweig@redbranchconsulting.com O: +1 (202) 547-0660 M: +1 (202) 329-9650 VOIP: +1 (202) 738-1739 Skype: paul.rosenzweig1066 Link to my PGP Key -----Original Message----- From: James Gannon [mailto:james@cyberinvasion.net] Sent: Thursday, December 24, 2015 6:53 AM To: Bruce Tonkin <Bruce.Tonkin@melbourneit.com.au>; 'Accountability Cross Community' <accountability-cross-community@icann.org> Subject: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Hi Bruce, Thanks for this, to make my own statement clearer I was referring to the following statement >We are wary of getting tied up in processes where we need 100 staff to answer requests for information that are not always material but serve the curiosity of the requester.That would meant that we would not be devoting as many resources to our core mission as we should be. Which I believe is not seated in the reality of how the CCWG’s 3rd proposal would be implemented nor the potential impact on ICANNs FTE’s or FTE allocations internally within ICANN. I don’t believe that statements like this serve any purpose in moving us forward or helping the community in understanding the genuine basis for the boards comments and positions. Intentionally or not this to me (I can’t speak for others but Im sure Im not alone) comes across as the board looking for reasons to object to certain recommendations, if the board believes or has received advice that the current CCWG proposal on transparency will genuinely be a human resources or financial burden of such scale that it will impact the SSR of the core mission of ICANN I would like to see evidence for such a position, because its not reflective of the evidence of the same burden on other corporations. I hope this clarifies, -James On 24/12/2015, 11:25 a.m., "accountability-cross-community-bounces@icann.org on behalf of Bruce Tonkin" <accountability-cross-community-bounces@icann.org on behalf of Bruce.Tonkin@melbourneit.com.au> wrote:

Hello James,

...

...

With respect Bruce that is a total misleading description of the transparency proposals that are in the CCWG’s 3rd Draft, the requirements that the CCWG have identified are based entirely on the existing California corporations code that hundreds if not thousands of non-profits both smaller and larger than ICANN adhere to on a daily basis without having a large staffing contingent to support that requirement.

I don’t believe I provided a description of the transparency proposal in the CCWG 3rd draft. I was responding to the general allegation that the Board did not support transparency.

Our formal written feedback was provided in the context of the California corporations code. The law relating to access to records is quite brief, we have provided concrete processes implementing this power on the context of ICANN. We expect the processes set out in the bylaws will ultimately be adjudicated by the IRP process - and not a California court - so more detail on the processes is needed.

We have actually gone beyond the bare minimum requirements in the corporations code - which relate to minutes of meetings and accounting records. We already provide much of that information publicly - so there is no need to visit the office and review minutes for example. We also provide quarterly financial reports. Accounting records on their own provide information on income received and suppliers paid. It doesn't always give you context.

We stated:

The Board supports a well-defined right of inspection of accounting records and minutes of meetings in support of the community powers.

The Board proposes that the inspection right be framed in the Bylaws as follows: The community will have a right to seek accounting records and minutes of meetings that are related to the exercise of the Community Powers. To obtain records, the community should have a minimum of two SOs/ACs seeking a Community Forum on the topic, and no fewer than three SOs/ACs supporting a request for the records. The Sole Designator should have the power to enforce ICANN’s failure to abide by the records request, following an escalation path (as appropriate) of reconsideration, Ombudsman and ultimately IRP; the right to the records rests in the Empowered Community.

This formation achieves a few objectives. First, similar to the use of inspection rights in the membership structure, this gives the community special access to records that are tethered to the powers that the community holds. Second, it reinforces the Empowered Community as having interests in the records, as opposed to making the Sole Designator as a separate power structure within ICANN. Third, because the inspection rights are tethered to the community powers, the Sole Designator is not being asked to take on inspection or investigatory powers that are beyond its enforcement role. With these limitations, the Board would support the inclusion of inspection rights in the Fundamental Bylaws.

New Commitment to Investigations

Separately, the Board understands that there could be areas where the community might wish to have additional power in requiring – and having transparency into – investigations of potential fraud or financial mismanagement in ICANN. To address these concerns, the Board supports the development of the following inspection or audit process: Upon three SOs/ACs coming together to identify a perceived issue with fraud or mismanagement of ICANN resources, ICANN will retain a third-party, independent firm (acceptable to the SOs/ACs that have identified the issue) to undertake a specified audit to investigate that issue. The audit report will be made public, and the ICANN Board will be required to consider the recommendations and findings of that report. The investigatory process should first be developed outside of the ICANN Bylaws, and can be incorporated into the Bylaws when appropriate.

Allowing for the right to access specific documents related to the community powers, as well as a new ability to trigger third-party investigations, addresses the community concerns of greater access to documents and additional accountability in operations. These two companion processes provide a clear line between information that is appropriate for general public release (transparency), and information that may be confidential or proprietary but necessary to review if there are concerns raised about management practices.

Regards, Bruce Tonkin

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

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This might be a minority position, but from my perspective, it is, by definition, impossible to define the global public interest. Public interest (except in an academic sense) is defined by what the relevant public authority thinks is the public interest. And the relevant public authority is a construct of the nation-state. As a gedankenexperiemnt, perhaps you might just take a moment to agree or disagree with the following statements :- 1a. It is in the public interest that LGBT people have the same rights and obligations as everyone else, and that anyone seeking to prevent this objective should face legal sanctions 1b. It is in the public interest that deviant behaviour, as exhibited by LGBT people is severely punished with legal sanctions. 2a. It is in the public interest that anyone be allowed to say anything they like, short of saying things which cause actual harm (such as falsely shouting 'fire' in a crowded theatre). 2b. It is in the public interest in a democratic society that there be some restrictions on what you can say or publish, particularly where the speech or publication argues in favour of e use of non-democratic or violent means to overthrow the constitutional order, or is said by certain organisations which have committed to such non-democratic overthrow. In some nations, 1b is the correct definition of the public interest, while 1a is anathema. In some nations 2a is the correct definition of the public interest, whilst in a number of Western nations, that is 2b. (You can imagine I have particular countries in mind in the examples above, but it's not necessary to name them) HOWEVER Regardless of the view of your society takes is of the above dichotomies, it is submitted that is the clearest possible example that a 'global public interest' will remain unsusceptible to definition, and any attempt to do so, is doomed to failure. Nigel On 26/12/15 11:46, Edward Morris wrote:

Hello Bruce, Thanks for this summary of the Board's concerns regarding Inspection rights, a restatement of the view offered by the Board in it's 14 December 2015 public response to the CCWG work stream one Proposal of 30 November 2015. Upon reading it would appear to me that this Board response did not take into account in it's comment the 10 December 2015 memo concerning Inspection proffered by the CCWG independent counsel (copy attached). I'm very supportive of and excited about the general way forward proposed by Counsel, notwithstanding that there are still several options for the community to consider within the context of the memorandum. Am I correct in my supposition that the contents of the aforementioned memo were not considered during the Board's deliberation on Inspection that resulted in the position taken and published in the Board's 14 December 2015 public comment? Kind Regards, Edward Morris ------------------------------------------------------------------------ *From*: "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> *Sent*: Thursday, December 24, 2015 11:27 AM *To*: "Accountability Cross Community" <accountability-cross-community@icann.org> *Subject*: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Hello James,

...

...

With respect Bruce that is a total misleading description of the transparency proposals that are in the CCWG’s 3rd Draft, the requirements that the CCWG have identified are based entirely on the existing California corporations code that hundreds if not thousands of non-profits both smaller and larger than ICANN adhere to on a daily basis without having a large staffing contingent to support that requirement.

I don’t believe I provided a description of the transparency proposal in the CCWG 3rd draft. I was responding to the general allegation that the Board did not support transparency.

Our formal written feedback was provided in the context of the California corporations code. The law relating to access to records is quite brief, we have provided concrete processes implementing this power on the context of ICANN. We expect the processes set out in the bylaws will ultimately be adjudicated by the IRP process - and not a California court - so more detail on the processes is needed.

We have actually gone beyond the bare minimum requirements in the corporations code - which relate to minutes of meetings and accounting records. We already provide much of that information publicly - so there is no need to visit the office and review minutes for example. We also provide quarterly financial reports. Accounting records on their own provide information on income received and suppliers paid. It doesn't always give you context.

We stated:

The Board supports a well-defined right of inspection of accounting records and minutes of meetings in support of the community powers.

The Board proposes that the inspection right be framed in the Bylaws as follows: The community will have a right to seek accounting records and minutes of meetings that are related to the exercise of the Community Powers. To obtain records, the community should have a minimum of two SOs/ACs seeking a Community Forum on the topic, and no fewer than three SOs/ACs supporting a request for the records. The Sole Designator should have the power to enforce ICANN’s failure to abide by the records request, following an escalation path (as appropriate) of reconsideration, Ombudsman and ultimately IRP; the right to the records rests in the Empowered Community.

This formation achieves a few objectives. First, similar to the use of inspection rights in the membership structure, this gives the community special access to records that are tethered to the powers that the community holds. Second, it reinforces the Empowered Community as having interests in the records, as opposed to making the Sole Designator as a separate power structure within ICANN. Third, because the inspection rights are tethered to the community powers, the Sole Designator is not being asked to take on inspection or investigatory powers that are beyond its enforcement role. With these limitations, the Board would support the inclusion of inspection rights in the Fundamental Bylaws.

New Commitment to Investigations

Separately, the Board understands that there could be areas where the community might wish to have additional power in requiring – and having transparency into – investigations of potential fraud or financial mismanagement in ICANN. To address these concerns, the Board supports the development of the following inspection or audit process: Upon three SOs/ACs coming together to identify a perceived issue with fraud or mismanagement of ICANN resources, ICANN will retain a third-party, independent firm (acceptable to the SOs/ACs that have identified the issue) to undertake a specified audit to investigate that issue. The audit report will be made public, and the ICANN Board will be required to consider the recommendations and findings of that report. The investigatory process should first be developed outside of the ICANN Bylaws, and can be incorporated into the Bylaws when appropriate.

Allowing for the right to access specific documents related to the community powers, as well as a new ability to trigger third-party investigations, addresses the community concerns of greater access to documents and additional accountability in operations. These two companion processes provide a clear line between information that is appropriate for general public release (transparency), and information that may be confidential or proprietary but necessary to review if there are concerns raised about management practices.

Regards, Bruce Tonkin

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

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Avri, GPI is not limited to HR. Any description of GPI will be subject to challenge due to the fact that GPI is a cumulative of national/nation PI which varies From country to country snd culture to culture. Regards Kavousd Sent from my iPhone

On 26 Dec 2015, at 16:25, Avri Doria <avri@acm.org> wrote:

I think what you are expressing in your two dichotomies is a perversion of a the national understanding of public interest. This is not Global Public Interest (GPI), but national prejudice and politics.

We are talking about a Global Public Interest that is always rooted in the Human Rights that have been agreed to by most all nations, and that are as applicable on the Internet as off. In CASE 1, the fact that nation states infringe these rights and incite their people to do so, does not determine these action as being in Global Public Interest.

As with most thought experiments, the issue is misdirected. The problem is not understanding the source of national actions. The problem is in understanding what the GPI might be in the global ICANN context. I agree with those who argue that it can't be fully predicted a-priori in some academic exercise. It is something that needs to be discovered through our bottom-up processes that not only takes the bottom -up understanding into account but deals with their diversity and always has at its root ICANN principles, including adherence to International legal instruments including human rights. The GPI is always in the process of further discovery in each new circumstance and issue.

This process based understanding does not mean we can, therefore, ignore GPI. I disagree with all those who argue that GPI should be put aside because it is hard to figure out. Our policy process has to embody the process of discovering the GPI in the context and mission of ICANN in each case. I agree that we will never know the all of GPI in any finite sense, but that does not mean it can be ignored. We have to constantly work to understand the GPI as we discuss policy. This discovery has to be a central tenet in all ICANN processes.

It also does not mean that the Board gets to decide on GPI. Yes, their 'end of the day' vote and ensuing bottom-up negotiations are are part of developing that understanding, but they are not the ones to determine whether something is or is not in the GPI. They may question whether something is and send the question back for further discussion, but the idea that the Board could make a decision that something is not in the GPI is absurd. The absurdity is vividly expressed when we read that they are capable of stating that human rights might not be in the GPI, when human rights are first and foremost the principles on which GPI must be based. In your examples case 1, is definitely a case where human rights is a determinant that option 1B is a crime not GPI. In the second example, the issue is one that is still in the process of a the tussle among several human rights and the discussion goes on. The cases pretend to be parallel, but they aren't. In Case 1, no one is harmed by someone's sexual preference or gender expression, and persecution of types of people is never in keeping with human rights standards. In Case 2, the question is of the harm that may or not be caused by words is the basis of the determination.

The process of discovering the GPI must be part of our work at ICANN.

avri

...

On 26-Dec-15 07:48, Nigel Roberts wrote: This might be a minority position, but from my perspective, it is, by definition, impossible to define the global public interest.

Public interest (except in an academic sense) is defined by what the relevant public authority thinks is the public interest. And the relevant public authority is a construct of the nation-state.

As a gedankenexperiemnt, perhaps you might just take a moment to agree or disagree with the following statements :-

1a. It is in the public interest that LGBT people have the same rights and obligations as everyone else, and that anyone seeking to prevent this objective should face legal sanctions

1b. It is in the public interest that deviant behaviour, as exhibited by LGBT people is severely punished with legal sanctions.

2a. It is in the public interest that anyone be allowed to say anything they like, short of saying things which cause actual harm (such as falsely shouting 'fire' in a crowded theatre).

2b. It is in the public interest in a democratic society that there be some restrictions on what you can say or publish, particularly where the speech or publication argues in favour of e use of non-democratic or violent means to overthrow the constitutional order, or is said by certain organisations which have committed to such non-democratic overthrow.

In some nations, 1b is the correct definition of the public interest, while 1a is anathema.

In some nations 2a is the correct definition of the public interest, whilst in a number of Western nations, that is 2b.

(You can imagine I have particular countries in mind in the examples above, but it's not necessary to name them)

HOWEVER Regardless of the view of your society takes is of the above dichotomies, it is submitted that is the clearest possible example that a 'global public interest' will remain unsusceptible to definition, and any attempt to do so, is doomed to failure.

Nigel

...

On 26/12/15 11:46, Edward Morris wrote: Hello Bruce, Thanks for this summary of the Board's concerns regarding Inspection rights, a restatement of the view offered by the Board in it's 14 December 2015 public response to the CCWG work stream one Proposal of 30 November 2015. Upon reading it would appear to me that this Board response did not take into account in it's comment the 10 December 2015 memo concerning Inspection proffered by the CCWG independent counsel (copy attached). I'm very supportive of and excited about the general way forward proposed by Counsel, notwithstanding that there are still several options for the community to consider within the context of the memorandum. Am I correct in my supposition that the contents of the aforementioned memo were not considered during the Board's deliberation on Inspection that resulted in the position taken and published in the Board's 14 December 2015 public comment? Kind Regards, Edward Morris

---

...

*From*: "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> *Sent*: Thursday, December 24, 2015 11:27 AM *To*: "Accountability Cross Community" <accountability-cross-community@icann.org> *Subject*: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Hello James,

...

...

With respect Bruce that is a total misleading description of the transparency proposals that are in the CCWG’s 3rd Draft, the requirements that the CCWG have identified are based entirely on the existing California corporations code that hundreds if not thousands of non-profits both smaller and larger than ICANN adhere to on a daily basis without having a large staffing contingent to support that requirement.

I don’t believe I provided a description of the transparency proposal in the CCWG 3rd draft. I was responding to the general allegation that the Board did not support transparency.

Our formal written feedback was provided in the context of the California corporations code. The law relating to access to records is quite brief, we have provided concrete processes implementing this power on the context of ICANN. We expect the processes set out in the bylaws will ultimately be adjudicated by the IRP process - and not a California court - so more detail on the processes is needed.

We have actually gone beyond the bare minimum requirements in the corporations code - which relate to minutes of meetings and accounting records. We already provide much of that information publicly - so there is no need to visit the office and review minutes for example. We also provide quarterly financial reports. Accounting records on their own provide information on income received and suppliers paid. It doesn't always give you context.

We stated:

The Board supports a well-defined right of inspection of accounting records and minutes of meetings in support of the community powers.

The Board proposes that the inspection right be framed in the Bylaws as follows: The community will have a right to seek accounting records and minutes of meetings that are related to the exercise of the Community Powers. To obtain records, the community should have a minimum of two SOs/ACs seeking a Community Forum on the topic, and no fewer than three SOs/ACs supporting a request for the records. The Sole Designator should have the power to enforce ICANN’s failure to abide by the records request, following an escalation path (as appropriate) of reconsideration, Ombudsman and ultimately IRP; the right to the records rests in the Empowered Community.

This formation achieves a few objectives. First, similar to the use of inspection rights in the membership structure, this gives the community special access to records that are tethered to the powers that the community holds. Second, it reinforces the Empowered Community as having interests in the records, as opposed to making the Sole Designator as a separate power structure within ICANN. Third, because the inspection rights are tethered to the community powers, the Sole Designator is not being asked to take on inspection or investigatory powers that are beyond its enforcement role. With these limitations, the Board would support the inclusion of inspection rights in the Fundamental Bylaws.

New Commitment to Investigations

Separately, the Board understands that there could be areas where the community might wish to have additional power in requiring – and having transparency into – investigations of potential fraud or financial mismanagement in ICANN. To address these concerns, the Board supports the development of the following inspection or audit process: Upon three SOs/ACs coming together to identify a perceived issue with fraud or mismanagement of ICANN resources, ICANN will retain a third-party, independent firm (acceptable to the SOs/ACs that have identified the issue) to undertake a specified audit to investigate that issue. The audit report will be made public, and the ICANN Board will be required to consider the recommendations and findings of that report. The investigatory process should first be developed outside of the ICANN Bylaws, and can be incorporated into the Bylaws when appropriate.

Allowing for the right to access specific documents related to the community powers, as well as a new ability to trigger third-party investigations, addresses the community concerns of greater access to documents and additional accountability in operations. These two companion processes provide a clear line between information that is appropriate for general public release (transparency), and information that may be confidential or proprietary but necessary to review if there are concerns raised about management practices.

Regards, Bruce Tonkin

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If left to the GAC, GPI becomes the intersection of National Public Interests, i.e. their consensus point. And if they are the only ones concerning themselves with GPI as opposed to it being one of the strategic priorities for ICANN as a whole then that is all we have to work on. avri On 26-Dec-15 13:20, Dr Eberhard W Lisse wrote:

Not really wanting to wade into ICANN 's (ab)use of whatever GPI is to further their interests, but I don't think it is the sum of National Interests.

el

-- Sent from Dr Lisse's iPhone 6s

On 26 Dec 2015, 19:27 +0200, Kavouss Arasteh <kavouss.arasteh@gmail.com>, wrote:

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Avri, GPI is not limited to HR. Any description of GPI will be subject to challenge due to the fact that GPI is a cumulative of national/nation PI which varies From country to country snd culture to culture. Regards Kavousd

Sent from my iPhone

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Yes but the entire world composed of Nations, I do not think the GAC representing the world' nations . They representing the governments only. Are you suggesting that the PI of all nations are identical? I do not believe so thus it would be r trembly difficult to define GPI. Regards Kavouss Sent from my iPhone

On 26 Dec 2015, at 19:30, Avri Doria <avri@acm.org> wrote:

Never said it was limited to human rights. Said it needed to be rooted in human rights. And yes, it is interpreteddiversity of stakeholders, in ICANN's case, in the context of their concerns and within ICANN's global mission.

National PI is something that is brought in within the GAC and will be part of their consensus advice. If we ignore GPI in the wider sense, as so many seem to wish to do, we end up in a situation where the only people talking about public interest are the members states of the GAC from their national perspectives. That would not seem optimum to me

avri

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On 26-Dec-15 12:25, Kavouss Arasteh wrote: Avri, GPI is not limited to HR. Any description of GPI will be subject to challenge due to the fact that GPI is a cumulative of national/nation PI which varies From country to country snd culture to culture. Regards Kavousd

Sent from my iPhone

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On 26 Dec 2015, at 16:25, Avri Doria <avri@acm.org> wrote:

I think what you are expressing in your two dichotomies is a perversion of a the national understanding of public interest. This is not Global Public Interest (GPI), but national prejudice and politics.

We are talking about a Global Public Interest that is always rooted in the Human Rights that have been agreed to by most all nations, and that are as applicable on the Internet as off. In CASE 1, the fact that nation states infringe these rights and incite their people to do so, does not determine these action as being in Global Public Interest.

As with most thought experiments, the issue is misdirected. The problem is not understanding the source of national actions. The problem is in understanding what the GPI might be in the global ICANN context. I agree with those who argue that it can't be fully predicted a-priori in some academic exercise. It is something that needs to be discovered through our bottom-up processes that not only takes the bottom -up understanding into account but deals with their diversity and always has at its root ICANN principles, including adherence to International legal instruments including human rights. The GPI is always in the process of further discovery in each new circumstance and issue.

This process based understanding does not mean we can, therefore, ignore GPI. I disagree with all those who argue that GPI should be put aside because it is hard to figure out. Our policy process has to embody the process of discovering the GPI in the context and mission of ICANN in each case. I agree that we will never know the all of GPI in any finite sense, but that does not mean it can be ignored. We have to constantly work to understand the GPI as we discuss policy. This discovery has to be a central tenet in all ICANN processes.

It also does not mean that the Board gets to decide on GPI. Yes, their 'end of the day' vote and ensuing bottom-up negotiations are are part of developing that understanding, but they are not the ones to determine whether something is or is not in the GPI. They may question whether something is and send the question back for further discussion, but the idea that the Board could make a decision that something is not in the GPI is absurd. The absurdity is vividly expressed when we read that they are capable of stating that human rights might not be in the GPI, when human rights are first and foremost the principles on which GPI must be based. In your examples case 1, is definitely a case where human rights is a determinant that option 1B is a crime not GPI. In the second example, the issue is one that is still in the process of a the tussle among several human rights and the discussion goes on. The cases pretend to be parallel, but they aren't. In Case 1, no one is harmed by someone's sexual preference or gender expression, and persecution of types of people is never in keeping with human rights standards. In Case 2, the question is of the harm that may or not be caused by words is the basis of the determination.

The process of discovering the GPI must be part of our work at ICANN.

avri

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On 26-Dec-15 07:48, Nigel Roberts wrote: This might be a minority position, but from my perspective, it is, by definition, impossible to define the global public interest.

Public interest (except in an academic sense) is defined by what the relevant public authority thinks is the public interest. And the relevant public authority is a construct of the nation-state.

As a gedankenexperiemnt, perhaps you might just take a moment to agree or disagree with the following statements :-

1a. It is in the public interest that LGBT people have the same rights and obligations as everyone else, and that anyone seeking to prevent this objective should face legal sanctions

1b. It is in the public interest that deviant behaviour, as exhibited by LGBT people is severely punished with legal sanctions.

2a. It is in the public interest that anyone be allowed to say anything they like, short of saying things which cause actual harm (such as falsely shouting 'fire' in a crowded theatre).

2b. It is in the public interest in a democratic society that there be some restrictions on what you can say or publish, particularly where the speech or publication argues in favour of e use of non-democratic or violent means to overthrow the constitutional order, or is said by certain organisations which have committed to such non-democratic overthrow.

In some nations, 1b is the correct definition of the public interest, while 1a is anathema.

In some nations 2a is the correct definition of the public interest, whilst in a number of Western nations, that is 2b.

(You can imagine I have particular countries in mind in the examples above, but it's not necessary to name them)

HOWEVER Regardless of the view of your society takes is of the above dichotomies, it is submitted that is the clearest possible example that a 'global public interest' will remain unsusceptible to definition, and any attempt to do so, is doomed to failure.

Nigel

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On 26/12/15 11:46, Edward Morris wrote: Hello Bruce, Thanks for this summary of the Board's concerns regarding Inspection rights, a restatement of the view offered by the Board in it's 14 December 2015 public response to the CCWG work stream one Proposal of 30 November 2015. Upon reading it would appear to me that this Board response did not take into account in it's comment the 10 December 2015 memo concerning Inspection proffered by the CCWG independent counsel (copy attached). I'm very supportive of and excited about the general way forward proposed by Counsel, notwithstanding that there are still several options for the community to consider within the context of the memorandum. Am I correct in my supposition that the contents of the aforementioned memo were not considered during the Board's deliberation on Inspection that resulted in the position taken and published in the Board's 14 December 2015 public comment? Kind Regards, Edward Morris

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*From*: "Bruce Tonkin" <Bruce.Tonkin@melbourneit.com.au> *Sent*: Thursday, December 24, 2015 11:27 AM *To*: "Accountability Cross Community" <accountability-cross-community@icann.org> *Subject*: Re: [CCWG-ACCT] Fwd: FW: ICANN Board Comments on Third CCWG-Accountability Draft Proposal on Work Stream 1 Recommendations Hello James,

...

> With respect Bruce that is a total misleading description of the transparency proposals that are in the CCWG’s 3rd Draft, the requirements that the CCWG have identified are based entirely on the existing California corporations code that hundreds if not thousands of non-profits both smaller and larger than ICANN adhere to on a daily basis without having a large staffing contingent to support that requirement. I don’t believe I provided a description of the transparency proposal in the CCWG 3rd draft. I was responding to the general allegation that the Board did not support transparency.

Our formal written feedback was provided in the context of the California corporations code. The law relating to access to records is quite brief, we have provided concrete processes implementing this power on the context of ICANN. We expect the processes set out in the bylaws will ultimately be adjudicated by the IRP process - and not a California court - so more detail on the processes is needed.

We have actually gone beyond the bare minimum requirements in the corporations code - which relate to minutes of meetings and accounting records. We already provide much of that information publicly - so there is no need to visit the office and review minutes for example. We also provide quarterly financial reports. Accounting records on their own provide information on income received and suppliers paid. It doesn't always give you context.

We stated:

The Board supports a well-defined right of inspection of accounting records and minutes of meetings in support of the community powers.

The Board proposes that the inspection right be framed in the Bylaws as follows: The community will have a right to seek accounting records and minutes of meetings that are related to the exercise of the Community Powers. To obtain records, the community should have a minimum of two SOs/ACs seeking a Community Forum on the topic, and no fewer than three SOs/ACs supporting a request for the records. The Sole Designator should have the power to enforce ICANN’s failure to abide by the records request, following an escalation path (as appropriate) of reconsideration, Ombudsman and ultimately IRP; the right to the records rests in the Empowered Community.

This formation achieves a few objectives. First, similar to the use of inspection rights in the membership structure, this gives the community special access to records that are tethered to the powers that the community holds. Second, it reinforces the Empowered Community as having interests in the records, as opposed to making the Sole Designator as a separate power structure within ICANN. Third, because the inspection rights are tethered to the community powers, the Sole Designator is not being asked to take on inspection or investigatory powers that are beyond its enforcement role. With these limitations, the Board would support the inclusion of inspection rights in the Fundamental Bylaws.

New Commitment to Investigations

Separately, the Board understands that there could be areas where the community might wish to have additional power in requiring – and having transparency into – investigations of potential fraud or financial mismanagement in ICANN. To address these concerns, the Board supports the development of the following inspection or audit process: Upon three SOs/ACs coming together to identify a perceived issue with fraud or mismanagement of ICANN resources, ICANN will retain a third-party, independent firm (acceptable to the SOs/ACs that have identified the issue) to undertake a specified audit to investigate that issue. The audit report will be made public, and the ICANN Board will be required to consider the recommendations and findings of that report. The investigatory process should first be developed outside of the ICANN Bylaws, and can be incorporated into the Bylaws when appropriate.

Allowing for the right to access specific documents related to the community powers, as well as a new ability to trigger third-party investigations, addresses the community concerns of greater access to documents and additional accountability in operations. These two companion processes provide a clear line between information that is appropriate for general public release (transparency), and information that may be confidential or proprietary but necessary to review if there are concerns raised about management practices.

Regards, Bruce Tonkin

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I'm very supportive of efforts to explore and define GPI within ICANN's remit. I hope to be involved in those efforts, which could be significant (at least in level of effort). But it should not be a factor in our discussions of the Board's comments on the the Third Draft Proposal. We are not going to achieve a breakthrough with the Board because we have The Definition of Global Public Interest. With regard to our work right now, this is a red herring. On Saturday, December 26, 2015, Avri Doria <avri@acm.org> wrote:

On 26-Dec-15 15:58, Kavouss Arasteh wrote:

...

Are you suggesting that the PI of all nations are identical?

No.

avri

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Avri, That was the point of my original message. The board claims to speak for the global public and to be able to divine its interest; we (CCWG) claim also to speak for the global public and to be able to divine its interest. This conflict will NOT be resolved by defining GPI. It is the _application_ of some conception of GPI to any particular issue that will be contentious. So let's accept the fact that we will be debating applications, not definitions. And the applications will be shaped by how the parties are affected.

-----Original Message----- As long as the Board is not calling on GPI as their reason for countering the community's proposals, I can agree. But as long as they are in a position to declare that as their reason for anything, we are forced to deal with the issue. The Board does not define the GPI. We all work on understanding it together.

avri

Nigel, Our problem domain is a subset of signaling, obviously signaling between two or more, necessarily disjoint, parties. The problem domain has been around for a very long time, and instances of computer-to-computer communication, a subset closer to our present interest, greatly predate the adoption of iso3166-1, and also the conversion to IPv4. Were we to retain the initial problem point of view, any means to signal changes of state between two or more parties, a binary semaphore, would suffice. However, agreements for the representations of octal-valued, hexadecimal-valued, and eventually Latin script letters and Hindu-Arabic base10 digits developed autonomously, and some were adopted by those working on communicating systems. We can, without fear of contradiction, state that communication of information encoded generally as finite symbol sets corresponding to scripts in which human languages are communicated, is an interest which predates the invention of nation states, and is at the core of our little part of the signaling problem domain -- signaling between two or more devices, where the signaling is packetized and transmitted over the routing infrastructure (requiring allocation of address identifiers), and may, as an ancillary feature, consist in part or in whole, of text, some of which may be associated with an allocated address identifier as an allocated name identifier, for the convenience of the communicants. We can therefore, again, without fear of contradiction, state that restricting the support for finite symbol sets to exclude some scripts, and therefore some human languages, is inconsistent with the general design principle. Thus we have an interest which is general within the problem domain of distributed systems, in particular those which are DNS aware, for which no necessity exists to identify this interest with an iso3166-1 code point allocated actor. Eric Brunner-Williams Eugene, Oregon On 12/26/15 4:48 AM, Nigel Roberts wrote:

Public interest (except in an academic sense) is defined by what the relevant public authority thinks is the public interest. And the relevant public authority is a construct of the nation-state.

Hi Bruce,

Transparency - is also supported by the Board. We have not made any comments against transparency.

That's not entirely true, but I certainly welcome the willingness of the Board to accept the basic premise of greater transparency and to give the community Inspection rights - although the details are very important and still under consideration, the openness of the Board to these ideas are a break from past attitudes and a very good sign. Thank you.

We are wary of getting tied up in processes where we need 100 staff to answer requests for information that are not always material but serve the curiosity of the requester.

I share these concerns and am confident that working together in a spirit of cooperation and compromise the Board and the community can reach a mutually acceptable outcome that addresses this concern while giving the community the transparency desired. I note that the Board is today having great difficulty meeting the timelines of our current accountability mechanisms. Reconsideration requests, for example, are not being handled within the period suggested in the Bylaws. It is in no ones interest to overburden staff or the Board with unrealistic demands, but at the same time one needs to refrain from using this possibility as a Trojan Horse preventing us from reaching our shared goal. If all parties act in good faith, refrain from threats (which, in my view, has not always happened) and work together I'm confident we'll be able to come up with an approach that works for everyone. Best, Ed Morris

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Hello Kavouss,

...

In view of that above, I am not convinced neither by logic nor substance of your argument and thus you need to further reflect on the way you wish to reach a compromise with CCWG.

Just to be clear – the Board is very willing to work with the CCWG to address concerns that we have raised. We have suggested some potential solutions, but are well aware that these are not the only solutions. We welcome the opportunity to increase our engagement to work with the CCWG on these concerns, and come up with alternative approaches. I am heartened by the fact that significant progress has been made between the second and third drafts. Many of the areas that we were concerned with in the second draft have been addressed. Our recent comments mostly address new material in the 3rd draft. Our preferred outcome is that we don’t have any such vote that indicates that we believe that something is not in the global public interest. Let's work together in good faith to continue to improve the proposal. Regards, Bruce Tonkin

Hello Edward,

We are wary of getting tied up in processes where we need 100 staff to answer requests for information that are not always material but serve the curiosity of the requester.

...

I share these concerns and am confident that working together in a spirit of cooperation and compromise the Board and the community can reach a mutually acceptable outcome that addresses this concern while giving the community the transparency desired.

I am also confident that we can reach a mutually acceptable outcome.

...

I note that the Board is today having great difficulty meeting the timelines of our current accountability mechanisms. Reconsideration requests, for example, are not being handled within the period suggested in the Bylaws.

Yes in addition to the usual load of reconsideration requests - the Board members are also working on the new CEO selection process, as well as working on reading and developing comments on the CCWG work. It takes several days of calls for example to develop each set of comments for the CCWG public comment periods. I am not happy that we have missed the deadlines on responding to reconsideration requests. It is an area I will working to improve. It has been challenging recently to find time for a meeting when the members of the BGC are all on the ground (rather than in an aircraft) and available for a teleconference across time-zones.

...

If all parties act in good faith, refrain from threats (which, in my view, has not always happened) and work together I'm confident we'll be able to come up with an approach that works for everyone.

Agreed. Regards, Bruce Tonkin